The Kerala High Court (Ernakulam Bench) ruled that the Highway Authority cannot deny operational permission of a petroleum retail outlet 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. After the Applicant has invested a huge sum to establish the industry, such a denial would amount to a violation of Article 19(1)(g) and Article 21 of the Constitution.
The MoRTH Guidelines issued by the Ministry of Transport make it abundantly clear that 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 Court therefore clarified that the grievance, if any, with respect to the suitability of the site for a Petroleum Retail Outlet on the ground that it does not conform to the norms of MoRTH Guidelines, should have been raised before issuance of the Provisional Permission.
A Single Judge Bench of Justice M.A. Abdul Hakhim observed that once the 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, 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 found that the Respondent No.11 had constructed the outlet and access from the National Highway on the strength of N.O.C. and the Provisional Permission for access. However, he had to stop the operation of the outlet during the pendency of a contempt case, which was later dropped, but the outlet has remained closed.
From a perusal of the Munsiff’s Court Order, the Bench found that the petitioners were aware of the attempts of the respondent to establish a Petroleum Retail Outlet in their neighbouring property in the year 2019. In such a case, there is every probability that the petitioners knew of the proceedings instituted by the respondents for procuring N.O.C. from the District Collector and Permission for access from the National Highway Authorities.
Further, while adding that the petitioners, being the immediate neighbours of the site in which the Petroleum Retail Outlet is proposed, could not plead ignorance of the constructions undertaken therein, the Bench refused to interfere with the access, especially when the respondent has spent substantial amounts to establish the Petroleum Retail Outlet, and the same is ready for operation.
Briefly, the petitioners are objecting to the establishment of a Petroleum Retail Outlet by the Respondent No.11 in their neighbouring property situated on the immediate western side of Kollam-Theni NH-183, belonging to one R. Bahulayen, as a dealer of the Respondent No.13 Petroleum Marketing Company. Essentially, they challenged the N.O.C. issued under Rule 144 of the Petroleum Rules, 2002, and the Provisional Permission for access to the Highway issued under Section 28 of the Control of National Highways (Land and Traffic) Act, 2002. However, during the pendency of the writ, the order granting Final Permission for access to the Highway was issued.
Appearances:
Advocates K. Mohanakannan and Abdul Salim M., for the Petitioner
Advocates Krishna S., M.R. Sasith Panicker, Jomy K. Jose, Nithin George, M.V. Haridas Menon, and Rithu Jose, for the Respondent
