IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 28719 OF 2021
PETITIONER:
P.V.SHAHUL HAMEED
AGED 61 YEARS
S/O. M MAHAMOOD, PUTHIYAVALAPPIL (H)
KAPPAKADAVU, AZHIKKAL P.O, AZHIKODE.
BY ADV L.RAJESH NARAYAN
RESPONDENTS
1 STATE OF KERALA
REPRESENTED BY SECRETARY LOCAL SELF GOVERNMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695
001
2 SECRETARY
KANNUR MUNICIPAL CORPORATION, SPCA ROAD, TALAP,
KANNUR 670 002
3 ASSISTANT ENGINEER
KANNUR MUNICIPAL CORPORATION, EDAKKAD ZONAL
OFFICE, KANNUR 670 002
4 DIVISIONAL RAILWAY MANAGER/WORKS
SOUTHERN RAILWAY , DIVISIONAL OFFICE, WORKS
BRANCH, PALAKKAD 678 010
BY ADV G.MAHESWARY
OTHER PRESENT:
SMT. SURYA BINOY B SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C) No.28719 of 2021 2
JUDGMENT
Dated this the 6th day of July, 2022 The petitioner and his son own 7.69 Ares of property in Re-Survey No.18/108 of Edakkad Village in Kannur District.
2. The petitioner purchased the land as per Ext.P1. The petitioner constructed a building in the property. When the petitioner submitted an application for Building Permit, the 2nd respondent-Secretary to Municipal Corporation insisted that the petitioner has to revise the proposal of building construction in such a way that the setback at the railway side should be more than the total height of the building. The petitioner submitted Ext.P7 reply.
3. In the meanwhile, the 4 th respondent-Divisional Railway Manager issued Ext.P9 communication to the 2 nd respondent-Secretary intimating that the petitioner should submit a revised plan duly ensuring that the height of the building should be less than the setback at railway side and the proposed septic tank, Sewage treatment plant, etc. to be W.P(C) No.28719 of 2021 3 relocated from railway side. It is aggrieved by the stand taken by respondents 2 and 4 that the petitioner is before this Court. The petitioner would state that the NOC from Railway Authorities is required only where the construction is sought to be made in property situated within 30 metres from the Railway track boundary.
4. The petitioner submitted that here the distance between the petitioner's property and the Railway track boundary is about 95 metres. NOC is required only where construction is to be made in a property which is situated within 30 metres from the track boundary. The petitioner further pointed out that Rule 5(6) of the Kerala Municipality Building Rules, 2019 ('the Rules, 2019', for short) provide for certain distance rules. In the said Rules, proposed building should have 30 metres from Railway track boundary. In the case of the petitioner, the construction is beyond the statutory restriction.
5. The Standing Counsel representing the 4 th respondent-Divisional Railway Manager, Southern Railway W.P(C) No.28719 of 2021 4 contested the writ petition. The 4th respondent submitted that as per Ext.P11 Indian Railways Works Manual, in the matter of construction of Government and Private buildings, the interest of the Railways has to be safeguarded by providing for an open space of approximately 30 metres being left between the railway boundary and the nearest edge of a building constructed on the adjacent land, the exact space to be left being governed by local conditions.
6. The Standing Counsel further submitted that in cities and towns where the land is valuable and the cost is high, it is not expected of the owner of a plot to give a large vacant space between his building and the Railway boundary. The interest of the Railway would be adequately safeguarded if sufficient vacant space is left so as to facilitate future road and drainage developments outside the railway land to avoid requests for surrender of railway land for access at a future date. The Railway should insist on barest minimum distance.
W.P(C) No.28719 of 2021 5
7. The Standing Counsel further relied on Ext.R4(a) Circular issued by the Ministry of Railways, Government of India. Ext.R4(a) states that an open space of approximately 30 metres between the Railway land boundary and the nearest edge of the building would be sufficient. In cities and towns where land is valuable, the Railway's interest should be adequately safeguarded if sufficient vacant space is left so as to ensure development of any future road access and drainage outside the railway land.
8. The Standing Counsel representing the 2 nd respondent submitted that the petitioner has submitted an application for Building Permit and the 2 nd respondent can consider the application for grant of NOC.
9. I have heard the learned counsel for the petitioner, the learned Government Pleader for the 1 st respondent and the respective Standing Counsel for respondents 2 to 4.
