1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION No.4327 OF 2010 1. Tukaram s/o Tulshiram Kalamkar, Age : 50 years, Occ.Agriculture, R/o Ghargaon, Tq. Shrigonda, District Ahmednagar 2. Raghunath s/o Tatyaba Barguje, Age 50 years, Occ.Agriculture, R/o Ghargaon, Tq. Shrigonda, District Ahmednagar 3. Rahul s/o Kundlikrao Jagtap, Age 21 years, Occ.Agriculture, R/o Pimpalgaon Pisa, Tq. Shrigonda, District Ahmednagar 4. Bapurao s/o Sarjerao Jagtap, Age : 51 years, Occ.Agriculture, R/o Erandoli, Tq. Shrigonda, District Ahmednagar ..PETITIONERS VERSUS 1. The Union of India, Through the Ministry of Railways New Delhi 2. The Divisional Engineer, Western Division, Railway Compound, Solapur, District Solapur 3. The Assistant Divisional Engineer, Central Railway, Ahmednagar, District Ahmednagar 2 4. The Station Master, Belwandi Railway Station, At Belwandi, Tq. Shrigonda, District Ahmednagar 5. The Collector, Ahmednagar, District Ahmednagar 6. The Sub Divisional Officer, Karjat, Tq. Karjat, District Ahmednagar 7. The Tahsildar, Shrigonda, Tq. Shrigonda, Dist. Ahmednagar ..RESPONDENTS Mr V.D. Hon, Advocate for the petitioners; Mr P.G. Godhamgaonkar, Standing Counsel for respondents No.1 to 4; Mr N.R. Shaikh, A.G.P. for respondents No.5 to 7. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 19th November, 2010 ORAL JUDGMENT [ PER P.V. HARDAS , J ] Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. This petition has been filed in public interest by the petitioners who are residents of village Ghargaon, Pimpalgaon 3 Pisa and Erandoli in Shrigonda Taluka, District Ahmednagar. This petition under Article 226 of the Constitution of India prays for issuance of a writ for quashing and setting aside notification dated 15.4.2010 issued by the Assistant Divisional Engineer, Central Railways, Ahmednagar closing level crossing Gate No.15, situated at 307/5-6 in Daund-Manmad section. The petitioners also pray for issuance of a writ of mandamus directing the respondents to forthwith open Gate No.15. The other reliefs pertain to the ad interim reliefs prayed for by the petitioners. 3. In order to appreciate the submissions advanced before us by the learned Counsel for the parties, it would be useful to make a brief reference to the facts of the present case. The impugned notification dated 15.4.2010 was issued declaring the closure of level crossing Gate No.15 in the Daund- Manmad section. According to the petitioners, Gate No.15 has been in existence for the last 50 years, for the railway track in between Daund-Manmad. Apart from several level crossings which are provided, one such level crossing is level crossing Gate No.15 which was a manned level crossing. According to the petitioners, the residents from villages Ghargaon, Pimpalgaon, Isapur, Erandoli, Nimbwi, Kondegavhan are put to great inconvenience on account of closure of the said Gate. It is 4 further stated that the respondents have provided an alternate access through Gate No.14. It is urged before us that the alternate access is just an eye wash as it is neither a tar road nor a cement concrete road but is just a dirt road. Recent photographs of the said road have been placed before us by the learned Counsel for the petitioners. The photographs reveal a very pitiable condition of the road. The photographs also show that at the alternate site there is a passage beneath the over- bridge. The height of the over-bridge clearly indicates that a loaded truck just barely passes beneath the arch of the over- bridge. 3. On notice of this petition being issued to the respondents, the respondents have filed their affidavit in reply. The primary submission of the respondents is that a policy decision was taken by the Railway Administration for closure of several Gates by merging one Gate with another. Accordingly, the Railway Administration had sought no objection certificate from the District Magistrate. The no objection certificate was in respect of closure of Gate No.10. The District Magistrate, it appears, granted permission to close Gate No.15 instead of Gate No.10. According to the respondents, the necessity of seeking closure of the railway crossing Gates arose on account of a temporary Gate being provided to the P.W.D. Department for the construction of 5 the ring road in the Ahmednagar district. The aforesaid level crossing in Ahmednagar district, though temporary, is required to be manned 24 hours and as a result four employees of the Railway Department are required to be deployed for the purposes of manning said level crossing. On account of deployment of four persons for manning the temporary level crossing, the necessity arose for closure of some Gates or merging some Gates into others, in order to reduce the load on employment. As a result of which a survey was carried out and a proposal was submitted to the District Magistrate seeking his no objection for closure of Gate No.10. The District Magistrate, as pointed out by us above, granted no objection for closure of Gate No.15. The no objection certificate of the District Magistrate is dated 6.3.2010. Thereafter notification dated 15.4.2010 came to be issued in respect of closure of Gate No.15 and providing alternate access through Gate No.14. The no objection certificate of the District Magistrate clearly indicates that the temporary Gate which was installed for the purposes of construction of the ring road would be closed after construction of the Nimbalk road over-bridge. 