IMPORTANT POINT
The court established that a renewal of expired way leave permission is invalid if it infringes upon existing rights and is not supported by a pending application.

JUDGMENT :

(Sabyasachi Bhattacharyya, J.) :

1. The present writ petition has challenged a letter bearing no. W/DRG/WL/SER-KGP-2023-offline-66 dated April 3, 2024 and a letter bearing Way leave/RMPL/West/953 dated April 4, 2024. By virtue of the impugned documents, the Railway Authorities have granted purported revival of a Way leave permission to the respondent no. 6 for constructing and running a water-pipeline under Railway property.

2. It is contended by learned senior counsel for the petitioner that way leave permission had been granted to the respondent no. 6 for a water-pipeline at 1.2 m depth on July 10, 2007 which was valid for ten years and expired in the year 2017.

3. Subsequent thereto, way leave permission was granted to the petitioner by the Railways on February 1, 2019 for a two-span underpass starting at the depth of 800-900 mm.

4. An agreement was entered into between the petitioner and the Railways for such underpass on February 27, 2019. As per Clause 25 of the said agreement, the underpass would be constructed in terms of the plan approved by the Railways, which was accordingly done.

5. Again, on June 2, 2022 a way leave permission was granted to the petitioner by the Railways for a one-span underpass starting also at the depth of 800-900 mm.

6. Pursuant to the same, on June 2, 2022 an agreement was entered into which had a similar Clause 25 as the previous agreement, which was also complied with.

7. It is relevant to mention here that according to both parties, the route of the underpass was approximately at right-angles with the water-pipeline which had previously been constructed by respondent no. 6 and the two crisscrossed each other manner. Accordingly, it is submitted by the petitioner, at the time of building the underpass, the previously existing unused pipeline had to be broken and removed where it intersected with the underpass.

8. However, it is argued that in January, 2024, the petitioner discovered that the respondent no. 6 was constructing a pipeline which would interfere with the petitioner’s right to use the underpass. Later, way leave permission was revived in favour of the respondent no. 6 to construct water pipeline, prompting the present challenge.

9. The petitioner contends that the impugned way leave permission was granted under Clause 1033 of the Railway Engineering Code (for short, “the Code”). However, in terms of the said Clause, grant of such permission can only be considered in the event there is no provision of water supply from any other source/direction. Clause 1033(3)(ii) provides so. In the present case, it is submitted, the Kangshabati river runs close by, which is a huge source of water which can readily be used by the respondent no. 6. Thus, being aware that a fresh application would be barred by Clause 1033(3)(ii), the respondent no. 6 has been granted a new permission in the garb of renewal in the year 2024 with retrospective effect from 2017. Such action, it is argued, is mala fide and in abuse of powers of the respondent-authorities.

10. Learned senior counsel for the petitioner next argues that Clause 1033(12) of the Code stipulates that there can be no construction, whether permanent or quasi-permanent, other than Road Over Bridge (ROB) and Road Under Bridge (RUB), over railway land. Thus, an overhead pipeline cannot be constructed since it would be contrary to the said provision. However, as per the respondents, for the area covered by the underpass of the petitioner, permission has been granted for the pipeline to take a detour over the railway line by building an overhead structure. Such construction is patently barred by Clause 1033(12).

11. That apart, the design of the said proposed construction has not yet been sanctioned by the Railways. Even before such approval, the way leave permission has been granted, which is palpably de hors the law and the provisions of the Code of the Railways themselves, apart from endangering railway property and the petitioner’s