Indian Railways- Property, ways and means to safeguard and protect – The meaning of Railway Property with special reference to the immovable railway’s property

Indian Railways- Property, ways and means to safeguard and protect –

The meaning of Railway Property with special reference to the immovable railway’s property like Landon either of the rail track, buildings, open land, structures; does they  come within the purview of the definition of ‘Railway Property’

 Views and visions:

BRIEF HISTORY:

 Indian Railways, one of the most trusted and efficient Railway System of the World commenced its track as early as in the year 1853. While in England, the railway track with a steam engine started in 1832, but for their business improvement and exports it started in India in 1853. The British, having found the encouraging type of business deals with Indians during its set up in India, in the name style of ‘East India Company’, they paved its furtherance of all types commercialized business system between India and England through Shipments from different parts of the Indian territory.

Mr. Grham Clark, a young Engineer from England was sent to India in 1843, he studied about topography of India for laying railway track from different locations, like Mumbai, Chennai, Howrah, Hubli, which were considered to be the best and most attractive business centers. His survey and reports paved the way for establishing a charter of Contract Agreement between the then East India Company and the Great Indian Peninsular Railways Company in 1849.

As a result of this agreement, the first railway track was laid in India in 1853 between Mumbai and Thane covering a distance of 56kms. That is all; the Railways System started spreading its track all over important cities, townships, ports with its sidings by paving way for business expansions and exports of all types of commodities for shipments to England.

Now, the total length of the railway track over the Indian Railways is around 114,000 kms/or 71,000 miles; the network system of the railways is about 64,215 kms.

RAILWAY PROPERTY: MOVABLE AND IMMOVABLE:

 The Railway Protection Force (RPF) has been constituted, and regulated as an Armed Force of the Union, - maintained by the Central Government-the Ministry of Railways - for the better protection and security of railway property; however, vide amendment by Act 52 of 2003, the powers and responsibilities of the RPF have been extended –with effect from 01-7-2004-to include railway property, passenger area and passengers and for matters connected therewith.

In terms of the RPF Act and RP(UP) Act, - Railway Property includes ‘any goods, money or valuable security, or animal, belonging to, or in the charge or possession of a railway administration’- [ section:2(e) of the RPF Act and section 2(d) of the RP(UP)Act];

Further, [in view of section 2(f), RP (UP) Act, and (section2(g)RPF Act ], it is envisaged that the ’ words and expressions used but not defined in this Act and defined in the Railways Act shall have the meanings respectively assigned to them under that Act’.

This clarification in fact gives a broad prospective, scope and eventually expands the ambit of its application in the meaning and construction of full pledged deliberation of the word ‘railway property’ to include immovable railway property’ and to deal further as per the Law-‘the RP (UP) Act also while dealing the cases of immovable property of the railways under unlawful possession.

THE PASSENGER AND PASSENGER AREA:

  The passenger, means a person traveling with a valid pass or ticket (section-2(29) of the Railways Act, and section 2(ca) of the RPF Act) and ‘traffic’-includes rolling stock of every description, as well as passengers and goods (section 2 (39) of the Railways Act);

The Passenger Area means and include railway platform, train, yard and such other area as is frequently visited by passengers (section 2(cb) of the RPF Act).

TRANSPORTATION OF GOODS AND PASSENGERS BY TRAINS:

An estimated 9,000 passenger trains are being run by the Indian Railways carrying around 25 million passengers across the 28 States and the Union Territories.

The Indian Railways takes the responsibility in transporting a number of goods ranging from smalls/packages, parcels, to bulk and heavy type consignments like ores, minerals, fertilizers, POL, agricultural products, coal, food grains, cement, vehicles, Military goods, other consumables, and perishables, etc.

In addition to the Indian Railways Government owned railway system, there are also some railway lines and sidings exclusively owned and operated by private companies like  the sugar mills, mines, harbours, POL, power sector or steel plants, ports, etc. The Government and the Indian Railways have nothing to do with these management and property protection, etc.

INDIAN RAILWAYS LAND:

The Indian Railways is having a vast land with all demarcations all along side of the Railway’s Track, its own sidings, and at various other places wherein, in addition to vacant land spread over to several thousands of hectares, the Railways have there own buildings, Offices, Complexes, workshops, manufacturing units, training institutions, railway colonies, which are all come within the meaning of Indian Railways Properties.

The construction of private buildings near Railway land were governed by Para 3728 of Indian Railway’s- Way and Works Manual. As per Board's letter No.94/LM (L)/14/22 Dt.29.8.95, the basic intension behind the stipulations is to safe guard Railway's interest in such a manner that no encroachments take place and there is no accrual of easement rights such as right of way, discharge of drainage, salvage, storm water etc on Railway land over a period of time.

Further it has been brought out by the Board that though it has been mentioned that an open space of 30 meters from Railway boundary to the nearest edge of the building (the exact space to be left being governed by local conditions) should suffice, it also stipulates that in cities and towns where land is valuable it is not expected of the land owner of the plot to leave such a large vacant space and it is deemed that the Railways interest will be safeguarded if sufficient space is left so as to avoid any easement rights on a future date, by way of  unauthorized encroachments, illegal occupation of railways’ land , etc. 

