Rajeev Kumar Shrivastava, J.:— This petition in the nature of Public Interest Litigation under Article 226 of the Constitution of India has been filed seeking following relief:
2. It is submitted through the petition that there is no level crossing or Road Over Bridge (ROB)/Road Under Bridge (RUB) where the railway tracks cross the Chituwa-Rawatpur-Datia road compelling the villagers, school children and cattle, in large number to use the unmanned railway crossing thereby putting their lives to jeopardy. It is also submitted that schools are located at the other side of the railway track where the school going children frequently cross the unmanned railway track. The villagers of the nearby villages, for the redressal of grievance, had earlier made representation before the Collector, District Datia (Annexure P/1) and before the D.R.M. (Annexure P/2). The petitioner has also filed copies of the news cuttings, wherein the demand of level crossing has been highlighted. Yet, nothing has been done by the railways as well as the State Government. Hence, this pro bono publico petition has been filed.
3. Heard the learned counsel appearing for the respective parties.
4. The present matter refers to the issue which relates to not only public importance but also lives of citizens including children and so also cattle, thereby attracting Article 21 of the Constitution of India.
5. “Public Interest Litigation” is known as “Social Interest Litigation”. The concept of “Public Interest Litigation” was conceived by Hon. Justice V.R. Krishna Iyer in Socialist Karamchari Sangh (Railway) v. Union of India, (1981) 1 SCC 246 : AIR 1981 SC 298, wherein an unregistered association of workers was permitted to institute a writ petition under Article 32 of the Constitution for redressal of their common grievances. In other words, “Public Interest Litigation” may be moved by public spirited citizen to the Court for the public cause by invoking writ jurisdiction of the superior Courts.
6. The traditional rule of locus standi that a person whose right is affected alone can file a petition which has been laid down by the Apex Court in various decisions. Now the Courts permit “Public Interest Litigations” at the instances of public spirited citizens for the enforcement of constitutional legal rights.
7. Now the PILs have achieved the place of importance in our legal system. In India, the first PIL was filed in the year 1976 — Mumbai Kamgar Sangh v. M/s Abdulbhai Faizullabhai, (1976) 3 SCC 832. The seed of PIL was sown by Justice Iyer through this landmark judgment. Thereafter, Hon. Justice Bhagwati evolved the concept of PIL and developed it to great extent.
8. In the case of S.P. Gupta v. Union of India, AIR 1962 SC 149, Hon'ble the Apex Court defined the term “Public Interest Litigation” in the Indian context. Thereafter, various prisoners of Bihar Jail had filed a petition before the Supreme Court Bench headed by Hon. Justice Bhagwati which was registered as Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98 : AIR 1979 SC 1369, wherein Hon'ble the Apex Court has held that the prisoners should be given benefits of free legal aid and speedy hearing. Thereafter,
9. The concept of “Public Interest Litigation” (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice. Prior to the year 1980, the locus standi was prominent in India Judicial System and only aggrieved party would approach to the Courts of justice. After the emergency era, the High Court reached out to the people devising the means for any person of the public to approach the Courts seeking legal remedy where public interest is involved. There are various instances when letters and telegrams addressed to the Courts have been taken up as PILs and were considered. Two Professors of the University of Delhi sent a letter to the Court seeking enforcement of the Constitutional Rights of the inmates at protective home in Agra who were living in inhuman and degrading conditions. In Ms. Veena Sethi v. State of Bihar, (1982) 2 SCC 583, the Court treated a letter addressed to a Judge of the Court by the Free Legal Aid Committee in Hazaribagh (Bihar) as a writ petition. In Citizens For Democracy through its President v. State of Assam, 1995 KHC 486, the Court entertained a letter from Kuldeep Nair to a judge of the Court arising human rights violation of Terrorist and Disruptive Activities (prevention) Act (TADA) detainees. It was also treated as a petition under Article 32 of the Constitution of India.
10. Rule of law is the primary essential of the democracy. However, any person filing the petition must have to prove to the satisfaction of the Court that the petition is being filed for the public interest and not as a frivolous litigation for pecuniary gain. In the case of frivolous PIL, the Court is having jurisdiction to impose substantial costs to the petitioner.
11. “Public Interest Litigation” gives a wider description to the fundamental rights enshrined in the Constitution of India. It functions as an effective measure for changes in the society for its welfare.
