The petitioner sought access through acquired NHAI land to an abandoned highway. The High Court held that Section 30 applies only when existing access is diverted, not merely blocked by acquisition. Since the petitioner claimed no easementary right and Section 25 permits only temporary licenses, the petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P(MD)No.11069 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 14.03.2024
Delivered on : 14.06.2024
CORAM :
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
W.P(MD)No.11069 of 2021 and W.M.P(MD)No.8688 of 2021 and W.M.P(MD)No.20445 of 2023
James
... Petitioner
Vs.
LN.Malaviya Infra Projects Pvt, Ltd., 48/1, Valar Tamil Nagroor 40ft Road, Koothur No.1, Tollgate, Trichy.
... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to
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call for the records relating to the impugned order issued by the second respondent vide NHIA/PD/TRY/Utility/Retail/Outlet/NH 45/TD/2021/363, dated 03.03.2021 and quash the same as irrational and erroneous and may consequently, direct the respondents 1 and 2 to grant access permission to the petitioner to the length of 120m and 10 m width for ingress and egress to his property comprised in S.No.324/5 of Konalai Village through the S.Nos.324/3B and 324/4 of Konalai Village to reach the abandoned road abetting on the western side.
For Petitioner : Mr.K.P.Narayanakumar
For Respondents : Mr.M.Pozilan, for Mr.Arul Vadivel Associates, for R1 & R2. : No Appearance, for R3.
O R D E R
The Writ Petition is directed against the order, dated 03.03.2021
passed by the second respondent and for direction to the respondents 1 and 2 to grant access permission to the petitioner to the length of 120m and 10 m width for ingress and egress to his property comprised in S.No.324/5 of Konalai Village through the S.Nos.324/3B and 324/4 of Konalai Village to reach the abandoned road abetting on the western side.
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application dated 16.09.2020, but the same was rejected by the second respondent vide order, dated 03.03.2021, wherein the following the reasons were assigned :
(i) The minimum distance between merging points of two access on the same side of carriageway shall be 300m. But the distance measured at site is 240m.
(ii) As per MoRT & H guideline given that, if the distance available is less than the distance specified. Service road to be extended/provided to cover both the access.
(iii) The provision of service road is not shown in drawing and also the site is very nearer to the truck lay bue at 302/400.
Challenging the above impugned order, the present writ petition came to be filed.
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NH road, due to the acquisition of lands in S.Nos.324/3 and 324/4, is now seeking a pathway for a length of 120 meters and width of 10 meters in S.No.324/3A and 324/4 to reach his property in S.No.324/5 from the old NH road.
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only for his exclusive use as pathway to his private property; that the criteria stipulated by MoRT & H guidelines were not fulfilled, the Team Leader had not recommended the proposal of the petitioner for seeking access permission from km.304/000 to km.304/010; that the access sought from National Highway to private property is not feasible within NHAI lands for exclusively providing access to the private property; that the S.No.324/5 is not abutting the existing National Highway as averred by the petitioner and that the power to give permission for access to National Highway lies with the Highway Administration as per the Highway Administration Rules, 2004, framed under the Control of National Highways (Land and Traffic) Act, 2002 and all such permissions to the National Highways are to be given under Sections 28 and 29 of Chapter IV and Section 38 of Chapter VI of the Control of National Highways (Land and Traffic) Act, 2002.
way for access on such other sides, all the abetting land owners should form a service road in their lands along the road to reach them.
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member of public has got a right to pass and repass over a highway or public street and the right of public to pass and repass extends over whole width of the highway or the street and relied on the following two decisions of this Court :
(i) K.Sudarsan and others vs. The commissioner, Corporation of
Madras and others reported in AIR 1984 Madras 292.
“ The highway is a passage over which 10 members of the public are entitled pass and repass. The essential characteristic of a highway is that every person should have the right to use it for the appropriate kind of traffic. The road or part over which only a particular class of people or a few individuals are allowed to pass and repass cannot be a highway. The right of the public to pass and repass extends over the whole width of the highway or the street, in other words over every inch of the street. A member of the public cannot be compelled to confine himself to a part of the street at the choice of another. The owner of a property adjacent to a highway or a public street has got a right of access to such highway or street at any point of which his land actually touches it. His right of access from his premises to the highway and vice versa is a private right. However his right to use such
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highway or public street as soon as he is "on the highway" or the public street becomes a public right. Case law discussed.”
(ii) Arulmighu Palapattarai Mariamman Tirukoil Vs Pappaee and
others reported in 2022 (3) L.W 201 .