10. In the petitioner's case, it has come out that the petitioner's building is situated about 95.5 metres from the Railway track boundary. Rule 5(4) of the Kerala Municipal W.P(C) No.28719 of 2021 6 Building Rules, 2019 would insist that for proposed building within 30 metres from the Railway track boundary, an NOC/permission from Railway authority should be obtained. The requirement under Rule 5(4) of the Rules, 2019 would admittedly not apply to the petitioner since the Rule speaks about the distance from Railway track boundary and the petitioner's building is more than 90 metres from the Railway track boundary.
11. The contention of the Standing Counsel for the 4 th respondent is that as per paragraph 827 of Ext.P11 Indian Railways Works Manual, the interest of the Railways has to be suitably safeguarded by insisting for an open space of approximately 30 metres being left between the Railway boundary and nearest edge of a building constructed on adjacent land, the exact space to be left being governed by local conditions.
12. In this regard, it has to be noted that on the southern side of the petitioner's plot where the building is proposed to be constructed, a National Highway is passing W.P(C) No.28719 of 2021 7 east-west. The Railway track is farther south. Therefore, ordinarily, any development of Railway tracks would be beyond the southern side of the National Highway. The issue arises in this case because the Railway claims that they own certain land on the northern side of the National Highway. Ext.P11 Manual would require that open space of 30 metres should be left between the Railway boundary and the nearest edge of the building. It is the contention of the 4 th respondent that the 'Railway boundary' in the Manual would indicate boundary of any land owned and possessed by the Railways.
14. The Ministry of Railways, Government of India have issued Ext.R4(a) Circular dated 25.06.2015. Ext.R4(a) Circular would insist that an open space of approximately 30 metres should be left between the Railway boundary and the nearest edge of the building. This Court is of the view that the Manual and Circulars issued by the Ministry of Railways, Government of India will have to be interpreted in such a manner to promote the purpose of such Manuals and Circulars. In the case of the petitioner, between the Railway W.P(C) No.28719 of 2021 8 line and the land of the petitioner where construction is proposed, a National Highway is passing through.
15. The Standing Counsel would contend that the National Highway passes through the leased land of the Railway. Even if the land where the National Highway passes through is of Railway land, such National Highways cannot be a part of development of Railways.
16. Ext.R4(a) Circular would indicate that in cities and towns where land is valuable, it is not expected of the land owner of a plot to leave a large vacant place between his building and the railway boundary. It would be deemed that the Railway's interest will be adequately safeguarded, if sufficient vacant space is left so as to ensure development of any future road access and drainage outside the railway land. In the case of the petitioner, the Railway track boundary is abutting the National Highway. Therefore, there is no question of any need of future road access from the Railway land.
W.P(C) No.28719 of 2021 9
17. In view of the afore facts, this Court is of the view that the 2nd respondent is liable to consider the Building Permit application submitted by the petitioner, without insisting for NOC from the Railway administration in view of Rule 5(4) of the Rules, 2019.
Consequently, the writ petition is disposed of directing the 2nd respondent to consider the application for Building Permit submitted by the petitioner without insisting for NOC from the Ministry of Railways and to issue Building Permit to the petitioner, if the petitioner is otherwise eligible. A decision in this regard shall be taken by the 2 nd respondent within a period of one month.
Sd/-
N. NAGARESH, JUDGE
smm/11.07.2022
W.P(C) No.28719 of 2021 10
APPENDIX OF WP(C) 28719/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED NO.
3583/2018 DATED 4-12-2018 OF SRO,
KADACHIRA
Exhibit P2 TRUE COPY OF THE BASIC TAX RECEIPT
DATED 27-10-2020
Exhibit P3 TRUE COPY OF THE POSSESSION
CERTIFICATE DATED 14-1-2019
Exhibit P4 TRUE COPY OF THE NOTICE DATED 17-12-
2019 NO. E1/5692/19
Exhibit P5 TRUE COPY OF THE ADANGAL EXTRACT DATED
5-11-2019
Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED
15-04-2021 NO.J/W.280/NOC /18/758/21
Exhibit P7 TRUE COPY OF THE OBJECTION DATED 7-7-
2021
Exhibit P8 TRUE COPY OF THE SATELLITE IMAGE OF
THE LOCATION
Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED
29-09-2021 NO J/W. 280/NOC/18/758/21
Exhibit P10 TRUE COPY OF THE REPLY DATED 10-11-
2021
Exhibit P11 TRUE COPY OF THE RELEVANT PAGES OF THE
RAILWAY WORKS MANUAL
Exhibit P12 PHOTOGRAPH OF THE CONSTRUCTION
UNDERTAKEN BY THE PETITIONER
Exhibit P13 TRUE COPY OF THE SITE PLAN
Exhibit P14 TRUE COPY OF THE LOCATION PLAN