12. In Vishaka v. State of Rajasthan, (1997) 6 SCC 241, it was the case that part of a governmental campaign against child marriage, Bhanwari Devi attempted to stop the marriage of a one-year-old girl in rural Rajasthan. Members of the local community retaliated first by harassing Bhanwari Devi with threats and imposing a socio-economic boycott on her family. Then, on September 22, 1992, five men raped Bhanwari Devi. Bhanwari Devi faced numerous obstacles when she attempted to seek justice. Frustrated by the criminal justice system's inability to provide tangible remedies and restore the dignity of the victim, Naina Kapur, a lawyer who had attended Bhanwari Devi's criminal trial, decided to initiate a PIL action in the Supreme Court to challenge sexual harassment in the workplace. The Yishaka writ petition was filed in 1992 in the names of five NGOs against the State of Rajasthan, its Women and Child Welfare Department, its Department of Social Welfare, and the Union of India. The judgment in Vishaka (supra) recognized sexual harassment as “a clear violation” of the fundamental constitutional rights of equality, non-discrimination, life, and liberty, as well as the right to carry out any occupation. The guidelines, directed toward employers, included a definition of sexual harassment, a list of steps for harassment prevention, and a description of complaint procedures to be “strictly observed in all workplaces for the preservation and enforcement of the right to gender equality.” The judgment further promoted greater enforcement of women's rights and broader application of international law at the High Court level. The case has thus been described as “path-breaking”, “one of the most powerful legacies” of PIL, and a “trendsetter” that “created a revolution”.
13. In Javed v. State of Haryana, (2003) 8 SCC 369, the litigants challenged the constitutionality of a coercive population control provision, which governed the election of the Panchayat. The Haryana Provision disqualified “a person having more than two living children” from holding specified offices in Panchayats. The objective of this two-child norm was to popularize family planning, under the assumption that other citizens would follow the example of restrained reproductive behaviour set by their elected leaders. In the said case the petitioners and appellants were individuals who had been disqualified from either standing for election or continuing in the office of a Panchayat because they had more than two children. In the said judgment, the Haryana High Court's main emphasis was on “the problem of population explosion as a national and global issue” at the expense of protecting human rights. The judgment did not evaluate critically the impact of the contested provision on family planning. The Court described the provision as “well-defined”, “founded on intelligible differentia”, and based on a clear objective to popularize family planning.
14. In M.C. Mehta v. Union of India, (1986) 2 SCC 176 : AIR 1987 SC 965, Hon'ble the Apex Court has directed the polluting industries to setup sewage treatment plants. The judgment reflected that 600 tanneries were operating in a highly congested residential area of Kolkata. The Apex Court directed them to be shifted out of the city and relocated them to a planned leather complex in West Bengal. The Apex Court closed down several industries, allowing them to reopen only after setting up effluent treatment plants and controlled pollution. As a result, millions of people escaped air and water pollution in the Ganga basin, covering eight states in India.
15. As per the judgment in Parmanand Katara v. Union of India, (1989) 4 SCC 286 : AIR 1989 SC 2039, a human rights activist, filed a writ petition in the Supreme Court. His basis was a newspaper report concerning the death of a scooterist after an accident with a speeding car. Doctors refused to attend to him. They directed him to another hospital around 20 km. away that could handle medicolegal cases. The Hon'ble Apex Court held that preservation of human life is of paramount importance. Every doctor, at a government hospital or otherwise, has the professional obligation to extend his/her services to protect life. There should be no doubt that the effort to save the person should receive top priority. This applies not only to the legal profession, but also to the police and other citizens part of the matter.
16. On the basis of above discussion, it is apparent that when any public cause is involved or public interest is involved for its welfare, public interest litigation may be filed.
17. Article 21 of the Constitution of India explains the scope of right to life which reads as under:—
“Art. 21. Protection of life and personal liberty.— No person shall be deprived of his life or personal liberty except according to procedure established by law.”
18. The Apex Court in the case of Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 : AIR 1986 SC 180 has referred to the classic judgment in the case of Munn v. Illinois, (1876) 94 US 113 on the meaning of word ‘life’ as under:—
“By the term ‘life’ as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soulcl communicates with the outer world…. By the term liberty, as used in. the provision, something more is meant than mere freedom from physical restrain t or the bounds of a prison.”
