Kalyan Jyoti Sengupta, J.

1. This writ petition is directed against a decision of Chief Engineer of Durgapur Expressway which was communicated by a letter being Annexure Q to the writ petition.

The aforesaid decision was rendered pursuant to the order passed by this Court in writ petition being No. 17386 (W) of 1997. The fact of the case can be put in a narrow compass. So I do as hereunder.

2. The Petitioner had been running a petrol pump on G.T. Road at Bhadreswar in the District of Hooghly. Pursuant to the Petitioners application Indian Oil Corporation intended to recite the existing petrol pump of the Petitioner from Bhadreswar to Maigale, District Hooghly which situates by the side of Durgapur Expressway.

3. Accordingly the Petitioner with permission of Indian Oil Corporation being the principal oil company developed the land for resitement of the petrol pump at the aforesaid new place. The Director of Fire Service, West Bengal issued No Objection Certificate for the proposed storage of 30 K.L. petroleum class A and 80 K.L. petroleum class B in respect of underground tank at the new site. The District Magistrate, Hooghly granted No Objection Certificate in respect of the storage tanks.

4. Now in order to recite the said petrol refueling station the Petitioner needs permission to construct a approach Road and culvert from service station to feeder road ending to Durgapur Expressway. The application was submitted to the Assistant Engineer, Durgapur Expressway who forwarded the same to the Executive Engineer, Durgapur Expressway. The Executive Engineer rejected the application on the ground that it could not be recommended or forwarded to higher authority as the site is within 300 metre from the intersection of Uttarpara Kalikapur road and Durgapur Expressway and as per Codal provision no fuel filling station can be set up.

5. Challenging the aforesaid decision and letter dated August 17, 1999 the Petitioner filed the aforementioned writ petition. By the impugned order the Chief Engineer, Durgapur Expressway withheld recommendation for access to the proposed petrol pump from the feeder road, inter alia, on the grounds that-(a) the proposal does not conform to cl. 4.7 of I.R.C. (Indian Road Engineers) so far as the same provides: however, on expressway and Arterial roads having a duel carriageway the distance from a junction should not be less than 300 metre ; and (b)

Durgapur Expressway authority is neither the owner of the road nor the permission granting authority for any access from Expressway Authority for granting permission rests only on NHAI of Ministry of Surface Transport, Government of India in the instant case. Durgapur Expressway authority is only the recommending and forwarding authority to NHAI, Government of India.

6. Mr. Mukherjee appearing for the writ Petitioner submits the invocation of the guidelines contained in the I.R.C, particularly para. 4.7 thereof while dealing with and disposing of earlier representation is wholly illegal and arbitrary. The Petitioner applied for permission merely for an access Road and not for approval of the site of the proposed petrol pump. The I.R.C. guidelines for site approval are meant for oil companies and other administrative authorities. The proposed site has already been approved by the oil company which is an agency and instrumentality of the Union Government.

7. Mr. Mukherjee further argues that the oil company itself has constructed the storage tank at the proposed site. The District Magistrate has also approved the site for the purpose of fuel storage. The I.R.C. guidelines cannot be applied while considering the question of permission for access High ways in respect of the approved site.

8. Mr. Mukherjee contends also that the I.R.C. guidelines have no statutory force and alleged nonconformity with the guidelines cannot be invalidating factor.

9. In support of his submission he relies on a decision of this Court Ardhendu Manna (Sri) v. The Union of India and Ors. 1997 (2) C.L.J. 187p.19.

10. He further argues that when the Chief Engineer himself has admitted that he has no competence in this regard so he cannot decide the question involved of cannot prevent the competent authority from dealing with it by purporting to withhold their recommendation.

11. Mr. Mukherjees further contention is that under Section 5 of the National Highway Act the Central Government has issued a Notification directing that the functions in relation to execution of works pertaining to each of the National Highway described in col. 2 of the schedule hereto annexed shall be exercisable also by the State Government specified in col. 3. In respect of Durgapur Expressway, which is a part of National High Way No. 2 the State Government of West Bengal is authorised by the Notification in question. Both under Section 5 and under Section 9(2)(a) any officer or authority of the State Government can be authorized by the Central Government but such authorization can be done only by Notification and not otherwise. No such notification has been issued in favour of any such officer. However, in view of the delegation of authority in favour of the State, it would obviously mean and include the secretary of the concerned department.

