JUDGMENT : These writ petitions are filed by Oil Marketing Companies and various Franchisees selected by them for starting Petroleum Fuel Retail Outlets in Kerala. They are aggrieved by the non-grant of/rejection of application for issuing, No Objection Certificates (NOCs) by the District Authorities, for establishing Petroleum Fuel Retail Outlets in various places in Kerala as contemplated under Rule 144 of the Petroleum Rules, 2002. Their applications were rejected mainly on the ground that the locations of such Petroleum Fuel Retail Outlets do not satisfy the conditions stipulated in the Indian Road Congress (IRC) Guidelines or the relevant orders issued by the Government of Kerala for Access Permission to Fuel Stations. Some of the writ petitioners seek to desist the respondent-District Authorities from granting NOCs to OMCs/Franchisees in violation of existing guidelines and challenging the NOCs already granted. 2. As these writ petitions are filed challenging the same Government Orders and as common questions of law arise, they were heard together and are disposed of by a common judgment. The exhibits produced in these writ petitions are referred to in this judgment as they are marked in W.P.(C) No.28055/2020. 3. The Public Works Department (PWD) of Government of Kerala has been following the Government of India, Ministry of Road Transport and Highways (MoRTH), specifications and Indian Road Congress (IRC) standards for the roads under the Kerala PWD including State Highways and Major District Roads, for granting access permission to Petroleum Fuel Retail Outlets (hereinafter referred to as 'Fuel Stations' for short). By Ext.P1 G.O.(Ms) No.46/2019/PWD dated 22.10.2019 of the Joint Secretary, PWD, the Government of Kerala accorded sanction for including “IRC: 12-2016 Unified Guidelines for Access Permission to Fuel Stations” in the PWD Manual (Revised 2012) as appendix. The IRC standards prescribed stringent norms for grant of access permission to Fuel Stations including requirement of minimum distance from road intersections. 4. The Government of India issued Notification No.28 effective from 01.12.2019, withdrawing the said IRC:12-2016 Unified Guidelines for Access Permission to Fuel Stations. The Government of Kerala thereupon examined the matter in detail and prescribed new norms in substitution of IRC standards for access permission to Fuel Stations, as per Ext.P2 G.O.(Ms) No.16/2020/PWD dated 10.02.2020. According to the writ petitioners, the new norms were also very stringent and identical to the IRC standards which were withdrawn by the Government of India. The Government of Kerala thereupon examined the matter in detail and prescribed new norms in substitution of IRC standards for access permission to Fuel Stations, as per Ext.P2 G.O.(Ms) No.16/2020/PWD dated 10.02.2020. According to the writ petitioners, the new norms were also very stringent and identical to the IRC standards which were withdrawn by the Government of India. A large number of writ petitions were filed before this Court challenging the new norms introduced by the Government of Kerala as per Ext.P2 GO (Ms) No.16/2020/PWD dated 10.02.2020. 5. Thereupon, the Government of Kerala, as per Ext.P3 G.O. (Rt) No.551/2020/PWD dated 23.06.2020, constituted an Expert Committee to study and report the norms for ensuring the safety of roads and traffic in Kerala. The Expert Committee was required to submit a report to the Government within one month and it was also made clear that till the Committee submits its report, the present norms will be continued. The Expert Committee submitted a report on 28.07.2020, along with a new set of guidelines. 6. The proposals of the Expert Committee included levy of certain fees towards processing applications for access permit and fee for access permit. The guidelines also mandated Bank Guarantee and provided for imposition of penalty for operating energised Fuel Station without obtaining prior permission. The Government of Kerala, as per Ext.P4 G.O.(Ms) No.67/2020/PWD dated 16.10.2020, approved the proposed Guidelines for Access Permission to Fuel Stations along State Highways and Major District Roads and directed to carry out necessary amendments in the PWD Manual. In these writ petitions, G.O.(Ms) No.16/2020/PWD dated 10.02.2020 and G.O.(Ms) No.67/2020/PWD dated 16.10.2020 are under challenge. 7. The petitioners contend that Ext.P4 G.O. is unconstitutional, lacking legislative or statutory authority. “Petroleum” is a Central subject falling within Entry No.53 of List I of Seventh Schedule of the Constitution. Hence, only Parliament and Central Government can make rules regulating establishment of Fuel Stations. The State PWD is not competent to issue an order in the nature of Ext.P4. Ext.P4 is unsustainable as it offends the fundamental right of the citizens under Article 19(1)(g). Ext.P4 regulates grant of Access Permit to Fuel Stations alone and leave aside various other commercial and other institutions like Shopping Malls, Commercial Building Complexes, Theatres, etc. which also utilises access from State Highways/Major Roads at a much higher scale. Ext.P4 is therefore grossly arbitrary and discriminatory, offending Article 14. 8. Ext.P4 regulates grant of Access Permit to Fuel Stations alone and leave aside various other commercial and other institutions like Shopping Malls, Commercial Building Complexes, Theatres, etc. which also utilises access from State Highways/Major Roads at a much higher scale. Ext.P4 is therefore grossly arbitrary and discriminatory, offending Article 14. 8. Ext.P4 imposes severe pecuniary liability by way of non-refundable processing fee, exorbitant licence fee, heavy Bank Guarantee, imposition of penalty, etc., contend the petitioners. Those monetary demands/liabilities are not authorised by law. Regularisation Fee prescribed retrospectively is bad in law. Such demands lack legislative support to be a demand of tax and the test of quid pro quo, to be a demand of fee. In the judgment in Mary Ulahannan v. Union of India and others [ 2011 (3) KLT 570 ], this Court has held that the Government of Kerala has no authority to lay down volume/distance norms for Fuel Stations and the said judgment was upheld by the Hon’ble Apex Court. However, Ext.P4 stipulates a distant norm, which is against the judgment of the Apex Court. 