Appendix

CHAPTER X

THE CUSTODY, MANAGEMENT AND DISPOSAL OF LAND
 

1001

Position of Land under the Constitution

1002

Determination of dispute as to titles

1003

Transfer of Land or Buildings from Railways to another Department of Government

1004

Custody of Land what custody implies

1005

Litigation

1007

Supplementary Rules relating to Custody of Land

1008

Management of Land

1009

Terms of Management

1010

Responsibility for Management

1011

Management by State Government

1012

Management by Station Committees

1013

Method of Management

1020

Lease and License

1021

Terms of Lease Agreement and Licenses

1022

Licensing of Land to Railway Staff

1023

License fee for Railway Land licensed to private parties

1024

Periodical revision of rent for Railway Land licensed to private parties

1025

Security deposit in the case of Railway Land licensed to outsiders

1028

Railways Land licensed to other Government Departments

1029

Licensing of Railway Land to Defence Department

1030

Licensing of Railway Land for religious purpose

1031

Licensing of land for schools to be opened by State Government in Railway Colonies

1032

License Form

1034

Allocation of receipts from land

1035

Disposal of land not required by Railway

1037

Land eligible for disposal

1038

Disposal of land eligible for disposal

1039

Procedure for disposal

1041

Powers of sanction

1042

Refund of Capitalised value of land revenue

1043

Adjustment of sale proceeds

1044

Completion of sale or transfer

1045

Miscellaneous Exchange of Railway Land

1046

Transfer of Land to or from the Military Authorities

1047

Demarcation of land

1049

Eviction of unauthorised occupants

1050

Forms of notices and orders

1051

Manner of service of notices and orders

1052

Holding of enquiries

1053

Transfer of pending proceedings

1054

Manner of taking possession of public premises

1055

Assessment of damages

1056

Procedure in appeals

1057

Functioning of Estate Officers

1001. Position of Land under the Constitution-The general position under Article 294 of the Constitution is that as from the commencement of the Constitution :-

(a) All property and assets which immediately before such commencement were vested in His Majesty for the purpose of the Government of the Dominion of India and all property and assets which immediately before such commencement were vested in His Majesty for the purpose of the Government of each Governor's Province shall vest respectively in the Union and the corresponding State, and

(b) All rights, liabilities and obligations of the Government of the Dominion of India and of the Government of each Governor's Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the government of India and the Government of each corresponding Stare, subject to any adjustment made or to be made by reason of the creation before the commencement of the Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab.

Article 294, as is evident, relates to succession to property, assets, rights, liabilities and obligations in certain cases is only; Article 295 of the Constitution, which relates to succession to property, assets, rights, liabilities and obligations in other cases, provides that-

(i) As from the commencement of the Constitution :-

  • (a) All property and assets which immediately before such commencement were vested in any Indian State corresponding to a State specified in Part B of the First Schedule shall vest in the Union, if the purpose for which such property and assets were held immediately before such commencement will thererafter be purposes of the union relating to any of the matters enumerated in the Union List, and

  • (b) All rights, liabilities and obligations of the Government of any Indian State corresponding to a State specified in Part B of First Schedule, whether arising out of any contract or other wise, shall be the rights, liabilities and obligations of the Union Government, if the pur- poses for which such rights were acquired or liabilities or obligations were incurred before such commencement will thereafter be purposes of the Union Government relating to any of the matters enumerated in the Union List, subject to any agreement entered into in the behalf by the Union Government with the Government of that State.

(ii) Subject as aforesaid, the Government of each State specified in Part B of the First Schedule shall, as from the commencement of the Constitution, be the successor of the Government of the corresponding Indian State as regards all property and assets and all rights, liabilities and obligations, whether arising out of any contract or otherwise, other than those referred to in clause (1).

All property and assets, which include land and buildings and which vest in the State Government under Article 294 and 295 of the Constitution or otherwise shall be at the disposal of the respective State Governments, who will be at liberty to dispose them of by sale, mortgage, etc.., and the proceeds thereof shall be credited to the revenues of the respective State Governments.

1002. Determination of Disputes as to Titles-Disputes as to titles between the Union Government and State Government shall be determined by Supreme Court.

1003. Transfer of Land or Buildings from Railways to another Department of Government- In the case of transfer of land or buildings to and from the Railway Ministry the full Market value of the land or buildings shall be charged.

CUSTODY OF LAND

1004. What Custody Implies-It is the duty of every Railway Administration to preserve unimpaired the title to all land in its occupation and to keep it free from encroachment. Where, however, the management of any land has been accepted by a State Government (See paragraph 1011) this duty will devolve on that authority during the period of such management. With a view to obviate any litigation, accurate land plans of all railway lands should be maintained and boundaries adequately demarcated and verified therewith at regular intervals.

1005. Litigation-Should litigation be involved in respect of any land held by a Company-managed Railway and should the Administration of that Railway be advised that it is necessary for the Union of India to be made as a co-plaintiff, sanction to do so should be obtained from the Railway Board. In case, where the interests of the Government and the Railway Company are the same, there is no objection to both parties being represented by the same Advocate or Advocates. A special order by the Central Government appointing an officer of the Railway to act on behalf of the Union of India and to sign the pleadings and verify their contents will be necessary. Where the State Government is asked to intervene, the costs incurred by them will be borne by the Railway Company.