4. Mr V.D. Hon, learned Counsel for the petitioners by referring to the photographs has urged before us that the petitioners are residents of the village and are not challenging the authority of 6 the Respondents to close the Gate but are challenging the closure of Gate No.15 without providing alternate access and thus the closure of Gate No.15 is an arbitrary action. According to the learned Counsel for the petitioners, the concern of the petitioners is their movement which is badly affected on account of closure of Gate No.15. The aforesaid cramped movement of the petitioner is further hampered on account of an inaccessible alternate way provided by the Railways. The alternate way which was provided was neither a cement concrete road nor a tar road but just a plain dirt road. On account of heavy rains this dirt road was rendered virtually unapproachable and the photographs speak for themselves. It is further urged before us that the petitioners had represented to the Collector about the closure of level crossing Gate No.15 and the Collector had directed an inquiry to be conducted by the Sub-Divisional Officer, Karjat. The Sub-Divisional Officer, Karjat directed the Executive Engineer to conduct inquiry and submit a detailed report in respect of closure of Gate No.15. The Executive Engineer in his report has concluded that closure of Gate No.15 would cause disturbance in day-to-day activities of village Ghargaon and has also recommended that the closure of the Gate No.15 is not practicable. The affidavit in reply filed on behalf of respondents No.5 to 7 concludes by stating that they had sent the detailed representation in respect of opening of railway Gate No.15. The 7 respondents No.5 to 7 i.e. the Collector, Sub-Divisional Officer and the Tahsildar have supported the petitioners in respect of closure of Gate No.15. 5. Mr P.G. Godhamgaonkar, learned Counsel for the Railways has urged before us that the Village Panchayat had passed a resolution in which the Panchayat had stated that if the closure of either Gate No.14 or 15 was imperative, then alternate way be provided so that the movement of the residents is not restricted. Mr Godhamgaonkar has further urged that the closure of the Gates is in tune with the administrative policy decision which has been taken by the Railways in order to reduce the appointment of Gatemen for manned railway crossing. Mr Godhamgaonkar further states that Gate No.14 is situated at a distance of less than a kilometer from Gate No.15 and the Railway Administration has provided an alternate way for the residents to approach Gate No.14 on account of closure of Gate No.15. It is also urged before us on behalf of the Railways that no prejudice whatsoever would be caused to the residents of the villages on account of closure of Gate No.15. 6. In this petition, primarily we are not concerned with the policy decision arrived at by the Railways nor is there any challenge to the policy decision of the Railways for closure of the 8 Gates. Indeed, it would be within the administrative domain to take a decision in respect of the closure of the Gates. However, such closure of the railway crossing Gates should not be an arbitrary decision which would cause prejudice to the residents who have been using that way since long. Though a chart of the movements of the vehicles has been annexed by the respondents which indicate the movement of the vehicles from 8.2.2010 till 14.2.2010, we are not satisfied with the correctness of the figures. Obviously, the affidavit in reply does not explain as to who were the officers who had conducted the survey and whether the calculation of the movement of the vehicles was done manually or by some device. In any event, movement of vehicles during one week would not be a determinative factor. The affidavit in reply filed on behalf of respondents No.5 to 7 clearly indicates that the closure of Gate No.15 would result in causing disturbance in day-to-day activities of residents of village Ghargaon and the Executive Engineer has opined that the closure of the Gate is not practicable. Apart from that, the Sub-Divisional Officer was called upon to give no objection certificate in respect of closure of Gate No.10. The communication of the Railways submitting a proposal for closure of Gate No.10 has not been annexed to the affidavit in reply. Be that as it may, since the proposal was restricted to Gate No.10, we find it inexplicable that the Sub-Divisional Officer issued no objection certificate in 9 respect of Gate No.15. Even that may not be of much consequence if the Railways had provided an adequate alternate passage from Gate No.15 to Gate No.14. The photographs filed on behalf of the petitioners which we have taken on record and marked "X" for the purpose of identification clearly indicate the pitiable condition of the said road between Gate No.15 and Gate No.14. The height of the over-bridge certainly would not permit a heavily loaded truck to pass beneath the said bridge as the photographs indicate that a truck can barely pass through the arch of the bridge. Apart from that, the alternate way is a dirt road and this situation is bound to occur during every monsoon. The photographs indicate pot holes and major cracks in the dirt road which virtually make it impossible for normal four wheelers or two wheelers to ply on that road. 7. For the reasons we have stated above, we are inclined to allow this petition and quash and set aside the notification and direct the District Magistrate to decide the question of grant of no objection certificate afresh. The Railway Authorities may submit additional proposal to the District Magistrate, if they so desire. The District Magistrate shall make necessary inquiry and satisfy himself that the closure of the Gate would not result in causing inconvenience to a large section of the residents. Till such time as the proposal is submitted or to be submitted by the Railways 10 is decided by the District Magistrate, the Railways shall open Gate No.15 as it was available earlier. The Railway authorities shall ensure that Gate No.15 is in operation within two weeks from today. Thereafter it may take such decision in accordance with law and which the facts may warrant. 8. Rule is thus made absolute on the above terms with no order as to costs. 9. At this stage, Shri P.G. Godhamgaonkar, learned Counsel for respondent - Railways seeks stay to this judgment for a period of four weeks so as to enable the respondents to file appropriate proceedings before the Supreme Court. This judgment is stayed for a period of four weeks. ( A.V. POTDAR ), ( P.V.HARDAS ), JUDGE JUDGE amj/wp4327.10A