Abbas V. et al. v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940** **WP(C).No. 25239 of 2018** ## **PETITIONERS** **1 ABBAS V., AGED 61 YEARS, S/O.KUNHALAVI MESTHIRI, VELLATHUR HOUSE, THANJILOD, MEPPADI P.O., THATHILOD - 673 577** ## **2 T.SASI,** **CHESOTHARA, THERUVALA HOUSE,** **P.O.KOTTANAD - 673 577** ## **3 SHAFEEK C.,** **S/O.JAMAL, CHIRAYIL HOUSE, KUNNAMANGALAMKUNNU, MEPPADI P.O.** ## **4 SIKKANDAR M.,** **S/O.MEERAN, CHERUVIL HOUSE, KAPPAMKOLLY, P.O.MEPPADI.** ## **5 IBRAHIM C.,** **S/O.KUNHAMMAD, CHOMAYIL HOUSE, GANDHINAGAR, MEPPADI P.O.** ## **6 AYAMU,** **AGED 69 YEARS, S/O.EATHEENKUTTY, ALUKKAL HOUSE, KOTTANAD, MEPPADI.** ## **7 HAJAJUSSAIN,** **S/O.MUTHU RAWTHER, VERKKOLLI HOUSE, THAZHE ARAPETTA, MOOPAINAD.** ## **8 BABU S.,** **S/O.SUBRAMANIAN, LAKSHAM HOUSE, KOTTANAD P.O. (SCHEDULED CASTE)** **9 CHIKKAMMA, W/O.SUBRAMANIAN, KUNNAMANGALAM VAYAL, MEPPADI P.O. (SCHEDULED CASTE)** ## **10 KUNHIMUHAEED T.K.,** **S/O.MUHAMMED, THUPPIRIKKADU, KADOOR AMBALAKUNNU, MEPPADI P.O.(SICK).** **/2/** **-2-** ## **WP(C).No. 25239 of 2018** **11 P.K.MOIDEENKUTTY, AGED 71 YEARS, KUNHIMOIDEEN, POOLIKUNNIL HOUSE, MOOPPAINAD, MEPPADI P.O.** **12 FAHAD P., S/O.MUHAMMED, PAVOOR HOUSE, PULLOORJUNNU, RIPPON P.O.** **13 SDIQ, S/O.MOIDEEN, PARAPPURATH HOUSE, THOMATTUCHAL, VADUVANCHAL P.O.** **14 SOMAN R., AGED 73 YEARS, S/O.RAGHAVAN, KUNNAMANGALAM VAYAL, MUZHIYIL HOUSE, P.O.MEPPADI.** **15 PAULRAJ, KIZHAKKEKATHI HOUSE, ARAPPATTA, MEPPADI P.O.** **16 VELAYUDHAN, AGED 71 YEARS, S/O.CHOYIKKUTTY, MADATHIL HOUSE, MANKUNNU, MEPPADIP.O.** **17 BASHER K.T.,** **S/O.TAHA, KOCHUMURITHOTTIL HOUSE, CHEMBOTHARA, KOTTANAD P.O.** **18 MUHAMMEDALI K.,** **S/O.KARIL, ALIKKADAN HOUSE, RIPPON P.O.** **19 BABY K.,** **S/O.RAJAN, KUNJUMMAL HOUSE, RIPPON P.O., PUDUKKAD.** **20 SALIM P., AGED 62 YEARS, S/O.MOIDUNNI, PALAPUZHA HOUSE, MALAMKOLLI, VADUVANCHAL.** **21 SELVARAJ R., S/O.RANGASWAMY, KANJANA HOUSE, VATTATHUVAYAL, VADUVANCHAL P.O. 22 BALAKRISHNAN T.K., AGED 58 YEARS, S/O.KRISHNAN, THOTTUKATTIL HOUSE, ERUMAKKOLLI, CHEMBRA P.O.** **/3/** **-3-** ## **WP(C).No. 25239 of 2018** **23 SUNDERRAJ, S/O.KARAPPASWAMY, THALAKKALVAYAL, RIPPON P.O. SCHEDULED CASTE)** **24 ABDUL AZIZ C., S/O.UMMER, CHEMBOTTUTHODIKA HOUSE, KOTTATHARAVAYAL, KOTTANAD P.O.** ## **25 A. HAMSA,** **AGED 65 YEARS, S/O.MOIDEEN, ATHANIKKAL HOUSE, MEPPADI P.O.** **26 KUNHIKANNAN T., S/O.KUNHIRAMAN, THERADATH HOUSE, KADOOR, MEPPADI P.O.** **27 MUHAMMED C.P., S/O.ALAVIKUTTY, CHAKKUPURACKAL HOUSE, NEDUNKARANA, RIPPON.** **28 USSAIN, S/O.MOIDEEN, PUTHUPARAMBIL HOUSE, NEDUNKARANA, RIPPON, MEPPADY.** ## **29 RAJU S.,** **S/O.SIDHAN, LAKSHAM VEEDU, KOTTANAD P.O., (SCHEDULED CASTE)** **30 M.UMMER, MALAPARAMBIL HOUSE, P.O.MEPPADI, PUTHAKOLLI - 673 577 (SICK).** **31 LEELA K., AGED 60 YEARS, LAKSHAMVEEDU, MEPPANGODU, KOTTANADU P.O. KOTTAPPADI - 673 577 (SICK)** **BY ADVS.SRI.P.K.REJITH KUMAR** **SMT.K.K.PREETHA** **SRI.R.K.PRASANTH** **RESPONDENTS:** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,THIRUVANAMNTHAPURAM-695 001.** **/4/** **-4-** **WP(C).No. 25239 of 2018** **2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **3. THE ASSISTANT ENGINEER, PWD ROAD SECTION,KALPETTA, WAYANAD-673 122.** **4. THE ASSISTANT ENGINEER,** **PWD ROAD SECTION,LAKKIDI,WAYANAD-673 576.** **5. MEPPADI GRAMA PANCHAYAT,** - **MEPPADI REPRESENTED BY ITS SECRETARY, MEPPADI P.O.,WAYANAD-673 577.** **6. MOOPAINAD GRAMA PANCHAYAT, MOOPAINAD REPRESENTED BY ITS SECRETARY, MOOPAINAD P.O., WAYANAD-673 577.** **7. DISTRICT COLLECTOR, WAYANAD,COLLECTORATE, CIVIL STATION,KALPETTA-673 122.** ## ***ADDL.R8 IMPLEADED** - **------------------** ***ADDL.R8 THE EXECUTIVE ENGINEER (ROADS), PUBLIC WORKS DEPARTMENT (ROADS), KALPETTA, WAYANAD DISTRICT.