Note :In cases, where it may be preferable to file the suit in the name of the Union of India as the sole plaintiff, the Railway Company be made a proforma defendant. The manner in which such litigation is to be conducted should be decided after taking legal advice.

1006. Officers of Indian Railways are competent to act on behalf of the President agreeably to the rules in force for the institution of suits by or against the President.

1007. Supplementary Rules relating to Custody of Land.-General Managers will be responsible for drawing up supplementary rules to ensure in respect of land other than that managed by a State Government, (a) that records of title are safely preserved and kept up-to-date; (b) that boundaries are periodically inspected; and (c) that any encroachments found are promptly reported and dealt with. These duties should ordinarily devolve on the authority entrusted with the management of the land, though it may be desirable to reserve the actual institution of all ejectment suits to one authority (preferably the Engineering Department). No legal proceedings in this connection may be entered upon without the sanction of the General Manager.

MANAGEMENT OF LAND

1008. All Railway land should be managed on commercial lines, and each Railway Administration should endeavour to develop the resources of, and put to profitable use, any areas in its occupation which, though not eligible for disposal (see paragraph 1035) are lying idle and can be put to profitable use. Such land is referred to hereinafter as "available" land.

Note :In regard to the small space of land required by the Postal Department for the installation of the post boxes in railway premises, the use of the necessary land, where agreed to by Railway Administration, may be permitted free of any rent or charges, as the Postal Department have agreed to shift their letter boxes when called upon to do so.

1009. Terms of Management.-The management of land entails :-

  • (i) The custody thereof (see paragraph 1004.)

  • (ii) The utilisation to the best advantage of such portions of it as are, "available", and responsibiilty for all arrangements in connection with their leasing or licensing (e. g., selection of tenant, placing him in possession, fixation of rental, maintenance of the necessary registers and plans, enforcement of the terms of agreement, & c.).

  • (iii) Justifying, if called upon to do so, its continued retention by the Railways or, alter nately instituting proposals for its disposal.

1010. Responsibility for Management.The engineering or any other Department of the Railway decided by the General Manager at his discretion, will be responsible to him for the management on these terms of all land in the occupation of the Railway. The management of available land may be entrusted also to (a) or (b) a State Government, or (b) Station Committees. All land made over for management under (a) or (b) above should be properly demarcated, and accurate land plans thereof furnished to the State Government or the Station Committee, as the case may be.

1011. Management by State Government.A State Government may be offered the management of such areas of "available" land as it may agree to accept and, if necessary, may be permitted to retain a percentage (to be agreed upon between the Railway Administration and the State Government), of the gross receipts accruing from the lease, & c., of the land. In such case the following conditions will apply, viz: -

(i) That such transfer conveys no power to sell, exchange or give away the land with out the sanction of the Railway Administration (i. e. the land will still remain in the "occupation" of the Central Government); and that the latter may impose such restrictions at it may consider necessary on the use or occupation of the land so entrusted.

(ii) That the Railway Administration reserves the right to withdraw such land, without compensation after giving reasonable notice or on payment of a fair price if resumption is made at such short notice as to preclude the gathering of any crop, indigenous to the locality, sown thereon.

(iii) Receipts, less any percentage that may be agreed upon, will be credited to the Railway. Taxes, which would be leviable on the land where it retained under the management of the Railways Administration, will continue to be a charge on the Railway.

(iv) That on the resumption of the land by the Railway Administration or if under dis- posal, in its sale, it should be handed over with a clear title, any steps necessary to preserve such title being taken by the State Government on behalf of the president.

1012. Management by Station Committees.Station Committees may, at the discretion of the General Manager and on terms to be prescribed by him, be given the management of all or any portion of the land under their jurisdiction.

1013. Method of Management.To enable management to be conducted on commercial lines, Railway Administrations are permitted to grant to out-siders or other Departments, under a lease or license, rights and facilities in respect of "available" land for such purposes, whether or not connected with Railway working, as they may deem suitable.

1014. The leasing or licensing of "available" land agreeably to these rules, for purposes, connected with the working of the Railway (e.g., Bulk Oil Installations; Warehouses, Wharfs or other premises for storing goods on receipt from the Railway after arrival or before being made over to the Railway for despatch; Shops for Station Vendors; schools for the children of railway employees; & c. does not require a reference to a state Government or other authority; but, in the case of land leased or licensed for other purposes, the State Government or other authority concerned should be consulted whenever the contingent circumstances are such as to render it relevant of advisable, particularly if the alienation is of a quasi-permanent nature.

1015. When Railway land is leased or licensed for a purpose not connected with the working of the Railway no permanent structures should be allowed to be constructed on such lands.

1016. Land is surplus to railway requirement may be licensed on nominal rent to the Railwaymen's Co-operative Credit Societies and Consumer Co-operative Societies for the purpose of construction of their own buildings subject to the conditions laid down in para 1022. The buildings that may be put up by the Societies on railway land should be according to specification approved by the Railway Administration concerned so that such buildings may be utilised for staff quarters later.

1017. The leasing or licensing of Railway land for religious or education purposes or the granting of permission for the erection on railway land of praying platforms or of new structures to be used for religious purposes or the modification or extension of existing structures, will require the sanction of the Railway Board.

