Jain Jose vs State Of Kerala on 8 November, 2024

[Cites 7, Cited by 0]

Kerala High Court

Jain Jose vs State Of Kerala on 8 November, 2024

The petitioner, who claims ownership and possession of 1.15 Hectares of land in Survey No.1296/1-2 of Mannamkandam Village, on the strength of Ext.P1 settlement deed No.2220/12 of the Sub Registrar Office, Devikulam; 12.8 Ares of land in Re-survey No.479/2 of Mannamkandam Village on the strength of Ext.P2 settlement deed No.350/23 of the Sub Registrar Office, Devikulam; and 22.6 Ares of land in Re-survey No.485/5 of Mannamkandam Village on the strength of Ext.P3 settlement deed No.349/23 of the Sub Registrar Office, Devikulam, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 5 not to block the existing passages to his property as well as to his house in Survey Nos.485/2, 3, 4, 479/2 and 485/5 of Mannamkandam Village, from the National Highway-85 (NH-85), by placing crash barriers and maintain a width of 8 meters to the existing passages. The petitioner has also sought for a declaration that he is having free access to the National Highway-85 at all points from his property in Survey 4 W.P.(C)No.39186 of 2024 2024:KER:83991 Nos.485/2, 3, 4, 479/2 and 485/5 of Mannamkandam Village in Idukki district.

2. On 07.11.2024, when this writ petition came up for admission, after arguing for some time, the learned counsel for the petitioner sought time to address arguments with reference to the provisions contained in Section 198A of the Motor Vehicles Act, 1988, and also the law laid down by this Court in Travancore Devaswom Board v. Union of India [2023 (1) KHC 557].

3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 2, and also the learned Standing Counsel for the National Highway Authority of India for respondents 3 to 5. Considering the nature of relief proposed to be granted, service of notice on the 6th respondent contractor is dispensed with.

4. During the course of arguments, the learned counsel for the petitioner and also the learned Standing Counsel for National Highway Authority of India would point out the provisions contained in Sections 28 and 29 of the 5 W.P.(C)No.39186 of 2024 2024:KER:83991 Control of National Highway (Land and Traffic) Act, 2002, which deals with the right of access. The learned Standing Counsel would also point out the provisions contained in the guidelines/norms for grant of permissions for construction of access to Fuel Stations, Wayside amenities, private properties, rest area complexes, connecting roads and such other facilities/establishments.

5. As per sub-section (1) of Section 28 of the aforesaid Act, no person shall have right of access to a highway either through any vehicle or on foot by a group of 5 or more persons except permitted by the Highway Administration either generally or specifically in the manner specified in Section 29. As per sub-section (2) of Section 28, the access to a highway under sub-section (1) shall be subject to the guidelines and instructions issued by the Central Government from time to time. As per sub-section (3) of Section 28, the Highway Administration may, by notification in the Official Gazette, declare a highway or any portion thereof to be limited for access in the manner as specified in such notification and may also impose any 6 W.P.(C)No.39186 of 2024 2024:KER:83991 restriction or control on such access to, from or across such highway as specified in that notification.

6. Section 29 of the Act deals with the procedure for permission to access to Highway. As per sub-section (1) of Section 29, the general permission under sub-section (1) of Section 28 shall be given by issuing notification in the Official Gazette for such purpose and specific permission under that sub-section shall be given in the manner specified hereinafter under this section. As per sub-section (2) of Section 29, any person desirous of obtaining specific permission referred to in sub-section (1) may make an application in the prescribed form to the Highway Administration specifying therein the means of access to which such permission relates and shall also be accompanied with such fees as may be prescribed and the Highway Administration shall, after considering the application either give the permission with or without the terms and conditions as may be prescribed or reject the application as it may deem fit.

W.P.(C)No.39186 of 2024 2024:KER:83991

7. As per sub-section (3) of Section 29, in case, where the permission has been given in respect of the application made under sub-section (2), the person to whom such permission has been given shall obtain the licence from the Highway Administration in the prescribed form enumerating therein the terms and conditions, if any, subject to which such permission has been given, and such permission shall be renewed after such period and in such manner as may be prescribed. As per sub-section (4) of Section 29, if any person contravenes the provisions of sub- section (1) of Section 28 or violates any terms and conditions subject to which permission has been given under sub-section (2) including non-renewal of licence obtained under sub-section (3), his access to Highway under the permission under sub-section (1) or sub- section (3), as the case may be, shall be deemed to be unauthorised access and the Highway Administration or the officer authorised by such Administration shall have the power to remove such access and where necessary, the Highway Administration or such officer may use the 8 W.P.(C)No.39186 of 2024 2024:KER:83991 necessary force with the assistance of the police to remove such access.

