K. Sreedevi and others v. The Station House Officer, Pala Police Station, The Deputy Superintendent of Police, Pala, The Superintendent of Police, Kottayam, Subhash, Sibykuttan, Santhosh @ Kuttyai, Venu Puttumadathil, Addl.R8 Traffic Regulatory Committee, Pala Municipality, and Addl.R9 Regional Transport Officer, Kottayam (W.P.(C)No.15247 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** ## **W.P.(C)No.15247 OF 2020(E)** ## **PETITIONERS:** - **1 K.SREEDEVI, AGED 76 YEARS, W/O.P.N.KUMARAN, PANACKAL MEDICALS, DOOR NO.19/147, PP ROAD, PALA-686 575.** - **2 P.N.RAJU, S/O.P.A.NARAYANAN, PROPRIETOR, MINI COOL BAR, DOOR NO.19/148, PP ROAD, PALA-686 575.** - **3 THOMAS AUGUSTINE, S/O.AUGUSTINE, PROPRIETOR, THOMASON BAKERY, DOOR NO.19/148, PP ROAD, PALA-686 575.** - **4 TONY JOSEPH, S/O.P.J.JOSEPH, PULICKAL HOUSE, PP ROAD, PALA-686 575.** - **5 BIJU.N.S., S/O.SUKUMARAN NAIR, SURYA STORES, DOOR NO.19/149, PP ROAD, PALA-686 575.** - **6 SREEDEVEI ANILKUMAR, W/O.ANILKUMAR.T.S., PROPRIETOR, SITARA TEXTILES, DOOR NO.19/148, PP ROAD, PALA-686 575.** - **7 SHAJU THOMAS, S/O.RASAKUTTY THOMMAN, GIO MOBILES, DOOR NO.19/148, PP ROAD, PALA-686 575.** - **ADV.SRI.JAI GEORGE SMT.DAISY A.PHILIPOSE** ## **RESPONDENTS:** - **1 THE STATION HOUSE OFFICER, PALA POLICE STATION, KOTTAYAM DISTRICT-686 575.** - **2 THE DEPUTY SUPERINTENDENT OF POLICE, PALA-686 575.** W.P.(C)No.15247 of 2020 2 - **3 THE SUPERINTENDENT OF POLICE, KOTTAYAM.** - **4 SUBHASH,** **S/O.PRABHAKARAN NAIR, VETTATHU HOUSE, THEKKEKARA, PALA-686 575.** - **5 SIBYKUTTAN, S/O.JANARDHANAN NAIR, KARANKAL HOUSE, THEKKEKARA, PALA-686 575.** - **6 SANTHOSH @ KUTTAYI, S/O.SUKUMARAN NAIR, MYALKANDATHIL HOUSE, THEKKEKARA, PALA-686 575.** - **7 VENU PUTTUMADATHIL, PUTTUMADATHIL HOUSE, MURIKKUMPUZHA, PALA-686 575.** - **8 ADDL.R8.THE CHAIRMAN, TRAFFIC REGULATORY (AUTHORITY), PALA.** **ADDL.R8 IS SUO MOTU IMPLEADED AS PER ORDER DATED 27.07.2020.** **THE ADDRESS OF THE ADDL.R8 SHALL BE CORRECTED AS FOLLOWS -** **THE CHAIRMAN, TRAFFIC REGULATORY COMMITTEE, PALA MUNICIPALITY, AS PER ORDER DATED 21.08.2020 IN WP(C)NO.15247/2020.** - **9 ADDL.R9. THE REGIONAL TRASPORT OFFICER KOTTAYAM. IS SUO MOTU IMPLEADED AS PER ORDER DATED 26.08.2020.** **R4-7 BY ADV. SRI.S.SHYAM KUMAR R4-7 BY ADV. SRI.UNNI SEBASTIAN KAPPEN** - **R8 BY ADV. SRI.SUJITH MATHEW JOSE R1-3 & R9 SR.GP - SRI. THAJUDEEN P.P.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0411-2020, THE COURT ON 22-12-2020 DELIVERED THE FOLLOWING:** W.P.(C)No.15247 of 2020 3 ## **JUDGMENT** The petitioners, who are conducting shops on the eastern side of Pala - Ponkunnam Road (Punalur – Ponkunnam – Thodupuzha State Highway) in Ward No.XIX of Pala Municipality in Kottayam District, after obtaining necessary licences from the local authority, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Station House Officer, Pala Police Station to provide effective police protection to the life and property of the petitioners to conduct their business in their respective shops with door Nos.19/147, 19/148, 19/154, 19/155, 19/142, 19/143 and 19/149 of Pala Municipality, without any obstruction from respondents 4 to 7, who are autorickshaw drivers, in the locality. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent to remove the unauthorised autorickshaw stand in front of their shops and to ensure free ingress and egress to the petitioners and their customers into their respective shops. 2. On 27.07.2020, when this writ petition came up for admission, the Chairman, Traffic Regulatory Authority, Pala was suo motu impleaded as the additional 8[th] respondent. The learned W.P.(C)No.15247 of 2020 4 Government Pleader took notice for respondents 1 to 3. The petitioners were directed to take out notice to respondents 5 to 8 by sped post. This Court passed an interim order directing the 3[rd] respondent Superintendent of Police, Kottayam to ensure that law and order is maintained and, if sought for, afford adequate and effective protection to the life and property of the petitioners and their employees and to ensure that the party respondents do not obstruct the free ingress and egress to the petitioners' shops by the petitioners and their customers or disrupt their business. 3. By order dated 21.08.2020, the description of the additional 8[th] respondent was corrected as the Chairman, Traffic Regulatory Committee, Pala Municipality. 4. By order dated 26.08.2020, the Regional Transport Officer, Kottayam was suo motu impleaded as additional 9[th] respondent and the learned Government Pleader was directed to get instructions from the said respondent as to whether any decision has been taken by the 8[th] respondent, notifying the area in front of the petitioners' shop rooms for parking autorickshaws or not. In the said order, it was made clear that, if there is any notification identifying the area as parking space, necessarily, autorickshaws can be parked, the police need not interfere. On the W.P.(C)No.15247 of 2020 5 other hand, if the area in front of the petitioners' shop rooms has not been notified, necessarily, the police shall not allow autorickshaws to park in front of the petitioners' shop rooms. 5. A counter affidavit has been filed by respondents 4 to 7, opposing the reliefs sought for in this writ petition. Along with the Counter affidavit, they have also filed I.A.No.1 of 2020, seeking an order to vacate the interim order dated 14.08.2020. 6. The petitioners have filed reply affidavit to the counter affidavit filed by respondents 4 to 7. 7. Along with the memo filed by the learned Senior Government Pleader dated 09.09.2020, the report submitted by the Regional Transport Officer, Kottayam is placed on record. In that report, it is stated that, as per the report of the Joint Regional Transport Officer, Pala, the Traffic Regulatory Committee, Pala in its meeting held on 29.11.2013 fixed 6 autorickshaw stands in Pala Municipality in various places of the Municipal area and identified 31 auto picking places for passengers in the town. As per Rule 344 of the Kerala Motor Vehicles Rules, 1989, the Regional Transport Authority is empowered to determine the location of parking places, wherein motor vehicles in general or of specified description W.P.(C)No.15247 of 2020 6 may stand either indefinitely or for a specified period of time, in consultation with the concerned authorities of any Corporation, Municipality or Panchayat, the Executive Engineer and the Superintendent of Police of the District. The decision taken by the Traffic Regulatory Committee dated 29.11.2013 with regard to the autorickshaw stand has not submitted to the Regional Transport Authority for approval. Since the approval of the Regional Transport Authority lacks for the parking place, it can be said that the parking is illegal. 8. Along with I.A.No.2 of 2020, respondents 4 to 7 have placed on record Ext.R4(d) series of photographs of the parking area where the autorickshaws are used to be parked; Ext.R4(e) reply dated 27.08.2020 of the Public Information Officer in the office of Pala Municipality, wherein it is stated that the disputed autorickshaw stand, namely, Thekkekara auto stand comes under the 31 autorickshaw parking areas referred in the bye-laws of the Municipality; and Ext.R4(f) contract carriage permit issued by the Regional Transport Authority, Pala in respect of the autorickshaw bearing registration No.KL-35/E-279 owned by one Rajesh, in which the parking place is mentioned as Murikkumpuzha. 9. A statement on behalf of the additional 8[th] respondent W.P.(C)No.15247 of 2020 7 Traffic Regulatory Committee is placed on record by the learned Standing Counsel for the Municipality. In that statement, it is stated that the autorickshaw parking in front of the petitioners' shop rooms is not illegal and it is an approved autorickshaw stand known as 'Thekkekara auto stand'. The Pala Municipal Council by resolution No.17 dated 01.11.2013 has approved 5 autorickshaw stands and 31 auto parking places within the Municipality. Thekkekara auto stand is one among the 5 approved autorickshaw stands at Pala Municipality. Along with the statement, Annexure R8(b) list of approved parking stands and parking places, which was forwarded to the Directorate of Urban Affairs, vide letter dated 18.12.2013, is also placed on record. 10. The petitioners have filed reply affidavit to the statement filed on behalf of the 8[th] respondent. 11. On 16.10.2020, the learned counsel for the petitioners submitted that the sketch showing the exact lie of the roads in the locality shall be placed on record by 19.10.2020. 12. Along with the memo filed by the learned Standing Counsel for Pala Municipality, who is representing the 8[th] respondent Traffic Regulatory Committee, the route map of Pala W.P.(C)No.15247 of 2020 8 Municipality showing Murikkumpuzha junction is placed on record. 