1018. In addition to the lease or license of land itself, rights pertaining thereto, such as grasscutting, grazing, fruits, fishing, mooring, & c. may be let out by Railway Administration.

1019. The method by which land is managed by a State Government will be decided by that authority, subject only to the conditions on which such management is undertaken.

1020. Lease and License.--A Lease presents certain difficulties in that there is a danger of accrual of occupancy rights. Nevertheless, if the added security of tenure given thereby is likely to result in an appreciably enhanced rental, its employment should be seriously considered. A license, on the other hand, merely confers on the licensee the right subject to certain restrictions, to use the allotted land for the purpose of operations specified, and creates no tenancy therein. These instruments must be executed only on behalf of the President and by the authorities competent to do so (cf. Appendix II, Indian Railway Code for the Stores Department.)

1021. Terms of Lease Agreement and Licenses.The terms embodied in the various forms of agreement pertaining to licensing and leasing out of railway lands should, broadly speaking, be such as to ensure :---

(i) That the interests of the Central Government and of the Railway Administration are adequately safeguarded.

(ii) That the rental obtained will provide a margin of profit.

(iii) That, except as provided in clause (ii) of the conditions on which the management of the land may be entrusted to a State Government (paragraph 1011) no liability attaches to the railway administration for any compensation on resumption; and that except under the general or specific orders of the Railway Board, the Railway Ad- ministration is not committed (though it may retain an option) to the purchase, on resumption of the land, of buildings or structures erected thereon.

1022. Licensing of Land to Railway Staff.As an exception to Clause (ii) of the preceding paragraph, railway staff may, at the discretion of the Railway Administration be permitted the cultivation of small plots of "available" land and the enjoyment of usufruct free of charge. Plots of vacant railway land may also be licensed to railway employees, or to such non-railway organisations as provide facilities to railway employees, for the purpose of playing games at a nominal rent, where necessary, provided that it is made clear in the agreement in each case that the land will be resumed at short notice, not exceeding a month, without compensation for any buildings erected or improvements effected thereon.

1023. License fee for Railway land licensed to private parties.-For fixation of license fee for Railway land licensed to private parties, a return of six per cent on the market value of the land as assessed by the local revenue, authorities should be treated as "standard rent". But in actual licensing out, Railway Administration should aim at obtaining the best possible rent. They may accept in individual cases, variation from "standard rent" on merits and for good and sufficient reasons. The minimum rent in such cases should be Rs. 100/- per annum.

The assessment of market value of the land as made by the revenue authorities need not always be treated as final or binding. It may require to be suitably adjusted and escalated if sufficient time has passed since the last assessment was made or if information was available with the railway of higher prices having been paid for private and other transactions of land in the vicinity.

1024. Periodical revision of rent for Railway land licensed to private parties.-A quinquennial revision of rent for railway land licensed to private parties should be made in large towns and commercial centres. At other locations rent should be revised at interval of 10 years only. The exact locations at which five yearly revision should be applied is to be decided by the Railway Administration in consultation with their Financial Advisers and Chief Accounts Officers. In all relevant agreements provisions should exist for such periodical revision of rent and recovery of enhanced rent with retrospective effect.

1025. Security Deposit in the case of railway land licensed to outsiders.-In all cases of licensing of railway land to outsiders the license agreement should provide inter alia for :-

  • (i) recovery of occupation fees monthly in advance.

  • (ii) payment of security deposit, equivalent to 12 months occupation fee.

  • (iii) when the duration of license is one year or more, 12 months occupation fees should be recovered in advance every year with a grace period of one month.

  • (iv) where the duration of license is less than a year, the occupation fees for the full period should be recovered in advance.

  • (v) in case of advance occupation fees as per sub-para (iii) above is not paid by the party within the stipulated period of one month the occupant shall also pay liquidated damages at the rate of one per cent per month or part thereof to be reckoned from the due date to the date of actual payment.

  • (vi) in case payment of occupation fees in not made within a further period of 3 months the Government shall be entitled to :-

  • (a) forfeit the Security Deposit referred to above.

  • (b) initiate eviction proceedings for getting the Railway premises vacated and take ac- tion for recovery of occupation fee and liquidated damages up to the date of actual vacation.

1026. Licenses could be permitted to make the security deposit not necessarily in cash but also in other forms as approved in the case of other contracts (refer para 1246).

1027. While payment of advanced rent as indicated in para 1025 should be insisted in the case of land licensed to Government owned undertakings, payment of security deposits may not be insisted upon provided the concerned Ministry gives a guarantee to the railway against payment of dues by the Government undertakings. In the case of land licensed to Government Departments payment of advanced rent should be insisted, but security deposit may not be insisted upon.

1028. Railway land licensed to other Government Departments.-In the case of land licensed to other Government Departments, a uniform rate of 6 percent of the market value of land as assessed by local revenue authorities is to be levied. A provision for revaluation of rent at fixed intervals (refer para 1024) in the case of long term lease should be provided in the agreement.

1029. Leasing of Railway land to Defence Department.-In the case of railway land leased to Defence Department the rent for the first 10 years of occupation will be fixed on the basis of 6 per cent of the market value of the land, as assessed by local revenue authorities. If the total period of occupation extends beyond 10 years, the rent will be subject to revision after every 10 years period of occupation on the same basis of 6 per cent of the market value as assessed by local revenue authorities.