9. The Government has passed Ext.P4 G.O. based on an Expert Committee Report. But, the Committee consisted only of officers from PWD. Neither the Road Safety Authority nor the Traffic Commissioner was made a member of the Committee. The Committee did not consult anybody. Even the suggestions of the Oil Marketing Companies were not taken into account. The Guidelines proposed by the said Committee were not based on any empirical data. In the circumstances, Ext.P4 Guidelines are liable to be quashed, the petitioners asserted. 10. The respondent-State of Kerala contested the writ petitions filing counter affidavits. The respondents stated that the Petroleum Act and Rules deal with import, transport, storage, production, refining and blending of petroleum products, but do not deal with road safety aspect. The District Authority, while considering an application for NOC made under Rule 144 of the Petroleum Rules, 2002, to start a Fuel Station, can indeed consider whether the site proposed by an applicant is objectionable or not. While considering an application under Rule 144, the District Authority will consider various aspects including the views of Fire and Rescue Department, District Medical Office and the PWD which is the Department primarily responsible for Road Safety. 11. Rule 144 was amended on 10.08.2018 incorporating sub-Rule (7) and a proforma thereunder. While considering an application under Rule 144, the District Authority will consider various aspects including the views of Fire and Rescue Department, District Medical Office and the PWD which is the Department primarily responsible for Road Safety. 11. Rule 144 was amended on 10.08.2018 incorporating sub-Rule (7) and a proforma thereunder. The Rule read with the proforma would make it amply clear that the District Authority, while considering an application for NOC, has to consider traffic density and impact on traffic and also any other matter pertinent to public safety. The District Authorities were following MoRTH and IRC guidelines while considering applications under Rule 144, keeping in mind the public safety aspect. 12. The MoRTH, Government of India has subsequently issued Ext.R2(a) Notification dated 26.06.2020 giving detailed guidelines for grant of permissions for construction of access to Fuel Stations/Wayside amenities, Private Properties and Rest Area complexes connecting roads and such other facilities/establishments. The guidelines in Ext.P4 were formulated considering safety of road users and smooth flow of traffic in the State Highways and Major District Roads. The provisions in Ext.P4 relate to Highway Traffic, smooth entry and exit of vehicles from/to the Fuel Stations, avoiding vehicles coming for refueling build up on the road, etc. 13. An Expert Committee was formed to work on necessary guidelines in this regard. Formal meetings were held and the representations received from the stakeholders were discussed. Ext.R2(b) draft report was submitted by the Committee to the Government on 28.07.2020. The draft report was considered by the Government, discussions were held and finally Ext.P4 G.O. was issued on 16.10.2020. Ext.P4 has been issued in exercise of the executive power of the Government and is referable to the Kerala Highway Protection Act, 1999 read with Article 162 of the Constitution of India. The legislative competence of the Government is referable to Entry 5, 13 & 66 of List II and Entry 35 and 47 of List III of Seventh Schedule. 14. As regards picking out only Fuel Stations for framing guidelines for access permission, the respondents stated that the pattern and size and the type of vehicles entering Malls and Shopping Complexes are different from those using Fuel Stations and hence the Fuel Stations require special guidelines. Therefore, there is no arbitrariness or discrimination. The guidelines are applicable only to new Fuel Stations, and not to the existing ones. Therefore, there is no arbitrariness or discrimination. The guidelines are applicable only to new Fuel Stations, and not to the existing ones. However, the existing Fuel Stations are required to apply for access permission paying a one-time fee. 15. As regards levying of fees, the respondents stated that the Government has to incur a regular expenditure by way of providing regulatory and informatory sign boards, road markings, traffic regulation personnel or devices which are recurring expenses. The levy of fees is very reasonable. The penalty amount is also not exorbitant, though it has an element of deterrence. Minimum plot size for Fuel Stations is fixed taking into consideration safety aspects in emergency situations. Sight distance is prescribed since visibility is an important requirement for the safety of travel. Stopping Sight Distance (SSD) has to be maintained in the interest of persons travelling on highways. If the Fuel Station is too close to road intersections, the vehicles entering and exiting in Fuel Stations would create conflict with other vehicles turning to the side roads. Therefore, requisite distance from road intersections has to be maintained. 16. The decisions contained in the guidelines are taken by an expert body which is presumed to know the nature and character of the problem. The decision taken by such a body cannot be interfered with, in exercise of the powers under Article 226 of the Constitution of India in the absence of patent errors, contended the respondents. 17. Sri. Harin Rawal, Senior Counsel who appeared at the instance of counsel for the petitioners in W.P.(C) No.28055/2020 argued that the State lacks legislative competence to deal with petroleum products. Though Ext.P4 G.O. purports to deal with matters relating to traffic and Public Works Department, it in effect, attempts to regulate Fuel Stations, which is impermissible. This is evident from the fact that though Access Permission in respect of National Highways, State Highways and Major District Roads, is applicable to all citizens and establishments, the Kerala Government has chosen only Fuel Stations, to be brought under a regulatory framework. Major commercial establishments functioning along the Highways, like Shopping Malls, Commercial Complexes and Theatres, are kept out of the purview of Ext.P4 or any other guidelines. 