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:-

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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