DR. P. NALLA THAMBY THERA v. UNION OF INDIA AND OTHERS

Citation: [1984] 1 S.C.R. 709

Court: Supreme Court of India

Bench: P.N. BHAGWATI, AMARENDRA NATH SEN, RANGANATH MISRA

Case summary

Of the occasion and take it as a challenge to improVe ibis great priblic utility .

Judgment text

'709 DR. P. NALI. :A THAMBY 'fHBRA v. UNION OF INDIA. AND OTHERS October 28, . 1983 . [P. N. BHAGWATJ,. AMARENDRA NATH SEN AND RANGANATH MISRA: JJ. ] ·Public Interest Litlgation-Petitio! ler . a cominuter of the Indian Railways prayingior. ~writ of Mandamus undet Article 32 of the Constitution 'for imp/e• . mentailon 'of Ille several Con1n1ittee Reports. appointing a-fact finding Commission to inquire and repo"rt about the railways accidents and for directions t{J c,0n1ply . With every·provision,,. of th"e RailWay-Act so as not to violate- Articles 19 and 21 of the Constitution... i.... Cof;lrts cannol give ahy directions to the Union. of India-Costs ofPublic lntere~t Litigatio·n,_payment of. . · n Disposing off the petition; n1aking certain observations and expressing ~·its iriability to _i_ssue any directions, except ·awarding costs, the Corirt. • HELD·:· 1. Giving directions in a·matter like· ibis, where availability · of resourCes .

has a material beariiig, poliCy ·regarding' prioritl. es is involved, exPertise is very "much in issue is"not p~dent to issue any direc. tions. Ordinarily the powers of. the cOurt to deal with a matter ·such as ·this, which Piimafacie appears to be- wholly within the do~ain of. the EXi::cutive n1ust be examined. [723 H, 724 Al · . The Govt.. have limit. ations', both of resources and· capacity. )Tet, it is hoped that the Government and the Adminisfration would rise to the necessity. Of the occasion and take it as a challenge to improVe ibis great priblic utility . . (Railways) ii:i an effective way and. with an cidequate ··sense of urgency. If, necessaryJ "it shall set"up. a high powe"red body to quickly handle the ma,ny faced ) pioblemS stailding in the way. -(723 G-HJ - · f 2. As the present case is ·a. public ·inierest litigatiOn, the petitioner is entitled to, consOli. dated costs of Rs. 5,000- recoverable from the Railway · Ministty of the Union Government. (724 F~GJ · 3.

There is hardly any scOPe to. doUbt that the guarantee~ provided in · Part Ill of the Constitution are Fundamental and it is the paramount obligation of ihe State to ensure availability Or situations, circumstances, and e~Viron ments in which every citizen can effectively exercis~ a. ild ·enjoy these rights. : The· right to life has rcc. ently been held b:Y the Supreme· Court to connote not merely animal eXistence but to have a much wider meaning-to irlclude the ·finer graces of buma~ civilization. ' If these right~ of the citizens are to be· ~nsured, • [t984J 1s. ~. n. it is undoubtedly the obligation of the" Union of India and its instrumentalities J to improve the established means of cominunica. tion in this. country. [722 E-GJ 3. 2. The Railway·s are a public ufility-scrvice fun on monopoly basis. Since it is a public utHity, there is_no Justification to run it merCly as a commer~ cial venture with a ·view to. -making prefits.

It is noi known if a monopoly based public utility should ever ~be a commercial venture geared to supply·the general revenue of the State but there is no doubt that the common man's mode of transport closely conncctc~ with the free play of his fundamental right should not be. [722 H, 723 A] 3. 3. TJle Union Government should be free to coliect the entire operational cost ·whiCh would inclμde the interest on _the capital outlay out of the national exchf:quer. Small marginal profits cannot be ruled out. The massive operation will require a margin of adjustment and, therefore, n1arginaJ ·profits should be admissible. [723 B-C] · · · · 3. 4. On the other· hand, it is of Paramount importance that the services should be prompt. The quality ~f the service shOuld irnpr'Ove. -Travel comforts, facilities in running. trains and qualitf of accommodation and availability thereof should be ensured. The Administralion· -should remain always alive to the positio~ that every bona. fide.

passenger is a guest of the service. Tickeiless travelling has to be totallY wiped out. . It is this class of passengers which is a menance to the system without any· payment, these Jaw br-eakers disturb the administration and genuine passengers. · Stringent raws should be n1ade and strictly enforced to free the Railways. from this deep rooted eVil Security both of the travelling pub1ic as also to the travelling_citizens must be provided and this means that accidents have to be avoided, attack on the persons of the passengefs a_nd ·pryiiig on their property,has to stop. -Scientific improvements made iil other countries and suitable to the system in Our country must be briskly adopt~d. . The obligations ca,s. t by the Railways Act and the Rules under it must be complied with. [723 C·F] 3. 5. At the salne time, no purpose is served by placing the blame at the ·doors of the Governn1ent of the d_ay.