19.From the above decisions the following principles emerge. Every member of the public has got a right to pass and repass over a highway or a public street. The said right of the public is a right to pass along the highway for the purpose of legitimate travel, not to be "on it" except to the extent their presence is attributable to a reasonable and proper user of the highway as such. The right of the public to pass and repass extends over the whole width of the highway or the street, in other words, over every inch of the street. A member of the public cannot be compelled to -confine himself to a part of the street at the choice of another. The owner of a property adjacent to a highway or a public street has got a right of access to such highway or street at any point at which his land actually touches it. His right of access from his premises to the highway and vice versa is a private right. However, his right to use such highway or public street as soon as he is "on the highway" or the public street becomes a public right.
referred. But in the case on hand, the petitioner has not claimed any right
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to pass and repass over National Highway or even, over old National Highway, but he is claiming permission to use the portion of the acquired lands in S.Nos.324/3B and 324/4 as pathway to reach old NH road from his land i.e., S.No.324/5.
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Central Government from time to time. Section 29 speaks about the procedure for permission to access to Highway.
said Act.
“ 25. Grant of lease or licence of highway land for temporary use : The Highway Administration or the officer authorised by such administration in this behalf may, having regard to the safety and convenience of traffic and subject to such conditions as may be prescribed and on payment of prescribed rent or other charges, grant lease or licence of highway land to a person for temporary use :
Provided that no such lease shall be valid for more than five years at a time from the date on which such lease has been granted unless renewed by the Highway Administration or such officer. ”
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truck lane by and the learned counsel for the respondent has relied on the judgment of the Hon'ble Division Bench of this Court in W.A(MD)Nos. 310 and 323 of 2009, dated 20.04.2009, wherein also the lands were shown to be acquired for providing facilities like truck parking, spare parts shops, minor repairs and vulganizing facilities etc. The Hon'ble Division Bench has observed as follows :
“ 5. Now, as can be seen from Section 3-A quoted above, it speaks of building, maintenance, management and also operation of a National Highway. The operation of a National Highway would certainly include the facilities to be provided to the operators on the National Highway, such as, the trucks, buses and other vehicles. The land will be required for providing facilities to them so that the National Highway is utilized and maintained properly.
6. Mr.Wilson, learned Additional Advocate General submits that these facilities at certain intervals on the Highway are necessary as per the standards laid down by the Indian Road Congress for the safe driving and relaxation by the truck drivers.
7.The learned counsel for the appellants submits that a similar provision under the Tamil Nadu Highways Act, 2001 provides for in section 15 that if a land is required for any purpose incidental or ancillary, acquisition can be restored to.
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He submits that such a specific provision is not there under the National Highways Act, 1956.
8.In our view, such a specific provision is not necessary. The term “operation of a National Highway” will cover providing these facilities and, in any case, building, maintenance, management or operation of a National Highway are different facets of public purpose. The principal part of the Section permits the Central Government to acquire a land for public purpose and some facets of public purpose are mentioned as building, maintenance, management or operation of a National Highway.
9. In our view, the view taken by the learned single Judge is correct. Both the writ appeals stand dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed. There shall be no order as to costs. ”
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not entitled to get the relief as claimed. Viewing from any angle, this Court has no hesitation to hold that the petitioner is not entitled to the relief claimed. Hence, this Court concludes that the Writ Petition is devoid of merits and the same is liable to be dismissed.
14.06.2024
NCC :Yes/No Index :Yes/No Internet : Yes/ No das
To
2.The Project Director, National Highways Authority of India (NHAI) New No.6, 1st Floor, 3rd Main Road, Ponnagar, Trichy.
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K.MURALI SHANKAR, J
das
Pre-delivery order made in W.P(MD)No.11069 of 2021 and W.M.P(MD)No.8688 of 2021 and W.M.P(MD)No.20445 of 2023
14.06.2024
3 issues framed by the court
Whether the petitioner is entitled to permission to use acquired highway land as a pathway to reach an abandoned road.
Whether Section 30 of the Control of National Highways Act mandates alternative access when existing access is not diverted.
Whether a permanent pathway right can be granted under Section 25 which allows only temporary license or lease.
Colour shows how this judgement treated each authority
K.Sudarsan and others vs. The commissioner, Corporation of Madras and othersReferred¶65
AIR 1984 Madras 292 · Who else cites this
Arulmighu Palapattarai Mariamman Tirukoil Vs Pappaee and othersReferred¶72
2022 (3) L.W 201
W.A(MD)Nos. 310 and 323 of 2009, dated 20.04.2009Referred¶107
4 provisions across 1 enactments
James
The Regional Director, National Highways Authority of India (NHAI)
The Project Director, National Highways Authority of India (NHAI)
Team Leader, LN.Malaviya Infra Projects Pvt, Ltd.
K.MURALI SHANKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