** ## ***ADDL. R8 SUO MOTU IMPLEADED AS PER ORDER DATED 26.07.2018** **R1 TO R4, R8 BY SRI. K.V. SOHAN, STATE ATTORNEY BY GOVERNMENT PLEADER SRI.K.B. SONI R5 & R6 BY ADV. SRI.MANOJ RAMASWAMY, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 25239 of 2018 (D)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1: TRUE COPY OF THE UNDATED NOTICE ISSUED TO THE 4TH PETITIONER ISSUED BY THE 4TH RESPONDENT EXT.P1(A): TRUE COPY OF THE NOTICE DATED 17/07/2018 ISSUED TO THE 1ST PETITIONER EXT.P1(B): TRUE COPY OF THE BLANK NOTICE FORM ISSUED BY THE 3RD PETITIONER EXT.P2: TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.1 EXT.P2(A): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.4 EXT.P2(B): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.5` EXT.P2(C): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.14 EXT.P2(D): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.16 EXT.P2(E): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.17 EXT.P2(F): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.22 EXT.P2(G): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.25 EXT.P2(H): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.26 EXT.P2(I): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.27 EXT.P2(J): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.28 EXT.P2(K): TRUE COPY OF THE FOOD SAFETY CERTIFICATE ISSUED TO PETITIONER NO.30** ## **WP(C).No. 25239 of 2018 (D)** **EXT.P3: TRUE COPY OF THE IDENTIFY CARDS ISSUED BY THE COMMISSIONERATE OF FOOD AND SAFETY TO PETITIONER NO.25 EXT.P3(A): TRUE COPY OF THE IDENTIFY CARDS ISSUED BY THE COMMISSIONERATE OF FOOD AND SAFETY TO PETITIONER NO.26 EXT.P4: TRUE COPY OF THE MEDICAL FITNESS CERTIFICATE ISSUED TO PETITIONER NO.17 BY FOOD SAFETY & STANDARDS AUTHORITY OF INDIA. EXT.P4(A): TRUE COPY OF THE MEDICAL FITNESS CERTIFICATE ISSUED TO PETITIONER NO.25 BY FOOD SAFETY & STANDARDS AUTHORITY OF INDIA. EXT.P4(B): TRUE COPY OF THE MEDICAL FITNESS CERTIFICATE ISSUED TO PETITIONER NO.27 BY FOOD SAFETY & STANDARDS AUTHORITY OF INDIA. EXT.P5: TRUE COPY OF THE REPORT ON ANALYSIS OF WATER TO PETITIONER NO.27 BY THE ASST. ENGINEER, KERALA WATER AUTHORITY EXT.P6: TRUE COPY OF THE REPRESENTATION SUBMITTED PETITIONER NO. 30 TO RESPONDENT NO.3 EXT.P7: TRUE COPY OF THE REPRESENTATION SUBMITTED PETITIONER NO. 30 TO RESPONDENT NO.5 EXT.P8: TRUE COPY OF THE REPRESENTATION SUBMITTED PETITIONER NO. 30 TO RESPONDENT NO.7 RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/3.8.18** **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 25239 of 2018 ================== Dated this the 26[th] day of July, 2018 **J U D G M E N T** The petitioners claim that they are street vendors, who are eking out their livelihood by vending tea, coffee, fruits, vegetables, ice creams, snacks, mini tiffins, etc. in small bunk shops/sheds on the side of the Chundel-Meppadi-Ootty Road, within the territorial limits of R-5 (Meppadi Grama Panchayat, Wayanad district) and R-6 (Moopainad Grama Panchayat, Wayanad district) for the last more than 30 years. It is stated that most of the petitioners are senior citizens, physically challenged persons, who are affected by various chronic diseases like cancer, heart ailments, etc. Some of them are widows, it is averred. It is further stated that most of them have obtained registration under the Food Safety Standard Act, 2006 for sale of their food products. The petitioners are aggrieved by the impugned notices at Ext.P-1 series and such other similar notices issued to them by R-3 (Assistant Engineer, PWD Roads Section, Kalpetta, Wayanad) and R-4 (Assistant Engineer, PWD Roads Section, Lakkidi, Wayanad) and they have been thus directed to vacate the land, which is appurtenant to the said Government road. The petitioners would further state that they have not been given an W.P.(C).25239/18 - : 2 :- opportunity of being heard to represent their case before the authorities concerned and that this is blatant violation of the constitutional protection afforded under the provisions of Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution of India. That the petitioners are not in any manner obstructing the highway and since they have been conducting the bunk shops for the last 30 years without any such obstruction, there is no justification to evict them, etc. Alternatively, they would pray that respondents 5 and 6 are liable to provide alternative accommodation to the petitioners before demolishing their bunk shops between the abovesaid roads. The petitioners have submitted Exts.P-6, P-7 and P-8 representations before respondents 3, 5 and 7, etc. It is in the light of these factual averments, that the petitioners have filed the instant Writ Petition (Civil) with the following prayers: - _“i) To issue a writ of certiorari or other appropriate writ or order quashing Ext.P-1 and