1030. Licensing of Railway lands for religious purposes.-In case of railway lands licensed for use as religious places the fee should be recovered on a uniform rate of Rs.1,000/- per annum.

(Authority: Railway Board’s letter No. 2002/LML/21/16 dated 4.6.2003)

  1031. Licensing of Land for Schools to be opened by State Government in Railway Colonies.-Railway land required by the State Government for opening of new schools for the children of Railway employees in Railway colonies may be licensed to them at a nominal fee. The period of license should not exceed 30 years and the amount of nominal fee should be settled by the Railway Administration in consultation with their Financial Adviser and Chief Accounts Officer.

1032. (i) License Form.A sample license form, for Bulk Oil Depots, is given in Appendix VI but other forms may be adopted to suit requirements provided that, whether for a Lease or a License, they are drafted under competent legal advice.

1032. (ii) In the case of Land rented to a Department of the Government of India, or State Government, an unstamped agreement embodying the terms and signed by authorized representatives of both parties, is all that is required.
 

1033 WAY LEAVE FACILITIES/EASEMENT RIGHTS

 

 

1.         Way leave facilities/easement rights on Railway land involve occasional or limited use of land by a party for a specified purpose like passage etc., without conferring upon the party any right of possession or occupation of the land and without in any way affecting the Railway’s title, possession, control and use of the land.

 

2.         Sections 16 of the Railways Act, 1989 enjoins upon the Railways to make and maintain specified works for the accommodation of the owners and occupiers of the lands adjoining the railway, for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway is made. Such works include crossings, passages, drains, water courses etc. Apart from these, requests are often received for provision of way leave/easement on railway land in the form of passage/access to private houses and establishments, underground pipelines for water supply and sewerage, electrical and telecommunications lines, etc. In many cases, these are unavoidable in view of the very nature and extent of the railway alignment.

 

3.         Such requests for granting way leave/easement facilities have to be considered with due regard to the circumstances of each case. Some such circumstances may be:-

 

i)     Non-availability of any other means of access to properties/houses;

ii)    Non-feasibility of provision of water supply, electricity, sewerage, etc. from

any other direction.

                       

4.         In genuine and unavoidable cases, way leave facility/easement right may be allowed after execution of proper agreements. However, the land is not licensed, but only permission is to be granted for a limited use which is to be specified in detail in agreement. To avoid any misunderstanding on this score, the agreement should not use terms like ‘Licence’ and ‘Licence fee’, but only ‘permission’ and ‘way leave charges’ . The agreement should also clearly stipulate that the Railway Administration retains full rights to enter upon, pass through or use the land, at any time, without any notice to the party. In the event of the way leave facility being discontinued with, the Railway will not be liable to pay any compensation or reimburse any amount to the party, nor to provide any alternative arrangement for access, etc. In such a case, any installations like underground pipelines, etc. put up by the party are liable to be removed/shifted by the party at its own cost.

 

5.         The way leave facility/ easement right on railway land provided for these specific purposes should not be used to transverse and use Railway land along the track. Railways are advised to deal these cases in strict compliance to instructions contained above mentioned letter. In case of oblique crossing, unavoidable and bare minimum railway land parallel to the track should be used.

 

 

6.         The following rates as revised from time to time may be levied for way leave/ easement rights on railway land:-

 

I. a) Passage/pathway on/across railway land (up to 1m. wide) for pedestrians, cyclists etc.

 

One time recovery of Rs. 6400/- (Way leave agreement for 35 years renewable for another 35 years)

 

b) Water pipeline xing for cultivation by individual farmers.

 

One time recovery of Rs. 12800/- (Way leave agreement for 35 years renewable for another 35 years)

 

c) Electric lines xing for individual houses shops, etc. (both underground and overhead).

 

-do

d) Water/ sewage pipelines xings for individual upto 300 mm dia.

 

-do

e) Electrical crossings by State Electricity Boards & Central Agencies.

 

-do

f) In case of ROB/RUB which are undertaken on deposit terms and do not involve closure of level crossing-----for the portion of ROB/RUB lying over/below the Railway track as the case may be.

Rs. 6000/- p.a upto two lane road crossing two tracks and Rs. 12,000/- p.a in case the Bridge is wider than two lane and/or crossing more than two tracks.

 

II. a) Passage/road for vehicles, scooters etc. (i.e. between 1m. to 3m. wide) by individuals, housing societies, private firms, organizations etc.

 

6% of the market value of land p.a. subject to a minimum of Rs. 5000/- p.a.

 

b) Public roads by local bodies/State Govt./ Govt. & Autonomous bodies,

charitable/welfare organisations.

 

6% of the market value of land p.a. subject to a minimum of Rs. 10000/- p.a.

 

c) Underground water/ sewage/ effluent pipelines.

-do

d) Underground/overhead electrical crossing other than covered under 1(c) above, and other than for Cable TV/OFC.

-do

III.a) Open drains and overground water/sewage/oil/ gas/effluents pipelines by private parties (including Public Sector Undertakings).

10% of the market value of land p.a.subject to a minimum of Rs. 20000/- p.a.