12. Mr. Tarun Kumar Roy, learned Senior Advocate while opposing this application on, behalf of the Sate Respondents submits as follow:

a) By virtue of Section 4 of the National Highways Act, 1956 lands appurtenant to the National Highways vest in the Central Government.

b) Under Section 5 of the aforesaid Act it is the responsibility of the Central Government to develop and maintain and further undertake proper repair all National Highways, but any function in relation to the development or maintenance of any National Highway may be directed to be also exercisable by the State Government or any officer or Authority under it. In view of the provisions of Section 5 the notification dated April 4, 1957 has only relevance in the matter of development or maintenance in proper repair of any National Highway and not in a case of granting licence for construction of approach road from any private property to the National Highway.

c) The relevant circular in this case is a circular dated October 30, 1980 addressed to all State Governments and Union Territories on behalf of the Government of India, Ministry of Transport, Department of Surface Transport (Roads Wing). The said administrative circular contains executive instructions regarding licencing of National Highway land for construction of approach road to private property abutting on National Highways. It has been laid down that the formal permission for lease of National Highway land for any purpose can be granted only by the Government of India through the execution of a licence deed. In para. 5 of the said circular it is provided that proposals for such approach road may be approved by the State Chief Engineers themselves and the licensee may be permitted to construct the approaches, culverts etc. after execution of the licence deed, if the proposals conform to the standard mentioned in para. 4. Paragraphs 6 and 7 provide that the cases where standard conditions are not satisfied should not be approved and where the State Chief Engineer recommends certain relaxations the cases may be referred to the Government of India for final decision. Thus, in view of the said administrative circular containing executive instructions the Chief Engineers of the State Government have the authority and jurisdiction to disapprove any proposal for construction of approach road from private property to National Highway where the standard conditions are not satisfied. It is important to point out that the service road is a part and parcel of the Expressway which is a National Highway. The legal strength of such administrative circular can be established on the basis of constitutional provisions and not referring to the National Highways Act.

d) Under Article 246(1) of the Constitution the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the 7th Schedule. Item 23 of the said List I provides Highways declared by or under law may by Parliament to be National Highways.

e) By virtue of Section 2 of the National Highways Act, 1956 the Highway connecting Delhi, Mathura, Agra, Kanpur, Allahabad, Benaras, Mohania, Barhi and Calcutta has been declared as National Highway No. 2.

f) Under Article 73(1) the executive power of the Union shall extend to the matters with respect to which the Parliament has power to make laws. Thus, the Central Government has executive power in respect of National Highways, including National Highway No. 2.

g) Under Article 53(1) the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.

h) Under Article 258(1) the President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or to its officers, functions in relation to any matter to which the executive power of Union extend.

i) Thus, in view of the Provisions of Article 73 and Article 258 read with Article 53 of the Constitution, any officer of the Ministry of Transport, Government of India who is duly authorised can validly entrust to officers of the State Government executive functions in relation to National Highways. In such view of the matter administrative circular dated October 30, 1980 gives lawful authority to State Chief Engineers to deal with such matters.

j) He argues that it is true that mere guidelines may not be legally binding but if some guidelines are adopted as part of a policy decision the same would be binding in law. Thus, since in the instant case the location of the proposed petrol pump is merely 45 metres away from the junction of the National Highway the same is violative of a policy decision that the minimum distance should be 300 metres.

13. Apart from the above, since the National Highway lands are property of the Central Government by virtue of Section 4 of the National Highway Act, the Central Government by way of administrative instructions can also restrict the grant of licences for construction of approach road on such property according to its policy like any other owner of immovable property. In this connection he relies on a decision Railway Board, New Delhi and Anr. v. Niranjan Singh A.I.R. 1969 S.C. 966. He argues drawing my attention to para. 12 of the aforesaid judgment that it was not disputed that Northern Railway is 1he owner of the premises in question. The fact that Indian Railways " are State undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may pace on them.