18. Senior Counsel Sri. Major commercial establishments functioning along the Highways, like Shopping Malls, Commercial Complexes and Theatres, are kept out of the purview of Ext.P4 or any other guidelines. 18. Senior Counsel Sri. Harin Rawal pointed out that in Mary Ulahannan (supra), this Court has held that if a person is entitled to have a Fuel Station on the basis of NOC issued by the Central Government, the eligibility is not liable to be watered down by the State Government on the basis of any Quantum Rule or Distance Rule framed by it. The State has no executive power to do so. The said judgment of a learned Single Judge was upheld by the Hon'ble Apex Court. Therefore, the issue now is barred by the principles of res judicata and Issue Estoppel. 19. The adoption of IRC Guidelines again under Ext.P4 G.O. is an instance of ‘malice in law’. Ext.P4 is issued with the ulterior motive of getting over the judgments of this Court. In fact, by Ext.P7 letter, the State Government had conceded that only the Central Government has the power to regulate Fuel Stations. The learned Senior Counsel further urged that when Access Permit to State Highways and Major District Roads is governed by the Kerala Highway Protection Act, 1999, the State Government has to invoke provisions under the statute and cannot invoke general powers to issue executive instructions. 20. The learned Senior Counsel further urged that Ext.P4 is hit by Wednesbury Unreasonableness. The Guidelines were drafted hurriedly, without due deliberations and in an opaque manner. There was complete absence of meaningful consultation. Even an administrative order having civil consequences, must be consistent with the principles of natural justice. Ext.P4 G.O. is bereft of reasons. No empirical data was gathered while framing the guidelines. The learned Senior Counsel brought to the notice of this Court a number of judgments of the Hon’ble Apex Court in support of his arguments. 21. Senior Counsel Sri. S. Srikumar appearing at the instance of the counsel for the petitioners in W.P.(C) Nos.11892, 15613, 15815 and 25243 of 2020 argued that choosing only Fuel Stations to be brought under regulatory framework for Access Permit, smacks of arbitrariness. The issue is covered in favour of the petitioners by the judgment of this Court in Mary Ulahannan (supra), which judgment has been upheld by the Apex Court. The issue is covered in favour of the petitioners by the judgment of this Court in Mary Ulahannan (supra), which judgment has been upheld by the Apex Court. Framing a distance rule for Fuel Stations is beyond the powers of the State Government. Ext.P4 has been issued only to favour the existing Outlet Operators. 22. Sri. R. Sunilkumar, counsel for the petitioners in W.P.(C) Nos.13235, 17084, 18542, 26591 of 2020 and a number of other writ petitions, relying on the judgment in Reliance Industries Ltd. and others v. The Commissioner of Land Revenue and others [ 2007 (2) KLT 850 ], argued that the Petroleum Rules, 2002 are exhaustive and a District Authority entertaining an application for NOC under Rule 144 cannot take into consideration anything not provided for by those Rules. In Mary Ulahannan (supra), this Court has held that it is impermissible for the State Government to prescribe a distance rule for Petroleum Fuel Outlets. Still, Ext.P4 which is in the nature of mere guidelines, takes away the fundamental right to carry on business, guaranteed to the petitioners under Article 19(1)(g), on the basis of a distance rule. Sri. R.Sunilkumar further pointed out that even in the Kerala Municipal Building Rules, 2019 framed by the State Government, no separate provisions are made in respect of Fuel Stations and Rule 47 specifically states that Fuel Stations will be governed by the Petroleum Act. When statutory rules are framed, the State has left the matter to be governed by Petroleum Act and Rules and hence the State cannot take a contrary view by framing/accepting Guidelines. Furthermore, the Petroleum Fuel Outlets are included in the “Green” Category by the Pollution Control Board, pointed out the learned counsel for the petitioners. 23. M/s. A. Salinilal, M.R. Anison, V. Premchand, Akash, K.R. Vinod, Bibin K. Divakaran, S.V. Premakumaran Nair, Santhosh Mathew, V. Sri Nath, S. Biju (Kizhakkanela), Joseph George, Subair Pulikkool, Millu Dandapani and Nayanpally Ramola, learned counsel appearing for petitioners in the writ petitions, also advanced extensive arguments on behalf of the petitioners. 24. Additional Advocate General Sri.Ranjith Thamban and Senior Government Pleader P. Narayanan advanced arguments on behalf of the State of Kerala, in support of Ext.P4 G.O. and the orders passed by various District Authorities. 24. Additional Advocate General Sri.Ranjith Thamban and Senior Government Pleader P. Narayanan advanced arguments on behalf of the State of Kerala, in support of Ext.P4 G.O. and the orders passed by various District Authorities. It was pointed out that Ext.P1 G.O. dated 22.10.2019 issued broadly incorporating the IRC standards, was subjected to challenge in W.P.(C) No.33997/2019 and a learned Single Judge upheld Ext.P1 GO. In Writ Appeal No.172/2020, though a Division Bench of this Court set aside the judgment of the learned Single Judge, no findings were made by the Division Bench on the legality of Ext.P1. 25. As the Central Government withdrew IRC standards, the Government of Kerala constituted an Expert Committee on 23.06.2020 to formulate further norms if required. The Committee met on 23.07.2020 and 18.08.2020. The Committee prepared the final draft on 28.08.2020 and submitted to Government of Kerala. Based on the recommendations of the Expert Committee, Ext.P4 G.O. was issued on 16.10.2020. The learned Additional Advocate General further pointed out that the Government of India, MoRTH has, in the meanwhile, resurrected the IRC standards. 26. The legislative power of the State of Kerala in this regard is referable to Entry 13 (Roads) in List II. Ext.P4 has been issued invoking Article 162 of the Constitution. The Kerala Highway Protection Act, 1999 does not provide any guidance in the matter of grant of Access Permission to State Highways and Major District Roads. Though the State has rule making power under Section 36(2)(b) of the Act, 1999, no rules have been framed in this regard. Hence, executive power of the State under Article 162 can be exercised and Ext.P4 is a result of such exercise of constitutional power by the executive Government. 