8. The guidelines/norms for grant of permissions for construction of access to Fuel Stations, Wayside amenities, private properties, rest area complexes, connecting roads and such other facilities/establishments, is one issued by the Ministry of Road Transport and Highways in exercise of its powers under sub-section (2) of Section 28 of the aforesaid Act. Clause 2.11 of the said guidelines/norms provides for licence fee, processing fee and penalties. Clause 2.11 B, which deals with private properties/other establishments (other than fuel station). Sub-clause (i) of Clause 2.11 B, which deals with individual residential properties, etc. As per sub-clause (i), in the case of individual properties/small individual shops/agricultural farms in open stretches in rural or urban areas permission shall be granted subject to the condition that any such establishment shall access any divided carriage way of 4- lane or higher configuration only through a service/slip road. In the case of 2-lane, access would be through 9 W.P.(C)No.39186 of 2024 2024:KER:83991 acceleration and de-acceleration lane. Whenever such access is without a service road, acceleration/de- acceleration lane, the same will be disconnected.

9. In Travancore Devaswom Board v. Union of India [2023 (1) KHC 557], a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party held that the provisions under the Manual of Specifications and Standards for Four-laning of Highways published by the Indian Roads Congress demonstrate the extent of minuteness in the prescription of specifications and standards and the effort to ensure, not only the appropriate manner of construction and maintenance of a four-lane National Highway, but also the safety of road users. The design, construction and maintenance standards in the said Manual has to be scrupulously followed. Failure to do so will entail penal consequences under Section 198A of the Motor Vehicles Act, 1988.

10. The learned Standing Counsel for National Highway Authority of India would submit that seeking right of access to Highway under Section 28 of the Control of 10 W.P.(C)No.39186 of 2024 2024:KER:83991 National Highway (Land and Traffic) Act, 2002, the petitioner has to approach the National Highway Authority of India, Project Implementation Unit-Cochin-II, by submitting an application as per the procedure contemplated under Section 29 of the Act.

11. The learned counsel for the petitioner would submit that the petitioner shall submit a proper application under Section 29 of the Control of National Highway (Land and Traffic) Act, 2002, for seeking right of access to Highway from the property in question.

Having considered the submissions made at the Bar, we deem it appropriate to dispose of this writ petition by directing the petitioner to submit a proper application before the National Highway Authority of India, Project Implementation Unit-Cochin-II, seeking right of access to National Highway-85 under Section 28 of the Control of National Highway (Land and Traffic) Act, as per the procedure contemplated under Section 29 of the said Act, within two weeks from the date of receipt of a certified copy of this judgment, in which event the competent authority shall 11 W.P.(C)No.39186 of 2024 2024:KER:83991 consider the same and pass appropriate orders thereon, strictly in accordance with law and taking note of the law laid down in the decision of this Court referred to supra, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of such an application from the petitioner.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S, JUDGE Mms 12 W.P.(C)No.39186 of 2024 2024:KER:83991 APPENDIX OF WP(C)NO.39186/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE SETTLEMENT DEED NO.

2220/12 OF DEVIKULAM SRO DATED 03.09.2012 Exhibit P2 TRUE COPY OF THE SETTLEMENT DEED NO.

350/23 DATED 10.02.2023 Exhibit P3 TRUE COPY OF THE SETTLEMENT DEED NO.

349/23 DATED 10.02.2023 Exhibit P4 TRUE COPY OF THE LAND TAX RECEIPT OF THE PROPERTY OF THE PETITIONER DATED 04.05.2024 Exhibit P5 TRUE COPY OF THE LAND TAX RECEIPT OF THE PROPERTY OF THE PETITIONER DATED 17.05.2024 Exhibit P6 PHOTOGRAPHS OF THE BUILDING OF THE PETITIONER AND THE NATURE OF CONSTRUCTION UNDERTAKEN BY THE RESPONDENTS

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