All of us should have realisn1 and condour Independence has been secured at ~reat cost aild sacrific. - It is every citizen's obligation to maintain it and create an environment in Which its fruits can be harvested and shared. [719 D-B] · G. 3. 6 Freed6m brings resPonsibility. There can be no rights without responsibilities. In our country unfortunately individual rights have received dispropertionat_e emphasis without. proper stress on correspending soCial o·bHgations and responsibilities. Ju a· welfare State like ours the citizen is for ever encountering public officials at various levels, reiulators Rnd dispensers of social · serviCes and managers of State operated enterprises. It is of utmest importance that the en~ounters are as just and as free from arbitrariness as 3. re the familiar encounters of the rights. What is, therefore, of paramount importance is that every citizen must gCt involved i,n the·determined march . to. resurrect the society and subordin.

ate his will and passion to the prinlordial necessity of -order in • P.. N. 1'. TllERA v. UNION (Ranganath Misra, !. )' 711 ·social life. Jfis only in a cou~try of that order that the common manjVi1lhave his voice heard. The drea1n can become a reality if every citizen becomes aware of biS duty and before asking. for ~nforcement of his right, volunteers to perform hi§ obligation. [719 E-F, 720 B-C, D, 724 El ORIGINAL JURISDICTION : Writ Petition No. 891 l of 1981. (Under article 32 of the Constitution ofindia) Petitioner ill Person K. G. Bhagat, Addi. Sol. Gen. , N. C. Talulcdar and R. N. Poddar fot the Respondents. · . . The. Judgment oftheCourt was delivered by· R'NGANATH MISRA, J. The petitioner. in this petition under Article 32 of the Constitution is a resident of Sultanbattcry area in the State of Kerala and describing himself as a commuter of the Indian Railways he has aUeged violation of fundamental righis guaranteed under Articles 19 and 21 and.

claims reliefs of mandamus to the Union of India for i. mplementing the reports of the Kunzru, Wanchoo and Sikri Committees, appointing a fact. finding Commission to inquire and report about the numerous train. accidents from · 1970 onwards and for several other directions to the Union· Government and the instrumentalities connected with the administration of the Railways. As the petition which the petitioner, an allopatbic doctor by profession, bad himself drafted and tiled was unduly long and repetitive, written· submission with the assistance of counsel crystalising the issues for determination by the Court was filed, leave to amend the writ petition was granted and notice thereon was issued· on August 2; i982. The petitioner alleged, inter alia, that ) the Railways in this country are owned by the Central Government and on account of failure 'to fulfil the constitutional, statutory and.

commercial obligations by the Railways, adequate safety protec1Jon to the passengers and their properties is not available. The Indian Railways Act, 1890 ('Act' for short) has prescribed several safety measures; based upon experience, the Railway Board through wbi~h apex body the administration is run· and controlled has also prescribed rules and issued instructions which are n~t being properly implemented The Union Government had appointed three high ~·. powered Committees in the post-independence. period, namely, the Kunzru, Wancboo and S'ikri Committees to investigate into the 712 SUl'IlEMll COURT REPORTS (t984) 1 s. c. a. . . affairs of. the. Railways . with particular refere. nce to ·accidents ·and though· detailed and useful recommendations. have been made. by. · these committees, there has been· no adequate implementation thereof. Particular reference ·has been made to the unmanned level cros.

sings, increasi~g human error as a contributing f~ctor to accidents, non-allocation of adequate funds for improvements, improper utilisation of the assets a,nd facilities,. inefficien. cy in the administra- · tion at different level~, prevalence and incr~ase o( indiscipline, frequency of thefts, robberies and murders of passengers, ineffective checking and sup. ervisory ·system, want. of replacement of equipment and . repairs to·bridges. as also non-provision of adequate facilities to ·passengers. ,. 0 The Joint Director (Safety) has filed a counter affidavit in answer to. the R11le on behalf of the respondents. It has been averred that the recomme11dations of the. Accidents Enquiry Committeess were examined . and implemented within . the limits of financial and materia. l resources. So far as manned level crossings are concerned. there wete as inany as 14471 of them as on ·March 1, 1982;. unmanned level crossings were provide. d mostly on roads where .

the' volume of road and train traffic was low. It has been' further pleaded. that periodic review . is . undertaken about manning of unmanned level crossings and opening of new level crossings in con- . sultatioli with appropriate State Governments.. Initially it used to be the obligation of the respective State Governments to provide for such level crossings at their c n an average 400 to 600 bridges are annually built. Speed restriction is imposed on old and weak bridges and at present there are 202 such bridges. Figures or"s. ix years between 1977 and 1983 of the ·outlay on bridges have been provided which indicate substantial sums. having been set apart for the rebuilding of bridges. It is said that the. total life of 80 years for steel work and JOO years for masonry part of the bridges stipulated in the Railway Code is for the purpose of provision in the pepreciation Reserve Fund. The coda!