27. Though Access Permission is mandatory for all, the Fuel Stations are chosen first for regulation taking into consideration its hazardous nature. Various States in India including Punjab, Madhya Pradesh, Haryana and Uttar Pradesh have already put in place such regulatory mechanism. Distinguishing the judgment of this Court in Mary Ulahannan (supra), the learned Additional Advocate General pointed out that the Quantity Rule and Distance Rule dealt with in the said judgment were prescribed by the State Government for regulating business volume and this Court found that the State Government has no such power. Distinguishing the judgment of this Court in Mary Ulahannan (supra), the learned Additional Advocate General pointed out that the Quantity Rule and Distance Rule dealt with in the said judgment were prescribed by the State Government for regulating business volume and this Court found that the State Government has no such power. But, in Ext.P4, minimum distance from road intersections is prescribed considering traffic requirements, which would fall within the legislative and executive powers of the Government. Therefore, the judgment in Mary Ulahannan (supra) would not be of any avail to the petitioners. 28. The learned Senior Government Pleader Sri. P.Narayanan argued that after the amendment made to Rule 144 of the Petroleum Rules, 2002 incorporating sub-Rule (7) and proforma thereunder, the District Authorities are legally bound to consider traffic requirements and public safety while issuing NOC for Fuel Stations. Ext.P4 providing guidelines for Access Permit therefore cannot be found fault with. A District Authority can very well consider the requirements in Ext.P4 while issuing/refusing NOC. These writ petitions are therefore without any legal force and are liable to be dismissed, contended the learned Senior Government Pleader. 29. Heard the counsel appearing for the petitioners and the respondents. 30. The first and foremost question arising for consideration in these writ petitions is whether the District Authority considering an application for NOC for issuance of licence under Rule 144 of the Petroleum Rules, 2002 for that the site proposed for Fuel Station does not satisfy the requirements in Ext.P4 Guidelines for Access Permission to Fuel Station along State Highways and Major District Roads. Rule 144 of the Petroleum Rules read as follows:- “144. No-objection certificate – (1) Where the licensing authority is the Chief Controller or the Controller, as the case may be, an applicant for a new licence other than a licence in Forms III, XI, XVII, XVIII, or XIX shall apply to the District Authority with two copies of the site-plan showing the location of the premises proposed to be licensed for a certificate to the effect that there is no objection, to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate (in the proforma specified in sub-rule 7) to the applicant who shall forward it to the licensing authority with his application in Form IX. (Note – The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence.) (2) Every certificate issued by the District Authority under sub-rule (1) shall be accompanied by a copy of the plan of the proposed site duly endorsed by him under his official seal. (3) The Chief Controller or the Controller as the case may be, may refer an application not accompanied by certificate granted under sub-rule (1) to the District Authority for his observations. (4) If the District Authority, either on a reference being made to him or otherwise, intimates to the Chief Controller or the Controller as the case may be, that any licence which has been applied for should not, in his opinion, be granted, such licence shall not be issued without the sanction of the Central Government. (5) The District Authority shall complete his inquiry for issuing NO OBJECTION CERTIFICATE (NOC) under sub-rule (1) and shall complete the action for issue or refusal of the NOC, as the case may be, as expeditiously as possible but not later than three months form the date of receipt of application by him. (6) Where the location of storage of petroleum is within the notified area of a Port or Airport under the control of the state, or establishment of Indian Space Research Organisation or Department of Atomic Energy, NO OBJECTION CERTIFICATE from the District Authority referred to in sub-rules (1) to (5) shall not be required: Provided that consent for establishment of petroleum storage from the competent authority of concerned notified area or head of the establishment, as the case may be, is obtained.” (7) The district authority shall issue a no objection certificate in the following proforma, namely:- PROFORMA NO OBJECTION CERTIFICATE (See rule 144) No.................. Date............... Subject:- No objection certificate With reference to the application No.......... dated …....... submitted by …........ and in pursuance of rule 144 of the Petroleum Rules, 2002, there is no objection for granting licence under the Petroleum Rules, 2002 to Shri./Smt./M/s. …................................. address …............ for storage of petroleum products in their premises at Survey No. …............/Gat No................./Khasra No....................... Plot No.................... Village …............. Taluka/Tehsil ….................. District ….................. State …............ as shown in the site plan duly endorsed and enclosed herewith. address …............ for storage of petroleum products in their premises at Survey No. …............/Gat No................./Khasra No....................... Plot No.................... Village …............. Taluka/Tehsil ….................. District ….................. State …............ as shown in the site plan duly endorsed and enclosed herewith. (1) The following particulars have been considered while issuing this no objection certificate, that-- (a) possession of the site by the applicant is lawful and authorisation from land owner or lease holder for developing premises under these rules for storage of petroleum products; (b) interest of public, specially the facilities like schools, hospitals or proximity to places of public assembly and the mitigating measures, if any, is provided; (c) traffic density and impact on traffic; (d) conformity of proposal to the local or area development planning; (e) accessibility of the site to fire tenders in case of emergency and preparedness of fire services for combating the emergencies; (f) genuineness of purpose; (g) any other matter pertinent to public safety; Signature of the district authority issuing no objection certificate with his office seal (in towns having a Commissioner of Police, the Commissioner or a Deputy commissioner of Police and for any other place the District Magistrate)” Sub-section (7) and proforma under Section 144 were inserted by G.S.R. 762(E) dated 10.08.2018 with effect from 10.08.2018. 31. The Petroleum Act, 1934 is a Central legislation and Rule 144 of the Petroleum Rules, 2002 is contained in Chapter VII therein. The District Authority while considering an application for NOC is acting as a statutory authority under the Petroleum Act, 1934 and the Petroleum Rules, 2002. While considering a case under the Petroleum Rules, 2002 though under a different context, this Court in Reliance request for NOC is legislatively chosen and that every Authority other than Central Government, acting under Chapter VII, shall perform its duties subject to the control of the Central Government. In paragraph 17 of the said judgment, this Court held as follows: “17. When an applicant for a new licence applies to the District Authority, with two copies of the site plan, as enjoined by R.144, showing the location of the premises proposed to be licensed, for NOC, the District Authority shall grant such certificate, “if he sees no objection”. The nature of authority so exercised by the District Authority is to ensure that the application conforms and satisfies the requisites for the grant of licence under the Petroleum Rules. The nature of authority so exercised by the District Authority is to ensure that the application conforms and satisfies the requisites for the grant of licence under the Petroleum Rules. Even if NOC is not refused, the power vests with the Central Government to allow issuance of licence. Therefore, for the District Authority to see, or not, any objection to grant NOC, that authority has to confine his evaluation of the facts to be with reference to the Petroleum Rules only. Nothing more, nothing less.” This Court further held that the Authority to grant licence in terms of Rule 144 of the Petroleum Rules shall grant NOC, unless he sees an objection referable to the Petroleum Act and/or Rules. 32. The judgment in Reliance Industries Ltd. (supra) was delivered on 19.03.2007. Rule 144 of the Petroleum Rules, 2002 was however amended on 10.08.2018 inserting sub-rule (7) to Rule 144. By this amendment, the District Authority was required to issue NOC in the Proforma given thereunder. As per the Proforma, the District Authority in its NOC has to certify that certain particulars mentioned in the Proforma have been considered. Those particulars are: “(a) possession of the site by the applicant is lawful and authorisation from land owner or lease holder for developing premises under these rules for storage of petroleum products; (b) interest of public, specially the facilities like schools, hospitals or proximity to places of public assembly and the mitigating measures, if any, is provided; (c) traffic density and impact on traffic; (d) conformity of proposal to the local or area development planning; (e) accessibility of the site to fire tenders in case of emergency and preparedness of fire services for combating the emergencies; (f) genuineness of purpose. (g) any other matter pertinent to public safety.” Under Clause (b) above, the District Authority has to consider the interest of the public and to see whether there are facilities like Schools and Hospitals and whether the proposed site is proximate to places of public assembly. In such cases, the District Authority also has to consider whether and what mitigating measures are provided. 33. Under Clause (c), the District Authority has to consider the traffic density and possible impact of the Fuel Outlet on traffic, if it is started in the proposed site. In such cases, the District Authority also has to consider whether and what mitigating measures are provided. 33. Under Clause (c), the District Authority has to consider the traffic density and possible impact of the Fuel Outlet on traffic, if it is started in the proposed site. The District Authority, in view of Clause (e), has to take into account accessibility of the Site to fire tenders in case of emergency and preparedness of fire service for combating the emergencies. The District Authority can also consider any other matter pertinent to public safety, in view of Clause (g). Therefore, there is no doubt that a District Authority can look into the impact of proposed Fuel Stations on the traffic density and traffic, and into matters relating to public safety, while exercising powers under Rule 144 of the Petroleum Rules. 34. However, in these writ petitions, wherever the District Authority has declined NOC or has not issued NOC, such decision seems to be based on whether the proposed site for Fuel Station satisfies the requirements for access permit as provided under Ext.P4 Guidelines. The question therefore is whether the District Authority is justified in declining NOCs based on Ext.P4 Guidelines for Access Permission to Fuel Station along State Highways and Major District Roads. 35. Control of access to the National Highways is governed by Chapter IV of the Control of National Highways (Land and Traffic) Act, 2002 which is an enactment made to provide for control of land within the National Highways, right of way and traffic moving on the National Highways and for removal of unauthorised occupation thereon. Section 28 of the Act, 2002 reads as follows: “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. (2) The access to a Highway under sub-section (1) shall be subject to the guidelines and instructions issued by the Central Government from time to time. (2) The access to a Highway under sub-section (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, 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.” The procedure for permission to access is given in Section 29 which reads as follows: “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 sub-section shall be given in the manner specified hereinafter under this section. (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. (3) In case, where the permission has been given in respect of the application made under sub-section (2), 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. (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 sub-section (2) including non-renewal of licence obtained under sub-section (3), his access to Highway under the permission under sub-section (1) or subsection (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.” Thus, a person intending to obtain specific access permission to National Highways has to make an application to Highway Administration. Rule 14 of the Highways Administration Rules, 2004 provides for the form of application and the fee to be paid. Section 48 of the Act, 2002 gives overriding effect to the Act, 2002 over other laws and over instruments having effect by virtue of any law. 36. The Control of National Highways (Land and Traffic) Act, 2002 in Section 44 declares that officers constituting Highway Administration and any other officer authorised by such administration shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. Any order passed in relation to access permission to National Highways under Section 28 of the Act, 2002 is appealable under Section 14, to the National Highways Tribunal. From the Scheme of the Control of National Highways (Land and Traffic) Act, 2002 and from the statutory provisions, it is evident that grant or denial of specific access permission to National Highways is a statutory exercise of power under the Act. 37. The State of Kerala enacted the Kerala Highway Protection Act, 1999 to provide for the protection of Highways and for the regulation of highway development in the State. For the purpose of Act, 1999, “highway” means any road, way or land declared as a highway under Section 3 and would include any land acquired or demarcated for construction of highway. Section 3 of the Act, 1999 reads as follows: “3. For the purpose of Act, 1999, “highway” means any road, way or land declared as a highway under Section 3 and would include any land acquired or demarcated for construction of highway. Section 3 of the Act, 1999 reads as follows: “3. Declaration of roads, ways or land as highway - (1) The Government may, by notification in the Gazette, declare any road, way or land appurtenant thereto to be a highway and classify it as a State highway or a hill highway or a major district road or any other category of road. Explanation -For the purpose of classification of highways under this section, important roads within a district or adjoining districts serving areas of production and market and connecting these with each other or with a State highway or a national highway shall be considered as a major district road and arterial routes of the State linking district headquarters and important cities or towns or important places of tourist interest or pilgrim centres within the State and connecting them with national highways or highways of neighbouring States shall be considered as a State highway. (2) Every notification under sub-section (1) shall also be published by Government in at least two daily news papers having wide circulation in the area to which the notification relates.” Section 19(1) of the Act, 1999 provides that no person shall construct, form or layout any means of access to or from a highway without a written permission of the Highway Authority. Section 19(1) reads as follows: “19. Section 19(1) reads as follows: “19. Restriction on use of land between the highway boundary and building line - (1) Notwithstanding anything contained in any other law for the time being in force or in any agreement or other instrument, no person shall, - (a) construct, form or lay out any means of access to or from a highway, or a compound wall without a written permission of the highway authority; or (b) erect or re-erect any building or materially alter the outside structural features of any existing building including any additions; or (c) alter the level of land by lowering, raising, digging or filling up except with the written permission of the highway authority; or (d) construct, form or lay out any works, upon land lying in between the boundary of a highway and the building lines determined in respect of that highway: Provided that these restrictions shall not apply to any work in connection with the repair renewal, enlargement or maintenance or improvement of any sewer, drain, electric line, pipe, duct or other apparatus, constructed in or upon the land before the date of commencement of this Act.” 38. Section 36 empowers the Government to make rules providing the standards that have to be followed in granting permission for access to highways and to give general guidance for the Highway Authority in discharge of its functions under the Act. In view of Section 36(3), such rules are to be laid before the legislative assembly while it is in session. 39. In exercise of the rule making power under Section 36 of the Act, 1999, the Government of Kerala has made the Kerala Highway (Control of Access and Restriction on Use of Land) Rules, 2000. However, the rules provide for only Permission for approach roads, Construction of approach roads and permission for altering the level of land adjacent to a highway. The Rules, 2000 do not regulate access permission. 40. When the Kerala Highway Protection Act, 1999 provides for access permission and empowers the Government to frame rules prescribing standards that have to be followed in granting access permission, the Government has opted not to go through the right royal statutory route by framing rules, but has instead deemed it enough to formulate guidelines to be followed by officers of the State. The question is whether, on the basis of such guidelines, a District Authority exercising powers under Rule 144 of the Petroleum Rules, 2002 can refuse to issue NOC for licence for the reason that a proposed site for Fuel Station does not satisfy the requirements under the Guidelines for grant of access permission ? 