13. The petitioners have also produced the master plan of the Pala Municipality along with the enlarged copy of the area showing Murikkmpuzha junction as Ext.P5; the rough sketch showing the measurement of the disputed portion of the road as Ext.P6; and photographs showing Murikkumpuzha road, starting from Murikkumpuzha junction as Ext.P7 in I.A.No.3 of 2020. 14. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 3 and 9, the learned counsel for respondents 4 to 7 and also the learned Standing Counsel for the Pala Municipality appearing for the 8[th] respondent. 15. The issue that arises for consideration in this writ petition is as to whether the petitioners are entitled for a writ of mandamus commanding the 1[st] respondent to remove the autorickshaw stand in front of their shops and to ensure free ingress and egress to the petitioners and their customers into their respective shops in Ward No.XIX of Pala Municipality, which is on the eastern side of Pala - Ponkunnam Road (Muvattupuzha - Punalur State Highway). W.P.(C)No.15247 of 2020 9 16. Photographs of the disputed autorickshaw stand are placed on record as Ext.P1 along with the writ petition; as Ext.R4(d) along with I.A.No.2 of 2020 filed by respondents 4 to 7; and as Ext.P4 along with the reply affidavit filed by the petitioners to the statement filed by the 8[th] respondent. The photographs placed on record as Ext.R4(d) along with I.A.No.2 of 2020 filed by respondents 4 to 7 show the nature and lie of the the area in front of the petitioners' shop rooms, which is used for the parking of autorickshaws. The said area is on the eastern side of Pala - Ponkunnam Road, which forms part of Muvattupuzha - Punalur State Highway. 17. As can be seen from Ext.R4(d) photographs, especially the photographs available at page Nos.5 and 6 of of I.A.No.2 of 2020, in front of the petitioners' shop rooms, the public drain is covered using concrete slabs of sufficient width for movement of pedestrians. However, in front of some of the shops, that area is used for stocking articles and even for display of goods. In the road margin on the eastern side of Pala - Ponkunnam Road, there is sufficient space for parking autorickshaws. 18. The Kerala Highway Protection Act, 1999 was enacted ## W.P.(C)No.15247 of 2020 10 by the State Legislature to provide for the protection of highways and for the regulation of highway development in the State of Kerala. The preamble of the Act reads as follows; “WHEREAS it is expedient to provide for the protection and development of highways and for the prevention of ribbon development along highways and encroachment and use of highways for purposes which will adversely affect the safety of traffic and proper condition of highways in the State of Kerala”. 19. Clause (c) of Section 2 of the Kerala Highway Protection Act define ‘building line’ to mean a line on either side of a highway as may be determined by the competent authority under Section 18. Clause (d) of Section 2 define ‘competent authority’ to mean any officer of the Government in Public Works Department appointed by Government by notification in the Gazette to be the competent authority for the purposes of the Act. Clause (e) of Section 2 define ‘control line’ to mean a line beyond the building line as may be determined by the competent authority under Section 18. 20. Clause (f) of Section 2 of the Act define ‘encroachment’ to mean occupation of a highway or part thereof for purposes other than traffic and any act which causes damage to the highway and W.P.(C)No.15247 of 2020 11 includes (i) unauthorised erection of a building or any other permanent or temporary structure, balcony, porches, facades or projections on, over or overhanging the highway; (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 the highway or across it, either free flow or guided flow through drains, channels, conduits, sewers, cross drainage works such as culverts, weirs, under-tunnels, bridges, or aqueducts; and (vi) blocking or closing of channels, streams or any water course which ## W.P.(C)No.15247 of 2020 12 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. 21. Clause (h) of Section 2 of the Act define’ highway’ to mean any road, way or land declared as a highway under Section 3 and includes any land acquired or demarcated for construction of a highway. Clause (i) of Section 2 define ‘highway authority’ to mean the highway authority appointed under Section 4. Clause (m) of Section 2 define ‘right of way’ in relation to a highway means the land within its boundaries. Clause (n) of Section 2 define ‘standard width of highway’ means the width of a highway as may be specified under Section 17. Clause (q) of Section 2 define ‘survey mark’ to mean any mark or object erected, made, employed or specified by a highway authority to indicate or determine or assist in determining the position or level of any point or points. 22. Section 3 of the Act deals with declaration of roads, ways or land as highway. As per sub-section (1) of Section 3, 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 W.P.(C)No.15247 of 2020 13 other category of road. Section 4 of the Act deals with appointment of highway authority. As per Section 4, for the purpose of exercising the powers and performing the duties of a highway authority under the Act for any area or for a highway or part of a highway, the Government shall appoint, by notification, the Executive Engineer (Roads) or Executive Engineer (National Highways) of the Public Works Department as the highway authority of the respective area. Section 5 of the Act deals with powers and functions of highway authority, which includes the powers and functions to control ribbon development; and to prevent and remove encroachment. 23. Section 7 of the Act deals with preparation of scheme for highway development. As per sub-section (1) of Section 7, the highway authority may, of its own accord, or shall, on the written request by the competent authority, prepare a detailed scheme for the construction of a new highway or realignment or improvement of, or repairs to an existing highway or part thereof and submit it to the competent authority for sanction in accordance with the provisions of the Act and the rules made thereunder. Section 9 of the Act deals with maintenance of highway plans. As per sub- ## W.P.(C)No.15247 of 2020 14 section (1) of Section 9, the highway authority shall, after having made a survey of each highway and its boundaries, prepare and maintain a plan as approved by the competent authority in respect of such highway. As per sub-section (2), a plan maintained under subsection (1) shall show clearly the boundaries of the highway, the detailed measurements of road widths, the distance between boundary marks and sufficient measurements from fixed points to enable the re-fixation in position of boundary marks in case they have been displaced or tampered with. 24. Section 10 of the Act deals with demarcation of highway boundaries. As per sub-section (1) of Section 10, the highway authority shall have the boundaries of the highways in its charge demarcated with reference to the plans maintained by it under subsection (1) of Section 9, by planting stones or other suitable marks of a durable nature at intervals all along the highway in such a manner that the imaginary line joining such stones or marks shall show the road boundary correctly. As per sub-section (2), where there are bends or links in the road boundary, the stone or marks shall be so located as to give the correct configuration of the boundary when they are jointed by straight lines. As per sub- W.P.(C)No.15247 of 2020 15 section (3), the boundary stones or marks, which may be given consecutive numbers, shall be maintained on the ground as if they constitute part of the highway. Section 11 of the Act deals with annual check of highway boundaries. As per Section 11, it shall be the duty of the highway authority to conduct annual check of the boundaries of the highway in its charge with a view to locate and remove encroachments, if any. 25. Chapter IV of the Act deals with prevention of unauthorised occupation of highway and removal of encroachments. As per Section 12 of the Act, notwithstanding anything contained in any other law for the time being in force all lands forming part of a highway which has not already been vested in the Government shall, for the purpose of this chapter, be deemed to be Government property. Section 13 of the Act deals with prevention of unauthorised occupation of highway. As per Section 13, no person shall occupy or continue to occupy any highway or part of a highway for purposes other than traffic or do any act which involves any of the activities mentioned in clause (f) of Section 2. W.P.