 

b) Underground Oil/gas/ pipelines

. -do-

 

IV. Underground/overhead cables and alignments including track crossings in favour of Department of Telecommunications/ Bharat Sanchar Nigam Limited/ Mahanagar Telephone Nigam Limited/Videsh Sanchar Nigam Limited. This includes laying of Optic Fibre Cable(OFC).

 

6% of the market value of land per annum subject to a minimum of Rs.10,000/- per annum per crossing.

 

Optic Fibre Cable:

 

a)    6% of the market value of land per annum subject to a minimum of Rs.10,000/- per annum per crossing.

b)    For purpose of laying OFC along the length of bridge, 6% of market value of land in approaches, subject to a minimum of Rs.25,000/- per annum per bridge, would be charged. In addition, an amount of Rs.100 per metre for the length of cable under the bridge would also be recovered as bridge surcharge.

c)    For the purpose of laying OFC through ROBs, 6% of market value of land in approaches, subject to a minimum of Rs.10,000/- per annum per crossing through ROB would be charged.

 

Note – (i) In cases of I(a) to (e), and II(a), the length of land involved normally should not  exceed 50 m.

 

7.         Openings of any kind into Railway land/air space should not be permitted. This includes drops and sprouts from buildings, supports for buildings, wires, poles and other such needs of permanent nature.

 8.         Any proposal for passage/roads for width more than 3 m. should be treated under licensing as per extant circulars on the subject of licensing. 

9.         For calculating these charges, in the case of Electrical crossings, the width of land may be decided in consultation with Divisional Electrical Engineer locally. 

10.       In case of any crossing, minimum width of land is to be taken as 1m for the purpose of assessment of way leave charges. 

11.       Regarding facilities specified in Paras 6.I(f), 6.II to 6.IV, it has been decided that these charges shall be payable in advance in block of 10 years. Discounting of future cash inflows at prevailing interest rates announced by RBI for Govt. Securities would be permissible. While calculating the advance equivalent to 10 years annual charges, annual increase of 7% in land value would be assumed. Adjustments needed because of variation vis-a-vis actual increase as per rates notified by local development authority or as obtained from District Collector, would be carried out at the time of payment of the installment of way leave charges for the next 10 years. 

12.       In all the above cases of way leave facilities (except ROBs/RUBs, and underground pipelines), no construction (whether permanent, quasi permanent or temporary), other than a kuchcha or pucca road in cases the facility is expressly given for the same, is to be permitted on railway land. If any construction comes up subsequently, the same should be immediately removed as soon as noticed, and the way leave facility discontinued with. 

13.       In view of the large number of cases involved, decision for granting way leave facilities may be taken by the D.R.M (without any further redelegation) in consultation with Divisional Associate Finance. Way leave facilities involving stretch of railway land more than 100 Metres, can be permitted only by the General Manager in consultations with the FA&CAO.

14.(a) All way leave proposals should be processed by the Sr.DEN(Co-ord) at the Divisional level, and the Chief Engineer at the Headquarters level. Way leave facilities should not be granted as a matter of routine, but only after consideration of each case on merits based on a site inspection. Special care should be taken to see that the way leave facility does not in any way impinge on the safety and security of railway operations and railway property. 

(b) Way leave permission in respect of open drainage and surface/overhead pipelines should be allowed only in unavoidable cases. In any case, fresh permission for this in favour of private parties should not be given. All efforts may also be made to have the existing open drainage and surface/overhead pipelines replaced by underground installations at the earliest. 

15.       In all cases of way leave facility granted, proper agreement should be executed. The agreement should provide for revision of way leave charges from time to time. 

16.       Way leave permission should be accorded only after ensuring that Railways’ financial interests are not affected in any manner, i.e. by way of loss of traffic, loss of revenue etc. by granting such permission. Suitable clause securing Railways’ financial interests may be provided in the agreement to be executed with the party, whenever necessary. 

17.       Provisions of para 6.I (a) to (e) shall be applied prospectively i.e. for fresh cases. Cases already decided shall be continued with earlier provisions. However, one time recovery as per present guidelines can be applied in old cases too if the other party accords consent to the same. Fresh agreement needs to be executed in such cases. 

18.       The calculation of annual increase should be on the basis of the actual way leave charge and not on the minimum charge specified in Paras from 6.II to 6.IV. 

19.       In case such proposals envisage crossing of track in the form of road, pipelines etc., the extant rules and procedures relating to safety, provision of level crossings, pipeline crossings, etc. will govern and the provisions of this para would be limited to the use of railway land only. 

(Authority Board’s letters No.97/LML/24/3 dated. 27.11.2001, 3.10.2002 18.05.2005, 16.11.2005,  No.2001/LML/24/20 dated 16.08.2005 & No.2011/LML/24/44 dated 05.02.2013).   ---ACS NO.47

1034. Allocation of Receipts from Land.-The net receipts from the management of railway land should be adjusted in accounts in the following manner :--

(i) In the case of a railway, the capital account of which is charged with the cost of the land, by credit to Abstract Z- "Sundry Other Earnings" or to the head "Receipts on Capital account" according as the railway is an open line or one under construction.

(ii) In the case of Ex-Tirhoot Railway portion of the N. E. Railway, whose capital ac- count, though bearing the cost of land, does not include the capitalized value of the land revenue abated, the net receipts realized by Revenue Authorities should be credited to "Land Revenue" in the Civil Department.

