Case Note & Summary
The dispute arose from a writ petition filed by Nandi Highway Developers Ltd (the concessionaire) challenging a no-objection certificate (NOC) dated 22.12.2015 issued by the Executive Engineer (Union of India), which granted access permission to Bharat Petroleum Company Ltd and the landowner for establishing a petroleum retail outlet on land adjoining the Hubli-Dharwad bypass, a national highway (NH-4). The bypass was developed under a Build-Operate-Transfer (BOT) scheme pursuant to a Concession Agreement dated 05.02.1998 between the Union of India, the State of Karnataka, and the concessionaire (originally M/s. Bharat Forge Limited, with the petitioner as the Special Purpose Vehicle). The petitioner asserted that under Clause 5.3.6 of the Concession Agreement and Section 8A of the National Highways Act, 1956, it held the exclusive right to maintain and control access to the project highway, and that the Highway Administration had no authority to grant access permissions during the concession period. The respondents, including the Union Government and the National Highways Authority of India, contended that the ownership of the road remained with the government, and the concessionaire’s rights were limited to toll revenue collection and prevention of leakage; they argued that the access control did not extend to permitting access from abutting lands. The petitioner relied on Section 8A(3) read with Chapter VIII of the Motor Vehicles Act, 1988, to argue that the power to regulate and control traffic inherently included the right to grant or refuse access. The court heard arguments and reserved the matter on 17.10.2017, pronouncing the order on 24.10.2017. The provided text of the order ends during the narration of the respondents' submissions and does not include the court’s analysis, findings, or final decision. Consequently, the ultimate outcome of the writ petition and the detailed ratio decidendi are not available.
Headnote
Not mentioned (judgment text incomplete, no final holding or reasoning available)
Issue of Consideration
Whether the Highway Administration has the authority to grant access permission for a petroleum retail outlet on the project highway during the concession period, or whether such permission must be obtained from the concessionaire; and whether the right to control traffic under Section 8A of the National Highways Act, 1956 and Chapter VIII of the Motor Vehicles Act, 1988 includes the right to grant or refuse access to abutting land.
Final Decision
Not mentioned (judgment text incomplete, final order not available)
Law Points
- Under Section 8A of National Highways Act
- 1956
- concessionaire has power to regulate and control traffic
- which includes access control
- Concession Agreement vests exclusive right to maintain and control access to project highway
- Highway Administration cannot grant access permission bypassing concessionaire during concession period
- right to grant access is an inherent part of concessionaire's rights
- BOT agreement vests possession and control with concessionaire
- depriving government of authority over project stretch.
Case Details
2017 LawText (KAR) (10) 2
W.P. No.105421/2016 (GM-RES)
For petitioner: Dhyan Chinnappa (Sr. Counsel) with Rajashekhar Burji, S.B. Mathapati, Gururaj.K. Deshpande, Kotrabasappa.H; For respondents: Vidyavathi.K (AGA for R2 & R3), M.B. Kanavi (for R1), K.L. Patil (for R5), Dinesh M. Kulakarni (for R6), Mrutyunjaya Tata Bangi (for R7), R.V. Naik (for R4 & R7), Shivasai.M. Patil (for R4)
Nandi Highway Developers Ltd
Executive Engineer (Union of India), Superintending Engineer, Executive Engineer, National Highways Authority of India, Bharat Petroleum Company Ltd., Mr. N.H. Koppad, Union of India
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Nature of Litigation
Writ petition challenging the NOC/access permission granted by the Highway Administration for establishing a petroleum retail outlet on land abutting the national highway bypass, contending that only the concessionaire has the right to grant such access.
Remedy Sought
Petitioner (concessionaire) sought to quash the NOC/letter dated 22.12.2015 issued by respondent No.1 (Executive Engineer, Union of India) granting in-principle approval for access to the retail outlet.
Filing Reason
The grant of access permission by the Highway Administration violated the petitioner's rights under the Concession Agreement and Section 8A of National Highways Act, 1956, as the concessionaire has exclusive control over access to the project highway.
Previous Decisions
Not mentioned (original proceeding)
Issues
Whether the Highway Administration has the authority to grant access permission for a petroleum retail outlet on the project highway during the concession period, or whether such permission must be obtained from the concessionaire.
Whether the right to control traffic under Section 8A of National Highways Act, 1956 and Chapter VIII of Motor Vehicles Act, 1988 includes the right to grant or refuse access to abutting land.
Submissions/Arguments
Petitioner argued that under Clause 5.3.6 of the Concession Agreement and Section 8A(3) of the NH Act read with Chapter VIII of the MV Act, it had exclusive right to control access and that the Highway Administration is denuded of authority during the concession period; access permission must be obtained from the concessionaire, and the impugned NOC is illegal and void.
Respondents contended that ownership of the road remains with the government; the concessionaire's right is only to collect tolls and control access to prevent revenue leakage; the Concession Agreement does not confer the right to grant access to abutting land; and the NOC was validly issued under the Control of National Highways (Land and Traffic) Act, 2002.
Judgment Excerpts
the person referred to in sub-section (1) is entitled to collect and retain fees at such rate, for services or benefits rendered by him as the Central Government may, by notification in the Official Gazette, specify...
once the access control is handed over to the concessionaire in terms of Section 8A of the Act of 1956 as well as by the Concession Agreement, then, it necessarily has to follow, that access permission has to be obtained from the concessionaire and any other interpretation would render nugatory the Concession Agreement in letter and spirit.
the Highway Administration, ceases to have control over such stretch of the national highway, which is handed over to a private party/concessionaire.
Procedural History
Writ petition filed directly before Karnataka High Court, Dharwad Bench; notices issued to respondents; respondents filed statement of objections; matter heard and reserved for order on 17.10.2017; order pronounced on 24.10.2017.
Acts & Sections
- National Highways Act, 1956: 8, 8A
- Motor Vehicles Act, 1988: Chapter VIII (Sections 112, 113, 119)
- Control of National Highways (Land and Traffic) Act, 2002:
