Kothur Shoba vs Government Of India And 3 Others

Heard Sri G. Rajeshwar Reddy, learned counsel for the petitioner and Sri B.Jithender, leanred Standing counsel appearing for respondents.

This writ petition is filed to declare the high-handed and illegal action of the respondents in trying to demolish the pillars/electrical transformer while interfering with the peaceful possession and enjoyment including constructions activities carried out by the petitioner over the open plot admeasuring 184.14 sq.yards out of Ac.0.03 gts in Sy.No.927/A situated at Jagtial Rural, Jagtial Mandal and District pursuant to construction proceedings dated 06.01.2022 in File No.31/BP/2022 issued by Grampanchayat, Hasnabad, Jagtial Mandal and District without issuing any notice, without assigning any reasons and without following due procedure as it is being illegal, arbitrary and consequently to direct the respondents not to demolish the structures over the above said property while interfering with the peaceful possession and enjoyment of the petitioner.

The petitioner is claiming that she is the absolute owner of land admeasuring Ac.0.03 gts in Sy.No.926, 927/A situated at Jagtial Village, Mandal and District. She has purchased the said land under a registered sale deed bearing document No.107/2021 dated 04.03.2021. With an intention to establish a Small Scale Industry, she has obtained necessary permissions including registration under the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘the Act’) and also obtained conversion proceedings for conversion of agricultural land into non-agricultural land. She has also obtained permission from Grampanchayat, Hasnabad dated 06.01.2022 for construction of a shed and power supply from the authorities concerned. She has also obtained bank loan of Rs.15,00,000/- from the Punjab National Bank, Jagtial Branch. By obtaining said permissions, the petitioner started construction over the subject property by laying pillars apart from erecting electric transformer.

While the matter stood thus, respondents came to the subject property along with its sub-ordinates on 29.04.2022 and tried to demolish the pillars constructed by the petitioner. Respondents neither served any notice on the petitioner nor given an opportunity to make a representation. Therefore, the action of the respondents in trying to demolish the structures in the subject property of the petitioner is illegal and arbitrary.

Respondents have filed a counter contending that subject building is being constructed by the side of railway boundary leaving a space of 300 mm at KM 83/2-3 and as such, the petitioner has to obtain No Objection Certificate (NOC) from the railway authorities in terms of para No.827 vide Indian Railway Work Manual Construction of Government and private buildings near railway land. Without obtaining the said NOC, the petitioner has started construction which is impermissible. Therefore, the respondents have requested the petitioner not to proceed with the construction.

Petitioner had filed a reply to the counter filed by the respondents contending that the subject construction is not within 300mm as claimed by the respondents. There is no basis for the said allegation.

In view of the said rival submissions, it is trite to note that Chapter VIII para 827 of Indian Railway Works Manual deals with construction of Government and private buildings near railway land. Clause (3) of the said manual is relevant and the same is extracted below:

“The lands adjoining the railway boundary will be either privately owned or nazul and will be either included in a municipal area or not. Regarding private lands not included in a municipal area, there appears to be no method of enforcing the provisions mentioned above. As regards private lands included in a municipal area, the provisions can be made applicable by incorporating them in the municipal bye-laws and if the state governments have no objection, the municipal committees of the state may be asked to frame bye-laws to this effect. As regards nazul lands, both inside and outside municipal areas, it is suggested that if the state governments have no objection, suitable provision may be made in the conditions governing transfer, at the time of making grants.”

Rule 3(b) of the Andhra Pradesh Building Rules, 2012 issued by Government of Andhra Pradesh, Municipal Administration and Urban Development Department vide G.O.Ms.No.168 dated 07.04.2012 deals with restriction of building activity in the vicinity of certain areas and the relevant portion is extracted below:

“The distance between the Railway property boundary and the edge of the building shall be 30 m as per Indian Railways Works Manual or as per No Objection Certificate (NOC) given by the Railway Authorities.”

It is the specific contention of the respondents that the petitioner is making construction by the side of the railway boundary leaving space of 300mm at KM 83/2-3. Therefore, the petitioner has to obtain NOC from the railway authorities which is mandatory vide IRWM 2000 para No.827. The petitioner herein failed to obtain the said NOC from the railways.

According to the petitioner, the said construction is not within the aforesaid distance which is a factual aspect. Even perusal of the photographs with naked eye would show that the railway boundary line is very close to the said site, more particularly to the pillar laid by the petitioner herein and also to the electric transformer erected by the petitioner. Therefore, the petitioner cannot contend that the subject construction is not within the boundaries and therefore, there is no need to obtain NOC from the railway authorities. Therefore, this Court is not in a position to decide the said factual aspect in the present writ petition. The petitioner has to take necessary steps to measure the said distance with the assistance of Mandal Survey and Land Record authorities. Therefore, liberty is granted to the petitioner to make an appropriate application to the Mandal Survey and Land Revenue authorities with a request to conduct survey for the purpose of measurement by duly giving opportunity to the petitioner as well as the respondent Department. On completion of said survey, if the land of the petitioner falls within the aforesaid distance, then the petitioner has to obtain NOC from the Railway authorities and if the land of the petitioner falls beyond the aforesaid distance, there is no need for the petitioner to obtain NOC from the railway authorities. In such event, the railway authorities shall not insist the petitioner to obtain NOC. Till such exercise is completed, the petitioner cannot proceed with the construction pursuant to permission dated 06.01.2022 obtained by the petitioner from the Husnabad Grampanchayat.

In view of the aforesaid discussion, this Writ Petition is disposed of granting liberty to the petitioner to make an application with the Mandal Survey and Land Revenue authorities with a request to conduct survey for the purpose of measuring distance between boundary petitioner’s property and railway boundary. On filing of such application, the Mandal Survey and Land Revenue authorities shall conduct survey to determine the distance between the petitioner’s boundary and railway boundary by duly giving notice to the petitioner as well as the respondent authorities. He shall furnish copy of the report to the petitioner as well as to the respondents. If the distance between the petitioner’s boundary and railway boundary is within the aforesaid distance mentioned in Clause 3 of Indian Railway Works Manual, the petitioner shall necessarily obtain NOC from the respondent authorities. If the distance falls beyond the aforesaid distance, there is no need for the petitioner to obtain NOC from the respondent authorities and respondents shall not insist the petitioner to furnish NOC. Till the said exercise is completed and the said controversy is resolved, the petitioner shall not proceed with the construction. No order as to costs.

Miscellaneous petitions, if any, pending, shall stand closed.