1035. Disposal of Land not required by Railways. --In regard to all railway land the policy of the Railway Board is to limit holdings to actual requirements, present and prospective. Every Railway Administration should, therefore, be in a position to justify the retention of land occupied by them and where unable to do so, should classify it as "eligible for disposal" and arrange for its disposal agreeably to the rules in the following paragraphs.

1036. While land is not to be retained unreasonably, it is equally not to be disposed of at prices incommensurate with its value nor surrendered free of cost.

1037. Land Eligible for Disposal.-In deciding whether or not a certain area is eligible for disposal Railway Administrations should be guided by the consideration that land may be said to be required for the effective discharge of the duties of the Ministry of Railways, if it falls within one or the other of the following categories :

  • (a) Land in the active occupation of a railway, i. e., land actually occupied by the permanent works of the railway, or acquired for their construction, maintenance or repair.

  • (b) Land not so occupied but to the permanent alien control of which specific objection exist, i. e., land in the midst of or adjoining that in active occupation and to separate which from such area would be detrimental to railway interests.

  • (c) Land required in the interest of the health or welfare of the staff, or for the safety of railway property (e. g., sanitary or fire zones, etc.)

1038. Disposal of Land eligible for Disposal.-When it has been decided that a certain area of land is no longer required by any department of the railway and that it is, therefore, eligible for disposal the following procedure should be observed.

(1) If the land adjoins or is in the near vicinity belonging to any other railway or department of the Central Government it should first be offered to such railway or department. If one of these desires to acquire it, a formal record of transfer should be made and the State Government advised; or if willing, the latter may be entrusted with the work of transfer.

(2) If the land is surplus to the requirements of the Central Government, the Government of the State in which it is situated will be given the option of assuming possession of the whole or portion thereof subject to the following conditions :--

  • (a) the Central Government themselves shall be the judge of whether they require to retain any particular land or not;

  • (b) if the State Government desires to assume possession of the land, the option to do

  • so shall be exercised within six months of the date on which the Central Government signify their intention of surrendering their land;

  • (c) the amount payable for the land will in all cases be its market value at the date of transfer;

  • (d) when the State Government desire to assume possession of only a portion of the land surrendered, they shall be entitled to do so only if the value of land as a whole is not materially reduced by the division; and

  • (e) if the State Government do not desire to assume possession of any land on the foregoing terms, the Central Government will be free to dispose it of to a third party. Before, however, so disposing of the land, the Central Government will consult the State Government as to the levy of ground rent or assessment and the conditions, if any, subject to which it should be sold and they will, as far as possible dispose of the land subject to the conditions which the State Government may de sire to impose.

The Central Government are not, however, bound to obtain the concurrence of the State Government in all cases and in case of disagreement the Central Government shall be the sole judge of the terms and conditions to be imposed.

(3) If the State Government is unwilling to assume possession as indicated in sub-para (2) above, the land should be disposed of to the best advantage possible.

(4) If neither another railway nor a department of Central Government nor the State Government desire to acquire the land, and if there has been a request from the Railwaymen's Co-operative Housing Society for the same the Railway Administration can relinquish the land to them after obtaining necessary clearance from the respective State Governments, with the prior approval of the Board. The sale value of the land in all these cases should be market value prevailing at the time of transfer.

(5) If neither another railway nor a department of the Central Government nor the State Government desire to acquire the land, and if no reasonable offer is forthcoming from other parties, the land should be retained by the Railway Administration and managed in accordance with the procedure laid down in paragraphs XX 1008 et seq until such time as one or the other of the above contingencies eventuate.

1039. Procedure for Disposal.-In the disposal of land under clause (3) of the preceding paragraph the following procedure should be adopted :--

(a) The State Government may be asked to undertake the whole process of disposal, the Rail way Administration merely concurring in the terms.

(b) If the State Government is unwilling to undertake negotiations for sale, these should be carried out by the Railway Administration, and the State Government requested to carry out the final transaction on the terms arranged.

(c) If the State Government is unwilling to effect even the actual transfer, a formal deed of conveyance should be drawn up by the Railway Administration (ordinarily at the expense of the purchaser), submitted to the authority competent to execute it for signature, and registered, the land being thereafter made over, by the responsible authority, to the purchaser.

(d) In any case the State Government should be consulted as to the manner of disposal, the conditions (if any) that should be laid down for the use of the land after sale, and the extent to which (if at all) the principles of the Resolution of the Government of India in the Department of Revenue and Agriculture No. 13/44-13, dated 30th October, 1896, reproduced below, should be applied.

Resolution No. 13/44-13, dated 30th October, 1896 of the Government of India in the Department of Revenue and Agriculture.-The Government of India desire that whenever agricultural or pastoral land has been acquired for public purposes, whether by private purchase or by compulsory acquisition, and is no longer required for such purpose, the disposal of it may be guided by the following general consideration :--

"In the first place all proprietory rights and all rights of occupancy which were extinguished by the acquisition should be first offered to the persons from whom they were acquired, or to their heirs if discoverable; the former where both kinds of rights co-existed being made subject to the latter under the provisions of the Crown Grants (Act XV of 1895)."

