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2012 DIGILAW 631 (JHR)

Baidyanath Prasad v. State of Jharkhand

2012-04-24

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
JUDGMENT 1. By Court Heard learned counsel for the parties. 2. This review petition has been preferred by Senior Divisional Engineer (East), Ranchi seeking review of order dated 12.09.2008 passed in W.P.(PIL) No. 1114 of 2008. 3. Facts of the case, in brief, are that the respondent (Baidyanath Prasad) preferred one writ petition in the form of 'Public Interest Litigation', which has been registered as W.P. (PIL) No. 1114 of 2008. In the writ petition, the writ petitioner prayed that the authorities of the South Eastern Railway as also the Secretary, Ranchi Regional Development Authority (R.R.D.A) be directed to stop the operation of earth removing work which is taking place for construction of drains from Katharkocha to Birsa Chowk and further the authorities of the South Eastern Railway be directed to construct a pucca road from Birsa Chowk to Katharkocka or to construct underground railway crossing at Katharkocha and in the alternative, connect the road to Katharkocha railway bridge taking into consideration the interest of the people living in that area. 4. The respondent-railway authority submitted that construction of road, as suggested by the writ petitioner, is not possible as it is Railways' land near Railway line and is needed by Railway. However, it was admitted that the land was used for road but unauthorizedly by the petitioner and the residents of the locality for last more than 100 years and new road is not required for the people living in that area. 5. The R.R.D.A also took the same stand and admitted that the road which is being used by public belongs to South Eastern Railway and, therefore, they are not in a position to upgrade the road which, according to respondent-Railway, is unauthorizedly used by the commuters. 6. After taking note of the fact referred above, the Division Bench of this Court observed as under: It is no body's case that this land which is being used by the people at large should be taken away from the railways and no one has come forward to assert that the land do not belong to the railways. Hence, we although accept the contention of the counsel for the railways that the land belongs to hem, we cannot ignore the fact that it is being used by the general public for the last 100 years and yet it has not been converted into a pucca road. Hence, we although accept the contention of the counsel for the railways that the land belongs to hem, we cannot ignore the fact that it is being used by the general public for the last 100 years and yet it has not been converted into a pucca road. But we are also equally conscious of the fact that if the railway has any project in future to up-grade the railway tracks, they cannot be prevented from doing so merely because the road is being used by the public. But, as of now, they do not have any project to use this land in any manner than to allow the commuters who have been consistently and regularly using it. 7. Thereafter, the Division Bench of this Court directed the respondent-railway to coordinate with the R.R.D.A for constructing a pucca road, which at present is being used by the commuters with a rider that if, in future, the respondent-railway wants to use this land for any other purpose, they can divert this road to any other place for allowing ingress and outgress of the public by providing an alternative site for the road. 8. In the same order, in last but one, contention of learned counsel for the South Eastern Railway that the South Eastern Railway has already a project for the use of the land, which is due to be started shortly and hence will require this land, was taken note of by the Division Bench of this Court and it was observed that the liberty already referred may be availed by seeking a direction from this Court for modification or withdrawal of this Order, by which, road is ordered to be constructed. 9. Being aggrieved against order dated 12.09.2008, this review petition has been filed whereas the writ petitioner has field a Contempt Petition being, Cont. (Civil) Case No. 179 of 2009, on the ground that in spite of order dated 12.09.2008, referred above, road was not constructed. 10. In the contempt petition, on 27.7.2009, after recording statement of learned counsel for the petitioner that they did not have interest in pressing this contempt petition, the Division Bench, referred the matter to the Mediator at Ranchi for settlement of issue raised in the writ petition and the grant of appropriate relief, if possible. 10. In the contempt petition, on 27.7.2009, after recording statement of learned counsel for the petitioner that they did not have interest in pressing this contempt petition, the Division Bench, referred the matter to the Mediator at Ranchi for settlement of issue raised in the writ petition and the grant of appropriate relief, if possible. The Director, Judicial Academy, was also directed to assist the counsel for the parties for referring the matter to an appropriate Mediator. The matter was, in fact, considered by the Mediator but admittedly no final settlement arrived at was taken and thereafter the parties pressed for deciding the contempt petition and review petition. 11. In the background of these facts, this review petition was heard. Before hearing the review petition, this Court on 7.02.2012 directed the Railway to submit a detailed map indicating the distance between the railway track and the disputed land. The railway was further directed to submit the width of the road, which is claimed by the writ petitioner and also as to whether any way is running behind the houses of the persons who are claiming the road of way towards the railway track. The railway was further directed to submit whether the houses of these persons are on railway land or not and the petitioner will also be free to submit their documents of title of their houses. 