19. In the case of Franscis Coralie v. Union Territory of Delhi, (1981) 1 SCC 608 : AIR 1981 SC 746, the Supreme Court has held that “The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. This principle was further extended to include protection of the health and strength of workers, prevention of abuse of children, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.”
20. In the present case, the requirement of level crossing Road Over Bridge (ROB)/Road Under Bridge (RUB) near railway track on the way approaching to Chituwa-Rawatpur-Datia, is a public cause and has become the need of the villager and the villagers are putting their lives as well as animals' lives into danger by accessing through the track. The cause does not indicate any particular pecuniary benefit of the petitioner. Hence, the petition is based on bona fide and is worth acceptance.
21. Learned counsel for the respondent has submitted that there are two primary essentials which are required to be fulfilled for making Road Over Bridge (ROB)/Road Under Bridge (RUB) as per the policy. The policy is filed as Annexure R-1, which runs as under:—
“No. 2007/CEI/LX790
Main policy issues relating to Level Crossings and ROB/RUBs
PROVISION OF NEW LEVEL CROSSING
As per existing policy, provision of level crossing is made in consultation with the State Government at the time of laying a new line or within 10 years from the date of its commissioning to traffic. Thereafter any accommodation work such as level crossing can be provided at suitable location on ‘Deposit Terms’ basis, if such a proposal is sponsored by the State Government/Local Bodies duly agreeing to bear the initial cost of construction of the level crossing and one time capitalized cost of recurring maintenance and operational charges. Further, as per current policy of Railways, no new unmanned level crossing is permitted on existing lines.
MANNING OF EXISTING UNMANNED LEVEL CROSSING
As per extant rules, in case an unmanned level crossing provided initially and maintained at the cost of the Railways, needs manning/upgrading/posting of additional gatekeeper due to increase in road traffic only, the cost both initial as well as recurring and maintenance has to be borne by the State Government/Road Authority concerned.
However, keeping in view the grave consequences of accidents at unmanned level crossings, Railways have decided in 2003 to man vulnerable level crossings based on the traffic volume and visibility conditions at the unmanned level crossings for which Railways have laid down certain criteria based on traffic volumes and visibility conditions. Manning of such level crossings is being done progressively.
WIDENING OF LEVEL CROSSINGS
The width of the level crossings depend on the type and width of the road on which it is located. Such level crossings are widened as and when the width of the road is increased by the State Government/ National Highway Authority of India
CONSTRUCTION OF ROAD OVER/UNDER BRIDGES
A. Cost Sharing
Road Over/Under Bridges works are undertaken by Railways in lieu of existing level crossings on cost sharing basis if the traffic density at the level crossing is one lakh or more TVUs (TVU-a unit obtained by multiplying the number of trains to the number of road vehicles passing over the level crossing in 24 hours) otherwise on ‘Deposit Terms ’ basis. Proposals are sponsored by State Government concerned duly fulfilling certain pre requisites required under extant rules.
State Government/Road Authorities sponsor the proposal by completing pre-requisite formalities like:
i) undertaking for closing of the Level Crossings,
ii) provision of funds in the State's Budget and
iii) Advance action for land acquisition etc.
Cost of Land is borne by State Government.
State Government/Road Authorities may also raise their share cost through collection of toll, commercial exploitation of space under Road Over Bridges out side the railway boundary, etc.
CLOSURE OF LEVEL CROSSING IN LIEU OF WHICH ROAD OVER/UNDER BRIDGE HAS BEEN CONSTRUCTED.
As per standard condition of agreements entered into with the State Govts, prior to sanction of work for replacement of an existing level crossing with Road Over/Under Bridges, the State Govts, are liable to give an undertaking that the level crossing in lieu of which the Road Over/Under Bridge is being sanctioned on cost sharing basis, will be closed on commissioning of the Road Over/Under Bridge. Therefore, on commissioning of the Road Over/Under Bridge to traffic, the level crossing in lieu of which it is constructed on cost sharing basis is closed.
B. Deposit
Construction of ROB/RUBs in lieu of existing level crossings which have traffic density of less than 1 lakh TVUs is considered on ‘Deposit ’ Terms, proposal for which is sponsored by concerned State Government duly agreeing to bear the entire cost of construction and recurring maintenance charges thereof. Similarly ROBs at new places where no level crossing exists ’ are also provided on ‘Deposit ’ Terms.
