IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13905 of 2010 1. Insaf Ahmad Khan S/O Late Fazle Karim Khan R/O Mohalla- Shahjadpur Ander Quilla, Ward No.8, P.O. And P.S.- Hazipur, Distt.- Vaishali 2. Dr. Ausaf Ahmad Khan S/O Late Fazle Karim Khan R/O Mohalla- Shahjadpur Ander Quilla, Ward No.8, P.O. And P.S.- Hazipur, Distt.- Vaishali Versus 1. The State Of Bihar Through The Secretary, P.W.D. 2. The Union Of India Through Ministry of Railway, New Delhi 3. The General Manager, East Central Railway, Dighi, Hazipur, Distt.- Vaishali 4. Divisional Railway Manager (D.R.M.) East Central Railway, Sonepur, Distt.- Saran 5. Chief Engineer, Building Construction East Central Railway, Dighi, Hazipur, Distt.- Vaishali 6. Anubhag Abhiyanta (Karya) East Central Railway, Sonepur Division, Sonepur 7. Anubhagh Abhiyanta (Karya) East Central Railway, Konhara Ghat, Hazipur, Distt.- Vaishali 8. Divisional Rail Manager (Engineer) East Central Railway, Sonepur, Distt.- Vaishali 9. Assistant Divisional Engineer, Sonepur 10. District Magistrate, Vaishali At Hajipur 11. Chief Engineer, Public Works Department (P.W.D.) Vaishali Road Division, Vaishali At Hazipur 12. Executive Engineer Public Works Department, Vaishali Road Division, Vaishali At Hajipur 13. Sub-Divisional Engineer, P.W.D. Hajipur, Vaishali 14. Commandant G.R.P., Hajipur, Vaishali ---------------------- 3 13.09.2011 Heard Mr. Wasi Ahmad Khan, learned counsel for the petitioner, Mr. Krishna Chandra Jha, learned Assisting counsel to S.C. IV, for the State and Mr. Vijay Kumar Sinha, learned counsel for the Railways and its authorities. The petitioner is aggrieved by the action of the respondent-Railways in interfering with his peaceful possession over the piece of land owned by him situated at Mohalla-Ander Kila Ward No. 15 Khata No. 556 Khesra No.1 at Hajipur in the 2 District of Vaishali. It is the contention of the petitioner that even while the title and possession of the ancestors of the petitioner stood settled under a judgment and decree passed by a competent court of civil jurisdiction in a Title Suit No. 290 of 1961 and the judgment and decree having attained finality, yet the respondents more particularly, authorities of the respondent-railways were disturbing the petitioner from making construction over the plot in question. A counter affidavit was filed on behalf of the respondent-State and sworn by the Executive Engineer, Vaishali Road Division, Road Construction Department, Hajipur mentioning therein that on a letter received from the Section Engineer (Works) East Central Rail/Hajipur dated 10.04.2007 requiring the Executive Engineer to verify as to whether the constructions being made by the petitioner did fall within the road area and within the Government land, the matter was enquired into by the respondent- Executive Engineer and upon examination of the papers and documents submitted by the petitioner in relation to his title and ownership over the piece of land, the Executive Engineer being satisfied accepted the same and informed the Rail authorities about the said position. It is the contention of the petitioner that despite this position where he possesses title and ownership over the said land and the same was got verified by the State authorities at the behest of the Railway administration, yet the respondent-Railways are 3 creating disturbances and obstructing the petitioner from carrying out constructions. A counter affidavit has also been filed on behalf of the Railway and in which it has been mentioned that the plot in question is adjacent to the railway property and relying upon Clause 827 of the Indian Railways Works Manual relatable to Acquistion, Management and Disposal of Land, a relevant extract whereof has been placed at Annexure-B to the counter affidavit, learned counsel submits that certain guidelines have been issued regarding constructions to be undertaken by private individuals on land situated adjacent to Railway property. Learned counsel for the Railways while relying upon Sub-Clause 2(ii) and Sub-Clause 3(b) of Clause 827 submits that the petitioner was only required to furnish the information as regarding the constructions work that he proposes to be carried out so as to enable the Railways to satisfy themselves that the proposed construction in no manner impinges upon the Railways property and the interest of Railways and its security is safeguarded. The relevant Sub-Clause relied upon by the learned counsel for the respondent-Railways are being reproduced for ready references:- “827 Construction of Government and private buildings near Railway land a) 1. While it may be realized that Railways have a prior right of acquisition and utilization of land adjacent to Railway boundaries, the Railway Administration can only insist on previous intimation being given by the revenue authorities or the local Govt. when such lands are assigned for specific 4 purposes. For the prevention of encroachments on railway land such as by the erection of buildings and platforms and the gradual accrual of easements such as right of way and a right to discharge sullage or storm water over Railway land, it is desirable that sufficient open space be provided between the railway boundary and the nearest face of any structure erected on adjoining land. 2. The interest of the Railways will be suitably safeguarded by providing for : i) an open space of approximately 30m being left between the railway boundary and the nearest edge of a building constructed on adjacent land, the exact space to be left being governed by local conditions; and ii) intimation regarding proposed construction on lands adjacent to the railway boundary being given to the railway authorities at least 90 days before the commencement of erection work. 3. The lands adjoining the railway boundary will be either privately owned or nazul and will be either included in a municipal area or not. Regarding private lands not included in a municipal area, there appears to be no method of enforcing the provisions mentioned above. As regards private lands included in a municipal area, the provisions can be made applicable by incorporating them in the municipal bye-laws and if the state governments have no objection, the municipal committees of the state may be asked to frame bye-laws to this effect. As regards nazul lands, both inside and outside municipal areas, it is suggested that if the state governments have no objection, suitable provision may be made in the conditions governing transfer, at the time of making grants”. b) In cities and towns where land is valuable and the cost high, it is not expected of the owner of a plot to leave a large vacant space between his building and the Railway boundary. The Interests of the Railway would be adequately safeguarded if sufficient vacant space is left so as to facilitate future road and drainage developments outside the railway land to avoid requests for surrender of railway land for access at a future date. Railways should insist on barest minimum distance. Barest minimum distance shall be ascertained by examining building plans and ensuring that the lay out of the building shall not 5 result into accrual of various easement rights as mentioned above”. A perusal of the clauses no doubt manifests that certain guidelines have been laid down for safeguarding the interest of the Railways in such of the cases where construct work is proposed to be carried out on a private land situated adjacent to any Railway property. Regard being had to Sub-Clauses 2(ii) and Sub-Clause 3(b) of aforesaid Clause 827, the writ petition is disposed of with a direction to the petitioner to submit an intimation together with a copy of the sanctioned map of the proposed construction to be carried out by him, before the respondent No.8, the Divisional Rail Manager (Engineer), East Central Railway, Sonepur, District- Vaishali in terms of the requirements provided under Clause 2(ii) and clause 3(b) of the aforesaid Rule, at least 90 days preceding his proposed constructions. The petitioner upon submission of the said intimation and upon lapse of a period of 90 days therefrom, shall be at liberty to start his construction work but only after leaving sufficient space between his proposed construction and the boundary wall of the respondent-Railways in accordance with the building norms and to facilitate any future road and drainage development in the said area and for safeguarding interest of the Railways. With the aforesaid observation the writ petition is disposed of. Bibhash (Jyoti Saran, J.)