Insistence on a minimum setback of 6 meters by the National Highways Authority after valid construction permits were issued violates constitutional property rights and is deemed unreasonable.

JUDGMENT

[WP(C) Nos.22602/2023, 36686/2023 & 27789/2024]

...

In all these cases, there arises a common issue relating to the fixation of the minimum setback to be provided by the owner of a property abutting the National Highway. The grievances raised in these writ petitions are with respect to the fixation of minimum setback as 6 meters from the road boundary of the National High way despite the fact that all the petitioners have completed their constructions after obtaining building permits from the respective Grama Panchayats which provided for minimum set back of 3 meters from the boundary from the National Highway. On the basis of the permits so issued to them, all of them have completed their constructions and when they approached the panchayat for the occupancy certificates after submitting completion plans, they were required to obtain an access permit from the National Highways Authority as contemplated under section 28 of the Control of National Highways (Land and Traffic) Act, 2002 . When so approached, the National Highways Authority imposed a condition for maintaining a setback of 6 meters, whereas the respective petitioners have already completed the construction by maintaining a setback of 3 meters as permitted by the respective panchayats through the building permits issued to them in tune with the statutory requirements contemplated under the Kerala Panchayat Building Rules, 2009 . These writ petitions are considered in the above factual circumstances.

2. Heard Sri. V.N.Ramesan Nambisan, the learned counsel appearing for the petitioner in WP(C)No.36686/2023, Sri. K.V. Sasidharan, the learned counsel appearing for the petitioner in WP(C) No.22602/23, Sri. V. Premchand, the learned counsel appearing for the petitioner in WP(C)No.27789/2024, Sri. I.V. Pramod, the learned Standing Counsel for the respondent-panchayat in WP(C)Nos.22602/23 and 36686/2023, Sri. S. Nirmal, the learned Standing Counsel for the panchayat in WP(C)No. 27789/2014 and Sri. B.G.Bidan Chandran, the learned Standing Counsel for the National Highways Authority of India.

3. As mentioned above, in all these cases, there is no dispute that all the petitioners have carried out the constructions by maintaining a statutory set back as permitted in their respective building permits. In response to the averments contained in the writ petitions, statements were filed by the National Highways Authority in WP(C)No.27789/2024 and WP(C)No.36686/2023. In those statements, the stand taken by them is that, as per the statutory stipulation contained in Section 28 of the Control of National Highways (Land and Traffic) Act, 2002 , the National Highways Authority is competent to insist for an access permit to be obtained by the owners of properties abutting the National Highway. It was also averred that, it shall be open for the National Highways Authority to provide such access subject to the guidelines and inspections issued by the Central Government from time to time.

4. In this regard, in WP(C)No.36686/2023, as directed by this Court on 6.8.2024 requiring the National Highways Authority to file an affidavit specifying the yardstick/criteria for fixing the distance of the building line, an additional affidavit was filed by them on 21.08.2024. In the said affidavit, it is specifically averred by the National Highways Authority that, as per Article 4.3 of Indian Road Congress Special Publication- Ribbon Development along Highways and its