"In the second place the price at which these rights are offered should be the amount of compensation originally paid for them less the 15 percent in excess of the value which will have been paid if the acquisition was compulsory. This price may be reduced, if necessary, on account of any deterioration that may have taken place in the fitness of the land for agricultural or pastoral purposes while it was in the occupation of Government but it should not be increased, except in the case stated below on account of any rise in its market value during that period."

"In the case of plots which by reasons of their size or shape are practically of no value to any one but the owners of the adjoining land if those owners are nor entitled to the first offer as above, they ought nevertheless to receive the first offer; but in that case there is no objection to asking the market value, though the reasonable offer of a neighbouring holder should always have the preference over that of an outsider."

"The Superior Revenue authority will, of course always retain and exercise discretion in the application of the general rule about the charge of cost price. Special cases will occur, and exceptions will be justifiable, as for example, when the persons first entitled are remote descendant of relations of the original holders, or when the rise in the market value of the land has been so exceptionally great as to take the case out of the general rule. the government of India lay down no hard and fast rule, but only a principle for general guidance."

"It will be observed that the above principles apply to agricultural and pastoral land only, and not to building sites or town land."

2. It will be for Local Government and Administrations to issue instructions adapted to local circumstances, in general conformity with the above considerations. Those instructions will be mere executive instructions; and the greatest care should be taken to avoid anything which might have the semblance of conferring a right, or affording a basis for any claim either as against Government or as between Private parties, and to make it clear that the concession are made as an act of grace, and are wholly within the pleasure of Government to grant or to refuse in any particular case.

1040. In the case of disposal of land to Department of the Central Government the amount payable will be the market value of the land and the buildings thereon. In all other cases land will be disposed of at the highest offer which is considered reasonable.

1041. Powers of Sanction-In all cases of disposals whether under paragraph 1038 or 1040 conditions of restriction of uses agreed upon by both parties may be embodied in the transfer of sale deeds. Where the estimated value of the land exceeds Rs. 1,00,000 a prior reference should be made to Railway Board.

1042. Refund of Capitalized value of Land Revenue.-In cases where railway land is transferred to a State Government and where the capitalized value of the land revenue had been paid to the Local Government on acquisition, the amount payable by the State Government for the land should include the refund of the capitalized value. In the case of land disposed of to private parties the refund of the capitalized value of land revenue by the State Government will not, however, be necessary.

1043. Adjustment of Sale Proceeds.-The proceeds of all railway land disposed of less any charges properly incurred in their disposal, will be credited to the Capital account of the railway. As in the case of acquisition, a State Government may be reimbursed the cost of special establishment employed in connection with disposal proceedings.

1044. Completion of Sale or Transfer. As in acquisition, the process of disposal is not completed until possession of the land is made over (and in no circumstances should this be done until the terms of sale or transfer have been settled); and until the sale or transfer is complete all rights in the land continue to vest in the Central Government, Ministry of Railways. After sale or transfer is complete, the railway boundary marks, land plans & c., should be adjusted accordingly.

Miscellaneous

1045 Exchange of Railway Land.-A Railway Administration may, at its discretion effect an equitable exchange of land in its occupation for other land equally suited to their requirements, with or without a monetary adjustment, the method of transfer following, with necessary changes, that prescribed for disposal of land.

1046. Transfer of Land to or from the Military Authorities.I-n regard to transfer of land to or from the Military Authorities the procedure laid down in paragraph 951 et seq should be followed.

1047. Demarcation of Land.-The following rules for the demarcation of land have been laid down by the Government of India under Section 13(a) of the Indian Railways Act IX of 1890 :

(a) All land permanently occupied for the purposes of a railway shall have its boundaries defined on the ground in such a manner as to enable such boundaries to be readily ascertained and identified.

(b) For this purpose the boundary of the railway land may be defined by a continuous wall, fence or ditch or by detached marks, posts or pillars.

(c) Where the boundary mark is continuous, the boundary of the railway land is to be on the outer edge of the wall, fence or ditch, that is to say the wall, fence or ditch will be situated wholly on railway land.

(d) Where detached marks, such as isolated posts or pillars are used, the boundary of the railway land will pass along the outside of such posts and pillars, Between the marks the boundary will in each case be taken in a straight line from the outside of one mark to the outside of the next mark.

(e) Detached marks should in no case be at a greater distance apart (centre to centre) than 50 (Fifty) metres. They should be of a substantial character, not easily destroyed or moved by accident or mischief, and of such size and form as can be readily found and recognized.

(Authority: Railway Board letter No.98/LML/14/156   dated 21-12-2001)

 (f) Each detached boundary mark should bear a number. The position and number of each detached boundary mark should be shown on the Land Plan.

(g) Where a fence, wall or ditch is situated at some distance within the boundary and does not mark the actual limit of the railway land it will be necessary (in addition to such fence, wall or ditch) to have the actual boundary of the railway land properly marked and defined in accordance with these rules.

1048. Every Railway Administration is responsible for the demarcation and periodical verification of the boundaries and the maintenance of proper records in connection therewith of all land in the possession of that Railway.

1049. Eviction of unauthorised occupants.-The eviction of unauthorised occupants from public premises is regulated by the provisions of "The Public Premises (Eviction of Unauthorised Occupants) Act 1971, which is reproduced as Appendix VII of this Code. Action under this Act can be taken only by those officers who are appointed as Estate Officers by a notification in the official Gazette. The term "Act" in paras 1050 to 1058 refers to the Public Premises (Eviction of Unauthorised Occupants) Act 1971.

