1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO.5346 OF 2009 1. Prakash s/o. Madhav Zope, age 42 years, occ. agriculture, 2. Prashant s/o. Sukhdeo Nikam, age 25 years, occ. agriculture, 3. Gajanan s/o. Subhash Nemade, age 37 years, occ. agriculture, 4. Sunil s/o. Janardan Barhate, age 41 years, occ. agriculture, 5. Nischal s/o. Narayan Zope, age 36 years, occ. agriculture, All residents of Fekri, taluka Bhusaval, district Jalgaon. - - - - Pettioners. versus 1. The State of Maharashtra. 2. The Chief Engineer, Public Works Department, Nasik Region, Nasik. 3. The Superintending Engineer, P.W.D. , Jalgaon. 4. The Executive Engineer, National Highway, Jalgaon. 5. The Collector, Jalgaon. 2 6. The Sub Divisional Officer, Bhusaval. 7. The Union of India, Rail Bhavan, New Delhi. 8. The General Manager, Central Railways, Mumbai. 9. The Divisional Railway Manager, Central Railway, Bhusaval. - - - Respondents Shri B. R. Warma, Advocate for petitioners. Shri S. K. Tambe, Addl. Govt. Pleader for respondents Nos.1 to 6. Shri Alok Sharma, Standing Counsel for respondent No.4. Shri P. G. Godhamgaonkar, Advocate for respondents Nos.7 to 9. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Dated : 12th October 2009 ORAL ORDER [ PER B. R. GAVAI, J.] : 1. Rule. Rule made returnable forthwith. 2. The petition has been filed by residents of village named as Fekri which is situated on railway track between Bhusaval - Badnera. On the said track, there was level crossing No.1A named as Fekri railway gate. However, on completion of the railway over bridge ( hereinafter referred to as "the ROB" for short ), constructed 3 by respondent No.4 National Highway, the Notification was issued for closing the said railway crossing. Being aggrieved thereby, the present petition. 3. It was the contention of the petitioners that on account of closure of said railway crossing, the residents of village who were compelled to use the ROB, villagers were required to travel an additional distance of 6 to 7 kms. for going to Bhusaval. It was further submitted that on account of closure of the said railway crossing villagers also found difficulty in reaching their fields and they are required to travel long distance. 4. Taking into consideration the grounds raised in the petition, by an order dated 14-8-2009, we had directed issuance of notice. While issuing notice, by an interim order, we had directed respondents Nos.7 to 9 to permit the villagers to use railway crossing in question. The respondents were, however permitted to proceed further to restrain all other commercial vehicles for using railway crossing. In response to the notice, respondents appeared. On behalf of the respondents Nos. 7, 8 and 9, it was submitted that the said railway crossing on a very busy section of Nagpur Bhusaval Section. It was submitted that if the said railway crossing 4 was permitted to be kept open, it would be dangerous to the railway traffic apart from there being possibility of further accidents. 5. The respondents Nos.2 to 4 in their affidavit, had submitted that there were three alternative ways available to the villagers and which were in fact being used by the villagers. 6. In that view of the matter, we had directed respondents Nos.5 and 6 to file their reply specifically on the issue as to whether three ways mentioned in the affidavit by the respondents Nos.2 to 4 can be utilized by the villagers. 7. Accordingly, an affidavit has been filed by one Uday Ramhari Kisave, presently working as Sub Divisional Officer, Bhusaval. In his affidavit, in paragraph 5, he has stated that in so far as Option "A" which is shown by respondents Nos.2 to 4 in the map was concerned, it was a private property belonging to railway department. However, it is stated that this road was in regular use of Fekri residents for approaching Bhusaval since so many years. It is stated that the said road can be utilized by the villagers subject to the permission from the railway authorities. 5 8. In so far as Option "B and C" are concerned, it was stated that both were water ways, as per the railway record. It is further stated that railway under bridge (hereinafter referred to as "the RUB", for short), was required to be made therein after carrying out necessary rectification/ repairs for use of the villagers. 9. It has further been stated in the said affidavit that a proposal for construction of railway under bridge (RUB) has been prepared by the National Highway authority and is pending with the Ministry of Roads and Highways for their approval as an additional facility forming part of the ROB. 10. Shri Sharma, learned Assistant Solicitor General appearing on behalf of the National Highway authority, has made a statement before this Court that a proposal for construction of RUB is under active consideration of the Central Government and that the RUB will be constructed at the earliest. To find out some viable solution to the problem till construction of the RUB, we had suggested Shri Godhamgaonkar, learned Standing Counsel for railway authorities, to seek instructions as to whether Option "A" can be permitted to be used till construction of the RUB. 6 11. Shri Godhamgaonkar has placed on record the written instructions signed by one Aijaj Mohommed Bakshi, presently working as Assistant Divisional Engineer (West), Akola Central Railway, to the effect that Zonal Railway Training Institute approach Road (Option ''A') mentioned in the map submitted by respondents Nos.2 to 4 may be permitted to be used by the villagers of Fekri village for pavement and bullock carts, at their own risk as stop gap arrangement for a period of six months or completing of the RUB, whichever is earlier. The said instructions are taken on record. In view of the statements made by respondents Nos.2 to 4 that they would construct the RUB at the earliest and the statement made by respondents Nos.7 to 9 to the effect that as a stop gap arrangement, they would permit using Option "A", we find that interest of the villagers would be protected. 12. In the result, the petition is disposed of by taking on record the statements on behalf of respondents Nos.2 to 4 that they would construct the RUB at the earliest and further placing written instructions on record by the respondents Nos.7 to 9 that they would permit the villagers of Fekri village for pavement and bullock carts as stop gap arrangement at their own risk. However, we clarify that this arrangement shall continue till the RUB is 7 constructed by respondents Nos.2 to 4 and till the villagers are in position to actually use said RUB. 13. Rule is, therefore, disposed of in the aforesaid terms with no order as to costs. 14. Needless to state that interim orders passed earlier stand vacated. 15. Authenticated copy of this order be supplied to the learned Counsel to act upon. ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp534609