Dismissed

Muthusamy v. The District Collector

Madras HC19 Jan 2023WP(MD)/26133/2022

Case brief

AI extract

What is this about?

Petitioner, owning land adjacent to a National Highway, sought protection against construction that might block access. The Court distinguished a 2018 precedent to dispose of the petition, directing the Project Director to consider a representation for access. The writ petition was ultimately dismissed.

What did the court decide?

It was held that the petitioner can pursue his claim for access through a specific representation to the third respondent in light of the cited precedent; the current writ petition for a mandamus was

Muthusamy Vs The District Collector — Property and Title | Madras HC (2023)

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W.P(MD)No.26133 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 19.01.2023

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CORAM

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THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

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W.P(MD)No.26133 of 2022

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Muthusamy ... Petitioner

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Vs.

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1.The District Collector, Madurai District, Madurai.

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2.The District Revenue Officer, Madurai District, Madurai.

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3.The Project Director, National Highway Authority of India, Plot No.3, Suriya Tower, 2^nd Floor, 1^st South Street, K.K.Nagar, Madurai.

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4.The Revenue Divisional Officer, Thirumangalam, Madurai.

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5.The Tahsildar, Thirumangalam Taluk, Madurai District, Madurai. ... Respondents

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Prayer : Writ Petition filed under Article 226 of the Constitution of India,

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praying this Court to issue a Writ of Mandamus, directing the respondents to

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W.P(MD)No.26133 of 2022

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consider the petitioner representation dated 07.11.2022 seeking not to put up

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any construction of any manner in Plot Nos.49 and 50 situated in Survey No.119/2B2, 3B2 and 120/4B2, 5C in Kapalur Village, Madurai District and

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pass order on merits in accordance with law within the time framed fixed by this Court.

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For Petitioner : Mr.S.R.Rajagopal, Senior Counsel, For Mr.T.Palanisamy

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For Respondents : Mr.B.Saravanan,

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Addl. Govt. Pleader for R1, R2, R5 & R5. Mr.C.Arul Vadivel @ Sekar for R3.

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ORDER

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Heard the learned senior counsel for the writ petitioner, the learned Additional Government Pleader for the respondents 1, 2, 4 and 5 and the learned standing counsel for the third respondent.

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2.The writ petitioner is owning the petition mentioned plots. Plot No.50

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is the corner plot while Plot No.49 is located immediately adjacent thereto. Service road put up by the third respondent runs parallel to the petition mentioned plots. The stand of the third respondent is that the petitioner can access highway through northern side and that the petitioner cannot access the

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service road from east. In this regard, the petitioner has given a representation dated 07.11.2022 demanding that no construction should be put up adjacent to the petition mentioned plots so as to block the petitioner's access on the eastern side. The learned senior counsel for the petitioner draws my attention to the order dated 13.12.2018 made in W.P.(MD)No.629 of 2018. The said order reads as follows:-

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“The petitioners are owning lands that are abutting NH-7A. The petitioners apprehend that on account of laying of the aforesaid highway, their right of access may be totally cut off. Therefore this writ petition has been filed.

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2.The matter was taken up for final hearing. The learned standing counsel drew my attention to Section 28 and 29 of the Control of National Highways (Land and Traffic) Act,2002 (Central Act 13 of 2003). The said provisions rules as under:

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“28.Right of access- (1) No person shall have right of access to a Highway either through any vehicle or on foot by a group of five or more persons except permitted by the Highway Administration either generally or specifically in the manner specified in Section 29.

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(2)The access to a Highway under subsection(1) shall be subject to the guidelines and instructions issued by the Central Government from time to time. (3)The Highway Administration may, by notification in the Official Gazette,

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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 restriction or control on such access to, from or across such Highway as specified in that notification.

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29.Procedure for permission to access to Highway – (1)The general permission under subsection (1) of Section 28 shall be given by issuing notification in the Official Gazette for such purpose and specific permission under that subsection shall be given in the manner specified hereinafter under this section.

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(2)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.

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(3)In case, where the permission has been given in respect of the application made under sub-section 92), 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.

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(4) If any person contravenes the provisions of subsection(1) of section 28 or violates any terms and conditions subject to which permission has been given under subsection(2) including non-renewal of licence obtained under 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 necessary force with the assistance of the police to remove such access.”

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3.The learned standing counsel also pointed out that the Central Government has issued guidelines/norms vide letter No.RW/NH-33023/19/99-DO-III dated 24.07.2013. In fact, the format has also been prescribed by the Government. These statutory provisions and circulars cannot take away the rights of access of the land owner whose land is abutting the highways.

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4.The learned counsel appearing for the petitioner drew my attention to the decision reported in AIR 1972 Madras 386 in the case of Damodara Naidu and others Vs. Thirupurasundari Ammal and another which states that the right of owners of land adjoining the highway to go upon the highway from any point on their land in a private right distinct from his right to use the highway as a member of public.

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5.In fact, in another decision, the Madras High Court has held that this right of access is from every point of contact with the

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abutting highway. But this will have to necessarily undergo dilution in view of the changing times. But then, there may not be a total or complete denial of right of access altogether. Section 28 (1) of Central Act 13 of 2003, will have to be construed to mean that the right of the access of adjacent land owner is not absolute or unrestricted but is a right to be regulated. In other words, Section 28(1) cannot be read to mean that the authorities can deny permission. This reading of Section 28(1) derives inspiration from the language of Section 28(2). Section 28(2) specifically states that access to a highway shall be subject to the guidelines and instructions. In other words, right of access is preserved. It is always open to the authorities to put restrictions thereon and regulate the same.

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6.A learned Judge of this Court by order dated 15.02.2018 in W.P.(MD)No.21579 of 2014 observed as follows:

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“5.It is not so much about whether the petitioners' property was actually acquired or whether the petitioners were before the Land Acquisition Authority. What is significant is, in the garb of acquisition, petitioners' right of access is being denied by the Land Acquisition Authorities, and it does not matter how many families are affected thereby and what the guidelines are issued in this regard. If an owner of the land is denied access to and from his property by such activities of the National Highways Act, it is imperative that they are provided means to access. Infringing the right of easement has a lasting effect, an adverse effect in that, as it directly

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infringes on the fundamental rights of mobility under Article 19 and right to property under Article 300-A of the Constitution. Hence, the respondents concerned are directed to ensure that the petitioners are provided with necessary access to the main road in whatever way possible.”

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7.Therefore this writ petition is disposed of by directing the writ petitioners to submit an application to the concerned authority in the prescribed format to the first respondent. The first respondent is obliged to recognise the petitioners right of access. Ofcourse, it is open to him to incorporate appropriate restrictions and conditions in the letter of permission while granting permission. The petitioner shall file such an application within a period of two weeks from the date of receipt of a copy of this order.

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8.The first respondent is directed to grant permission to the petitioners on the terms mentioned above within a period of six weeks thereafter.

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9.Accordingly, this writ petition is disposed of. No costs.”

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3.The third respondent is directed to consider and pass order on the petition mentioned representation in the light of the aforesaid order dated 13.12.2018 made in W.P.(MD)No.629 of 2018.

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4.The writ petition is disposed of accordingly. No costs.

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19.01.2023

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