C. J. John and Saneesh M.V. v State of Kerala and Arpookara Grama Panchayat and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 WP(C) NO. 7951 OF 2019`** ## **`PETITIONERS:`** ``` 1C.J.JOHN, AGED 47 YEARS, S/O. ULAHANNAN JOSEPH, THOPPIL HOUSE, GANDHI NAGAR, KOTTAYAM - 686 008. 2SANEESH M.V., AGED 35 YEARS, S/O. VISWAMBARAN, MANNUSSERIL HOUSE, MANNANAM P.O., KOTTAYAM - 686 561. BY ADVS. AYSHA YOUSEFF MOLLY JACOB JOBI.A.THAMPI ASHIFA YOUSEFF M.KABANI DINESH C.M.EBRAHIM SHOUKATH HUSAIN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, KERALA, THIRUVANANTHAPURAM-695 001. 2THE ASSISTANT ENGINEER, P.W.D. (ROAD SECTION), ETTUMANOOR – 686 631. 3THE DISTRICT SUPERINTENDENT OF POLICE, KOTTAYAM-686 002. 4SUB INSPECTOR OF POLICE, GANDHI NAGAR POLICE STATION, KOTTAYAM-686 008. ``` **2** ## **W.P.(C)No.7951 of 2019** ``` 5ARPOOKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ARPOOKARA, KOTTAYAM-686 008. ``` ``` BY ADVS. SRI. V.TEK CHAND, SR GP SRI. BLAZE K.JOSE, SC, ARPOOKARA GRAMA PANCHAYAT ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.7951 of 2019** **3** ## **JUDGMENT** Dated this the 1[st] day of December, 2021 ## **S.Manikumar, C.J.** ## Instant writ petition is filed seeking for the following reliefs: - “i. To issue writ of mandamus or any other appropriate writ, order or direction to the respondents to take expeditious action to remove the encroachers and their petty shops illegally erected near the Medical College Hospital, Kottayam and particularly on the footpath and public street in the Medical College junction at Gandhi Nagar. - ii. To declare that the encroachers have no right or authority to conduct any business on the footpath or the public street, which is intended to be used by the public.” ## 2. Short facts leading to the filing of the writ petition ## are as under: The Petitioners are residents near the Medical College, Kottayam. Kottayam Medical College is an important health institution of the State of Kerala. Thousands of patients and bystanders are commuting to Medical College everyday. It is **W.P.(C)No.7951 of 2019** **4** through the Medical College Junction hundreds of private buses, K.S.R.T.C buses, cars, autorikshaws and other vehicles including ambulances are plying frequently. Earlier, certain Bunk shops were illegally erected in the opposite side of the Medical College and the same were evicted by the 5[th] respondent Panachayat after providing suitable places for them, with strict conditions that no new bunk shops/petty shops will be erected in the nearby premises of the Medical College. But recently a large number of petty shops have been erected encroaching the footpath and public streets. The pedestrians, patients and public are put to serious difficulties due to the obstructions made to their free passage and movement. Life of the people, both pedestrians and travelling public are put to serious danger. Even if the petitioners and other members of the public made representation to the respondents, no action has been taken to remove the illegally erected petty shops and to abate the traffic snarl. Hence the writ petition. 3. The 2[nd] respondent - Assistant Engineer, P.W.D. (Road Section), Ettumanoor - has filed a statement dated **5** ## **W.P.(C)No.7951 of 2019** ## 06.01.2020. Paragraph No.2 of the said statement reads thus: “2. It is respectfully submitted that the unauthorised encroachment and occupation of PWD road by the street vendors at Gandhi Nagar near to Kottayam Medical College were evicted on 02.08.2019 pursuant to a meeting convened by the District Collector in the presence of Tahsildar Kottayam. Additional Tahsildar (LR), Kottayam, Deputy Superintendent of Police, Kottayam, Executive Engineer, PWD Division, Kottayam. Though there were huge protest from the street vendors and the political parties, the eviction was completely done with the help of police officials. Around 78 street vendors who were occupying street margin were evicted. Thereupon, "No encroachment” board were placed so as to prevent further encroachment. As and when new occupation by the unauthorized vendors are there on the PWD road, the same would be removed and if the encroachments are noticed and informed by the Panchayath authorities on the PWD road, immediate action would be taken so as to ensure free flow of vehicular traffic and pedestrian movement.” ## 4. Earlier, when this matter came up for hearing on 11.11.2021, we passed the following order: “Mr. Blaze K. Jose, learned standing counsel appearing for Arpookara Grama Panchayat, respondent No.5, submitted that as W.P.(C) No.31523 of 2016 and W.P. **6** ## **W.P.(C)No.7951 of 2019** (C) No.7951 of 2019 are for the same reliefs and contain similar averments, a detailed counter affidavit has been filed in W.P.(C) No.31523 of 2016, which we have closed today. Learned standing counsel appearing for Arpookara Grama Panchayat, respondent No.5, is directed to file a memo to treat the abovesaid counter affidavit, filed in W.P. (C) No.31523 of 2016, as part of record in W.P.(C) No.7951 of 2019. Copy of the counter affidavit in W.P.(C) No.31523 of 2016 and supporting documents be served on the learned counsel for the petitioners in the instant writ petition. Post on 16.11.2021.” 5. Accordingly, counter affidavit in W.P.(C)No.31523 of 2016 along with documents are filed for the purpose of disposal of the instant writ petition. Counter affidavit and documents in W.P.(C)No.31523 of 2016 are taken on record. 6. Translated version of Exhibit R1(h), Government Order dated 29.06.2021, produced along with the counter affidavit filed by the 1[st] respondent in W.P.(C)No.31523 of 2016, is reproduced: “Government of Kerala Extract **W.P.(C)No.7951 of 2019** **7** Chief Minister’s 100 day programme – Issuing order to conduct survey regarding street vendors in Panchayat and Municipalities. ---------------------------------------------------------------------------------------------Local Self Government (D.C) Section Order No.1223/2021/LSGD Date, Thiruvananthapuram, 29.06.2021 ----------------------------------------------------------------------------------------------- Reference: 1. The minutes of meeting held in 08.06.2021 in the presence of Local Self Government Principal Secretary (urban). 2. Letter No. 4193/F/2021 K.S.H.O of Kudumbasree Executive Director dated 14.06.2021. ## Order (1) A survey of street vendors was conducted under the guidance of Kudumbasree, in connection with a joint programme by the Centre and State Government by name ‘National Urban Livelihood Mission' in the year 2015-2017 in the 93 municipalities in Kerala. According to this survey 24,643 street vendors have been identified. In the cities several actions have been taken as per Street Vendors Acts, and also various programmes have been implemented as a part of N.U.L.M. (2) It has been 4 years since the last survey has been completed in the state and apart from that there is steep increase in the number of street vendors in the state due to the prevalence of Covid-19 for last two years. Apart from that as per Central Government's assumptions there are 1.20 lakhs street vendor in Kerala. As per reference 1) evaluation meeting it has been decided to conduct the survey of street vendors again. It is also decided in the said meeting that along with survey conducting in 93 municipalities, survey may also be conducted in senses town which is becoming towns as a part of outgrowth due to urban agglomeration. (3) As per reference 2 letter, Kudumbhasree Executive Director has requested to complete the survey by using the form prepared by Kudumbhasree and also to utilise the funds for the same from the respective local self governments and also to issue orders authorising Municipal Directors and Panchayat Directors. **W.P.(C)No.7951 of 2019** **8** (4) The Government have examined above aspects in detail. Orders are hereby issued to conduct the survey of street vendors in Kerala in time bound manner following the prescribed instructions stated as below; - i. The Municipality Secretary has been authorised to conduct survey in Municipalities. - ii. Panchayat Secretaries are authorised to conduct surveys in panchayat which is coming as a part of urban agglomeration. - iii. Town vending committee who is the Municipality Secretary Chairman must monitor municipality and corporation limits. - iv. The expenses to conduct the survey shall be born from the respective local self governments. - v. Municipal Director and Panchayat Director have been authorised to supervise the survey proceedings. - vi. The Kudumbasree has been authorised to conduct training onthe basis of the survey form attached. - vii. The Municipal Director and Panchayat Director are to take steps to make sure that the survey is completed before 05.07.2021 and to finish the data entry by 16.07.2021 and to compile the same in the Kudumbasree State Mission. (As per Governor Order) Bishwanadh Sinha Principal Secretary.” 