Kerala High Court: Highway Authorities Can’t Check Suitability Of Site & Access After Issuance Of Provisional Permission
The Kerala High Court said that the suitability of the site in which the outlet is to be established and the suitability of the access are matters to be considered before the grant of Provisional Permission by the authorities.
Justice M.A. Abdul Hakhim, Kerala High Court
The Kerala High Court held that the Highway authorities cannot check the suitability of the site and access after issuance of the provisional permission again at the time of processing the application for final permission.
The Court held thus in a Writ Petition challenging the grant of final permission for access to the highway to the petroleum corporation.
A Single Bench of Justice M.A. Abdul Hakhim observed, “… the compliance with the norms under the MoRTH Guidelines is a matter to be ensured by the authorities before the issuance of the Provisional Permission. After issuance of Provisional Permission, the Dealer and the Petroleum Marketing Company have to establish the outlet and access in accordance with the conditions in the Provisional Permission. It is not legally permissible for the Highway authorities to check the suitability of the site and access after issuance of the Provisional Permission again at the time of processing the Application for Final Permission.”
The Bench added that it is highly unjust for an authority to deny operational permission to an industry/establishment on the ground of unsuitability of the site when such authority itself has granted permission for installation, finding that the site is suitable, and when the applicant has invested a huge amount of money to establish the industry/establishment. It said that such denial would amount to violation of Article 19(1)(g) and Article 21 of the Constitution of India.
Advocate K. Mohanakannan appeared for the Petitioners, while Government Pleader Tony Augustine, Central Government Counsel (CGC) Aditya Shenoy, Senior Advocate Sajith Panicker, Advocates P. Deepak, Jomy K. Jose, and Nithin George appeared for the Respondents.
Factual Background
The Petitioners were objecting to the establishment of Petroleum Retail Outlet by the Respondent namely Devarajan in their neighbouring property, situated on the immediate western side of Kollam-Theni NH-183, belonging to one Bahulayen, as a dealer of the Indian Oil Corporation Limited (IOCL) i.e., Petroleum Marketing Company. The Writ Petition challenged the No Objection Certificate (NOC) issued by the Additional District Magistrate (ADM) to the IOCL under Rule 144 of the Petroleum Rules, 2002.
The said Petition also challenged the provisional permission for access to the highway issued by the Regional Officer to the IOCL under Section 28 of the Control of National Highways (Land and Traffic) Act, 2002, and seeking direction to the Respondent-Land Revenue Commissioner to dispose of the Appeal filed against the NOC. During the pendency of the Writ Petition, the Regional Officer passed an order granting final permission for access to the highway to the IOCL and hence, this was under challenge.
Reasoning
The High Court in the above context of the case, said, “Permission for access to the National Highway is issued under Sections 28 and 29 of the Control of National Highways (Land and Traffic) Act, 2002. The said provisions contemplate general permission and specific permission. Respondent No.13 applied for a specific permission for access to the outlet. The definition of ‘means of access’ under Section 2(i) would make it clear that it means permanent means of access. Neither the provisions under the said Act nor the provisions under the Highways Administration Rules, 2004, made thereunder do provide for Provisional Permission and Final Permission.”
The Court was of the view that the suitability of the site in which the outlet is to be established and the suitability of the access are matters to be considered before the grant of Provisional Permission by the authorities.
“Such suitability includes compliance with the norms under the MoRTH Guidelines. … the Authority would be perfectly justified in denying the operational permission if any of the conditions in the installation permission are not satisfied”, it noted.
The Court explained that it is after the construction of the outlet as per the approved drawings, the Applicant has to apply for the issue of Final Permission and the only thing to be verified after issuance of Provisional Permission and before the grant of Final Permission is whether the Applicant has constructed the outlet and the access as per the approved drawing.
“The Highway authorities have no right or authority to consider whether the site satisfies the norms under the MoRTH Guidelines again at that time. Thus, such an enquiry after the issuance of Ext.P2 Provisional Permission is quite unwarranted in the present case. If the Petitioners had any grievance with respect to the suitability of the site for Petroleum Retail Outlet on the ground that it does not conform to the norms of MoRTH Guidelines, they should have raised it before the Respondent Nos.5 and 6 before issuing Ext.P2 Provisional Permission dated 24.08.2021”, it remarked.
The Court further observed that the Petitioners were aware of the attempts of the Respondents to establish a Petroleum Retail Outlet in their neighbouring property in the year 2019 and in such case, there is every probability that the Petitioners had knowledge of the proceedings instituted by the Respondents for procuring NOC from the District Collector and Permission for access from the National Highway Authorities.
“The Petitioners are the immediate neighbours of the site in which the Petroleum Retail Outlet is proposed. They could not plead ignorance of the constructions undertaken therein by the Respondents Nos.11 and 13. Thus, even if the Petitioners did not have knowledge about Ext.P2, they could have obtained knowledge of the same if they had exercised due diligence”, it also said.
Conclusion
Furthermore, the Court remarked that it is not a fit case to exercise its discretionary jurisdiction under Article 226 of the Constitution of India in favour of the Petitioners to interfere with the Order, especially when the Respondent has spent substantial amounts to establish the Petroleum Retail Outlet, and the same is ready for operation.
“I hold that W.P.(C) No.38776/2025 is liable to be dismissed. … As rightly pointed out by the learned Government Pleader, Ext.P19 Appeal against Ext.P1 N.O.C. before the Respondent No.1 under Rule 154 of the Petroleum Rules, 2002, is not maintainable as the said Rule does not provide appeal against the Order of the District Authority granting N.O.C. Ext.P17 Representation of the Petitioners was rejected by the Respondent No.3 on the sole reason that Appeal is provided to the Respondent No.1. Since the said reason is unsustainable, Ext.P18 is liable to be set aside and the Respondent No.3 is liable to be directed to consider Ext.P17 Representation of the Petitioners”, it concluded.
Accordingly, the High Court dismissed the Writ Petition, set aside the impugned Order, and directed the Deputy Collector to dispose of the Representation of the Petitioners within 3 months.
Cause Title- Prasad K. & Anr. v. Land Revenue Commissioner & Ors. (Neutral Citation: 2025:KER:87411)
Appearance:
Petitioners: Advocates K. Mohanakannan and Abdul Salim M.
Respondents: Government Pleader Tony Augustine, Sr. GP K.M. Reshmi, CGCs Aditya Shenoy, Krishna S., Senior Advocate Sajith Panicker, Advocates P. Deepak, Jomy K. Jose, Nithin George, M.V. Haridas Menon, Rithu Jose, and Muhammed Anshif T.K.