14. Having heard the submissions of the respective learned lawyers and having considered the materials placed before me in this case the issues and/or questions which have fallen for consideration are whether the order dated February 16, 2000 passed pursuant to the direction given by this Court earlier, by the Respondent No. 2 is liable to be set aside and/or quashed; and whether this Court should give direction upon the appropriate authority to grant permission to the Petitioners to construct culvert/link road to have access to the petrol pump from the feeder road or not.

15. In this case the Petitioner originally applied for construction of approach road and culvert on the link road leading to Durgapur Expressway.

16. It appears originally on or about August 17, 1999 the aforesaid proposal of the Petitioner was not considered nor forwarded to higher authority as he site of the proposal for fuel filling station complex is within 300 metres from the intersection of Uttarpara Kalikapur road and Durgapur Expressway. So the writ Petitioner-moved the previous writ petition before this Court and His Lordship Honble Justice Pinaki Chandra Ghosh by an order dated February 4, 2000 was pleased to direct the Respondent No. 2 to treat the writ petition as a representation of the Petitioner and to dispose of the same with a reasoned order within two weeks from the date of communication of the aforesaid order.

17. The aforesaid order was communicated on February 7, 2000. So in terms of the aforesaid order the said representation was to be disposed of within February 22, 2000. The representation was disposed of by the impugned order on February 16, 2000.

18. I have gone through the impugned order and it appears that the same was passed without hearing the Petitioner though notice, was served upon it. The question raised by the writ Petitioner, as to violation of principle of natural justice is baseless because of the reasons in spite of notice the writ Petitioner did hot appear at the time of hearing on February 16, 2000. The plea of Sand/ called by the political party is not acceptable nor tenable in this case as the Bandh was called of February 15, 2000. So the writ Petitioner could appear on February 16, 2000. It is surprising that the prayer for adjournment of hearing fixed oh February 16, 2000 was made on February 17, 2000. So the writ Petitioner did not appear deliberately on February16, 2000. Such plea of violation of natural justice is therefore not accepted by me. Therefore the impugned order has to be examined on its merit as to whether the same is sustainable under the law or not.

19. The Respondent No. 2 while deciding the question in terms of the Courts order has himself recorded that he is not the authority to grant permission and the National Highway Authority is the appropriate authority. He should not have decided this matter or issue rather he should have asked for modification and/or clarification of they order passed by Justice Ghosh. Mr. Mukherjee is right in saying that under the National Highways Act Durgapur Expressway is owned by the Central government. Under the provision of Section 4 all National Highways shall vest in the Union, and for the purposes of this Act Highways include (i) all lands appurtenant thereto whether demarcated or not, (ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highways, and (iii) all fences, trees, posts and boundary furlong and mile stones of such highways or any land appurtenant to such highways.

20. The Durgapur Expressway is admittedly part of the National Highway too. In this case the writ Petitioner wants to construct a culvert and to lay a connecting road from fuel filling station to the feeder road intersecting the Expressway. It is an admitted position that this feeder road belongs to the Central Government.

21. Under Section 5 of the said Act the primary responsibility to develop and maintain all National Highways remain with the Central Government but by notification the same can be conferred upon the State Government concerned within which the National Highway situated or by any officer or authority subordinate to the Central Government or the State Government. In this case the notification, produced by the Petitioner, authorized the State Government to maintain and develop High ways. By a subsequent notification dated October 30, 1980 produced by the Respondent clarifies that the aforesaid power of delegation does not include power of granting licence. The relevant portion of the text of the said notification is quoted hereunder:

22. In supersession of earlier instructions on the subject mentioned above I am directed to convey the following consolidated instructions regarding licensing of National Highway land for the construction of approach roads to private property abutting on or National Highways.

23. Under Section 4 of the National Highway Act 1956 all N.H.S. vests in the Union and Section of the Act it is the responsibility of the Central government to develop and maintain them in proper repair though the Central Government may, by issue of a Notification in the official Gazette entrust the function in relation to development or the maintenance of any National Highway to a State Government within the jurisdiction of which that National Highway is situated. The aforesaid entrustment or delegation does not cover the licensing / leasing of NH Land for any purpose as this is not a function related to the development or maintenance of N.H.S. Until therefore the State Governments are specifically authorized in this behalf by an Act of Parliament formal permission for lease of NH land for any purpose can be granted only by the Government of India through the execution of a licence deed prescribed for the purpose.

