J U D G M E N T

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 4th respondent-Divisional Railway Manager issued Ext.P9 communication to the 2nd 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 4th 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 2nd respondent submitted that the petitioner has submitted an application for Building Permit and the 2nd 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 1st 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.