The main legal point established in the judgment is that individual rights may have to give way to public interest, especially in cases involving the construction of public infrastructure for the safety and welfare of the community.

A.K. SIKRI, ACTING CHIEF JUSTICE

1. W.P.(C) No.5307/2010 filed by the appellants herein has been dismissed by the Learned Single Judge vide order dated 31st January, 2012 and questioning that order present Intra -Court Appeal has been filed.

2. The writ petition was filed to restrain the respondents, Railways, Government of NCT of Delhi, MCD and DDA from raising construction of a Foot Over Bridge (FOB) for crossing over the railway tracks near the residential colony of Harkesh Nagar, New Delhi. The appellants petitioners had sought such restraint contending, firstly that they were the owners in occupation of the land near the railway tracks where construction was proposed and were being dispossessed for the said construction and secondly on the ground that this Court in W.P.(C) No.3682/2006 earlier filed by the residents of the colony of Harkesh Nagar for mandamus for construction of a FOB at the said site had been dismissed by this Court vide order dated 04.10.2006 in view of the plea then of the Railways that crossing over the railway tracks at the said site was not permitted; that the residents were crossing railway tracks from the said place by puncturing a boundary wall preventing access to the railway tracks and that there were two Over Head Crossings available at a distance of 1.5 Kms. to 2 Kms. from the said site and thus no direction could be given to the Railways for construction of FOB at the said site.

3. The learned Single Judge in the judgment impugned before us has held that if ‘now’ the Railways deemed it necessary in the interest of safety of the public residing in the neighbourhood of the railways tracks to construct a FOB at the said site, the said developmental activity in the larger public interest could not be interfered by the Court. As far as the claim of the appellants petitioners to ownership of the land is concerned, the learned Single Judge held that the documents relied upon by the appellants petitioners in this regard are photocopies of Power of Attorney, Affidavits, Agreement to Sell and Purchase and which do not trace the title to the land and cannot be considered as title documents; moreover, the said claim raises disputed questions of fact which the appellants petitioners will have to establish in a civil proceedings and could not be adjudicated in writ jurisdiction.

4. The counsel for the appellants petitioners, on 17.02.2012 when the appeal came up first before us, had contended that there was nothing to show any decision even of the respondent Railways for construction of a FOB at the said site. We had as such asked for the stand of the Railways.

5. Copy of the affidavit dated 12.01.2011 filed by the respondent Railways before the learned Single Judge has since been produced before us. In the said affidavit, it is stated that the shops of the appellants petitioners (for restraining demolition of which writ petition was filed) are within the boundary of railway land and the appellants petitioners are in unauthorized occupation and encroachment of railway land. It further affirms that a FOB at the said site was sanctioned on the demand of the local residents and people’s representative and in the interest of the public at large to provide a safe crossing over the railway tracks and since there had been several accidents in the past at the said site and to stop the persons so crossing over the railway tracks from the said site endangering their lives.

6. The counsel for the appellants petitioners with reference to the order dated 04.10.2006 in earlier W.P.(C) No.3682/2006 (supra) has contended that this Court had then, while declining to issue mandamus for construction of a FOB at the said site, also directed reconstruction of the boundary wall to prevent access to railway tracks from the said site and also directed appropriate action to be taken against those who punctured the boundary wall in future.

7. However, respondent Railways in the counter affidavit (supra) with respect to th