The petitioner filed a public interest litigation seeking a writ of mandamus to direct the Railway department to allow Gate No.19 to continue as a level crossing. The court dismissed the petition, holding that railway safety measures and station gauges are executive policy decisions where the judiciary must exercise restraint.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.17528 of 2019
and WMP No.17008 of 2019
M.Subramanian .. Petitioner
Vs.
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, issuance of a Writ of Mandamus, directing the respondents to allow the level cross Gate No.19 at Manakkadu Village, connecting the link road and Vedharanyam - Thiruthuraipoondi Main Road as Level Cross for broad gauge likely to be set up in future.
For Petitioner : Mrs.S.T.P.Kuilmozhi For Respondents: Mr.P.T.Ramkumar (for R1 & R2) Standing Counsel for Railways Mr.E.Manoharan (for R3) O R D E R (Order of this Court was made by S.Manikumar, J.)
Claiming himself to be public interest litigant, Mr.M.Subramanian, petitioner, a resident of Manakkadu Village has filed the instant writ petition, for a Writ of Mandamus, directing the respondents to allow the level cross Gate No.19 at Manakkadu Village, connecting the link road and Vedharanyam - Thiruthuraipoondi Main Road as Level Cross for broad gauge
likely to be set up in future.
(i) Total area of Manankkadu Village is nearly 713 hectares, out of which 75% area is wet land, and the remaining 25% is residential area. Between this wet land and residential area, there is a public road, which connects Vedharanyam and Thiruthuraipoondi, and the people of Vadamazhai Mannakkadu have to reach this road, by crossing a railway level crossing gate, called as Gate No.19, for all purposes, such as, agricultural work, cattle grazing, hospitals, educational institutions, government offices, ration shop, rice and flour oil mills, to entertain daily wages coolie work, banks, post office, Agricultural co-operative societies, condolences, funerals etc. Thereby all the people, children, including domestic animals have to get their goods for feed, medicines, education and for each and every act, the village people are depending on this passage through Gate No.19.
(ii) There are three railway level crossings namely Gate Nos.18, 19 and 20 and Gate No.18 connects Mela Manakkadu and Vedharanyam - Thiruthuraipoondi Main Road, Gate No.19 connects Keela Manakkadu and Vedharanyam to Thiruthuraipoondi Main Road and Gate No.20 connects Vadamazhai and VedharanyamThiruthuraipoondi main road and lies between one and a half kilometer distance between them. These level cross gates were set up on 15.05.1919, while establishing meter gauge between Thiruthuraipoondi junction and Agasthiyampalli railway line. Gate No.19 is also called as Center Gate, and is mainly used by the people for transportation.
(iii) Petitioner has further stated that agriculture is the main occupation of the people living in Manakkadu, only few of the people are literate and most of them are illiterate. The residents of Manakkadu Village all along are using the railway level cross gate No.19 for transportation for all purposes, such as to carry all the goods used for agricultural purpose, carry dead bodies to cremation ground and to reach hospitals, schools, colleges and all are depending on Gate No.19 to reach nearby towns, such as Vedharanyam, Thiruthuraipoondi and Thalaignayar.
(iv) Now it is decided by Southern Railways to establish a broad gauge and cancel the existing gate number 19, due to the reason that railway is not in sound state of financial position to appoint and to pay salary to the gate keepers. The villagers have submitted representation to all the officials concerned. Thereafter the respondents, without any public notification or tender, taking measures to setup a broad gauge between
Agasthiampalli and Thiruthuraipoondi junction, spread soil over the area. Only then, the villagers came to understand that Gate No.19, which is under usage is likely to be closed by the respondents 1 and 2 and gate number 20 would be allowed to be continued and that the respondents are also ready to appoint a gate keeper for gate No.20.
(v) Therefore, representations were sent to all concerned and as there was no response, the petitioner has approached the Hon'ble Chief Minister's Cell and after receiving communication from the Hon'ble Chief Minister's Cell, respondent 1 and 2 at Thiruthuraipoondi came to the spot, taken measurements of the road, the link road and confirmed that Gate No.19 would not be allowed to continue, for the reason that if the gate is allowed to continue, then Railway department would not be in a position to appoint and pay for a gate keeper, and if salary is paid by the village panchayat, it would be feasible for the railway department to allow this gate to continue. They have further stated that they are ready to construct a sub way between the link road connecting Manakkadu village and VedharanyamThiruthuraipoondi Main Road.