THE STANDING COMMITTEE ON RAILWAYS (2009-10)-V REPORT:

The Railway Property and Railway’s Land as Property, etc:

In its fifth Report, (SCR-143)- the Standing Committee on Railways (2009-10), while submitting “The Railway Property (Unlawful Possession) Amendment Bill,2008” expressed their thanks not only to the Ministry of Railways, but also to the All India RPF Association for furnishing the material and information connected to the Bill , etc.

A question arose-whether ‘The Land belonging to and in the Possession of Indian Railways’ is also Railway Property within the definition and meaning of Railway Property as defined by the Law- the RPF Act; The Railways Act, The RP (UP) Act and other Laws?

In this connection , it opt to know the back ground for the proposal mooted for amendment of ‘The RP(UP) Act,1966’ by introduction of the Bill in 2008;..” In this regard, the DG, RPF, found to have informed the Committee as under: “The definitions of movable and immovable property are different.  We are proposing changes for movable property.  What railway property means movable property?  Provision for immovable property will have to be made separately.  I request that for the land, a separate amendment can be made.”

 However, Member (Staff), Railway Board, reported to have informed the Committee that one of the reasons (for non-inclusion of land property) may be that there is a separate Act - the Eviction from Public Premises Act, 1971.

THE BRITISH RAILWAYS AND DISPOSAL OF RAILWAY’S SURPLUS-LAND-immovable property, land, etc: Railways’ Property:

In England, the BRB (Residuary) Ltd is found to be responsible for management and disposal of its remaining land and buildings, which are surplus to the needs of the operational railway, and disposes only when it has been agreed with the Department for Transport that there is no need for it to be retained for future railway purposes.

However, in some cases, land is sold to other railway companies or to local councils in order that it can be put to a new transport use. The Department for Transport issues guidelines to BRB (Residuary) Limited on land disposal. All of the company's property is listed on the website, but that does not indicate that it is for sale. Only sites shown on the listed as 'For Sale' are released for disposal. Other sites are being appraised by the Property Review Group or are reserved for future railway projects, such as Cross rail.

 As a residuary body, the company is responsible for discharging a variety of functions, including obligations in respect of liabilities acquired by British Rail as a major employer over nearly half a century and as a direct result of the privatization process.

THE RAILWAYS: DEFINION:

  What does ‘the Railway’ mean ; It is defined as “Railway- means a railway, or any portion of a railway, for the public carriage of passengers or goods, and include:-all lands…;all lines of rails…;all electric traction equipments,…;all rolling stock, stations, offices, warehouses,….;all vehicles which are used on any road for the purposes of traffic of a railway and owned, hired, or worked by a railway; all ferries, ships, boats and rafts,……”, but does not include a tramway wholly within a municipal area; and lines of rails built in any exhibition ground, fair, park or any other place solely for the purpose of recreations..”: [ Section- 2 (31) (a) to(f),f(I and ii) of Railways Act].

 ‘Railway Administration’, in relation to-(i) a Government Railway- means the General Manager of a Zonal Railway; and (ii) in relation to- a Non-Government Railway, means the person who is the owner or lessee of the railway or the person working the railway under an agreement;(section-2(32) of the Railways Act).

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FUNDAMENTAL DUTIES OF THE RPF: SCOPE, AMBIT AND LIMITAIONS:

 In fact, as per the preamble and directions of the Superior Officers, and/or in aid to the GRP/Local Police, RPF duties include;

For the better protection in and security of:

(A): railway property;

(B): PASSENGER AREA; AND

(C): PASSENGERS.

The Preamble of the RPF Act,1957- with its amendment, by Act 60 of 1985, which came into effect from 20-9-1985, states’ an Act to provide for the constitution and regulation of an Armed  Force of the Union for the better protection and security of railway property, passenger area and passengers and for matters connected therewith’.

The Preamble of the RP (UP) Act does state –‘an Act to consolidate and amend the law relating to unlawful possession of railway property; thus, it confines its parameters to that of ‘railway property’ alone as defined in the Law. The ‘railway property’ nevertheless does not include ‘the passenger area and passengers’ or ‘the offence(s) committed and/or connected therewith’.

The Preamble of the RPF Act as further amended by the Act 52 of 2003 which came in to effect from 01-7-2003,the constitution, regulation of the RPF, an Armed Force of the Union is for the better protection and security of railway property, passenger area and passengers, but in fact, the same inclination and spirit does not found to have been incorporated in section 3 of the RPF Act, wherein the words’ passenger area and passengers’ found to have been not included in ’railway property’.  By section 3 of the Act, the RPF is constituted and maintained for better protection and security of railway property.

