Mohammad Rafiq, J. - (1.) PETITIONER -appellant has filed this special appeal aggrieved by judgment of learned Single Judge dt. 21.05.2012 in Writ Petition No. 44/2011. The writ petition was filed with the prayer that respondent authorities may be directed to comply with the provisions of the Municipalities Act and Railway Act, with a further direction to them to take immediate steps to ensure convenient drainage of water, which collects and stagnates near his residence at Point 'D' and to take such measures which are necessary for free flow of the same. Learned Single Judge disposed of the writ petition observing that the matter involves factual dispute, which can be best resolved and adjudicated on the basis of evidence of the respective parties including evidence of experts to determine as to whether it is imperative to construct a drain for the flow of the stagnant water through the railway's property and that such drain cannot be constructed by Nagar Palika Mandal, Dausa, over its own land. Learned Single Judge, therefore, held that no relief as prayed for can be granted to the petitioner -appellant under Article 226 of the Constitution of India as he agitates not so much a legal or fundamental right, but a civil right and the adjudication of the writ would be fraught with the necessity to adjudicate grossly disputed questions of fact, which a writ Court would loath to in the exercise of its jurisdiction under Article 226 of the Constitution.
(2.) SHRI P.C. Jain, learned counsel for petitioner -appellant has argued that the house of the petitioner -appellant is in vicinity of the railway platform and the water was flowing through the railway property itself, but on account of extension of the platform the said drainage of water has been blocked. The land over which the platform has been constructed by way of its extension, was earlier used for stagnant water and therefore the problem of drainage arose on account of said construction. The excess water that gets collected nearby the house of the petitioner and causes nuisance. Therefore the petitioner's legal as well as fundamental right has been violated. The respondents railway should be therefore directed to construct drainage within its own land as per the inclination of the land so as not to disturb the flow of the water. Shri Shailesh Prakash Sharma, learned counsel for the respondents Railway, opposed the writ petition and submitted that the platform has been extended in order to cater the pressure of the traffic and need of the passengers and that the Municipal Board has already taken steps to acquire the land for the purpose of construction of drainage system. In this connection, learned counsel invited attention of the Courts towards the Notification dt. 28.06.2012 issued by the Government seeking to acquire land measuring 868.00 square meter for construction of drainage line along the disputed land. The description and measurement of the land sought to be acquired has been given in the list enclosed with the Notification dt. 28.06.2012.
(3.) IN view of aforesaid facts and circumstances, when already the Municipal Board has taken initiative to acquire the land for construction of drainage system, possibly the writ of mandamus cannot be issued directing the Railway to construct the drainage system within its own land. Even if, for the sake of argument, it is accepted that the water used to be collected in the land which has been utilized by the railways for extension/construction of platform, that would not confer any right in favour of the petitioner. Learned Single Judge, in our view, has not committed any illegality in passing the judgment in the manner which has been passed. The appeal is therefore dismissed. Consequent upon dismissal of special appeal itself, the stay application, filed therewith, does not survive and same is also dismissed.;