(vi) Petitioner has contended that if this gate No.19, is closed, then the residents will be worst affected because of the reason that they have to take a diversion for more than five kilo meters distance, from Manakkadu Village. Now the Vedharanyam - Thiruthuraipoondi main road could be reached within few minutes from all the directions of the village. In this regard, villagers have submitted representations dated 26.08.2018 and 22.04.2019 to the respondents 1 and 2 and the said representations are still pending. In the above circumstances petitioner has filed the instant writ petition, for the abovesaid relief.
gates directed to be closed for the reasons stated in the Joint Inspection Report.
Sl.N L.C Location Ext Proposed Remarks
o. .No in Met Statu after
. s Joint
Inspecti
on
1 2 1512.45 M Manned Retained as manned future ROB
Habituated area. Service
road is not possible due to
land constraint. hence, ERR
is also not feasible.
2 3 2750.00 ROB ROB completed and already in
public usage
3 4 2924.26 U/M Manned Habitats in LHS. Service road
cannot be layed due to land
constraint. Hence ERR is
also not feasible.
4 6 4797.80 U/M Closure District Collector /
Thiruvarur approval obtained
5 7 5240.00 U/M Closure District Collector /
Thiruvarur approval obtained
6 8 5632.17 U/M Closure Connecting to LC No.9 by
providing parallel road at RH
side. Approval to be
obtained form District
Collector / Thiruvarur
7 9 6292.30 U/M ERR Since lowering for 2 m not
possible for providing LUS
8 10 6847.78 U/M LUS 4.5 Both side field only and at
x 2.75 40 m one road culvert
crossing the existing road
further lowering not
possible. Approval to be
obtained from District
Collector / Thiruvarur.
| Sl.N o. |
L.C .No . |
Location in Met |
Ext Statu s |
Proposed after Joint Inspecti on |
Remarks |
|---|---|---|---|---|---|
| 9 | 11 | 7698.91 | U/M | Closure | District Collector / Thiruvarur approval obtained |
| 10 | 12 | 8184.85 | U/M | ERR | LUS not feasible due to water body available LHS side of the track. Since bank height 1.6m only further lowering not possible. |
| 11 | 13 | 8598.20 | U/M | Closure | District Collector / Thiruvarur approval obtained |
| 12 | 14 | 9438.85 | U/M | LUS 4.5 x 2.75 |
Bank height is 2.83 met. Further lifting cannot be done. Since 4.50 met LUS not possible. Only 2.75 met LUS is feasible due to passage of irrigation canals on all 4 sides. All 4 sides are with fields only Approval to be obtained from District |
| Collector, Thiruvarur. | |||||
| 13 | 15 | 10180.83 | U/M | ERR with Single |
Embankment ht is 3.04 met LUS cannot feasible since |
| Column 5.5 met |
Br.No.33 in close proximity to LUS location and cause water stagnation. |
||||
| 14 | 16 | 11132.30 | U/M | ERR 7.0 met Wide |
LH side habitants available. Both sides of Road irrigation canal passing thro. Connecting road not feasible with LF 17 since 4 bridges are available. Water level is at shallow depth it connects two major road under |
| development by rural roads of state government. |
|||||
| 15 | 17 | 11808.00 | M | Manned | Retained as manned. Future ROB. Both sides on road canal is available. Since LUS not feasible. On SH Future ROB. Both side habitants. Hence ERR is also no feasible. |
| Sl.N o. |
L.C .No . |
Location in Met |
Ext Statu s |
Proposed after Joint Inspecti on |
Remarks |
|---|---|---|---|---|---|
| 16 | 18 | 12883.00 | U/M | LUS 4.50 x 3.66 |
Shifting towards TTP side by 60 met from Exg.LC. No constraints for service road. Approval to be obtained from District Collector/Nagapattinam. |
| 17 | 19 | 14305.90 | U/M | Closure | Diversion to LC No.20 by providing parallel road on RH side. Approach road is too narrow. Water body available on both sides. Approval to be obtained from District Collector, Nagapattinam. |
| 18 | 20 | 15261.00 | U/M | Manning | All the 4 sides habitations. Narrow road width. Bank height is 1.6, further lowering not possible to provide LUS and ERR |
| 19 | 21 | 16481.00 | U/M | Manning | All the 4 sides habitations. Narrow road width of 3.00 mets. Bank height is 2.5 met further lowering not possible to provide either LUS or ERR. Approach road in sharp curve. Water table at shallow depth. |