By this exclusion of specific and desired words ‘passenger area and passengers’, from within the section 3, the ambit and scope of the RPF within meaning of this Act may differ and the RPF personnel, in my considered opinion have no authority and powers to deal any of the cases falling within the meaning of passenger area and passengers and emphatically, even if they apprehend any culprit in the course of their duties, they have to, invariably, forward the case to the GRP(Government Railway Police) with their Report for further necessary action.

 This excludes the RPF from registration of any FIR even if they detect such type of cases. Thus, the very purpose, / proposed of/for ‘better protection and security’ of the passenger area and passengers’ as expected by the Legislation is found to have been defeated.

 EXTENTION OF POWERS, AUTHORITY AND INQUIRY BY RPF IN DEALING WITH ‘RAILWAY PROPERTY’:

(A)                               Movable Property: the word’ movable property’ are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth ( section22 of IPC);  includes, the goods, money, valuable security, and animal;

’goods’-mean and include ’containers, pallets or similar articles or transport used to consolidate goods; and animals” (section 2 (19) of the Railways Act), and

Commodity- means a specific item of the goods (section 2(7) of the Railways Act);

‘animal’- the word ‘animal’ denotes any living creature, other than a human being-( section 47 of Indian Penal Code);

‘valuable security’- the word valuable security denote a document which is, or purports to be, a document whereby any legal  right is created, extended,                                                                                     transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right (section 30 of Indian Penal Code); the ’document’ denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means intended to be used, or which may be used, as evidence of that matter (section 29 of IPC);

  (B):             Then, WHAT DOES “RAILWAY LAND” MEAN?

The word land appears in section 2(31) (a) and by section 2(32) (A) of the Railways Act (it was incorporated in the year 2005 by Act 47 of 2005); it mean, any land in which a Government Railway (that means a railway owned by the Central Government-sectuib-2(20) of the Railways Act) has any Right, Title, or Interest (section- 2(32) (A) of Railways Act). That is to say, all the Railway Land within the fences or other boundary marks indicating the limits of the land appurtenant to a Railway.

Thus, entire railway land, buildings, etc, which are otherwise immovable property also comes within the meaning and definition of the railway property as like that of and in line with its movable properties.

POWERS AND RESPONSIBILITY OF RPF:

The RPF – powers and responsibility to deal offences under the RP(UP) Act comes into effect only on the arrest/or showing the person(s)-names to be mentioned as absconders, immediately on recovery/seizure of the railway property from the accused persons under unlawful possession.

The railway property, may be stolen property, and/or unlawfully stolen/obtained/unlawfully possessed by means of theft, extortion, robbery, dacoity, or by way of criminal misappropriation, or by way of criminal breach of trust;

UNLAWFUL POSSESSION OF IMMOVABLE RAILWAY PROPERTY THAT IS LAND, BUILDING, ETC;

By the word ‘any property’ in the punishment section 3 of the RP (UP) Act ,which provides that ‘ whoever is found, or is proved to have been  in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully be punishable’;

By ‘Extortion’ (section383 IPC) ‘any property’ does it include both movable and immovable property ; if so, taken in affirmative, the railway property- immovable property also can be brought within the ambit and definition of ‘unlawful possession under the provisions of the RP(UP) Act’;

The unlawful possession of the immovable railway property like the land, buildings, becomes punishable and can be dealt with as unlawful possession of the railway land or building, etc. once its scope is brought under the provisions of ‘unlawfully obtained’ or ‘unlawfully possessed’ or obtained by ‘extortion’, or by  ‘criminal breach of trust’;

To make the immovable railway property within the meaning and scope of RP(UP) Act, it may be suffice to include and to cover the cases falling within the meaning of ‘forgery’; ’illegally’; ’fraudulently’, by illegal acts, by one or two or more persons or by unlawful assembly, etc,. Circumstantial evidence shall be taken to prove illegal occupation of railway land by illegal acts, omissions and commissions by the accused persons.

It is opined that the impact and application of the section 3 of the RP (UP) Act is very wide and does include to mean ‘railway’s immovable property’ also. It is felt that the Legislation, the Statute shall not use the words redundantly, the presumption in the way of interpretation of a Statute. In this context, if applied with prospective, it can not be said that the definition of ‘railway property’ does not nor did not included immovable property.

Further, it can also be seen in section 3 of the RP (UP) Act that – ‘whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable..’.

PREDICATION:

The word ‘OR’; ‘any railway property; and ‘the railway property’ has been used DISTINCTLY with some specific significance and meaning to intend, to connect and/or connote ‘immovable railway property’ also; therefore, from the interpretation and the words used in the Act, even the immovable railway property does also included within the meaning and scope of the definition of the railway property.

Thus, the title and the definition in the ‘The Railway Property (Unlawful Possession) Act, 1966 by itself include and connotes that the Act intends to cover the immovable railway property also. It has to be applied with greater respect and distinction with notable evidence on record to have ample proof to create circumvention evidence that the offender/accused in fact committed the offence of illegal/unlawful possession of immovable railway property obtained by unlawful/illegal means as enumerated herein above.