similar notices issued to the petitioners._ - _ii) To issue a writ of mandamus or other appropriate writ or order to the respondents 3 & 4 Not to evict the petitioners._ - _iii) To issue a writ of mandamus or other appropriate writ order or directing respondents 1, 5 & 6 to provide alternative accommodation to the petitioners to continue their bunk shops/ sheds under the provisions of the Street Vendors' (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and the Kerala Street Vendors (Protection of Livelihood Regulation of Street Vending) Scheme 2016 for eking out their livelihood before their existing bunk shops/sheds are removed._ - _iv) To declare section 15 of Kerala Highway Protection Act 1999 as unconstitutional to the extent it is in violation of Article 14, 19(1)_ W.P.(C).25239/18 - : 3 :- - _(g) and 21 of constitution of India._ - _v) To declare that Street Vendors' (protection of livelihood and regulation of Street Vending) Act, 2014, Kerala Street vendors (protection of livelihood regulation of street vending) scheme 2016, national policy on urban Street vendors 2009, etc. as they are in violation of Articles 14, 19(1)(g) and 21 of the Constitution of India._ - _vi) To issue a writ of mandamus or other appropriate writ or order directing respondents 3, 5 and 7 to consider and pass orders on Exts.P-6, P-7 and P-8 within a time frame as may be fixed by this Hon'ble court.”_ 2. Heard Sri.K.K.Preetha, learned counsel appearing for the petitioners, Sri.K.V.Sohan, learned State Attorney instructed by Smt.K.B.Soni, learned Government Pleader appearing for R-1 to R-4, 7 & 8 and Sri.Manoj Ramaswami, learned counsel appearing for R-5 & R-6 Panchayats. 3. It is pointed out before this Court that the road in question adjacent to which the petitioners' bunks are functioning, is the State highway, within the meaning of the Kerala Highway Protection Act, 1999 (State Act 6 of 2000). The petitioners are mainly placing reliance on the provisions contained in Street Vendors' (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (Central Act 7 of 2014). It is also not in dispute that the areas in question would come within the territorial limits of R-5 and R-6 Grama Panchayats and that do not come within the territorial limits of any urban local authorities. Sec.2(c) of the abovesaid Street W.P.(C).25239/18 - : 4 :- ## Vendors Act, 2014 defines “ _local authorities_ ” as follows: _“Sec. 2: Definitions.- (1) In this Act, unless the context otherwise requires,--_ _(a) …_ **==> picture [56 x 6] intentionally omitted <==** _(c) "local authority" means a Municipal Corporation or a Municipal Council or a Nagar Panchayat, by whatever name called, or the Cantonment Board, or as the case may be, a civil area committee appointed under Section 47 of the Cantonment Act, 2006 (41 of 2006) or such other body entitled to function as a local authority in any city or town to provide civic services and regulate street vending and includes the "planning authority" which regulates the land use in that city or town;”_ Therefore, it is clear that as the areas in question relatable to this case come within the territorial limits of Grama Panchayats, the definition of Sec.2(c) for “ _local authority_ ” is not attracted inasmuch as it relates to mainly to urban areas. 4. A Division Bench of this Court in the case in _**Kerala Road Fund Board v. Thankappan**_ reported in 2015 (4) KLT 538, has construed the interrelationship between the provisions contained in the abovesaid Street Vendors Act, 2014 (Central Act 7 of 2014) and the Kerala Highway Protection Act, 1999 (State Act 6 of 2000). It was held by the Division Bench in the said decision that the Street Vendors Act, 2014 cannot be interpreted in a manner to hold that the street vendor has right to carry on the vending business in the street covered by the Kerala Highway Protection Act, 1999 and that there is no conflict in the provisions of the two enactments and the said enactments operate in different fields. After construing the W.P.