| 20 | 22 | 17690.00 | U/M | Manning | TTP side RH Habitation. Shallow water table. Service road cannot be given KXX PF |
| very close to LC since regarding not possible. Not feasible to provide LUS and ERR |
|||||
| 21 | 23 | 19447.00 | U/M | LUS 4.50 x 3.66 |
Approval to be obtained from District Collector / Nagapattinam |
| 22 | 24 | 20242.00 | U/M | Manning | Service road cannot be laid due to land constraint. Approach road lot of sharp bents. Habitations available on all 4 sides. hence either LUS or ERR not possible. |
| Sl.N o. |
L.C .No . |
Location in Met |
Ext Statu s |
Proposed after Joint Inspecti on |
Remarks |
|---|---|---|---|---|---|
| 23 | 25 | 21482.00 | U/M | LUS 4.5 x 3.66 |
Approval to be obtained from District Collector / Nagapattinam |
| 24 | 26 | 22332.00 | U/M | Manning | Heavy Vehicles plying. Built up area. Service road cannot be given. LUS or ERR not feasible |
| 25 | 27 | 23846.00 | U/M | Manning | Heavy Vehicles plying. Built up area. Service road cannot be given. Shallow depth water table. LUS or ERR not feasible |
| 26 | 28 | 25418.00 | M | Manning | MDR with heavy vehicles plying. Even at summer water table above ground level. Future proposed for ROB. |
| Hence ERR is also not feasible. |
|||||
| 27 | 29 | 26028.00 | U/M | LUS Complete d |
|
| 28 | 30 | 27108.00 | U/M | LUS Complete d |
|
| 29 | 31 | 28487.00 | U/M | LUS Complete d |
|
| 30 | 32 | 29081.00 | U/M | Closed | Approval to be obtained from District Collector / Nagapattinam |
| 31 | 33 | 29292.00 | U/M | LUS Complete d |
| Sl.N o. |
L.C .No . |
Location in Met |
Ext Statu s |
Proposed after Joint Inspecti on |
Remarks |
|---|---|---|---|---|---|
| 32 | 34 | 30329.00 | U/M | LUS 4.50 x 3.60 |
Proposed as LUS with a shift of 300 met (Km30.050) towards TTP shift requested by local public and recommended by district administration Approval to be obtained from District Collector / Nagapattinam. |
| 33 | 35 | 31366.00 | M | Manning | S.H.Road all heavy vehicles plying intervention of cross road. Four sides habitants. Hence ERR is also not feasible |
| 34 | 36 | 34409.00 | U/M | Manning | LUS of 4.50 x 3.66 met is not feasible due to Vedaranyam Temple Car of height around 6 met Crossing the LC twice in a year to seashore. Objected by local public. Hence ERR is also not feasible. |
| 35 | 37 | 35503.00 | U/M | LUS Comlete |
|
| p d |
|||||
| 36 | 38 | 36463.00 | M | Closed | As suggested by Division, to eliminate LC, the LC No.38 is proposed to be shifted to the end of the (terminal) station yard connecting with the |
| existing road as the LC was purely used for transporting the goods from the goods |
|||||
| platform and not for public use. |
District, taking note of the earlier decisions of the Hon'ble Supreme Court, at paragraph No.7 to 11, in WP.No.22474 of 2017 dated 11.09.2018, we ordered as hereunder.
"7. In Consumer Education and Research Centre Vs. Union of India and another, in Writ Petition (Civil) No.162 of 2001, the Hon'ble Supreme Court, while considering the prayer that unmanned level crossings should be manned with sufficient persons and there should be signals at the level crossings or there should be over-bridges or any other such facility where such accidents take place. After hearing the learned counsel for the Railways, ordered as follows:-
"Learned counsel appearing for the Railways stated that a comprehensive policy is proposed to be evolved but it would be difficult for the Railways to have signals at all the level crossings. It is also stated that at every such Railway gate, there has to be at least four persons employed and it will be difficult for the Railways economically to provide such safeguards at every Railway gate as in all there are approximately 18,200 unmanned level crossings.
In our opinion, Railways can think of having some safety measures to avoid such serious accidents. Wherever there is obstruction in seeing oncoming trains some measures can be taken to avoid such obstructions by installing the display boards with luminous paints or any such other mechanism. The Railways can also, in consultation with the local bodies or the district administration provide speed breakers on the roads near the railway level crossings.
