1. Heard learned counsel for the petitioner, learned Standing Counsel and Shri Vivek Kumar Singh, learned counsel for the respondents.
2. Ale Hasan is before this Court for a direction to quash the order dated 25/26.5.2016 passed by respondent no. 3 and for further direction to respondents not to close Gate No. 35-C lying in Kashipur Lal Kunwa Railway Line and also not to interfere in crossing of the villagers including the petitioner through Gate No. 35-C for their farming purposes along with their animals, products and other materials necessary for the purposes of farming.
3. This much is reflected from record that present matter relates to Village Patti Kalan, Tehsil Swar, Distt. Rampur, which is situated on both sides of National Highway No. 74. On the eastern side of National Highway No. 74 there exists abadi of village Patti Kalan, whereas the western side of National highway No. 74 is the agricultural fields of the village Patti Kalan. It is stated that chak road connecting the abadi of village Patti Kalan to the agricultural land of Patti Kalan intersects national highway no. 74 as well as the railway line which is on another side of National Highway No. 74. On the intersection of the aforesaid chak road there is Railway Gate No. 35-C. It is averred that the said gate had been erected 15 years ago. The cause of action arose, when the railway department had taken a decision to close down Railway Gate No. 35-C.
4. In this background, learned counsel for the petitioner submits that public at large those are residents in the said village would suffer irreparable loss on the closure of the said gate. It is also submitted that now the residents of the village are being compelled by the railway department to use Gate No. 34-C, which is about 500 mtrs. away from the said village and the same also falls under the territorial limit of State of Uttaranchal and as such it had been contended that for reaching to their field firstly they have to cross State of Uttaranchal and only thereafter they would be able to cultivate their land and therefore on account of obstruction, which has been created on spot by the railway department, the public at large wold suffer immensely and therefore this Court should come to rescue and reprieve of the petitioner.
5. As per record this much is also reflected that against the action of the respondents the petitioner has been before this Court by preferring Public Interest Litigation (PIL) No. 17959 of 2016 (Ale Hasan v. State of U.P), which was disposed of on 21.4.2016 with following observations:—
“On the matter being taken up today, we find from the record in question that the issue which has been raised by the petitioner has already been taken by the Sub-Divisisonal Magistrate, Swar, Rampur and in turn he has proceeded to refer the matter to the Divisional Manager, Railways, North Eastern Railway, Izzat Nagar, Bareilly/respondent no. 3 on 19.02.2016 for taking appropriate action in the matter. It is contended by the petitioner that till today no decision has been taken in the matter.
Consequently, in the facts and circumstances of the case, since the matter has already been referred by the Sub-Divisisonal Magistrate, Swar, Rampur to the Divisional Manager, Railways, North Eastern Railway, Izzat Nagar, Bareilly/respondent no. 3 on 19.02.2016 for taking appropriate action, we hope and trust that the Divisional Manager, Railways, North Eastern Railway, Izzat Nagar, Bareilly/respondent no. 3 will look into the grievance of the petitioner and take appropriate decision in the matter of the petitioner in accordance with law within a reasonable period of time preferably within a period of eight weeks from the date a certified copy of this order is presented before him by the petitioner.
With the above observations, writ petition is disposed of.”
6. Pursuant to the aforesaid directives, present impugned order has been passed, wherein the claim of the petitioner had been turned down.
7. On the other hand, Shri Vivek Kumar Singh, learned counsel for the respondents has vehemently opposed the writ petition. As per the instructions so received, he has supported the impugned order on the ground that present matter relates to policy decision and once the decision has been taken by the authority after taking into consideration the entire geographical and physical position of the area in question and once before closure of the said gate the department concerned has already constructed around 500 mtr. road, then there is no occasion or reason to accord any relief to the petitioner. The petitioner would not suffer any hardship and therefore the writ petition is liable to be dismissed.
8. We have occasion to peruse the record in question and we find that in the present matter as per the policy decision the railway department has proceeded to close down one of the railway gate and alternatively they have also provided the another proper road and another gate. The petitioners have challenged the policy decision taken by the respondents regarding change of access, which is not ordinarily under the domain of the judicial forums. It is settled legal proposition that the policy decision taken by the State or its authorities/instrumentalities is beyond the purview of judicial review unless the same is found to be arbitrary, unreasonable or in contravention of the statutory provisions or violates the rights of the individuals guaranteed under the statute. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543, Hon'ble the Apex Court considered the scope of judicial review in a case of policy decision and held that the Court cannot sit in judgement over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be the policy evolved by the legislature and sub-ordinate regulation making body. It may be wise policy, which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy. In Tamil Nadu Education Deptt., Ministerial and General Sub-ordinate Services Association v. State of Tamil Nadu, AIR 1980 SC 379, the Supreme Court while examining the scope of interference by the Court in public policy held that the Court cannot strike down a circular/Government Order or a policy merely because there is variation or contradiction. What is important is to know whether malafide vitiates or irrationality and extraneous factor fouls. The Court held as under:
“Once the principal is found to be rational, the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a martyr and however unhappy we be to see the seniors of yesterdays becoming the juniors of today, this is an area where, absent arbitrariness and irrationality, the Court has to adopt a hands-off policy.”
9. In view of above, we find that scope of intervention on the policy decision by the judicial forums is very limited and therefore under the facts and circumstances in the present case, we are not inclined to interfere in the matter under Art.226 of the Constitution of India. The writ petition sans merit and is accordingly dismissed.