(C).25239/18 - : 5 :- provisions contained in the Kerala Highway Protection Act, 1999, the Division Bench held therein that there could be situations where the State Highway Authority has granted permission for using a portion of the land/foot path/road for vending or any other purpose and the State Highway Authority can permit user of State highway or any part of it for any purpose permissible under 1999 Act, etc. 5. Similar position has also been laid down by a Division Bench of this Court in _**Cherian Philip v. National Highways Authority of India,**_ reported in 2015(3) 723, in relation to the interplay between the provisions contained in the abovesaid Street Vendors' Act, 2014 and Control of National (Land and Traffic) Act, 2002. It was held therein that discretion is vested with the competent authority concerned to grant permission in terms of Sec. 24(2) of the said 2002 Act. 6. Sec.2(f) of the Kerala Highway Protection Act, 1999 defines “ _encroachment_ ” as follows: _“Sec. 2: Definitions. - In this Act, unless the context otherwise requires,- (a)_ _xxx xxx xxx_ _(f) "encroachment" means occupation of a highway or part thereof for purposes other than traffic and any act which causes damage to the highway and includes. -_ _(i) unauthorized erection of a building or any other permanent or temporary structure, balcony, porches, facades or projections on, over or overhanging the highway;_ W.P.(C).25239/18 - : 6 :- _(ii) occupation of highway, for stacking building materials or goods of any other description, for parking automobiles for maintenance and repair, for exhibiting articles for sale, for erecting poles, awnings, tents, pandals, arches, platforms, rostrums, hoardings, display boards, statues, monuments of all kinds, steps, ramps and other similar structures or stabling domestic animals and poultry and cultivation of any kind including horticulture or for any other purpose;_ _(iii) excavation or embankment of any sort made or extended on any highway;_ _(iv) dumping of waste and filthy materials which may cause hygienic and environmental hazards, letting of waste and polluted water or other effluents into the highway and using the highway for bathing, washing, watering and defecating;_ _(v) blocking, closing, choking or restricting water flow along the sides of there highway or across it, either free flow or guided flow through drains, channels, conduits, sewers, cross drainage works such as culverts, weirs, undertunnels, bridges, or aqueducts; and_ _(vi) blocking or closing of channels, streams or any water course which passes through any property, either private or public, and forming part of a natural water course which may result in accumulation of water on a highway causing damage to road crust;”_ ## Sec.4 of the abovesaid Act reads as follows: _“_ _**Sec.4: Appointment of highway authorities** .- For the purpose of exercising the powers and performing the duties of a highway authority under this Act for any area or for a highway or part of a highway, the Government shall appoint, by notification, the Executive Engineer (Roads) of Executive engineer (National Highways) of the Public Works Department as the highway authority of the respective area.”_ ## Sec.2(c) and (e) of the Kerala Highway Protection Act, 1999 read as ## follows: _“Sec. 2: Definitions. - In this Act, unless the context otherwise requires,-_ _(a)_ _xxx xxx xxx_ _(c) "building line" means a line on either side of a highway as may be determined by the competent authority under Section 18. xxx xxx xxx_ _(e) "control line" means a line beyond the building line as may be_ W.P.(C).25239/18 - : 7 :- _determined by the competent authority under Section 18;”_ ## Sec.21 of the above Act reads as follows: _**“Sec. 21: Application for permission.-** (1) Every person desiring to obtain the permission referred to in Section 19 or Section 20 shall make an application in writing to the highway authority in such form with such information and together with such fees as may be prescribed._ _(2) On receipt of an application under sub-section (1) the highway authority shall, after making such enquiries as it may deem fit, by order in writing, either,-_ _(a) grant permission, subject to such conditions, if any, as may be specified in the order; or_ _(b) refuse to grant such permission:_ _Provided that the highway authority shall not ordinarily refuse permission for the erection of a building or structure, or alternation of level of land or a means of access to a highway