24. Neither of the parties could produce nor informed this Court about any act in this respect having been enacted. Therefore the above notification dated October 30, 1980 as produced by Mr. Roy hold the field for granting licence and the earlier notification has no application so far as it relates to granting licence for use of National Highway land. In view of the above position I find Government of India is at present competent to consider the application of the Petitioner for granting licence in the prescribed form appeared in the notification itself.

25. The Respondent No. 2 should not have decided this matter though in terms of the Courts order he has done so. He should have approached this Court for appropriate clarification drawing attention of this Court as to the aforesaid legal position. So the reasonings and findings given by the Respondent No. 2 being an inappropriate authority are set aside and quashed.

26. In the affidavit-in-opposition a point has been taken that the permission to construct culvert and build approach road cannot be given in view of provision of 4.7 of the Indian Road Congress, 1983. So cl. 4.7 of I.R.C. is reproduced hereunder.

The distance between the tangent points of the curves of the side road and that of the fuel filling stations as shown in plate, measured in a direction parallel to the Centre line of the road, should not be less than 100 metres and the station should be located only in the outbound direction as shown in the plates. However, on Expressway and arterial road having dual carriage way the distance from a junction should not be less than 300 metres.

27. Whether the aforesaid clause in this case is applicable or not can be adjudged only when it is legally acceptable. I accept argument of Mr. Mukherjee that the aforesaid provision is neither having a statutory force nor having any binding effect. The said clause is merely a guideline as and by way of safety measure. This legal position has been settled by Justice Sinha in a case Ardhendu Manna (Sri) v. The Union of India and Ors. (Supra)

28. It appears from the petition as well as the affidavit-in-opposition the actual dispute as to the location of the site. this Court cannot decide the same/Moreover, safety measure should not be overlooked at all. Grant of permission to construct culvert or approach road as applied for is to be considered and/or decided by the appropriate authority on certain guidelines and/or norms. But of course considering the provision of the law it appears as rightly submitted by Mr. Mukherjee that a citizen has statutory right to have access to public road including Highways and this has also been decided by this Court in an unreported decision of Honble Justice N.K. Mitra on November 27, 1995 in the case of Satyabrata Mukherjee and Ors. v. State of West Bengal. His Lordship Justice Mitra while delivering the aforesaid judgment relied on a decision of 1981 (2) M.L.J.R. 336 . In the judgment of Madras High Court it has been observed as follows:

It is well established law that where there is a public highway the owners of land adjoining thereto have a right to go upon the highway from any spot on their land.

...The right of access to a highway enjoyed as a private right by the owner of premises adjoining the highway is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall" of the premises in which there is no door or other opening. But the premises must actually adjoin the highway ....

29. In a case decided by the Madras High Court Damodara Naidu and Ors. v. Thirupurasundari Ammal and Anr. : A.I.R. 1972 Mad. 386 [LQ/MadHC/1971/409] it is observed that where there is a public highway the owners of land adjoining the highway have a right to go upon the high-way from any point on their land.

30. In this case the Petitioner has already acquired a plot of land aiming at to set up fuel filling station. So in order to have accessibility from the aforesaid plot of land to the feeder road (not even Highway itself) the Petitioner wants to construct culvert and/or approach road. Given on the aforesaid decisions of the Courts whether permission should be granted or not is to be decided by the Secretary, P.W. D. department. The writ Court cannot issue a writ of mandamus directing the appropriate authority to grant or not to grant permission at the first instance. If the appropriate authority does not grant permission without reasons or grant permission illegally then this Court may interfere at that stage not before that.

31. Therefore, I set aside the aforesaid impugned order and I direct the Secretary, P.W. D. State of West Bengal to consider this application for granting permission as applied for being AnnEx. J at page 40 of the present writ petition and he shall take note of the above judgments quoted by me and my observation. The Secretary as aforesaid while deciding this matter if necessary may ask any appropriate and competent officials and/or engineers to visit the said location in question upon notice to the writ Petitioner. The said application shall be considered and disposed of by him upon service of notice upon Petitioner and the concerned department of the National Highways. The writ Petitioner would be entitled to agitate all points of law and fact. The said application shall be considered and disposed of within three weeks from the date of communication of this order. He shall pass a speaking order in the event the permission is refused.

32. There will be no order as to costs.