Kerala High Court
P.V.Shahul Hameed vs State Of Kerala on 6 July, 2022
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
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
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.
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
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
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
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.
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
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-
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-
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