which conforms to the requirements of safety and convenience of traffic on the adjoining highway, or the re-erection of a building or structure which was in existence on the date of commencement of this Act unless such reerection involve any material alteration to the outside structural features of the building or structure._ _(3) Where the highway authority refuses to grant permission the reasons therefor shall be recorded and communicated to the applicant._ _(4) Where an application for permission has been refused due to any defect of the application, the applicant may submit a fresh application to the highway authority rectifying the defects and the highway authority shall consider the application afresh and pass on order thereon._ _(5) If after the expiration of a period of two months from the submission of application under sub-section (1) or sub-section (4), no order in writing has been passed by the highway authority permission shall be deemed to have been granted as applied for: Provided that no such permission shall be deemed to have been granted if the application is for the construction, formation or laying out of any means of access._ _(6) The highway authority shall maintain a register containing sufficient particulars of all permissions granted or refused by it under this section and the register shall be made available for perusal, free of charge, by all persons interested and such person shall be entitled to obtain extracts therefrom on payment of such fees as may be_ W.P.(C).25239/18 - : 8 :- _prescribed._ _(7) Any person aggrieved by an order of the highway authority under sub-section (2) or sub-section (4) may, within thirty days from the date of receipt of such order, prefer an appeal to the appellate authority and the appellate authority shall take a decision thereon and communicate the same to the appellant in writing within one month of the date of receipt of the appeal._ _(8) Any person aggrieved by an order of the appellate authority under sub-section (7) may, within thirty days from the date of receipt of such order, prefer a revision before the Government.”_ 7. It is now pointed out that the 8[th] respondent Executive Engineer (Roads) Public Works Department, Road Section, Kalpetta, Wayanad, is one of the notified highway authorities in terms of Sec. 4 of the abovesaid Act. At the present stage, this Court is not inclined to adjudicate on the merits of the various contentions on either side and would only direct that it is for the petitioners to approach the 8[th] respondent, who is the Highway Authority under Sec.4 of the abovesaid Act, to seek permission under Sec. 21 of the said Act to use their bunk shops for the conduct of their business. The petitioners may submit necessary applications before the 8[th] respondent within three weeks from the date notified for receiving a certified copy of this judgment seeking such permission for use of their bunk shops/stalls/temporary structures, as conceived in Sec.21 of the abovesaid Act. If such applications are filed, the 8[th] respondent will consider those applications and after affording a reasonable opportunity of being heard to the petitioners through the authorised W.P.(C).25239/18 - : 9 :- representative/counsel if any, will take a considered decision in the matter of grant of permission as aforestated without much delay preferably within a period of two months from the date of submission of such application/representation. The petitioners may also produce a certified copy of this judgment along with their application/ representation before the 8[th] respondent. Until such decision is taken by respondent No.8 on the abovesaid aspects relating to grant of permission, it is ordered that status quo as on today will continue as regards the use of the the petitioners' bunk shops/temporary structures. The decision so taken by R-8 shall be duly communicated to the petitioners immediately on its rendering. If the petitioners have any further grievances in the matter, it is for them to invoke the appropriate remedies available to them. It is made clear that all the contentions of the petitioners are left open. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ ///True Copy/// Sd/- **ALEXANDER THOMAS, JUDGE** P.S. to Judge