C. BOT
Construction of ROB/RUBs on BOT (Built, Operate and Transfer) Scheme can be done in agreement by State Government by allowing private parties to construct ROB/RUBs and recover their capital in resurrect by charging fee from users of ROB/RUBs. This was agreed to in Nov’94 in terms of National Highway Act 956 section VII and IX as amendment vide Ordinance promulgated by President of India on 23 rd Oct. 1992.
ROB related issues
i) Railways share 50% cost of the total work for a two lane Road Over Bridge i.e. 7. 5 meter wide carriage way with 2 footpath of 1.5 meter width on either side. However, if Railway desires to have extra length of the bridge to accommodate future tracks, the cost of the extra length is to be borne by the Railways, in addition to their share. In case State Government/authorities desire extended length of approaches, the cost shall be borne by them.
ii) For National Highways, the Road width shall be 9. 5 meters with two raised kerbs of 0. 75 meter, or 7. 8 meter with two foot paths 1.5 m each on either side or crash barriers as per stipulations and requirements of Ministry of Road Transport and Highways (MRTH). The Railway will bear the entire cost of bridge proper across tracks and cost of approaches will be borne by MOSRTH/National Highway wing of State Government irrespective of land boundaries.
iii) A policy was issued in 1991 as per which now Railways also share 50% cost of the RUB/subway for light vehicles if provided in addition to the cost of Road Over Bridge. This has been done to enable State Governments to close the Level Crossings without any problems.
RECENT INITIATIVES REGARDING CONSTRUCTION OF ROAD OVER/UNDER BRIDGES ON COST SHARING BASIS:
Recently, following initiatives have been taken by the Ministry of Railways to encourage construction of Road Over/Under Bridges in lieu of busy level crossings.
i) Sharing of cost for four lane ROBs/RUBs
• Since Jan 2003, Rly. shares 50% cost of 4 lane ROB/RUB provided minimum TVU of the level crossing is 3 lakhs comprisins not less than 6000 road vehicle units.
• And, Road Authority agree for the four laning of the approach portion also.
ii) Sharing cost of widening of two lane existing Road Over/Under Bridges
• Since Jan 2003, Rly shares 50% cost of widening of existing two lane ROBs/RUBs to four lane Road Over/Under Bridges also, provided, that the TVU level is not less than 5 lakh comprising not less than 10,000 road vehicle units.
• In addition, an incremental increase of two lakh TVUs comprising 4000 road vehicle units must have taken place since the construction of the two lane Road Over Bridge.
iii) Sharing of cost of Road Over Bridge where State Government can raise their share through commercial means.
• Since May, 2002, Railways share 50% cost of the ROB where State Government may raises its 50% share through commercial means like collection of toll or commercial utilization of space under the ROB outside the Railway land.
iv) Standardization of width of ROB/RUB as per latest MRTH norms
• Since September, 2002, Railways agreed to share as per the latest norms of MRTH for National Highways ROB width as 9. 5 m with two raised curbs of 0. 75 m or 7. 8m with two foot path each on either side or crash barriers.”
22. According to the aforesaid policy, as per the heading “A. Cost Sharing”, it is made obligatory that Road Over/Under Bridges works are undertaken by Railways in lieu of existing level crossings on cost sharing basis if the traffic density at the level crossing is one lakh or more TVUs (TVU-a unit obtained by multiplying the number of trains to the number of road, vehicles passing over the level crossing in 24 hours) otherwise on ‘Deposit Terms’ basis. Proposals are sponsored by State Government concerned duly fulfilling certain pre-requisites under extant rules. State Government/Road Authorities sponsor the proposal by completing pre-requisite formalities like : i) undertaking for closing of the Level Crossings, ii) provision of funds in the State's Budget and iii) Advance action for land acquisition etc. Cost of Land is borne by State Government. State Government/Road Authorities may also raise their share cost through collection of toll, commercial exploitation of space under Road Over Bridges out side the railway boundary, etc.”
23. Learned counsel for the respondents submitted that till date the aforementioned requirements have not been finalized by the Railway and State Government. Therefore, the liability cannot be fixed either on Railway only or on State.