The Railways can also think of engaging some local people as part-time workers in thickly populated places or the accident prone areas/zones near the railway crossings for purpose of avoiding accidents. We hope that Railways would evolve such policy by which some of these accidents can be avoided in future. We direct the learned counsel appearing for the Railways to suggest a comprehensive policy on the next date of hearing as to how these accidents at railway crossings could be avoided or minimised.
List in the last week of July, 2009."
8. Thereafter, when the matter came up for further hearing, the Hon'ble Supreme Court on 13.09.2010, ordered thus:-
" This writ petition was filed by Consumer Education and Research Centre (CERC, Ahmedabad) under Article 32 of the Constitution seeking a direction to Union of India through Ministry of Railways for immediate conversion of unmanned railway crossing gates into manned level-crossings. By the said writ petition, petitioner has prayed that Railways should take steps to formulate and implement Action Plan in order to convert all unmanned railway crossings into manned level-crossings.
This petition was filed in 2001. Since then Railways have issued detailed Guidelines. They have also filed a detailed counter indicating steps which have been taken to provide for manned level-crossings. No instance has been brought to our notice where the Guidelines have been flouted. The role of the Court ends with the Guidelines being framed by the Railways. However, if in a given case any of the Guidelines are flouted in implementation in a given State, it would be open to the petitioner to move the concerned High Court with regard to implementation of the said Guidelines.
For the aforestated reasons, the writ petition is disposed of."
9. In Ajay Gautam Vs. Union of India and another, Writ Petition (Civil) No.761 of 2014, dated 26.02.2016, the Hon'ble Supreme Court ordered thus:" 1. This petition under Article 32 of the Constitution of India has been filed seeking the following reliefs:
(a) Issue appropriate writ and directions in the nature of mandamus to both the respondents to make ensure the safety of the children's on unmanned railway crossings. As well as on roads since the children's being adolescent is vulnerable road users, globally, there are special rules & regulations for the protection of children.
(b) Directions may be issued to both respondents to take steps to completely eliminate the unmanned railway crossings and in the meantime make provisions to ensure proper safety of commuters who cross those crossings.
(c) Further directions may be issued to both the
respondents for making proper arrangements, to ensure proper and prompt emergency medical care for accidents victims as the delay in the same has fatal results.
(d) Pass such other and further order/s as may deem fit and proper in the facts and circumstances of the case.
India would act in terms of what has been stated in its affidavit dated 1st September, 2015 and will take every steps to expedite the process. Beyond the above, we do not consider necessary to issue any directions.
10. In W.P.No.19557 of 2015 in the matter of S.Gnanaeswaran Vs. The Union of India, rep. by its Secretary, Ministry of Railways, New Delhi - 600 001 and another, on 03.07.2015 a Hon'ble Division Bench this Court has passed the following orders.
"The grievance in the writ petition really arises out of lack of social norms and indiscipline in crossing the unmanned railway crossing contrary to the indications when the barrier is down. In our view, certainly the authorities cannot be blamed, if citizens do not adhere to any law or principle. Apart from that, it is stated by the learned counsel for the respondents, there is already a policy decision to convert all unmanned level crossings in a phased manner by providing requisite arrangements and every year certain unmanned railway crossings are attended to, with the scheme is proposed to be completed by 2018.
2. We are thus of the view, that writ petition is not liable to be entertained and accordingly stands dismissed. Consequently, M.P.No.1 of 2015 is closed. No Costs."
11. Following the judgment of the Hon'ble Division Bench of this Court in W.P.No.19557 of 2015 and placing on record the submission of the learned standing counsel for the Railways, that unmanned level crossing LC45, has been closed, following the directions of the Hon'ble Supreme Court, in the matter of closing / converting unmanned level crossings throughout the country and in the light of alternate level crossings LC 44 and 46, situated a distance of about 700 and 600 meters respectively, from the closed unmanned level crossing 45, the instant writ petition is dismissed. No Costs."
Joint Inspection, details are set out in the earlier paragraphs. Not only the subject gate, but there are others, considered. According to Railways, Gate No.18, would be closed and a Limited Use Subway would be provided. Gate No.19, would be Manned Level Crossing.
9. It is well settled that Courts cannot run Governments. The Hon'ble Supreme Court, had time and again, reminded that the Judges must not try to perform legislative or executive function.