(C)No.15247 of 2020 16 26. Section 14 of the Act deals with power to give direction to take certain measures. As per sub-section (1) of Section 14, notwithstanding anything contained in any other law for the time being in force, where the highway authority is satisfied that any act which involves any of the activities mentioned in clause (f) of Section 2 or subsection (1) of Section 19 done by any person before the commencement of the Act has caused or is likely to cause accumulation of water in the highway or obstruction to the free flow of any water course or other damage to the highway, the said authority may direct such person in writing to take such measures as may be necessary to remove any obstruction or to provide for free flow of water. As per sub-section (2), any person who has been issued a direction under sub-section (1) shall comply with it within fifteen days from the date of its receipt and such person, if fails to comply with the direction, shall be deemed to have contravened the provisions of Section 13 or Section 19, as the case may be. 27. Section 15 of the Act deals with removal of encroachment. As per sub section (1) of Section 15, where, as a result of the annual check of highway boundaries made under W.P.(C)No.15247 of 2020 17 Section 11 or otherwise, the highway authority is satisfied that an encroachment has taken place on the highway under its jurisdiction, it shall serve a notice on the person responsible for the encroachment to remove the encroachment within such time as may be specified in the notice and if the person fails to comply with the notice the highway authority or the officer authorised by it in this behalf shall cause the encroachment to be removed, with the assistance of police, if required. As per sub-section (2), whenever an encroachment is made for the purpose of exposing articles for sale, for opening temporary booth for vending or publicity or for other like purposes, the highway authority shall with the help of police, if necessary, have such encroachment summarily removed. Section 16 of the Act deals with recovery of cost of removal of encroachment. As per Section 16, whenever a highway authority or the officer authorised by it remove any encroachment or carry out any protective work in respect of such encroachment, the actual expenditure incurred for such removal or protective work together with fifteen per cent of such amount as overhead charges, shall be recovered from the person responsible for the encroachment, in the manner as may be prescribed. W.P.(C)No.15247 of 2020 18 28. The Government of India has initiated National Highways Development Programme (NHDP) that relies substantially on Public Private Partnerships as a means of attracting private capital, improving efficiencies and reducing costs. Several states are pursuing similar programmes based on Public Private Partnerships in state highways. For awarding Public Private Partnership projects within a competitive, efficient and economic framework based on international best practices, Government of India has adopted a Model Concession Agreement (MCA) for Public Private Partnerships in National Highways. On similar lines, the Planning Commission has published a Model Concession Agreement for State Highways. These Model Concession Agreements follow the Design, Build, Finance and Operate (DBFO) approach that requires the Concessionaire to bear the responsibility for detailed design. However, the accountability for providing safe and reliable roads ultimately rests with the Government and the Model Concession Agreement, therefore, mandates a Manual of Standards and Specifications that the Concessionaire must conform to. It was felt that a Standard Manual of Specifications and Standards should be brought out by the Indian Roads Congress (IRC) to ensure W.P.(C)No.15247 of 2020 19 uniformity of approach and to facilitate easy implementation by various State Governments. For evolving standards conforming to the Design, Build, Finance and Operate approach, the Planning Commission asked the Indian Roads Congress to develop a Manual of Specifications and Standards for Two-lane Highways, which would, by reference, form an integral part of the Model Concession Agreement and would be binding on the Concessionaire. Its provisions would be enforceable and any breach would expose the Concessionaire to penalties, including termination of the concession. 29. The Indian Roads Congress was set up in December, 1934 on the recommendations of the Indian Road Development Committee (Jayakar Committee) set up by the Government of India, with the objective of Road Development in India. Indian Roads Congress works in collaboration with Ministry of Road Transport and Highways (MoRTH). The Director General (Road Development) and Special Secretary, MoRTH, is the Honorary Treasurer of Indian Roads Congress. There are three Apex Committees, which are responsible for formulation and updation of Codes of Practices, Standards and Guidelines, i.e., Highways W.P.(C)No.15247 of 2020 20 Specifications and Standards Committee; Bridges Specifications and Standards Committee; and General Specifications and Standards Committee. There are Technical Committees under each Apex Committees. The Director General (Road Development) and Special Secretary, MoRTH; the President and Secretary General of Indian Roads Congress are Ex-Officio members of all Technical Committees. 30. The Indian Roads Congress has formulated Manual of Specifications and Standards for Two-laning of Highways through Public Private Partnership, vide IRC:SP:73-2007. The Manual is to be used in relation to Schedule D of the Model Concession Agreement. Besides integrating the Manual into the concession agreement, the said schedule permits deviations from the Manual to address project-specific requirements. The Manual reflects a delicate balance that was arrived at after several rounds of expert and stakeholder deliberations with a view to ensuring development of quality roads and at the same time improving their financial viability by optimising on costs and obligations. 31. As per Para.1.1 of IRC:SP:73-2007, the scope of the work shall be as defined in the concession agreement. Two- W.P.(C)No.15247 of 2020 21 laning/two-laning with paved shoulders of the Project Highway shall be undertaken and completed by the Concessionaire as per the Specifications and Standards set forth in this Manual. As per Para.1.2, the Project Highway and the project facilities shall conform to the design requirements set out in this Manual which are the minimum prescribed. The project report and other information provided by the Government shall be used by the Concessionaire only for its own reference and for carrying out further investigations. The Concessionaire shall be solely responsible for undertaking all the necessary surveys, investigations and detailed designs in accordance with the good industry practice and due diligence, and shall have no claim against Government for any loss, damage, risk, costs, liabilities or obligations arising out of or in relation to the project report and other information provided by the Government. 32. As per Para.1.5 of IRC:SP:73-2007, the Codes, Standards and Technical Specifications applicable for the design of project components are: (i) Indian Roads Congress (IRC) Codes and Standards, as per Appendix-2; (ii) Specifications for Road and Bridge Works, Ministry of Shipping, Road Transport & Highways; W.P.(C)No.15247 of 2020 22 and (iii) any other standards referred to in the Manual and any supplement issued with the bid document. As per Para.1.6, the latest version of the Codes, Standards, Specifications, etc. notified/published at least 60 days before the last date of bid submission shall be considered applicable. As per Para.1.9, in case of any conflict or inconsistency with the provisions of the applicable IRC Codes, Standards or MoRTH Specifications, the provisions contained in this Manual and the Specifications and Standards specified in this Manual shall apply. As per Para.1.10, in the absence of any specific provision on any particular issue in the aforesaid Codes or Specifications read in conjunction with the Specifications and Standards contained in this Manual, the following Standards shall apply in order of priority: (i) Bureau of Indian Standards (BIS); (ii) British Standards, or American Association of State Highway and Transportation Officials (AASHTO) Standards, or American Society for Testing and Materials (ASTM) Standards; (iii) any other specifications/standards proposed by the Concessionaire and reviewed by the Independent Engineer (IE). W.P.(C)No.15247 of 2020 23 33. Para.13.5 of IRC:SP:73-2007 deals with bus bays and bus shelters. As per Para.13.5.1, the buses shall be allowed to stop for dropping and picking up passengers only at the bus bays. The Government shall indicate in Schedule-C of the Concession Agreement, the number and broad location of bus bays to be provided by the Concessionaire. The bus bays shall conform to the specifications and standards given in this Section. In cases where bus stands are provided by the concerned State Government Transport Authorities, the Concessionaire shall provide only access road within the right of way. As per Para.13.5.2, the location of the bus bays shall be fixed on the basis of following principles: (i) The bus stops shall be sited away from bridges and other important structures and embankment sections more than 3m high. (ii) As far as possible, bus bays shall not be located on horizontal curves or at the summit of vertical curves. (iii) The location shall have good visibility, not less than the safe stopping sight distance. (iv) The bus bays shall not be located too close to the road intersections. A gap of 300m from the tangent point of intersections to start/end of the bus bay shall be desirable. At minor intersections (e.g. junctions with village roads), distance of 60m may be adopted. W.P.(C)No.15247 of 2020 24 However, if a substantial volume of buses is to turn right at the intersection, it is necessary that the bus bay shall be located sufficiently ahead of the intersection so that the buses can be maneuvered easily from the pick-up stop on the left hand side to the extreme right lane for turning. The location of the bus bays may be fixed after due consultation with the local communities expected to use such facilities. (v) At major four-way intersections involving transfer of a substantial number of passengers from one pickup stop to the other, it might be desirable to construct a single, composite bus stop of suitable design to cater to all the bus routes collectively. (vi) In hilly areas, the bus bays shall be located, preferably, where the road is straight on both sides, gradients are flat and the visibility is reasonably good (usually not less than 50m). Subject to these requirements, it will be advisable to choose locations where it is possible to widen the roadway economically for accommodating bus bays. 34. Para.13.5.3 of IRC:SP:73-2007 deals with layout and design. As per clause (i), for plain area, typical layouts of bus bays given in Fig.13.2 shall be adopted. The length “L” shown in Fig.13.2 shall be 15m, which shall be increased in multiples of 15m if more W.P.(C)No.15247 of 2020 25 than one bus is likely to halt at the bus bay at one time. As per clause (ii), for hilly areas, where there is a general constraint on space, the layout indicated in Fig.13.3 may be adopted. As per clause (iii), bus bays shall be provided on both sides of the Project Highway for each direction of travel independently, so that the buses do not have to cut across the road. Bus bays on opposite sides shall be staggered to a certain extent to avoid undue congestion on the highway. At intersections, the bus bays for up and down direction shall be located on farther sides of the intersection. As per clause (iv), the bus bay shall be provided with a shelter for passengers. The shelter shall be structurally safe and aesthetic in appearance, while also being functional so as to protect the waiting passengers adequately from sun, wind and rain. If the shelter is constructed on the hillside, slopes shall be properly dressed and suitably protected to avoid slips. The shelter shall be set back from the kerb line by at least 500mm. 35. Para.13.5.4 of IRC:SP:73-2007 deals with pavement. As per Para.13.5.4, the pavement in the bus bays shall have adequate crust with respect to the wheel loads expected. Also, the surfacing shall be strong enough to withstand forces due to frequent braking W.P.(C)No.15247 of 2020 26 and acceleration by the buses. The colour and texture of the bus bay surfacing shall be preferably distinctive from that of the main carriageway. Para.13.5.6 deals with road markings. As per Para.13.5.6, pavement markings with thermoplastic paint having glass beads shall be provided at the bus stops as shown in Figs.13.2 and 13.3 with the word ‘BUS’ written prominently on the pavement. Pedestrian crossings shall be marked slightly behind the standing position of the buses in order to reduce pedestrian conflicts. The kerbs shall be marked with continuous yellow line to indicate “No Parking”. 36. The Indian Roads Congress has also formulated Manual of Specifications and Standards for Four-laning of Highways through Public Private Partnership, vide IRC:SP:84-2009. Para.12.5 of IRC:SP:84-2009 deals with bus bays and passenger shelters. Para.12.5.2 deals with location. As per Para.12.5.2, the location of the bus bays shall be fixed on the basis of following principles : (i) The bus stops shall be sited away from bridges and other important structures and embankment sections more than 3m high. (ii) As far as possible, bus bays shall not be located on horizontal curves or at the summit of vertical curves. (iii) The location shall have good W.P.(C)No.15247 of 2020 27 visibility, not less than the safe stopping sight distance. (iv) The bus bays shall not be located too close to the road intersections. A gap of 300m from the tangent point of intersections to start/end of the bus bay shall be desirable. At minor intersections (e.g. junctions with village roads), distance of 60m may be adopted. However, if a substantial volume of buses is to turn right at the intersection, it is necessary that the bus bay shall be located sufficiently ahead of the intersection so that the buses can be manoeuvered easily from the pickup stop on the left hand side to the extreme right lane for turning. The location of the bus bays may be fixed after due consultation with the local communities expected to use such facilities. (v) At major four-way intersections involving transfer of a substantial number of passengers from one pick-up stop to the other, it might be desirable to construct a single, composite bus stop of suitable design to cater to all the bus routes collectively. (vi) In hilly areas, the bus bays shall be located, preferably, where the road is straight on both sides, gradients are flat and the visibility is reasonably good (usually not less than 50m). Subject to these requirements, it will be advisable to choose locations where it is possible to widen the roadway economically for W.P.(C)No.15247 of 2020 28 accommodating bus bays. (vii) Where grade separator is provided, the location of bus bays shall be as under (a) Sufficiently away from the ground intersection. (b) Sufficiently away from the longitudinal slope of the approaches. (viii) The bus bay and passenger shelter shall be designed to provide for safe and convenient use by physically challenged persons as well. 37. Para.12.5.3 of IRC:SP:84-2009 deals with layout and design. As per clause (i) of Para.12.5.3, for plain area, typical layouts of bus bays given in Fig.12.1 shall be adopted. The length “L” shown in Fig.12.1 shall be 15m, which shall be increased in multiples of 15 m if more than one bus is likely to halt at the bus bay at one time. As per clause (ii), for hilly areas, where there is a general constraint on space, the layout indicated in Fig.12.2 may be adopted. As per clause (iii), the chanelizing island between the paved shoulder and bus-bay shall not be raised; it shall be paved. As per clause (iv), bus bays shall be provided on both carriageways of the Project Highway for each direction of travel independently. At intersections, the bus bays for up and down direction shall be located on farther sides of the intersection. As per clause (v), the bus bay shall be provided with a shelter for passengers. The shelter W.P.(C)No.15247 of 2020 29 shall be structurally safe and aesthetic in appearance, while also being functional so as to protect the waiting passengers adequately from sun, wind and rain. If the shelter is constructed on the hillside, slopes shall be properly dressed and suitably protected to avoid slips. The shelter shall be set back from the kerb line by at least 500mm. Para.12.5.6 deals with road markings. As per Para.12.5.6, pavement markings as specified in Section 9 of this Manual shall be provided at the bus stops as shown in Figs.12.1 and 12.2 with the word ‘BUS’ written prominently on the pavement. Pedestrian crossings shall be marked slightly behind the standing position of the buses in order to reduce pedestrian conflicts. The kerbs shall be marked with continuous yellow line to indicate “No Parking”. 38. The Kerala State Transport Project (KSTP) is a major initiative of the State Government towards improvement of State Highway network, with the assistance of the World Bank. The work relating to up-gradation of Link 84.1 – 84.4 Punalur – Ponkunnam (length - 82.11km) and Link 84.5 – 84.8 Ponkunnam – Thodupuzha (length – 50.32km) was taken up in Phase II. Table 2.2 in Chapter 2 of the Executive Summary of Environmental W.P.(C)No.15247 of 2020 30 Impact Assessment (EIA) and Environmental Management Plan (EMP) for Punalur – Ponkunnam – Thodupuzha Road published by the Kerala Public Works Department in December, 2012, deals with improvement proposal for Punalur – Ponkunnam – Thodupuzha Road, which is extracted hereunder; ## **Table 2.2.** ## **Improvement Proposal for Punalur – Ponkunnam - Thodupuzha Road** |**Sl.No.**|**Particulars**|**Details**|**Remarks**| |---|---|---|---| |1|Start of the<br>Project<br>stretch|Junction,<br>Punalur|Km 0+000 (Punalur)| |2|End of the<br>Project<br>Stretch|Old bus stand<br>junction,<br>Thodupuzha|Km 132+950 (Thodupuzha)| |3|Length||131.171 Kms| |4|Classification||State Highway SH8| |5|Proposed<br>RoW|Cross Section|Urban/ built-up sections: Two<br>lane + Paved shoulders +<br>footpath cum drains<br>Semi-Urban/ built-up section:<br>Two lane carriageway + Paved<br>shoulders + concrete drains<br>Rural Sections: Two Lane +<br>Paved Shoulders + Earthen<br>shoulders<br>Existing four lane stretches:<br>Four Lane + 5.5/6.5m service<br>roads + footpath cum drains| |6|Proposed<br>carriage way<br>width|Built-up Areas|10m wide (Main built ups)<br>Existing four lane stretches<br>retained with new 5.5m service<br>roads on both sides| |||Rural Areas|10m| ## W.P.(C)No.15247 of 2020 31 |7|Pavement<br>details||Overlay composition: the entire<br>section is overlaid with 25 mm<br>SDBC+PCC<br>Widening composition<br>25 mm SDBC + 65 DBM + 250<br>WMM + 200 GSB| |---|---|---|---| |8|Drains|142.3 km|| |9|Footpath|37.5 km including both sides (as per cross<br>section)|| |10|Passenger<br>shelter|118 No's|43 new bus bays proposed<br>(including both sides)| |11|Metal beam<br>crash barrier|6200 m|High embankment location &<br>bridges and RUB approaches| |12|Pedestrian<br>guard rail|20064 m|Proposed foot path locations,<br>major junctions and near<br>schools and other institutions| |13|Proposed<br>parking<br>spaces||Existing Auto, Jeep Taxi stands<br>at 40 locations retained (Not<br>included in costing)<br>New parking spaces proposed<br>at 15 locations at km 4/900,<br>12/930, 16/620, 18/710,<br>29/220, 29/250, 29/300,<br>53/580, 57/870, 63/600,<br>66/800, 96/540, 96/670,<br>113/050, 133/900.| |14|Locations of<br>Oxbow Land|38 No's|| ## W.P.(C)No.15247 of 2020 32 |15|Bridge/<br>Culvert|495 No's|Major Bridge – 5No's<br>Additional/Reconstruction – 2<br>No @ km 35+940, 67+ 870<br>Retained – 3No. At Km<br>51+460, 104+810, 132+860<br>Minor bridge – 15No's<br>Additional/Reconstruction – 8<br>No @km 2+530, 13+265,<br>18+205, 28+385, 31+800,<br>69+200, 113+190, 130+370<br>Widening – 1 No @ km 93+225<br>Retained – 6 No at km 9+510,<br>16+185, 24+935, 105+700,<br>112+785, 117+330<br>RUB-1 No<br>Retained – 1 No. at Km 0+263<br>Aqueduct – 2 No.<br>Retained – 2 No. At km<br>17+100, 46+640<br>Culverts – 472 No's<br>Cleaning & Widening – 87 No's<br>Cleaning – 5 No's<br>New construction due to<br>realignment – 29 No's<br>Reconstruction – 347 No's<br>New proposal on existing road<br>– 9 No's| |---|---|---|---| |16|Traffic Signs/|Provided at appropriate locations as per<br>standards|| 39. As per Table 2.2 of the Executive Summary of EIA and EMP for Punalur – Ponkunnam – Thodupuzha Road, the proposed Right of Way (RoW) was as follows; Urban/built-up sections:- Two lane + Paved shoulders + footpath cum drains; Semi-Urban/builtup section:- Two lane carriageway + Paved shoulders + concrete drains; Rural Sections:- Two Lane + Paved Shoulders + Earthen shoulders; and Existing four lane stretches:- Four Lane + 5.5/6.5m service roads + footpath cum drains. There are 118 passenger W.P.(C)No.15247 of 2020 33 shelters, which includes 43 new bus bays proposed. There are 55 parking locations. Existing auto, jeep taxi stands at 40 locations are retained and 15 new parking spaces are proposed at km 4/900, 12/930, 16/620, 18/710, 29/220, 29/250, 29/300, 53/580, 57/870, 63/600, 66/800, 96/540, 96/670, 113/050 and 133/900. 40. Chapter 9 of the Executive Summary of EIA and EMP for Punalur – Ponkunnam – Thodupuzha Road deals with impact mitigation and avoidance. Section 9.7 of Chapter 9 deals with human health and safety. As per Section 9.7.4, which deals with lack of parking space for autorickshaw and jeep, there should be space provided for parking off the road without interfering with the smooth flow of traffic. Along the project road, in almost all rural areas the populace is heavily dependant on rickshaws, jeep services and cars/taxis. The car users, especially taxis are very high. All urban and semi-urban centres require parking spaces for auto rickshaws and jeeps as shown in Annexure 3.51, Part II – EMP, which is also shown in the Environmental Data Sheet prepared for the project road. As per Section 9.7.6, which deals with lack of sufficient space for bus stops and bus laybys, bus stops should not obstruct the free flow of traffic. The location of bus W.P.(C)No.15247 of 2020 34 stops should provide sufficient space to the commuters, especially the large number of school children, to safely wait. The pedestrians should be safe from both approaches. As per Section 9.7.20, which deals with pedestrian safety, the capital investment needed to carry out the project is aimed not only at improving the infrastructure to service State departments but also to bring major improvements in the efficiency of the existing roads and to improve the quality of life for road users. The anticipated improvements should result in improved efficiency and a reduction in traffic accidents with greater travel enjoyment to all road users. This will be dependent upon implementing the recommended safety measures. In addition, provisions for footpaths next to schools and hospitals have been made in the design. 41. Chapter 10 of the Executive Summary of EIA and EMP for Punalur – Ponkunnam – Thodupuzha Road deals with environmental enhancements. As per Section 10.3.2, which deals with bus bays, separate space for bus laybys and bus shelters are one of those safety measures out of many that are necessary to reduce accidents and increase public convenience. The bus bays and bus shelters should be located outside the carriageway and W.P.(C)No.15247 of 2020 35 should not affect the free flow of traffic. There should be pedestrian crossing facilities and proper signing of bus stops. Entry of other vehicles to the bus laybys must be prohibited. Taking all these aspects into consideration, bus laybys have been built into the designs. 42. As per Section 10.4.1, which deals with autorickshaw stand, in Kerala, autorickshaw has become an integral part of both rural and urban life. Both the number of auto rickshaws and the commuters are increasing. The latest trend indicates that people from all walks of life are using them for many purposes from simple shopping to travel to hospitals, schools, etc. even on a monthly contract basis. The nursery school children are regularly being taken and returned to houses on a contract basis. This shows the importance of auto rickshaws in everyday life. Design for autorikshaw parking area is provided in Figure 10.2. There should be separate designated parking cum passenger picking-up space for autorickshaws in urban, semi-urban and village market areas as identified in the detailed inventory of project road is included in environmental data sheet of the Part II EMP report and details presented in Annexure 3.51. The project has adequate PWD land W.P.(C)No.15247 of 2020 36 for developing in to parking areas. Land of the order of two cents (80 sq.m) minimum will be required for a safe parking area. There should be separate traffic regulations to keep everything in order for autorickshaw/operators including photo identity card and identity number. 43. As per Section 10.4.2, which deals with taxi stand for jeeps and cars, there is sufficient land availability for the construction of various requirements. If the space is not a constraint, the jeep and taxi car parking areas should be constructed separately since the kind of users are different for these two vehicles. The trucks should not be allowed to enter the towns during the peak traffic times. The local Municipal authorities need to provide alternative parking areas for truckers. Figure 10.3 provides the design for taxi parking. There will be provision for separate parking space for these vehicles. The space required will be of the order of 50 cents (200 sq.m). This space should be secure and away from the existing available corridor. Raised footpaths will be required at these locations. The project will develop many of the existing parking areas especially that of autorickshaws. W.P.(C)No.15247 of 2020 37 44. Section 198A of the Motor Vehicles Act, 1988, inserted by Section 84 of the Motor Vehicles (Amendment) Act, 2019, which came into force with effect from 01.09.2019, vide S.O. 3147(E) dated 30.08.2019, deals with failure to comply with standards for road design, construction and maintenance. As per sub-section (1) of section 198A, any designated authority, contractor, consultant or concessionaire responsible for the design or construction or maintenance of the safety standards of the road shall follow such design, construction and maintenance standards, as may be prescribed by the Central Government from time to time. As per sub-section (2), where failure on the part of the designated authority, contractor, consultant or concessionaire responsible under sub-section (1) to comply with standards for road design, construction and maintenance, results in death or disability, such authority or contractor or concessionaire shall be punishable with a fine which may extend to Rs. 1,00,000/- and the same shall be paid to the Fund constituted under Section 164B. 45. As per sub-section (3) of Section 198A, for the purposes of sub-section (2), the court shall in particular have regard to the matters enumerated in clauses (a) to (g), namely, (a) the W.P.(C)No.15247 of 2020 38 characteristics of the road, and the nature and type of traffic which was reasonably expected to use it as per the design of road; (b) the standard of maintenance norms applicable for a road of that character and use by such traffic; (c) the state of repair in which road users would have expected to find the road; (d) whether the designated authority responsible for the maintenance of the road knew, or could reasonably have been expected to know, that the condition of the part of the road to which the action relates was likely to cause danger to the road users; (e) whether the designated authority responsible for the maintenance of the road could not reasonably have been expected to repair that part of the road before the cause of action arose; (f) whether adequate warning notices through road signs, of its condition had been displayed; and (g) such other matters as may be prescribed by the Central Government. As per Explanation, for the purposes of Section 198A, the term ‘contractor’ shall include sub-contractors and all such persons who are responsible for any stage in the design, construction and maintenance of a stretch of road. 46. The Indian Roads Congress has also formulated Guidelines for Pedestrian Facilities, vide IRC:103-2012. In Chapter W.P.(C)No.15247 of 2020 39 1 of IRC:103-2012 ‘footpath’ is defined as a portion of right of way of road used for the movement of pedestrian. Chapter 2 of IRC:103-2012 deals with introduction. As per Para.2.3, all pedestrian facilities ensure social equity. Developing a pedestrian environment means more than laying down a footpath or installing a signal. A truly viable pedestrian system takes into account both the big pictures and smallest details - from how a city is formed and built to what materials are under our feet. Chapter 3 of IRC:103-2012 deals with its scope. As per Para.3.2, the guidelines cover engineering design and planning aspects of pedestrian facilities on roadside and at road crossing in urban and semi-urban areas. As per Para.3.3, the guidelines are intended for use by the local authorities responsible for creating and maintaining semiurban and urban road transport facilities. The guidelines are framed to serve the objectives of universal accessibility and social equity for sustainable transportation. As per Para.4.2, efforts should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances and that the motorists respect the position of pedestrians. As per Para.4.5, the mobility and safety of all pedestrians including those with disabilities and reduced mobility W.P.(C)No.15247 of 2020 40 should be ensured to promote inclusive mobility and universal accessibility. As per Para.4.6, regular maintenance of all facilities and design elements should be undertaken to maintain accessibility, reliability, usability, safety and continuity. As per para 4.7, while planning and designing pedestrian facilities, overall objectivity could be continuity and overall safety. 47. Chapter 5 of IRC:103-2012 deals with pedestrian level of service. As per Para.5.1, pedestrian spaces should be designed in consideration of human convenience and have to be qualitatively suitable to the needs of human beings. 9 parameters affect the quality of service of a footpath, out of which, 6 are pertaining to physical characteristics of footpath facility, like footpath width, footpath surface, obstruction, encroachment, potential of vehicular conflict and continuity. The 3 user factors are pedestrian volume, security, comfort and walking environment. Para.5.2 of IRC:1032012 deals with concept of pedestrian level of service; para.5.3 deals with physical characteristics; and para 5.4 deals with user characteristics. Para.6 of IRC:103-2012 deals with pedestrian facility design standards. W.P.(C)No.15247 of 2020 41 48. In **Shali v. State of Kerala [(2019) 4 KLT 484]** , this Court held that, as per para 4.2 of the Guidelines for Pedestrian Facilities [IRC:103-2012], an effort should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances, and that the motorists respect the position of pedestrian. The Guidelines for Pedestrian Facilities have the approval of the Ministry of Road Transport and Highways (MoRTH). Every local authority in the State is bound to provide pedestrian facilities on public roads in conformity with these guidelines. 49. In **Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Advisory Committee v. State of Kerala** **[2019 (5) KHC SN 27]** this Court held that, in view of the Guidelines for Pedestrian Facilities formulated by the Indian Roads Congress, vide IRC:103-2012, no parking of vehicles is legally permissible on the ‘footpath’, which is the portion of right of way of road used for the movement of pedestrians. Any such parking of vehicles on the footpath of public streets will force pedestrians to walk in unsafe circumstances, which will adversely affect the mobility and safety of all pedestrians including those with disabilities and reduced mobility. W.P.(C)No.15247 of 2020 42 50. In exercise of the powers under Section 118 of the Motor Vehicles Act, 1988 and in supersession of the Rules of Road Regulations, 1989, the Central Government made the Motor Vehicles (Driving) Regulations, 2017. Clause (b) of Regulation 1 defines the term ‘carriageway’ to mean the part or parts of a road normally used by vehicular traffic, whether separate from one another by a dividing strip or a difference of level or not. Clause (j) of Regulation 1 defines the term ‘parking’ to mean the bringing of a vehicle to a stationary position and causing it to wait for any purpose other than that of immediately taking up or setting down persons, goods or luggage and includes stopping for more than three minutes. Clause (o) of Regulation 1 defines the term ‘road user’, which includes a person driving or traveling on the road in a vehicle or otherwise and a pedestrian. Clause (r) of Regulation 1 defines the term ‘stopping’ to mean halting a vehicle for a very short duration out of free will, either to allow the passenger to board or alight or quick loading or unloading of goods. 51. Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017 deals with duties of drivers and riders. As per clause (4) of Regulation 5, the driver and the riders shall take special care and W.P.(C)No.15247 of 2020 43 precautions to ensure the safety of the most vulnerable road users such as pedestrians, cyclists, children, elderly and the differentlyabled persons. As per clause (5) of Regulation 5, the driver shall ensure that his vehicle, while moving or when stationary does not cause any hindrance or undue inconvenience to other road users or to occupants of any property. 52. Regulation 22 deals with stopping and parking. As per sub-clause (iv) of clause (1) of Regulation 22, a vehicle shall not be stopped on, or five meters before a pedestrian crossing. As per sub-clause (b) of clause (2) of Regulation 22, a vehicle shall not be parked on a main road or at a stretch of road where the notified maximum speed limit is 50 km per hour or more. As per sub-clause (c), a vehicle shall not be parked on footpath, cycle path and pedestrian crossing; as per sub-clause (d), before or after an intercession or a junction upto a distance of 50 meters from the edge of intercession or junction; as per sub-clause (e), where it would block access to designated parking places; as per sub-clause (i), in front of the entrance or exit of a property; and as per subclause (m), if it is likely to obstruct other vehicle or cause inconvenience to any person. W.P.