24. In the present case, earlier this Court had passed an order on 4-9-2019 which runs as under:
“Present PIL relates to the cause of non-availability of any under/over bridge qua the railway track at Village Rawatpura, District Dalia, as a result of which the members of the public including school-going children have to cross over the railway tack thereby risking their lives. Since the unmanned crossing over the railway bridge at the place in question was closed under the national policy of the railways, the Collector Datia by letter issued way back on 16-10-2009 vide Annexure P/2 expressed his willingness for construction of uncler/over bridge below or over the railway track.
It seems that the matter did not move thereafter at the state level whereas the circular of the railways providing for construction of road over/under bridge stipulates that the cost of under/over bridge is to be shared by the State and the railway authorities. No proposal in regard to budgetary allocation was made by any of the State authorities who seem to have gone in deep slumber since the last nearly 10 years probably waiting for an accident to happen.
It is an unfortunate situation which needs to be corrected without any further delay.
Learned counsel for the State, Shri F.A. Shah, finds it difficult to defend the inaction on the part of the State for reasons not attributed to him.
Let Collector Datia appear in person and explain his default.”
25. Thereafter, the case was directed to be listed on 11-9-2019. On 11-9-2019, Co-ordinate Bench of this Court had directed the respondents to submit the report regarding steps being taken by the State functionaries to work out the modalities for having Road Over Bridge (ROB)/Road Under Bridge (RUB) at Village Chituwa and at Village Rawatpura, District Datia. It was also directed that a joint inspection will be carried out on 13-9-2019 and report be submitted on 15-9-2019. Thereafter, again on 30-9-2019, coordinate Bench of this Court had passed order and directed as under:—
“Call in week commencing 14th October, 2019 to enable the State counsel to find out the traffic density at the subject level crossing and also to seek instructions as to whether the State functionaries, in case the traffic density is less than one lakh, will bear the construction cost of the road over bridge on Deposit Term basis as stipulated in the Railway Board Circular No. 1998/CE-I/Misc (14)BRO dated 1-11-2010.”
26. On the basis of above discussion and despite above orders of this Court, no progress has been shown either by Railway department or by State Government. As the matter involves precious lives of citizens including school-going children as well as their properties, merely on the ground of technicality, this right could not be taken away as right to life is fundamental right guaranteed under Article 21 of the Constitution of India and even if a single life is put to jeopardy due to accident at level crossing, this Court has to rise to the occasion.
27. When lives of school-going children are at stake, no amount of administrative lethargy or financial constraint can come in way of this Court to render justice by issuing appropriate remedial directions. Even if the TUV falls short of the minimum standard under the policy vide R-1, the presence of overwhelming threat to lives of all and sundry, is enough to invoke extraordinary plenary powers under Article 226 of Constitution to set things right.
28. When fundamental right to life of citizen including children under Article 21 of the Constitution is under threat, the State and its functionaries cannot be permitted to take refuge of shortage/constraint of funds to justify their inaction. At this juncture, it is relevant to refer to the decision of Apex Court in Brij Mohan Lal v. Union of India, (2012) 6 SCC 502, relevant para of which is reproduced herein below:—
“145. On a proper examination of the above principles, it can be stated without hesitation that wherever the right which is being affected is a basic or a fundamental right, the State cannot be permitted to advance an argument of financial constraints in such matters. The policy of the State has to be in the larger public interest and free of arbitrariness. Adhocism and uncertainty are the twin factors which are bound to adversely affect any State policy and its results.”
29. The least that we can do is to provide safe and secure atmosphere to our children and brethren to make their lives meaningful and useful for the nation.
30. Resultantly, this Public Interest Litigation is allowed and respondents are hereby directed to take immediate steps for construction of Road Over Bridge (ROB)/Road Under Bridge (RUB) as per policy (Annexure R-1) on or near the level crossing approaching to Chituwa-Rawatpur-Datia, within a period of four months from today.
31. It is made clear that the cost sharing for construction of Road Over Bridge (ROB)/Road Under Bridge (RUB) would be governed in accordance with Annexure R-1.
32. For causing delay in construction of the ROB/RUB the Union of India (Ministry of Railway) and the State Government are equally responsible. Thus both shall pay cost of Rs 10,000/- each with the Registry of this Court in favour of MP SALSA within 60 days failing which this case be listed under caption “direction” for execution.
33. With the aforesaid direction, this Public Interest Litigation is allowed as aforesaid.
34. Let the compliance report be submitted by the respondents separately before the Registry of this Court on 2nd of March, 2020 positively.
PIL allowed.