IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
WP(C) NO. 3248 OF 2022
PETITIONER
RAJULA RASHEED ALIAS RAJILA
AGED 49 YEARS,W/O. RASHEED N.K
NANETHAN HOUSE, RAYONPURAM, CHELAMATTOM
VILLAGE, PERUMBAVOOR, PIN - 683543
BY ADVS.
SAJU N.A.
G.LEKHA
P.J.FLONY
UMA.G.KRISHNAN
RESPONDENTS
1 THE DIVISIONAL RAILWAY MANAGER WORKS
SOUTHERN RAILWAY, DIVISIONAL OFFICE, WORKS
BRANCH, TRIVANDRUM, PIN - 695014
2 ADDL.R2. IMPLEADED
CHOORNIKKARA GRAMA PANCHAYATH
CHOORNIKKARA, THAIKKATTUKARA. P.O., ALUVA-
683106, REPRESENTED BY ITS SECRETARY,
IS IMPLEADED AS ADDITIONAL RESPONDENT 2 AS PER
ORDER DATED 31/03/2022 IN IA 1/2022 IN WP(C)
3248/2022.
BY ADVS.
SRI.A.DINESH RAO, SC, RAILWAYS
ANIL K.MUHAMED
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.3248 of 2022 :2:
JUDGMENT
Dated this the 28th day of June, 2022 The petitioner, who has completed construction of a three storied residential cum commercial building in 4.10 Ares of property in Re-Survey No.360/4 of Choornikkara Village, Ernakulam District, has approached this Court seeking to direct the respondents to consider issuing No Objection Certificate for the construction carried out by the petitioner on the basis of Ext.P3 letter cum undertaking.
2. The petitioner states that the petitioner submitted an application for Building Permit to the additional 2 nd respondent-Choornikkara Grama Panchayat and a building permit was issued. In the meanwhile, the petitioner's land being near a railway line, the additional 2 nd respondent- Grama Panchayat authorities sought NOC from the Railway Authorities, for construction of the building. The Railway Authorities rejected the application for NOC as per Ext.P3 holding that the proposed construction of the petitioner is W.P.(C) No.3248 of 2022 :3: infringing the proposed 3rd and 4th railway lines and therefore NOC cannot be issued.
3. The petitioner states that after Ext.P3, the petitioner gave Ext.P5 undertaking to the 1 st respondent-Railway Authority pointing out that beyond the same line, other buildings have been constructed and the Railway Authorities have given NOC accepting the undertaking given by the land owners to the effect that if the land is required for future expansion of railways, the land owners will voluntarily surrender that portion of the land demolishing the construction, if any, without insisting for payment of compensation. Since other similarly situated persons are granted NOC accepting such undertaking, the petitioner is also entitled to similar relief, contended the learned counsel for the petitioner.
4. The Standing Counsel for the additional 2 nd respondent entered appearance on behalf of the additional 2nd respondent. It is submitted that the additional 2 nd respondent- Panchayat has no hesitation in considering the W.P.(C) No.3248 of 2022 :4: application for Building Permit and Occupancy Certificate of the petitioner, in accordance with law, provided the Railway Authorities grant NOC for the construction.
5. The 1st respondent filed a statement. In the statement, the 1st respondent stated that the issuance or denial of NOC for building construction adjacent to railway lines is based on site inspection. In the case of the petitioner, based on the site inspection report of the construction unit, the NOC application of the peitioner was rejected.
6. I have heard the learned counsel for the petitioner and the respective Standing Counsel for respondents 1 and
2.
7. The petitioner has started construction of her residential cum commercial building after submitting an application for Building Permit. According to the petitioner, the petitioner's building does not violate any of the provisions of the Building Rules. Still, Building Permit is not issued for the sole reason that the Railway Authorities have not issued NOC.
W.P.(C) No.3248 of 2022 :5:
8. It is to be noted that the objection of the Railway Authorities is not that the building construction falls within the prohibited distance. The stand of the Railways is that the building construction of the petitioner may affect proposed 3 rd and 4th railway lines, contemplated by the Railway Authorities, for future implementation.
9. Be that as it may, it is to be noted that adjacent to the same building line, the Railway Authorities have granted NOC to other similarly situated land owners, after accepting an undertaking from them to the effect that in case the proposed laying of the 3rd/4th railway line is implemented, the land owners will demolish the building without seeking any compensation for the building. If the Railways have granted NOC to others accepting such undertaking, there is no reason why such a permission cannot be granted to the petitioner.
In the facts and circumstances of the case, the writ petition is disposed of directing the 1 st respondent to consider the application of the petitioner for NOC for construction of W.P.(C) No.3248 of 2022 :6: the building and take a decision afresh, treating the petitioner at par with the land owners in the area for whom NOC has been granted, accepting the identical undertaking. The petitioner shall give an undertaking to the 1 st respondent. To enable the 1st respondent to consider the application afresh, Ext.P3 is set aside. A decision in this regard shall be taken by the 1st respondent and communicate to the Panchayat within a period of one month.
Sd/-
N. NAGARESH, JUDGE
smm/ 29.06.2022
W.P.(C) No.3248 of 2022 :7:
APPENDIX OF WP(C) 3248/2022
PETITIONER EXHIBITS
Exhibit1 BUILDING PLAN
Exhibit2 RECEIPT
Exhibit3 LETTER FROM RESPONDENT
Exhibit4 PHOTOGRAPHS
Exhibit5 LETTER OF UNDERTAKING