(i) In Narmada Bachao Andolan Vs. Union of India and Others, reported in {2000 (10) SCC – 664}, the Hon'ble Supreme Court observed as follows:-
“232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Court's jurisdiction.
section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the Court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation, the Court should not refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government is possible. When two or more
options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision.”
(ii). The above mentioned observations have been quoted with approval by the Hon'ble Supreme Court in BALCO EMPLOYEES'UNION (REGD) Vs. UNION OF INDIA AND OTHERS {2002 (2) SCC – 333}.
(iii). In DIVISIONAL MANAGER, ARAVALI GOLF CLUB AND ANOTHER {2008 (1) SCC – 683}, in paragraphs Nos.17, 19, 20 and 22, the Hon'ble Supreme Court held thus:-
“17. Before parting with this case, we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.
19.Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
“82.... I have very few illusions about my own limitations as a Judge ... I am not an accountant, electrical engineer, financier, banker, expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation.”
It is not the function of a Judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.”
(iv). In COMMON CAUSE (A REGD. SOCIETY) VS. UNION OF INDIA AND OTHERS, {2008 (5) SCC – 511}, wherein at paragraph No.40, the Hon'ble Supreme Court, held thus:-
“The justification given for judicial activism is that the executive and legislature have failed in performing their functions. Even if this allegations is true, does it justify the judiciary in taking over the functions of the legislature or executive? In our opinion it does not: firstly, because that
would be in violation of the high constitutional principle of separation of powers between the three organs of the State, and secondly, because the judiciary has neither the expertise nor the resources for this. If the legislature or executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations, or by other lawful means e.g., peaceful demonstrations and agitations, but the remedy is surely not by the judiciary in taking over the functions of the other organs.”
11.In the light of the above discussion and decisions taken note of, prayer sought for in the instant public interest litigation cannot be granted. Accordingly, writ petition is dismissed. No Costs. Consequently, connected Writ Miscellaneous Petition is closed. -s/dAssistant Registrar(CS-IX) True Copy Sub-Assistant Registrar ars To 1. The Divisional Engineer, Southern Railway, Thiruchirappali Divisional Office, Tiruchirappalli.
+1 CC to Govt. Pleader sr 53036.
+1 CC to Mr.P.T.Ramkumar, Advocate sr 53582.
+1 CC to M/s.S.T.P. Kuilmozhi,Advocate sr 52633.
W.P.No.17528 of 2019 and WMP No.17008 of 2019
RSI(CO)
SP(25/07/2019)
2 issues framed by the court
Whether the High Court can direct the Railway department to allow a specific level crossing gate to remain open for a village despite financial constraints and railway policy changes.
Whether the closure of an unmanned level crossing and its conversion or replacement constitutes an arbitrary executive action violative of Article 226 of the Constitution.
Colour shows how this judgement treated each authority
Consumer Education and Research Centre Vs. Union of IndiaReferred¶44
Consumer Education and Research Centre Vs. Union of India, Writ Petition (Civil) No.162 of 2001
Ajay Gautam Vs. Union of IndiaReferred¶54
Ajay Gautam Vs. Union of India, Writ Petition (Civil) No.761 of 2014
S. Gnanaeswaran Vs. The Union of IndiaReferred¶67
S.Gnanaeswaran Vs. The Union of India, W.P.No.19557 of 2015
Narmada Bachao Andolan Vs. Union of IndiaDistinguished¶75
Narmada Bachao Andolan Vs. Union of India and Others, {2000 (10) SCC – 664} · Who else cites this
BALCO Employees' Union Vs. Union of IndiaDistinguished¶82
BALCO EMPLOYEES'UNION (REGD) Vs. UNION OF INDIA AND OTHERS {2002 (2) SCC – 333} · Who else cites this
Divisional Manager, Aravali Golf Club Vs. Union of IndiaDistinguished¶83
DIVISIONAL MANAGER, ARAVALI GOLF CLUB AND ANOTHER {2008 (1) SCC – 683} · Who else cites this
Common Cause Vs. Union of IndiaDistinguished¶91
COMMON CAUSE (A REGD. SOCIETY) VS. UNION OF INDIA AND OTHERS, {2008 (5) SCC – 511} · Who else cites this
M. Subramanian
The Divisional Engineer, Southern Railway
The Senior Section Engineer, Southern Railway
The District Collector, Nagapattinam District
S. Manikumar
Subramonium Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
