IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1930 of 2009(D)
1. P.N. PANKAJAKSHAN PILLAI, AGED 66 YEARS,
... Petitioner
2. M.J. MATHEW, AGED 40 YEARS,
Vs
1. UNION OF INDIA, REPRESENTED BY THE
... Respondent
2. THE GENERAL MANAGER,
3. THE DIVSIONAL RAILWAY MANAGER,
4. THE SENIOR DIVISIONAL ENGINEER,
5. THE ASSISTANT DIVISIONAL ENGINEER,
For Petitioner :SRI.T.C.GOVINDA SWAMY
For Respondent :SRI.VARGHESE P.THOMAS, SR.SC,RAILWAYS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/01/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 1930 OF 2009 (D)
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Dated this the 23rd day of January, 2009
J U D G M E N T
Petitioners are residents in houses situated on the side of the railway
track between Ernakulam Town and Ernakulam Junction. It is stated that
a passage was provided to them for enjoyment of their properties since
1905, when the track was laid. According to them, this was suddenly
blocked by the 5th respondent from 12th of January 2009 and it is with that
complaint, they have filed the writ petition wherein they have also stated
that both the petitioners have applied for Way leave as provided under
Section 17 of the Railways Act, 1989 by Exts. P1 and P2 addressed to the
4th respondent.
2. It is stated that subsequently they were made to remit
Rs.4,000/- each and that by Ext.P9, they were asked to submit a revised
proposal also. It is stated that by Ext.P10, although the petitioners
submitted a revised proposal as directed in Ext.P9, despite all that, orders
are not passed giving them Way leave and it was therefore that the writ
petition is filed for a declaration that the respondents are bound to provide
passage in front of the petitioners property and also regarding the
petitioners right of free ingress and egress into and out of their properties
WPC 1930/09
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as enjoyed by them.
3. When the matter came up for orders before this Court on
19/1/2009, the case was adjourned with a direction to the standing
counsel to obtain instructions in the matter. Standing Counsel today also
made available to me letter dated 21/1/2009 received from the 3rd
respondent, the relevant portion of which reads as under.
1) The request of the petitioners for way leave
facility has been examined at site by the concerned
officials. From the report given it is seen that the
location for which Way leave or Right of Way asked
for is very close to running line (At Km.104/900-
105/100 between Ernakulam Junction & Ernakulam
Town Railway Stations)
2) There is high chance of collision of trains with
private vehicles plying over.
3) To avoid such collisions as well as hitting of
motor vehicles with Railway Electrification masts
movement of road vehicles parallel to track is to be
prevented and hence rail posts had to be erected.
4) in the light of the above railway safety aspects
the competent authority cannot provide the way
leave facility sought for.
5) The charges of Rs.4000 remitted by the
petitioners are only the initial processing charges
collected for considering the application. After the
remittance of charges, Railway has completed the
feasibility study and found that it will not be possible
to grant way leave facility, from the safety of trains
point of view.
4. In the light of the safety angle that is highlighted in the
WPC 1930/09
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instructions given to the standing counsel, I do not think it appropriate
that this Court should decide the claim, atleast at this stage, since the
representations made by the petitioners for Way leave as provided under
Section 17 of the Railways Act by Exts.P1, P2 and P10 are pending
consideration of the 4th respondent. At this stage, I think it only
appropriate that the 4th respondent takes a decision on the representations
so made.
5. Therefore, I direct the 4th respondent to consider and pass
orders on Exts.P1, P2 and P10, as expeditiously as possible, at any rate
within 2 weeks of production of a copy of this judgment.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp