Johnson Mathew and others v. State of Kerala and others (W.A. No. 2290 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941 WA.No.2290 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 15519/2019 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** |**1**|**JOHNSON MATHEW**| |---|---| ||**S/O. MATHEW,**| ||**THOPPIKUDIYIL HOUSE,**| ||**VALARA P.O., VALARA,**| ||**IDUKKI-685 561.**| |**2**|**DAISY K.B.**| ||**KOMBANAVALLIYIL HOSUE,**| ||**VALARA P.O., VALARA,**| ||**IDUKKI-685 561.**| |**3**|**MATHAI AUGUSTHY**| ||**S/O. AUGUSTHY,**| ||**KAITHOLIL HOSUE,**| ||**VALARA P.O.,**| ||**IDUKKI-685 561.**| |**4**|**SYED MUHAMMED**| ||**S/O. SEETHI,**| ||**KEEPETH VEEDU,**| ||**VALARA P.O., COLONYPALAM,**| ||**IDUKKI-685 531.**| |**5**|**RAJESH C.R.**| ||**S/O. RAJAPPAN,**| ||**CHILAHIKUNNEL HOUSE,**| ||**KUDAKALLU, THATTEKUNNI P.O.,**| ||**IDUKKI-685 606.**| WA 2290/19 ## **-:2:-** |**6**|**MOHANAN P.B.**| |---|---| ||**S/O. BHASKARAN,**| ||**PALAMOOTTIL HOSUE,**| ||**KUDAKATH, THATTEKUNNI P.O.,**| ||**IDUKKI-686 606.**| |**7**|**ANSHAD P.K.**| ||**S/O. KASIM P.M.,**| ||**PULLICHALIL HOSUE,**| ||**NELLIMATTOM P.O.,**| ||**ERNAKULAM-686 693.**| |**8**|**T.K.RAVI**| ||**S/O. KARUNAKARAN,**| ||**THOTTOYIL HOUSE,**| ||**NERIYAMANGALAM P.O.,**| ||**ERNAKULAM-686 693.**| |**9**|**ABDUL SALEEM P.A.**| ||**S/O. ABDUL SAMAD,**| ||**PALAMOOTTIL HOUSE,**| ||**VALARA P.O., 10TH MILE,**| ||**IDUKKI-685 561.**| |**10**|**NIDEESH P.M.**| ||**S/O. MOHANAN,**| ||**PALAMOOTTIL HOSUE,**| ||**KADAKATTU, TGHATTEKUNNI P.O.,**| ||**IDUKKI-685 606.**| ||**BY ADVS.**| ||**SRI.KALEESWARAM RAJ**| ||**KUM.A.ARUNA**| ||**KUM.THULASI K. RAJ**| ||**SMT.MAITREYI SACHIDANANDA HEGDE**| ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DISTRICT COLLECTOR IDUKKI-685 001.** - **3 ADIMALY GRAMA PANCHAYAT ADIMALY-685 561, IDUKKI DISTRICT,** **-:3:-** WA 2290/19 - **4 SECRETARY ADIMALY GRAMA PANCHAYAT ADIMALY-685 561, IDUKKI DISTRICT.** - **5 NATIONAL HIGHWAY AUTHORITY OF INDIA REPRESENTED BY ITS CHAIRMAN, GG AND 6 SECTOR 10, DWARKA, NEW DELHI-110075.** - **6 EXECUTIVE ENGINEER NATIONAL HIGHWAY (R DIVISION), MUVATTUPUZHA, ERNAKULAM-686 661.** - **7 ASSISTANT ENGINEER NH(R) SECTION, NERIYAMANGALAM-686693.** - **8 CHIEF ENGINEER NATIONAL HIGHWAYS, DEPARTMENT OF PUBLIC WORKS, MUSEUM P.O., THIRUVANANTHAPURAM-695 033.** **STATE ATTORNEY, SRI.K.V SOHAN, SRI.LATHEESH SEBASTIAN FOR R3 AND R4 SRI.V.TEK CHAND, SR. GOVT. PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA 2290/19 ## **-:4:-** ## **JUDGMENT** ## _**S.Manikumar, C.J.**_ Being aggrieved by the decision made in W.P.(C) No.15519 of 2019 dated 4.10.2019, whereby this Court, has declined to quash the notices issued for eviction, the instant writ appeal is filed. 2. By inviting the attention of this Court to the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, learned counsel for the appellants submitted that appellants have been engaged in various avocations, for the last 20 years and that the Adimaly Grama Panchayat, Idukki district, respondent No.3, is also restricting street vending, in the areas, in which the shops are located and sought for reversal of the judgment before this Court. 3. We are not inclined to accept the above contention for the reason that on the very same subject matter, this Court in **Cherian Philip v. National Highways Authority of India** reported in (2015 (3) KLT 723) has held that Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 does not contemplate street vending on National Highways. The relevant portion of the said decision reads thus: “15. The Scheme of the 2014 Act as is delineated by the different provisions quoted above indicate that in the definition of local authority defined under S.2(c), National Highways Authority cannot be included. The definition is not inclusive WA 2290/19 ## **-:5:-** definition but an exclusive definition which begins with the words 'local authority means...' The Town Vending Committee is to be constituted in each local authority. Thus the area of jurisdiction of the Town Vending Committee where right to the street vendors are to be given are areas which are within the jurisdiction of the local authority. 16. At the time of enactment of the 2014 Act, the Parliament was well aware of the earlier enactments pertaining to National Highways as noted above. Had the Parliament intended to give right of street vending on the National Highways, the 2014 Act ought to have given any indication or included National Highways Authority also. The definition of street vendors as given in S.2(l) also indicate that street vendor has been defined in reference to a street, lane, side walk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place..... There is no indication that the definition included a street vendor even also on highway. 17. Right to street vendors have been given in vending zone in the local authority to render services to public and rights of street vendors have been recognised on such a street, lane, side walk, footpath, pavement, public park, etc., where such activities can be easily without any hindrance can be carried out. The 2014 Act does not contemplate any such street vending on the National Highway. National Highways are being used for passing of vehicles from one place to other including long distance. As noted above, provisions of the 2002 Act indicate that for occupation or use of any part of National Highways permission of the Highway Authority is required. Without permission of the Highway Authority no one can use any part of the National Highways. Present is a case where petitioner claim WA 2290/19 ## **-:6:-** carrying on business with the permission of the Kochi Corporation. The place where the petitioner carries business being part of National Highways, no permission can be granted by the Kochi Corporation to the petitioner to carry on business in the National Highways. 19. The key words in S.33 are "..notwithstanding anything inconsistent therein contained in any other law.." Thus the overriding effect to the 2014 Act is given if there is anything "inconsistent" in any other law. There is nothing inconsistent in 1956 Act, 1988 Act and 2002 Act to the provisions of the 2014 Act. The provisions relating to National Highways and that of the 2014 Act operate in different fields and there is no inconsistency, hence S.33 of the 2014 Act has no application. Thus it is held that the provisions of the 2014 Act do not override the provisions of 1956 Act, 1988 Act and 2002 Act.” 4. It is further discernible from the impugned judgment that without permission of the competent authority and the provisions contained in the Control of National Highways (Land and Traffic) Act, 2002, no one can use any part of the National Highway. Besides, the impugned judgment further reads that the Executive Engineer has observed that there is no sufficient space on the National Highway to allow any compensatory events as laid down in Sections 24 to 26 of the Control of National Highways (Land and Traffic) Act, 2002. Sections 24 to 26 of the Control of National Highways (Land and Traffic) Act, read thus: **“24. Prevention of occupation of highway land** .—(1) No WA 2290/19 ## **-:7:-** person shall occupy any highway land or discharge any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any officer authorised by such Administration in this behalf. (2) The Highway Administration or the officer authorised under sub-section (1) may, on an application made by a person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person— (i) to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway, or (ii) to put up a temporary lawning or tent or other similar construction or a temporary stall or scaffolding on the Highway, or (iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or (iv) to make a temporary excavation for carrying out any repairs or improvements to adjoining buildings, and such permission shall be granted subject to the conditions and on payment of the rent and other charges by issuing permit in the form as may be prescribed: Provided that no such permission shall be valid beyond a period of one month at a time from the date on which the permission has been granted unless it is renewed by the Highway Administration or such officer on an application made by such person for the renewal of the permission. (3) The permission granted under sub-section (2) shall specify therein— (i) the time up to which the permission is granted; (ii) the purpose of such permission; (iii) the portion of the Highway in respect of which the permission has been granted, and shall be accompanied with a plan or sketch of such portion of Highway. (4) The person, to whom the permit has been issued under sub- WA 2290/19 ## **-:8:-** section (2), shall produce the permit for inspection whenever called upon to do so by any officer of the Highway Administration and shall, on the expiry of the permission granted under such permit, restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration. (5) The Highway Administration or the officer issuing the permit under sub-section (2) shall maintain a complete record of all such permits issued, and shall also ensure in every case at the expiration of the period up to which the permission under a permit is granted under that subsection that the possession of the portion of the Highway in respect of which such permission was granted has been delivered to the Highway Administration. ## **25. Grant of lease or licence of highway land for temporary** **use** .—The Highway Administration or the officer authorised by such Administration in this behalf may, having regard to the safety and convenience of traffic and subject to such conditions as may be prescribed and on payment of prescribed rent or other charges, grant lease or licence of highway land to a person for temporary use: Provided that no such lease shall be valid for more than five years at a time from the date on which such lease has been granted unless renewed by the Highway Administration or such officer. **26. Removal of unauthorised occupation** .