life does not have any direct relevance with the condition of a bridge and there is no necessity of rebuildin! ji. a bridge when its c_odal life i~ 0ver. There has been no • instance where the work of bridge rebmldmg has been postponed for Jack of funds and no accident has occurred owing to structural failure of any bridge or girders. . • P. N. T. THERA v_. UNION (Ranganath Misra, J. ) 715 ' Colour Jig. ht signalling which is an improved device less dependent on direct visibility and• where signal is pre-warned by a signal in the rear, i. s being provided on the trunk and main routes on a graduated scale. Antomatic warning system has been introduced in Gaya, Mughalsarai and Howrah-Bmdwan chord line sections on the Eastern Railway. Due to theft of aluminium track magnets the · system has been found not very satisfactory. Experiments are being made for evolving adesign which would not be prone to theft. The petitioner has filed a rejoinder pointing out that the coun- · .

teraffidavit clearly indicated a negative approach on the part of the· respondents to the entire matter. According . to the petitioner assistance of500 crores of rupees was to come ·during the year ending March 31, 19 83 and fro! ll out of such funds, pressing improvements like manning the unmanned level crossings could be undertaken. Reliance has been placed on the. observations. of Sikri. Committee that accidents at unmanned level cro&Sirlf! S take a heavy toll of human Jives every year. The petitioner' has pleadedfor abolition of overtime employment of safety category staff. He has pointed out that though he asked for directions fot providing appropriate monitoring of speed of trains particularly at accident prone spots in the track, no reply has been given thereto in the counter-affidavit. The · strength of the GRP has been said to be totally inadequate keeping in view the size of the Railways and volume of the passenger traffic it handles.

The petitioner has denied the assertion in the counteraffidavit that no accident has taken place on account for defective bridges and has pointed out that the accident of June ii, 1981 on a river bridge in the Bihar State was attributable to this factor only. The petitioner has pleaded again for the introduction of the auto· matic warning.. system and has referred to a publication of the Dire- ) ctorate of Safety; Railway Board, entitled, "A Review of Accidents on Indian Railways 1979-80", where the. introduction of automatic warning system has been suggested to be introduced to avoid accidents. He has al90 pleaded for enhancing the· minimu~ compensation in the event of loss Of'life of a passenger arising out of accidents to a sum of Rs. 75,000 by appropriate amendment of~. 82A (2) of the Act.

The petitioner has f und fault ~th the counteraffidavit for being silent in regard to his plea for the appointment of ' ~Railway Inspectors to make periodical inspection of carriages, engines, tracks, etc. ... 716 S. UPREME COURT REPORTS [1984] i s. c. R. The lis before us is·not of the ordinary type where· there are two contending partie~. a cla_im is raised by one and denied by the other, issues are struck, evidence is led and· the findings. follow. Though the petitioner is commuter of tfaim run by the Indian •Railways, the writ petition is essentially in the nature of public . interest Iit. igation and the petitioner has attempted to voice the grievances of-the community availing the services of the Indian Railways. In view of the recent pronouncements of this Court no objection has · . been raised. in the cou. nter-affidavit and· we have not been called upon · to· adjudge the locus. standi of the petitioner to mainta'in an action like this. · .

~, Railways came to India in 1853 and the first track to be laid was of a small length connecting the then city of Bombay with a .. , snburb.. Thr_ough the decade; that followed the expansion was usually for considerations of tra1fo and ·commerce, troop movement and administrative convenience. · More of expansion came g;aduaUy 1 . connecting almost the entire country tbrougJi. a well woven network. of. Railways and by the time the country became independent niost of the Railways bad been'nationalised and Railways constituted the most important commercial activity of the Governm. ent of India. As early ·as 1850 :... and three years before t_he opening of the first Railway track, Lord Dalhous. ie, the then Governor General of India had said in his minutes : "I trust they (the East India Company and the' Government of India) will ever avoid. the error0Cvie1ving • Railways as private undertakings and. will regard. them. ·as national works, over which the Governm. cnt may justly .

exercise and is calied upon to cxe;cise stringent a. nd salu~ · tary control. This control should not" be an arbitrary right of inte. rference bt! t a regulated authority defined· and declared by law . which is not to · be needlessly or vexation. sly exacted but which, in my humble judgment, is necessary at once for the interests of the Siate and for the protection of the public. " (Mimites ·or. Lord Dalhousie, July 4, i85')). ·" · ~. · " This regard for the public ·interest during the pre-independence . · period was. often·Stlbjeci to the limitations . imposed by the. British Capital and Management and by British Commerdal and economic interests until \he Railways were nationalised lietween 1925 and 1944. .. . . / . 1'. N. T•. THERA Y. UNION (Ranganath Misra, J. ) 111. At any rate, by 1947 when the foreign ·domination . ended, the Railways had emerged as the main viable and .