(C)No.15247 of 2020 44 53. Regulation 39 deals with pedestrian crossing, footpath and cycle track. As per clause (1) of Regulation 39, while approaching an uncontrolled pedestrian crossing, the driver shall slow down, stop and give way to pedestrian, users of invalid carriages and wheelchairs. As per clause (2), if the traffic has come to a standstill, the driver shall not drive the vehicle on the pedestrian crossing, if he is unlikely to be able to move further and thereby block the pedestrian crossing. As per sub-clause (3), when a road is provided with a footpath or cycle track, no vehicle shall drive on such footpath or track, except on the directions of a Police Officer in uniform or where traffic signs permitting some movements have been displayed. 54. In **Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Advisory Committee** this Court held that, as per clause (5) of Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017, the driver of a vehicle has to ensure that his vehicle, while moving or when stationary does not cause any hindrance or undue inconvenience to other road users or to occupants of any property. In view of the provisions under subclause (i) of clause (2) of Regulation 22, no vehicle shall be parked W.P.(C)No.15247 of 2020 45 in front of the entrance or exit of the property. In view of the provisions under sub-clause (c) of clause (2), no vehicle shall be parked on the footpath. In view of the provisions under sub-clause (b) of clause (2) of Regulation 22, no vehicle shall be parked on a main road or at a stretch of a road where the notified maximum speed limit is 50 km per hour or more. 55. In **Noushad M. and others v. State of Kerala and others [2019 (2) KHC 562]** , a Division Bench of this Court held that permitting parking of autorickshaws permanently in front of shop rooms on the side of Highway is an appropriation of private right of owners of shops and houses to have free access to Highways. Obstructing such private right is not justified. In the said decision the Division Bench was dealing with an unauthorised autorickshaws stand, which has not been approved by the Grama Panchayat or anybody else. In the said decision, arising out of a writ petition filed seeking police protection, this Court directed the Grama Panchayat to constitute Traffic Regulatory Committee in accordance with Section 72 of the Kerala Police Act, 2011 and to determine the location of the parking place for autorickshaws in consultation with the District Police Chief and the Regional W.P.(C)No.15247 of 2020 46 Transport Authority. Until a decision is taken by the competent authority, this Court permitted five autorickshaws at a time being parked in the existing parking place to assist the general public, subject to any other decision taken by the Regional Transport Authority, in consultation with the local authority. 56. In **Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Advisory Committee** this Court noticed that, a reading of the decision of the Division Bench in **Noushad** and also the decisions referred to therein would show that, the law laid down in those decisions in no way support the contention of the petitioner that no autorickshaw stand can be permitted to be established at any point the temple property touches the National Highway. As per clause (5) of Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017, the driver of a vehicle has to ensure that his vehicle, while moving or when stationary does not cause any hindrance or undue inconvenience to other road users or to occupants of any property. In view of the provisions under subclause (i) of clause (2) of Regulation 22, no vehicle shall be parked in front of the entrance or exit of the property. In view of the provisions under sub-clause (c) of clause (2), no vehicle shall be W.P.(C)No.15247 of 2020 47 parked on the footpath. In view of the provisions under sub-clause (b) of clause (2) of Regulation 22, no vehicle shall be parked on a main road or at a stretch of a road where the notified maximum speed limit is 50 km per hour or more. If the road margin in front of the temple is having sufficient width to park motor vehicles, without causing any obstruction to the passage of pedestrians, and without violating the provisions under the Motor Vehicles (Driving) Regulations, 2017 referred to hereinbefore, the petitioner cannot seek an order preventing parking of any vehicles in that road margin. 57. In **Kottamom (Kottiyar Mangalam) Sri.** **Darmasastha Temple Advisory Committee** this Court noticed that the three Apex Committees in the Indian Roads Congress, i.e., Highways Specifications and Standards Committee; Bridges Specifications and Standards Committee; and General Specifications and Standards Committee are responsible for formulation and updation of Codes of Practices, Standards and Guidelines. The Indian Roads Congress has formulated the Manual of Specifications and Standards for the construction of the National Highways and once National Highways are constructed as per the W.P.(C)No.15247 of 2020 48 standards and guidelines prescribed by the Indian Roads Congress, it has to be maintained as such without any encroachment on the right of way or on the pedestrian facilities provided as per such standards and guidelines. Therefore, before earmarking a place for autorickshaw stand on the side of a National Highway, without causing any obstruction to the passage of pedestrians, and without violating the relevant provisions under the Motor Vehicles (Driving) Regulations, 2017, the Local Authority has to consult the competent officer, who is in-charge of that National Highway, as authorised by the National Highways Authority of India. After such consultation, the Local Authority shall place the matter before the Traffic Regulatory Committee constituted in terms of Section 72 of the Kerala Police Act, 2011 and determine the location of the parking place for autorickshaws, in consultation with the concerned Regional Transport Authority and also the District Police Chief. 58. As per the Model Concession Agreement for State Highways published by the Planning Commission for State Highways, the accountability for providing safe and reliable roads ultimately rests with the Government. The Model Concession Agreement, therefore, mandates a Manual of Standards and W.P.(C)No.15247 of 2020 49 Specifications that the Concessionaire must conform to, which would, by reference, form an integral part of the Model Concession Agreement and would be binding on the Concessionaire. In order to ensure uniformity of approach and to facilitate easy implementation by various State Governments, the Planning Commission asked the Indian Roads Congress to develop a Manual of Specifications and Standards for Two-lane/ Four-lane Highways. 59. In **C.S.S. Motor Service v. Madras State [AIR 1953 Mad 279]** a Division Bench of the Madras High Court held that all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. The State might even prohibit the running of transport buses and lorries on particular streets or roads, if such running would interfere with the rights of pedestrians to pass and re-pass, as it might if the street is narrow or W.P.(C)No.15247 of 2020 50 congested, but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways. 60. In **Saghir Ahmad v. State of U.P. [AIR 1954 SC 728]** a Constitution Bench of the Apex Court agreed with the statement of law made by the Division Bench of the Madras High Court in Para.24 of the decision in **C.S.S. Motor Service** . 61. In **Bombay Hawkers Union v. Bombay Municipal Corporation [(1985) 3 SCC 528]** the Apex Court held that public streets by their nomenclature and definition are meant for the use of the general public. They are not laid to facilitate the carrying on of private business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the busy thoroughfares, thereby paralysing all civic life. The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution of India, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads - to facilitate traffic - W.P.(C)No.15247 of 2020 51 may be defeated. The right is subject to reasonable restrictions under clause (6) of Article 19 of the Constitution. 62. In **Sodan Singh v. New Delhi Municipal Committee [(1989) 4 SCC 155]** a Constitution Bench of the Apex Court held that the primary object of building roads is undoubtedly to facilitate people to travel from one point to another. The principle stated in **Saghir Ahmad [AIR 1954 SC 728]** in connection with transport business applies to the hawkers' case also. The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public, and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizen to use the pathways, and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application. 63. In **Sodan Singh** the Apex Court held further that the right to carry on any trade or business and the concept of life and personal liberty within Article 21 of the Constitution of India are too remote to be connected together. The petitioners in **Olga Tellis v.** W.P.