—(1) Where the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the **-:9:-** WA 2290/19 Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration and in case such person fails to deliver such possession within such period, he shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27. (2) When, as a result of the periodical inspection of highway land or otherwise, the Highway Administration or the officer authorised by such Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove such unauthorised occupation and to restore such highway land in its original condition as before the unauthorised occupation within the period specified in the notice. (3) The notice under sub-section (2) shall specify therein the highway land in respect of which such notice is issued, the period within which the unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in the notice liable to penalty, and summary eviction from the highway land in respect of which such notice is issued, under sub-section (6). (4) The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his agent or other person on his behalf or by registered post addressed to the person to whom such notice is addressed and an acknowledgement purporting to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such other person on his behalf has refused to take delivery may be deemed to be prima facie proof of WA 2290/19 ## **-:10:-** service. (5) Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice on such person. (6) Where the service of notice under sub-section (2) has been made under sub-section (4) or sub-section (5) and the unauthorised occupation on the highway land in respect of which such notice is served has not been removed within the time specified in the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or such officer as the case may be, shall cause such unauthorised occupation to be removed at the expenses of the Central Government or the State Government, as the case may be, and impose penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and where the penalty so imposed is less than the cost of such land, the penalty may be extended equal to such cost. (7) Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation is in the nature of— (a) exposing any goods or article— (i) in open air; or - (ii) through temporary stall, kiosk, booth or any other shop of temporary nature, (b) construction or erection, whether temporary or permanent, or - (c) trespass or other unauthorised occupation which can be removed WA 2290/19 ## **-:11:-** easily without use of any machine or other device, and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such occupation by use of the reasonable force necessary for such removal. (8) Notwithstanding anything contained in this section, if the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that any unauthorised occupation on the highway land is of such a nature that the immediate removal of which is necessary in the interest of— (a) the safety of traffic on the Highway; or (b) the safety of any structure forming part of the Highway, and no notice can be served on the person responsible for such unauthorised occupation under this section without undue delay owing to his absence or for any other reason, the Highway Administration or the officer authorised by such Administration may make such construction including alteration of any construction as may be feasible at the prescribed cost necessary for the safety referred to in clause (a) or clause (b) or have such unauthorised occupation removed in the manner specified in sub-section (7). (9) The Highway Administration or an officer authorised by such Administration in this behalf shall, for the purposes of this section or section 27, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) issuing commissions for the examination of witnesses; and (d) any other matter which may be prescribed, and any proceeding before such Administration or officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860) **-:12:-** WA 2290/19 and the Administration or the officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).” 5. As the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, does not apply to National Highways, the relief sought for by the appellants, has rightly been declined by the learned single Judge. Learned counsel for the appellants seeks two weeks time to make alternate arrangements. Sri.K.V.Sohan, State Attorney has agreed to such request. While dismissing the appeal, two weeks' time is granted to the appellants to vacate from the objectionable place. Concession granted by this Court, on the basis of submission of learned counsel for the appellants, be honoured, without giving room to further proceedings. ## **Sd/-** ## **S.MANIKUMAR CHIEF JUSTICE** ## **Sd/-** ## **A.M.SHAFFIQUE JUDGE** vps /True Copy/ PS to Judge