E J DAVIS Vs. SENIOR SECTION ENGINEER

JUDGEMENT

(1.) THIS is a case where the petitioner is aggrieved by Ext.P5 notice issued by the Senior Section Engineer, Southern Railway directing to remove the hoarding erected, on the plea that the Railway has to bear in mind the safety of the track and other factors. The petitioner's case, shortly stated, is the following:

(2.) THE petitioner is the owner in possession of 7.484 cents of land comprised in R.S. No.386 of Thrikkakara North Village. A building has also been constructed in the said property. The property situates on the side of National Highway 47. It appears that the previous owner of the building submitted an application before the Municipality for construction and erection of hoardings and a building permit was issued as per Ext.P2. It is also the case of the petitioner that he is paying property tax as well as advertisement tax which are being collected by the Municipality. Therefore, according to the petitioner, the Railway authorities have no role in the matter, as he has obtained permits from the Municipality.

(3.) LEARNED Standing Counsel for the Railways invited my attention to the relevant building rules contained in Chapter II of the Kerala Municipality Building Rules, 1999, wherein sub-rule (4) of Rule 5 insists for approval of plan by the Secretary. Rules 5(6) and 5(7) shows that the Secretary will have to consult the Railway authorities before permission is granted, when the application is for development or re-development of any land within thirty meters from Railway boundary. Similar provisions have been made in sub-rules (6), (7) and (15) of Rule 7. In sub-rule (15) of Rule 7, it is mentioned that if the construction proposed is within 100 metres from any property maintained by defence establishment or 30 metres from any property maintained by Railway Authority the applicant shall submit sufficient number of drawings along with the application and the Secretary shall transmit the same to the officer-in-charge of the Defence establishment or Railway Authority, as the case may be, for remarks as specified in sub- rules (5) or (6). Therefore, there cannot be any dispute that the Secretary of the Municipality will have to consult the Railways and their remarks and objections will have to be considered.