41. The District authority cannot rely on non-adherence to Ext.P4 Guidelines on access permission for rejecting an application, for more than one reason. Grant of access permission as regards National Highways or State Highways and Major District Roads, is statutorily governed. In the case of National Highways, right to access is governed by Section 28 and 29 of the Control of National Highways (Land and Traffic) Act, 2002 whereas permission for access as regards State Highways and Major District Roads, is governed by Section 19 of the Highway Protection Act, 1999. 42. Grant or refusal of access permission is therefore a statutory function which can be exercised only by the empowered authority under those legislations, which is the Highway Authority/Highway Administration. In view of Section 4 of the Highway Protection Act, 1999 the Government can appoint only the Executive Engineer (Roads) or Executive Engineer (National Highways) of the Public Works Department as the Highway Authority. The Government cannot delegate that function to a District Collector. Only the Highway Administration in the case of National Highways and the Highway Authority in the case of State Highways and Major District Roads, would be competent to grant or refuse access permissions to Fuel Stations. 43. Section 14 of the Control of National Highways (Land and Traffic) Act, 2002 provides for an appellate Mechanism and a person aggrieved by an order of the Highway Administration on Access Permission is entitled to a statutory appellate remedy before the National Highways Tribunal. Similarly, Section 21(7) of the Highway Protection Act, 1999 also provides for an appellate remedy against an order of the Highway Authority passed under Section 21 on application for permissions made under Section 19. 44. Therefore, when access permission to Central and State Highways is governed by separate and independent statutes and when there are statutory mechanisms for grant of access permission including appellate remedy, a District Authority exercising his functions under the Petroleum Rules, 2002, cannot rely on Ext.P4 Guidelines intended to govern access permission to Highways and reject an application for NOC under the Petroleum Rules. Any such act on the part of the District authorities would indeed be transgression by District authorities into the powers of statutory authorities under the Control of National Highways (Land and Traffic) Act, 2002 and the Kerala Highway Protection Act, 1999. 45. In most of these writ petitions, the District Authorities have rejected NOCs under Rule 144 of the Petroleum Rules, 2002 for the reason that the proposed sites for Fuel Stations do not satisfy the requirements under Ext.P4 Guidelines. By doing so, the District Authorities have not only usurped the powers of Highway Administration, but also buried both, the right of the applicant-petitioner to approach the Highway Administration/Highway Authority for access permission as well as their appellate remedy under the relevant statutes. 46. Such action can be described only as executive excess, and cannot stand the scrutiny of law. The orders of the District Authorities rejecting NOCs under Rule 144 of the Petroleum Rules, 2002 for non-compliance of Ext.P4 Guidelines are liable to be set aside, unless of course such orders are based on the orders passed or decision taken by the Highway Administration/Highway Authority under the relevant statutes on the applications for access permit made by the parties concerned. 47. The petitioners have questioned the legality of Ext.P4 Government Order also. By Ext.P4 GO (Ms) No.67/2020/PWD dated 16.10.2020, the Government of Kerala has approved the Guidelines for Access Permission to Fuel Stations along the State Highways and Major District Roads published by the Public Works Department, Government of Kerala. There is no dispute over the proposition that the State can give administrative instructions to its servants how to act in certain circumstances (G.J. Fernandez v. The State of Mysore and others - AIR 1967 SC 1753 ). 48. In the judgment in Dr. Krushna Chandra Sahu and others v. State of Orissa and others [ AIR 1996 SC 352 ], the Hon’ble Apex Court held that if statutory rules in a given case have not been made, either by the Parliament or the State legislature, or, for that matter by the Governor of the State, it would be open to the appropriate Government (the Central Government under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. 49. In this case, in the case of State Highways and Major District Roads, though the Government of Kerala has framed the Kerala Highway (Control of Access and Restriction on Use of Land) Rules, 2000, the Rules are silent on access permission. Therefore, the Government of Kerala can indeed issue executive instructions regulating access permission to State Highways and Major District Roads, in view of Article 162 of the Constitution of India. The issue here is whether the Guidelines attached to Ext.P4, published by the Public Works Department will take the status of Executive instructions having the support of Article 162. A close reading of Guidelines attached to Ext.P4 will be gainful in this regard. Ext.P4 G.O. reads as follows: The operative part of the G.O. would show that what is approved by the Government is only “the Guidelines” for access permission to Fuel Station along State Highways and Major District Roads. By mere approval of Guidelines by an executive order issued by the State Government, the Guidelines will not achieve the character and status of executive instructions issued under Article 162 of the Constitution of India. And in spite of such executive approval, guidelines approved by Ext.P4 G.O. would remain as guidelines alone, when no other intention is reflected in Ext.P4 Executive Order. 