Kerala High Court
George Jacob vs The General Manager on 26 July, 2023
WP(C) NO. 18129 OF 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945
WP(C) NO. 18129 OF 2022
PETITIONER/S:
GEORGE JACOB
AGED 69 YEARS
S/O M. GEORGE MUTHOOT HOUSE TC 4/2515, MARAPPALAM
PATTOM, THIRUVANANTHAPURAM - 695 004
BY ADVS.
S.SHANAVAS KHAN
S.INDU
RESPONDENT/S:
1 THE GENERAL MANAGER
SOUTHERN RAILWAY HEAD QUARTERS OFFICE PARK TOWN
CHENNAI - 600 003
2 THE DIVISIONAL RAILWAY MANAGER (WORKS)
DIVISIONAL RAILWAY MANAGER'S OFFICE , SOUTHERN
RAILWAY THIRUVANANTHAPURAM - 695 014
3 THE CHIEF ADMINISTRATIVE OFFICER
SOUTHERN RAILWAY THIRUVANANTHAPURAM - 695 014
4 THE THIRUVALLA MUNICIPALITY
MUNICIPAL OFFICE THIRUVALLA PATHANAMTHITTA-689 101
REPRESENTED BY ITS SECRETARY
5 THE SECRETARY
THIRUVALLA MUNICIPALITY MUNICIPAL OFFICE THIRUVALLA
PATHANAMTHITTA-689 101
BY ADV MANU S. DSG OF INDIA
OTHER PRESENT:
SRI. S.SUBHASH CHAND, SC
WP(C) NO. 18129 OF 2022 2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 18129 OF 2022 3
P.V.KUNHIKRISHNAN, J
-----------------------------------
W.P.(C.) No. 18129 of 2022
--------------------------------------
Dated this the 26th day of July, 2023
JUDGMENT
The above writ petition is filed with following prayers :
i) "Call for records leading Exts. P12 and P13 and quash
the same issuing Writ of Certiorari
ii) Declare that petitioner is entitled to get 5 metre wide
road access to property having extent of 21 ares and 41
sq.mts. and situated Survey 520/8-1, 532/28-1, 532/28, 532/15
and 520/8 in Block No. 8 and Thandaper No. 14434 of
Kuttappuzha Village, Thiruvalla, from Mammen Mathai MLA
Road, passing on the eastern side of property.
iii) Issue a Writ mandamus or other Writ, Order or
direction directing respondents 1 to 3 to reconsider
petitioner's request seeking 5 metre wide road access to
property having an extent of 21 ares and 41 sq.mts and
situated in Survey Nos. 520/8-1, 532/28-1, 532/28, 532/15 and
520/8 in Block No. 8 and in Thandaper No. 14434 of
Kuttappuzha Village, Thiruvalla from Mammen Mathai MLA
Road, passing on the eastern side of the property and
iv) Pass such other orders this Hon'ble Court may deem fit
and proper in facts and circumstances of the case." [SIC]
2. The petitioner is the owner of 21 ares and 41 sq.mts
of landed property situated in Survey Nos. 520/8-1, 532/28-1,
532/28, 532/15 and 520/8 in Block No.8 in Thandaper No.
14434 of Kuttappuzha Village, Thiruvalla. It is the case of the
petitioner that he devised a project in the said property for
setting up a multi-storied apartment project having a plinth
area of 6343.66 sq.mts. Spread over G+14 floors. According to
the petitioner, the coverage of the building is 39.79% and FAR
is 2.96. The 5th respondent requested permission of the 2 nd
respondent as contemplated by sub rule 4 of Rule 5 of Kerala
Municipality Building Rules, 2019 as per Ext.P6 since the plot
was within 30 metres of railway property. Later, the petitioner
was directed by the 2nd respondent to submit way leave
petition in the prescribed format for getting access to the plot.