1050. Forms of notices and orders.- A notice or order under the Act shall be in one of the appropriate, forms indicated in Appendix VIII.

1051. Manner of service of notices and orders.--(i) In addition to any mode of service specified in the Act, a notice issued under sub-section (1) of section 4 of sub section (1) or section 6 or sub section (1) or (2) of section 7 or sub-section (1) of section (13) of the Act shall be served by delivering or tendering a copy of the notice to the person for whom it is intended or to any adult member of this family or by sending it by registered post acknowledgement due in a letter addressed to that person at his usual or last known place or residence or business.

(ii) When the copy of the notice as indicated in sub para (i) is delivered or tendered the signature of the person to whom the copy is so delivered or tendered should be obtained in token of acknowledgement of the service.

(iii) In respect of a notice issued under sub section (1) of section 4 or sub section (1) of section 6 or sub section (1) or (2) of section or sub section (1) of section 13 of the Act, where the person or the adult member of the family of such person refuses to sign acknowledgement or where such person cannot be found after using all due and reasonable diligence, and there is no adult member of the family of such person, a copy of the notice shall be affixed on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such person and the original shall be returned to the Estate Officer who issued the notice, with a report endorsed theron or annexed thereto stating that a copy has been so affixed, the circumstances under which it was done so and the name and address of the person, if any by whom the ordinary residence or usual place of business was identified and in whose presence the copy was affixed.

(iv) If a notice issued under sub section (1) of section 4 or sub section (1) or (2) of section 7 or sub-section (1) of section 13 of the Act cannot be served in the manner provided in sub para(i), the Estate Officer may, if he thinks fit, direct that such notice shall also be published in at least one newspaper having circulation in the locality and he may also proclaim the contents of any notice in the locality by beat of drums.

1052. Holding of inquiries.-When any person on whom a notice or order under this Act has been served desires to be heard through his representative, he should authorise such representative in writing.

The Estate Officer shall record the summary of the evidence tendered before him. The summary of such evidence and any relevant documents filed before him shall form part of the records of the proceedings.

1053. Transfer of Pending Proceedings.-(i) On the application of any person on whom a notice or order under this Act has been served and after hearing him, if he desires to be hear, or of its own motion, the Central Government or any officer specially authorised by the Central Government in this behalf by notification in the official Gazette may at any stage transfer any proceedings pending before an Estate Officer for disposal of the same.

(ii) When any proceedings have been transferred as indicated in sub para (i), the Estate Officer who thereafter is in-charge of such proceeding may, subject to any special directions in the order of transfer, either restart it or proceed from the point at which it was transferred.

1054. Manner of taking possession of public premises.--(i) If any obstruction is offered, or in the opinion of the Estate Officer is likely to be offered to the taking possession of any public premises under the Act, the Estate Officer or any other officer duly authorised by him in this behalf may obtain necessary police assistance.

(ii) Where any public premises of which possession is to be taken under the Act is found to be locked, the Estate Officer or any other officer duly authorized by him in this behalf may either seal the premises or in the presence of two witnesses break open the locks or open or caused to be opened any door, gate or other barrier and enter the premises provided that----

  • (a) No entry shall be made into or possession taken of, a public premise before sunrise or after sunset;

  • (b) Where any public premises is forced open, and inventory of the articles found in the pre- mises shall be taken in the presence of two witnesses.

1055. Assessment of damages.-In assessing damages for unauthorised use and occupation of any public premises the Estate Officer shall take into consideration the following matters namely :--

  • (a) The purpose and the period for which the public premises were in unauthorised occupation;

  • (b) The nature, size and standard of the accommodation available in such premises;

  • (c) The rent that would have been realised, if the premises had been let out on rent for the period of unauthorised occupation to a private person;

  • (d) Any damage done to the premises during the period of unauthorised occupation; and

  • (e) Any other matter relevant for purpose of assessing the damages.

1056. Procedure in appeals.-(i) An appeal preferred under section 9 of the Act shall be in writing, shall set forth concisely the grounds of objection to the order appealed against and shall be accompanied by a copy of such order.

(ii) On receipt of the appeal and after calling for and persuing the records of the proceedings before the Estate Officer, the appellate officer shall appoint a time and place for the hearing of the appeal and shall give notice thereof to the Estate Officer against whose orders the appeal is preferred, the appellant and to the head of the department or authority in administrative control of the premises.

1057. Functioning of Estate Officers.- Estate Officer is an individual and the decision to be taken by him under Public Premises (Eviction of Unauthorised Occupants) Act, is personal to him and the power to decide is vested in him personally and in exercising it he has to act quasi-judicially and can not accept any private advice or guidance in coming to a conclusion. Estate Officer function as quasijudicial authority and it would be inappropriate for him to seek even informally the opinion or advice of the Ministry of Law, save with the knowledge and consent of the party to the proceeding.

1058. Proceedings of Estate Officer are not judicial proceedings and as such Evidence Act is not applicable, though the basic principles of the same should be observed. Estate Officer should maintain separate record of all his proceedings under the Act and departmental notings should not be mixed up with such record.

1059. Unauthorised fishing in Railway lakes cannot be brought under Public Premises (Eviction of Unauthorised Occupants) Act.

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