50. The procedure adopted by the Government in framing the Guidelines is also wanting in many aspects. The Government of Kerala as per Ext.P3 G.O. dated 23.06.2020 constituted Expert Committee to study and report the norms for ensuring the safety of roads and traffic in Kerala. The so called Expert Committee was required to submit a report to the Government within one month. The Chief Engineer (Roads), Chief Engineer (NH), Chief Engineer (KST Project) and Executive Engineer (Road Safety Cell) were made members of the Committee. The Committee did not include any expert specialised in the field of Traffic. The Committee met only twice. The Committee met only on 18.08.2020 and 28.08.2020 and on the second day Final Draft was prepared. 51. One of the major objections raised against Ext.P4 Guidelines was that Fuel Stations are prohibited within 100/300 meters of road intersections. The Committee did not include any expert specialised in the field of Traffic. The Committee met only twice. The Committee met only on 18.08.2020 and 28.08.2020 and on the second day Final Draft was prepared. 51. One of the major objections raised against Ext.P4 Guidelines was that Fuel Stations are prohibited within 100/300 meters of road intersections. Taking into consideration the rural and urban road scenario in Kerala, it will be difficult if not impossible, for the Petroleum Companies or Franchisees to get plots/sites satisfying the said condition in view of the fact that in urban areas of Kerala, plots satisfying the said condition would be few and far between. Ext.P4 Guidelines also prescribes plot size for starting Fuel Stations. How does the plot size is relevant in the context of Access Permission, is also a moot question. The records of the case do not disclose that the Expert Committee has considered any empirical data in these regard. Stake holders including Oil Marketing Companies were not consulted though the counter affidavit of the Government would state that “representations received from various stakeholders were discussed.” 52. There is complete absence of meaningful and effective consultation while framing Ext.P4 Guidelines. When the State is neither adopting a legislative procedure nor resorting to subordinate legislation for making rules, the State is bound to make effective consultations with stake holders. When the State follows a legislative route, there is a presumption that the State is reflecting the will of the people. When the State adopts Executive route and that too abandoning an available statutory route, there should be effective consultation with at least the important stakeholders, the failure of which would render the State action arbitrary and violative of Article 14 of the Constitution. 53. The guarantee of Article 14 is not confined to it being a prohibition against equals being discriminated against or unequals being treated alike. State action must be fair and not arbitrary if it is to pass muster in a court of law. The test of manifest arbitrariness would apply to invalidate any rules made invoking Article 163 also. In these writ petitions, the petitioners who are Oil Marketing Companies and their Franchisees, have proceeded to invest money to start Fuel Stations in compliance of existing rules. Change in any rules, including the rules/guidelines for access permit will have adverse civil consequences on such petitioners. In these writ petitions, the petitioners who are Oil Marketing Companies and their Franchisees, have proceeded to invest money to start Fuel Stations in compliance of existing rules. Change in any rules, including the rules/guidelines for access permit will have adverse civil consequences on such petitioners. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The guidelines sought to be approved as per Ext.P4, are having far reaching civil consequences for the Oil Marketing Companies and Franchisees-petitioners, as it would adversely affect their right to establish Fuel Stations complying with the existing law and rules. When the State proposes to change the rules, by adopting new rules/guidelines, an effective consultation with the Oil Marketing Companies which have applied for NOCs, is warranted. The guidelines approved as per Ext.P4, were framed/approved without any consultation and without giving any opportunity to the stake holders to place their views in the matter. The guidelines approved as per Ext.P4 and the procedure adopted for the same, are therefore highly arbitrary and offend Article 14 of the Constitution of India. 54. In view of the findings and conclusions made hereinabove, this Court find it unnecessary to decide other issues agitated in these writ petitions. The writ petitions filed by Oil Marketing Companies and their Franchisees are therefore allowed with the following orders/directions: (i) Ext.P2 and P4 Government Orders and the Guidelines for Access Permission to Fuel Stations along State Highways (SH) and Major District Roads (MDR) approved as per Ext.P4 are set aside; (ii) Orders of the District Authorities rejecting the applications for NOC under Rule 144 of the Petroleum Rules, 2002 submitted by the petitioners/the respective Oil Marketing Companies for non-compliance of Ext.P2 or P4 Guidelines, are set aside. (iii) In those writ petitions where District Authorities have granted NOC subject to the condition of producing NOC from PWD, the said condition is declared as null and void. (iv) The District Authorities concerned are directed to consider/re-consider the applications submitted by the petitioners for NOC under Rule 144 of the Petroleum Rules, 2002 without regard to Exts.P2 and P4 and in accordance with the Rules prevailing as on the dates of the applications, within a period of two months. (iv) The District Authorities concerned are directed to consider/re-consider the applications submitted by the petitioners for NOC under Rule 144 of the Petroleum Rules, 2002 without regard to Exts.P2 and P4 and in accordance with the Rules prevailing as on the dates of the applications, within a period of two months. (v) The petitioners will be at liberty to cure any other defects in their applications or pointed out in the orders of rejection of their applications, in the meanwhile. (vi) WP(C) Nos.15228/2020, 12396/2020, 9008/2020, 8075/2020, 4614/2020, 4607/2020, 3549/2020, 35334/2019, 35036/2019, 33640/2019, 29361/2019 and 68/2021 which are filed challenging grant of NOC ignoring Exts.P2 and P4 Government Orders are dismissed. All other issues raised by the petitioners in these writ petitions, are left open.