The petitioner submitted Ext.P10 application along with the
prescribed fee. However, the 2nd respondent rejected the way
leave application as per Ext.P12 and No Objection Certificate
vide Ext.P13. The case of the petitioner is that Exts. P12 and
P13 are not speaking orders and without considering the
contentions of the petitioner.
3. Heard the learned counsel for the petitioner and the
learned DSGI.
4. I also heard Adv.S. Subhash Chand who appeared for
the 4th and 5th respondent-Municipality.
5. The counsel for the petitioner reiterated the
contentions in the writ petition. The counsel submitted that the
road from which the petitioner applied for access is named as
Mammen Mathai MLA Road which was formed in the year
2004 using Municipal fund. The petitioner produced Ext.P14
photograph evidencing the factum of usage of Municipal fund.
It is also stated that the said road has now acquired the
characteristics of a public road and it is having access to other
roads with thorough fare. Exts.P15, P15(a) to P15(f) are relied
to prove the same. It is also stated that the respondent Nos. 1
and 2 have already provided access to other adjacent property
owners of the petitioner without even charging any fee.
Ext.P16 photograph is produced to show that the grant of way
to one Thomas Jacob and Suja Jacob who are residing on the
southern side of the property of the petitioner. Ext.P17 is the
permission granted by the 2 nd respondent to Thomas Jacob and
Suja Jacob. It is also stated that road connects to other major
roads. Ext.P18 photograph is produced to indicate the
connectivity of railway road to other major road. It is further
submitted that the finding of the 2nd respondent for rejecting
the petitioner's application for the reason that if the way is
provided to the petitioner as required for, it will affect the
future expansion of the Thiruvalla railway station is also
absolutely incorrect. The DSGI on the other hand dispute the
contention of the petitioner and takes me through the counter
affidavit filed by respondent Nos. 1 to 3. The petitioner also
filed a reply affidavit to the counter affidavit.
6. This Court considered the contentions of the
petitioner and the DSGI. This Court perused Exts.P12 and P13
orders. A perusal of Exts.P12 and P13 orders would show that
it is not a speaking order. The petitioner raised several
contentions in para (5) of the writ petition. I think in the light
of those contentions, the 2nd respondent has to reconsider the
matter, after giving an opportunity of hearing to the petitioner.
To facilitate the 2nd respondent to pass fresh orders, Exts.P12
and P13 can be set aside.
Therefore, this writ petition is disposed of with the
following directions :
1) Exts.P12 and P13 are set aside.
2) The 2nd respondent is directed to reconsider the matter
after giving an opportunity of hearing to the petitioner as
expeditiously as possible, at any rate, within three months
from the date of receipt of a certified copy of this
judgment.
3) All the contentions of the petitioner raised in this writ
petition are left open.
4) The petitioner is free to produce a copy of this writ
petition before the 2nd respondent for consideration.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 18129/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 11/11/2021 ISSUED FROM VILLAGE
OFFICE, KUTTAPPUZHA.
Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT DATED
28/04/2022 ISSUED FROM VILLAGE OFFICE,
KUTTAPPUZHA.
Exhibit P3 TRUE COPY OF THE LOCATION SKETCH ISSUED
FROM VILLAGE OFFICE, KUTTAPUZHA.
Exhibit P4 TRUE COPY OF THE PLAN REGARDING THE LAND
AREA DETAILS SUBMITTED BEFORE THE 5TH
RESPONDENT AS A PRELIMINARY STEP FOR
GETTING BUILDING PERMIT.
Exhibit P5 TRUE COPY OF THE SITE PLAN PRODUCED BEFORE
5TH RESPONDENT MUNICIPALITY.
Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED
09/07/2021 ISSUED BY 5TH RESPONDENT TO 2ND
RESPONDENT.
Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED
V/W/280/NOC/ERS/1431 DATED 25/08/2021 OF
THE 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF THE DEMAND DRAFT DATED
06/09/2021 TAKEN BY THE PETITIONER IN THE
NAME OF SENIOR FINANCE MANAGER,RAILWAY,
THIRUVANANTHAPURAM.