stable means of trnnsport and were providing 'the lifeline and link throughout the length and breadth of the country. By 1955 the total length of an Indian Railways. was 34705 miles and the capital sunk was m9re than 900 crore rupees. The . rise in the importance of the Railways _in ihe national sphere has been gradual. With the expansion of the Railways a high powered body known as the Railway Board has come. to be placed at the apex of control and with the new set up following independence. a . Minister remained incharge to administer the affairs of the Railways through the Board. As early as 1924 by a resolution known as the C9nvention Resolution of the Legislative Assembly . the Railway budget had been· separaied from the general budget and this historical p_ractice has"b'een continued till to. day. . " Today the· Railways provi&'· the. most effective means· · of transport,both for passengers also for the goo.

ds traffic: The Railways have agreat'impact in· holding this great country together and in ' , 90% of the earnings in. respect of . ,assenger traffic come froni the . • II! lower class commuters. } ,. _ ' . Also after independence expansion projects · have been undertaken and many areas which have hitherto remained unlink. ed and unconnected have been joined up as part of the national lifeline.. ·Pandit Jawahar Lal Nehru, first Prime Minister of India had once said : • "Our final aim can o. nly be a classless society with equal economic justice and opportunity to all, a society I organised on a planned bdsis for the raising of mankind to higher· material and cultural level ..... Every thing that comes in the way will have to be removed; gently if possible, forcibly, if necessary. And there seems to be little doubt that coercion will often be necessary. " This approach on principle does. not appear . to have been abandoned.

It is proper that this is worked out also in the Railways and, as quickly as possible, classification conforming to this is intro· duced. It is mariifest that the Indian Constitution has definitely rejected the authoritarian "rorm of Government and directed the State to bring about an egalitarian social order through the rule. of law. In keeping with this mandate several guiding policies are being·indicated hut implementation is not·being made. What Tolstoy remarked can relevantly be quoted as apt : .... I "The abolition of slavery has gone on for a very long time. Rome abolished slavery; America abolished it and we did, but only the words were abolished," not the thing. " The implementing. machinery has become non-funcfional. This is so not only in our country.. Wi. lfred . Jenks in his address m April 1972 to the International Law . Organisation had summed up the position thus ; P. N. T. THERA v. UNION (Ranganath Misra, J. ) 719 "Throughout the world .

there is an acute crisis of confidence in integrity and. fairness. This crisis of confidence lies at the heart of political instability,. economic disorder, industrial c)isturbance, racial and religious conflict, cultural anarchy, youth unrest and continuous international tension. Disruptive in all these fields, i~ .. p~ralyses actibn to remove its causes. " Burger, C. J. of the United States . has said : "We are approaching 1he status of an imperfect society where capability of maintaining elementary security in the streets, in the scho! Jls and for the homes of our • 't people is in doubt. At every stage of the criminal process; the system cries out for change. " ' What has been exiracted above appropriately summarises the current situation all . the world over. No purpose is served by placing the blame at the doors o~ "the Government of the day. We must have realism and candour: Independ,nce has been secured. at great cost and sacrifice. It is our qbligation.

to maintain it and create an environment in which its fruits can be ·harvested and shared. -... Freedom brings responsibility. Th. ere can be no rights without responsibilitie•. · In our country, unfortunately individual rights seem to have received disproportionate emphasis without proper stress on .. c·orresponding social obligations ·and responsibilities. In a welfare State like ours the citizen is for ever encountering public officials at various levels, regulators and dispensers of social· services and inariagers of State operated enterprises. It is of the utmost importance that the encounters are as just and as free from arbitrariness as are the familiar e. ncounters of the rights. Edmund Burke spoke thus : • "All persons possessing a portion of power ought to be strongly and awfully impressed with an idea thatthey act in trust, and they ate to account for their conduct,. in that trust to the one great master, author and founder of society. " · · • ...

Equally apt are the observations. of Lord Denning in . hiB address to the National Conference of the Law Society in J980 : I "When you look upon these scientific achievements, . then look back for·a moment.. on our world today, what ·.. do you see, Crime, increasing every where; sins, disgrace- . fut sins, corroding corruption, increasing· •:verywhere. 'When we see this, surely. we recall the words of 2000 years ago..... :what doth it profit a man if he gains the whole world and loses his own soμ!. " ·· What is, therefore, of paramount importance is that every ·citizen must get involved in tb,e determined march to resurrect tho: society and subor Government unless paid within two months hence. ' ' S. R.