7. Heard the learned counsel for the petitioners Smt. Aysha Youseff, learned Senior Government Pleader Sri.V.Tekchand for the State and its officials and the learned standing counsel Sri.Blaze K.Jose for Arppokkara Grama **9** ## **W.P.(C)No.7951 of 2019** Panchayat and perused the pleadings and the materials available on record. 8. Counter affidavit filed by the 1[st] respondent in the connected writ petition namely W.P.(C)No.31523 of 2016, which is permitted to be produced in this writ petition, would show that Arppokkara Grama Panchayat has taken adequate action and removed the street vendors from the road margin. Along with the counter affidavit, Exhibit R1(c) series of photographs are produced. On perusal of the same and the contentions advanced, we could see that already street vendors have been removed from the road margin and the area is protected by fencing. 9. Taking into account the contentions made by the parties, we find no reason to retain this writ petition on the file of this court. However, fact remains the interest of the street vendors are protected under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which thus means if the Local Self Government **10** ## **W.P.(C)No.7951 of 2019** Institution has already taken appropriate action in accordance with the provisions of Act 2014 and a list is prepared in regard to the street vendors who are eligible and entitled to be protected under Act 2014, no other person has any right to carry out street vending on road margins. 10. Therefore, this writ petition is disposed of recording the submission made by the Arppokkara Grama Panchayat that unauthorised encroachments made by the street vendors on road margins were already removed and fencing is done in order to avoid the conduct of unauthorised street vending. 11. However, we make it clear that if any street vendor is entitled to get protection as per the provisions of Act 2014 and if applications are received by the town vending committee of the Local Self Government Institution, it will be at liberty to take appropriate action in considering such applications in accordance with the provisions of Act 2014. We also direct the 5[th] respondent to remove any unauthorised encroachment made by any street vendor, who **11** ## **W.P.(C)No.7951 of 2019** is not entitled to get protection of Act 2014, if and when such complaints are brought to the notice of the Grama Panchayat or the Secretary of the Grama Panchayat. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **12** ## **W.P.(C)No.7951 of 2019** ## **`APPENDIX OF WP(C) 7951/2019`** ## **`PETITIONERS’ EXHIBITS`** - `EXHIBIT P1 PHOTOGRAPH OF THE BLOCKADE AND CONGESTION OF THE FOOTPATH PUBLIC STREET.` - `EXHIBIT P1(A) PHOTOGRAPH OF THE AND CONGESTION OF THE FOOTPATH` - `EXHIBIT P2 PHOTO COPY OF THE REPRESENTATION DATED 18.1.2019.` - `EXHIBIT P2(A) TRUE COPY OF THE ENGLISH TRANSLATION OF THE EXT.P2.` - `EXHIBIT P2(B) PHOTO COPY OF THE ACKNOWLEDGMENT CARD.` - `EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE DISTRICT POLICE CHIEF ON RECEIPT OF THE REPRESENTATION.` - `EXHIBIT P3(A) TRUE ENGLISH TRANSLATION OF COPY OF THE RECEIPT.` - `EXHIBIT P4 PHOTO COPY OF THE CLIPPING OF THE MALAYALA MANORAMA DAILY NEWSPAPER DATED 3-02-2019.` - `EXHIBIT P4(A) TRUE ENGLISH TRANSLATION OF THE CLIPPING OF THE MALAYALA MANORAMA DAILY NEWSPAPER DATED 3-02-2019.` - `EXHIBIT P5 PHOTO COPY OF THE PAPER CLIPPING OF THE RASHTRA DEEPIKA DAILY NEWSPAPER DATED 28-12-2018.` - `EXHIBIT P5(A) TRUE ENGLISH TRANSLATION OF RASHTRA DEEPIKA DAILY NEWSPAPER DATED 28-12-2018.` **W.P.(C)No.7951 of 2019** **13** ## **`RESPONDENTS’ EXHIBITS`** - `EXHIBIT R5(A) A TRUE COPY OF THE COMMON JUDGMENT DATED 14.12.2016 OP NO 2699/2000 AND CONNECTED CASES.` ``` EXHIBIT R5(B)A TRUE COPY OF THE JUDGMENT IN WPC NO 7658/2018 DATED 22.3.2018. ``` - `EXHIBIT R5(C) A TRUE COPY OF THE LETTER DATED 13.12.2018 WITH ENGLISH TRANSLATION.` - `EXHIBIT R5(D) A TRUE COPY OF THE LETTER DATED 6.5.2019 ISSUED BY THE MEDICAL OFFICER AND HEALTH OFFICER, PRIMARY HEALTH CENTRE, ATHIRAMPUZHA WITH ENGLISH TRANSLATION.` - `EXHIBIT R5(E) A TRUE COPY OF THE LETTER DATED 27.5.2019 ISSUED BY THE PANCHAYAT TO THE 4TH RESPONDENT IS PRODUCED WITH ENGLISH TRANSLATION.` - `EXHIBIT R5(F) A COPY OF THE LETTER DATED 28.5.2019 ISSUED BY THE DISTRICT MEDICAL OFFICER (HEALTH) KOTTAYAM WITH ENGLISH TRANSLATION.` - `EXHIBIT R5(G) A TRUE COPY OF THE LETTER DATED 5.9.2019 ISSUED TO THE DISTRICT POLICE CHIEF, KOTTAYAM WITH ENGLISH TRANSLATION.` //TRUE COPY// P.A. TO JUDGE