Exhibit P9 TRUE COPY OF THE COMMUNICATION NO.
V/W.280/NOC/ERS/1431 DATED 08/09/2021
ADDRESSED TO THE SENIOR SECTION ENGINEER,
KOTTAYAM BY THE 2ND RESPONDENT.
Exhibit P10 TRUE COPY OF THE WAY LEAVE APPLICATION
DATED 29/10/2021 SUBMITTED BY THE
PETITIONER.
Exhibit P11 TRUE COPY OF THE RECEIPT DATED 29/10/2021
EVIDENCING THE REMITTANCE OF FEE.
Exhibit P12 TRUE COPY OF THE COMMUNICATION DATED
05/04/2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P13 TRUE COPY OF THE COMMUNICATION DATED
11/04/2022 OF THE 2ND RESPONDENT.
Exhibit P14 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
FACTUM OF USAGE OF MUNICIPAL FUND.
Exhibit P15 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
NATURE AND LIE OF THE ROAD AND ALSO THE
FACT OF FREQUENT VEHICULAR TRAFFIC.
Exhibit P15A TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
NATURE AND LIE OF THE ROAD AND ALSO THE
FACT OF FREQUENT VEHICULAR TRAFFIC.
Exhibit P15B TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
NATURE AND LIE OF THE ROAD AND ALSO THE
FACT OF FREQUENT VEHICULAR TRAFFIC.
Exhibit P15C TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
NATURE AND LIE OF THE ROAD AND ALSO THE
FACT OF FREQUENT VEHICULAR TRAFFIC.
Exhibit P15D TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
NATURE AND LIE OF THE ROAD AND ALSO THE
FACT OF FREQUENT VEHICULAR TRAFFIC.
Exhibit P15E TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
NATURE AND LIE OF THE ROAD AND ALSO THE
FACT OF FREQUENT VEHICULAR TRAFFIC.
Exhibit P15F TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
NATURE AND LIE OF THE ROAD AND ALSO THE
FACT OF FREQUENT VEHICULAR TRAFFIC.
Exhibit P16 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE
GRANT OF WAY TO ONE THOMAS JACOB AND SUJA
JACOB, WHO ARE RESIDING ON THE SOUTHERN
SIDE OF PROPERTY OF PETITIONER.
Exhibit P17 TRUE COPY OF THE PERMISSION DATED
24/01/2019 GRANTED BY 2ND RESPONDENT TO
SRI. THOMAS JACOB AND SMT. SUJA JACOB.
Exhibit P18 TRUE COPY OF THE PHOTOGRAPH INDICATING THE
CONNECTIVITY OF RAILWAY ROAD TO OTHER
MAJOR ROADS.
Exhibit P19 TRUE COPY OF THE SKETCH APPROVED WHILE
ISSUING NO OBJECTION CERTIFICATE TO
PETITIONER'S NEIGHBOURS.
RESPONDENT EXHIBITS
Exhibit R2(a) True copy of the letter
No.V/W.280/NOC/ERS/1431 dated 11.04.2022
Exhibit R2(b) True copy of the railways site sketch and
feasibility report
Exhibit R2(c) True copy of the circular No.2015/LML-
1/19/2 dated 25.06.2015
Exhibit R2(d) True copy of the way leave application and
sketch produced by the petitioner
Exhibit R2(e) True copy of the Joint feasbility survey
report along with sketch
Exhibit R2(f) True copy of the letter No.V/W.277/Way
leave/2021/88 dated 05.04.2022
Exhibit R2(g) True copy of the circular RB
No.97/LML/24/3 dated 27.11.2001
Exhibit R2(h) True copy of the letter No.W 280/5/Vol-III
dated 31.12.2019
Exhibit R2(i) True copy of the NOC along with approved
drawing