12. Learned counsel for the review petitioner-railway, with the help of colored photographs, placed on record, and with the help of sketched map, vehemently submitted that the houses are near the railway track and so far as having a kacha way since last 100 years is concerned, it is a false statement, in view of the fact that the land was acquired by the railway in the year 1959-60 and, therefore, if the contention of the writ petitioner is accepted then they were the owner of land before it was acquired by the railway. However, review-petitioner is not admitting the prior title of the writ petitioners over the land. 13. Be that as it may be, the railway became the owner of the land by acquisition of the land by following the provisions of law and this finding of fact has been recored in impugned order dated 27.07.2009 that no body is disputing the title of land vesting in the railway. 14. 13. Be that as it may be, the railway became the owner of the land by acquisition of the land by following the provisions of law and this finding of fact has been recored in impugned order dated 27.07.2009 that no body is disputing the title of land vesting in the railway. 14. It is submitted by learned counsel for the railway that for the purpose of safety some land is required to be kept open for certain emergencies near the railway track. Photographs of relevant portion has been annexed as Annexure-J/1, with the supplementary affidavit in Civil Review No. 9 of 2009. 15. We need not to go into the details of these facts and we proceed to examine whether there is apparent error on the face of impugned order or not? And whether the Railway is the owner of the land, over which, writ petitioners are their right of Road. However, the stand of the writ petitioner is only that they are claiming under their purported right created by easement. It appears from the impugned order that by taking sympathetic view to the difficulties of the writ petitioner, the Division Bench of this Court, even after holding that the title of the land vested in the railway, it has been ordered that a pucca road may be constructed and at the same time, took a stand that if, the railways have to start project over the land yet ordered that the railways will be free to move appropriate application for modification of the order. While doing so, some material fact, which has been placed on record before us, were not brought to notice in the writ petition and that were more important, which were the facts regarding public safety and, therefore, the issue is required to be considered as to whether in a case the petitioners were using the land for their way yet whether it is in public interest to continue that way and if so then, what should be the width of the way. Without declaring the width of the way, even such relief as granted could not have been granted to the writ petitioners because of the reason that if even after taking care of safety measures of railway and railway track, there is space available then only in public interest any order could have been passed for allowing the way. Without declaring the width of the way, even such relief as granted could not have been granted to the writ petitioners because of the reason that if even after taking care of safety measures of railway and railway track, there is space available then only in public interest any order could have been passed for allowing the way. Furthermore, the contention of the counsel for the railway that they have some project for the land in dispute when the order itself was passed then in that situation, whether it was just and proper to pass an order and issue a direction to construct a road could only be in ignorance of the arguments advanced by counsel for the railway. Therefore, there appears to be error on the face of record, namely, the Division Bench have not taken into consideration the relevant material facts; distance from the railway track and the land sought for use as road and another material error on the face of record is that no finding has been recorded that in case right of way of the petitioners is recognized and right of the railway is also recognized and railway has right to use the land in future even after construction of the pucca road, whether any alternative road can be provided and can be ordered by the Court in Public Interest Litigation. Therefore, without going into the details, we are of the considered opinion that review petition deserves to be allowed and hence allowed and impugned order dated 12.09.2008 is set aside and writ petition being W.P.(PIL) No. 1114 of 2008 is restored to its original number. 16. Since, number of documents have been submitted in the review petition before us, that may have been submitted in writ petition itself and to have the clarity, we direct both the parties to submit a comprehensive paper book including all the documents which they want to rely upon in the petition, which alone shall be considered by us in W.P. (PIL) No. 1114 of 2008. The respondent-railway and other respondents may file that paper book wherein they may include all the documents which they had already filed either in the review petition or in the contempt petition or before the mediators, containing in one set in reply to the writ petition. 17. The respondent-railway and other respondents may file that paper book wherein they may include all the documents which they had already filed either in the review petition or in the contempt petition or before the mediators, containing in one set in reply to the writ petition. 17. Learned counsel for the petitioner submitted that the petitioner will be filing such set of petition within two months. The respondents may file its reply within a month thereafter. 18. In view of the order passed in review petition, the contempt petition does not survive, hence, Cont. (Civil) Case No. 179 of 2009 is dismissed. 19. In the meanwhile, both the parties shall maintain status quo and in case any of the parties, including the railway wants to have some project to be implemented urgently, they may move appropriate application to obtain order. 20. Put up W.P. (PIL) No. 1114 of 2008 for orders on 23rd July, 2012.