(C)No.15247 of 2020 52 **Bombay Municipal Corporation [(1985) 3 SCC 545]** were very poor persons who had made pavements their homes existing in the midst of filth and squalor. It was not a case of a business of selling articles after investing some capital, howsoever meagre. The judgment in **Bombay Hawkers Union [(1985) 3 SCC 528]** and that in **Olga Tellis** were delivered within a week, both by Y.B. Chandrachud, C.J. and while dealing with the rights of the squatting hawkers in the former case the learned Chief Justice confined the consideration of the right under Article 19(1)(g) of the Constitution. Besides, in **Olga Tellis** the validity of Section 314 of the Bombay Municipal Corporation Act was affirmed on the ground that removal of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust. Footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laving out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable W.P.(C)No.15247 of 2020 53 measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing, re-passing, are competing claims and that, the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and re-passing. So long as a person does not transgress the limited purpose for which the pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised to use it, he becomes a trespasser. The common example which is cited in some of the English cases, for example, **Hickman v.** W.P.(C)No.15247 of 2020 54 **Maisey [(1900) 1 Q.B. 752]** is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass. But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised. 64. In **Abdul Farook v. Municipal Council, Perambalur [(2009) 15 SCC 351]** , in the matter of erection of arches on the side of two Major District Roads, namely, Thuraiyur - Perambalur Road and Thuraimangalam - Bungalow Road, which are declared to be highways under Section 3 of the Tamil Nadu Highways Act, 2001, the Apex Court held that the State, being the principal protector of the rights of its citizens, keeping in view the doctrine of public trust as adumbrated in a large number of decisions, including **M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388]** , **M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464]** and **Intellectuals Forum, Tirupathi v. State of A.P. [(2006) 3 SCC 549]** should not have granted such permission. 65 In **P.N. Srinivasan (Deceased) v. State of Tamil Nadu [(2014) 1 CTC 561 : AIR 2015 NOC 80]** a Division Bench W.P.(C)No.15247 of 2020 55 of the Madras High Court, after following the judgment of the Apex Court in **Abdul Farook [(2009) 15 SCC 351]** , held that the Constitution of India guarantees right to move throughout the territory of India. This right under Article 19(1)(d) cannot be construed in a very narrow manner. It would cover all incidental rights which would make this constitutional right meaningful. Nobody has got a right to claim erection of permanent structures like statues on roads. The State is not an exception. The Government is for the people. Therefore, any policy adopted by the Government must be for public good. The Government symbolises the will and wishes of people. The policy must reflect such social aspirations of the people. The Government have no special right to erect a statue on a public road. The regulations regarding prohibition of permanent structure like statues on roads would equally apply to the State. 66. In **P.N. Srinivasan** the Division Bench held further that the decision to honour public personalities, artists of repute, etc., must not be at the cost of public convenience. The public roads are nothing but public property. The roads are formed by acquiring land. The citizen is deprived of his land by the process of W.P.(C)No.15247 of 2020 56 acquisition. The acquisition is justified in larger public interest. The roads constructed after such acquisition are for public purpose. It is only for the welfare and betterment of public all such developmental activities are undertaken. The people should be allowed to enjoy the benefits of such development. The National Highways and State Highways constructed by acquiring private property and by using public funds, can be used only for the travelling needs of public. It cannot be converted for other collateral purposes like erection of statues and memorials. The roads and streets are meant for pedestrians and motorists. It is not meant for erection of statues. There is no dispute that the leaders and stalwarts should be respected in an appropriate manner. By erecting statues on the middle of public road, by giving difficulties to the motorists and general public, actually we are showing disrespect to such distinguishing personalities. The memorials should be erected only at unobjectionable places and in any case not on the middle of roads. The names of celebrated artists should not be dragged into the midst of litigation by the State by erecting his statue on the middle of road, to the dislike of motorists and pedestrians. W.P.(C)No.15247 of 2020 57 67. In **Sivaprasad v. State of Kerala and others [2020 (6) KHC 373]** this Court held that footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. Removal of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust. The State, being the principal protector of the rights of its citizens, keeping in view the doctrine of public trust, should not permit any encroachments on the footpaths or pavements. Nobody has got a right to erect any structures on roads. The State is not an exception. The National Highways and State Highways constructed by acquiring private property and by using public funds can be used only for the W.P.(C)No.15247 of 2020 58 travelling needs of public. It cannot be converted for other collateral purposes like erection of statues and memorials. 68. In **Sivaprasad** this Court held that, State Highways constructed using public funds cater the travelling needs of the public and also carriage of goods. Bus bays and also bus shelters on highway margin are for the convenience of the public. The location, layout and design of bus bays and bus shelters shall meet the requirements set out in the Manual of Specifications and Standards for Two-laning/Four-laning of Highways formulated by the Indian Roads Congress, in order to ensure the safety of pedestrians and passengers on State Highways. The State, which holds public streets and pavements as trustee on behalf of the public, cannot permit any political party or organisation to erect bus shelters or any other structures, arches, etc. on public streets and pavements. Pavements are for pedestrians. No political party or organisation has got a right to erect structures, arches, etc. on public streets and pavements. 69. In the instant case, the grievance of the petitioners, who are conducting shops in Ward No.XIX of Pala Municipality, on the eastern side of Pala - Ponkunnam Road (Punalur - Ponkunnam - W.P.(C)No.15247 of 2020 59 Thodupuzha State Highway), is against parking of autorickshaws in front of their shops by respondents 4 to 7 and others. According to the petitioners, the parking of autorickshaws in the autorickshaw stand is causing obstruction to free ingress and egress to their shops. 70. As per the report of the additional 9[th] respondent Regional Transport Officer, the Traffic Regulatory Committee in its meeting held on 29.11.2013 fixed 6 autorickshaw stands in Pala Municipality in various places of the Municipal area and identified 31 auto picking places for passengers. The decision taken by the Traffic Regulatory Committee has not been submitted to the Regional Transport Authority for approval, as provided under Rule 344 of the Kerala Motor Vehicles Rules, 1989. 71. In the statement filed on behalf of the additional 8[th] respondent Traffic Regulatory Committee, it is stated that the autorickshaw stand in front of the petitioners' shops is an approved stand known as 'Thekkekara Auto Stand'. The Pala Municipal Council by Annexure R8(a) resolution No.17 dated 01.11.2013 approved 5 autorickshaw stands and 31 autorickshaw parking areas, within the Municipality. The list of approved autorickshaw W.P.(C)No.15247 of 2020 60 stands and approved autorickshaw parking areas are enclosed along with Annexure R8(a). Thekkekara Auto Stand is one among the 5 approved autorickshaw stands at Pala Municipality. By Annexure R8(b) letter dated 18.12.2013, Annexure R8(a) resolution was forwarded to the Government, through the Director of Urban Affairs. As per the statement, 'Thekkekara Auto Stand' is in existence for more than 30 years and there is sufficient space in the road margin for parking autorickshaws. 72. In the counter affidavit filed by the 4[th] respondent, it is stated that 'Thekkekara Auto Stand' is one among the 31 autorickshaw parking areas referred to in the bye-laws of Pala Municipality, as stated in Ext.R4(e) reply dated 27.08.2020 obtained under the Right to Information Act. The Regional Transport Authority, Pala used to issue contract carriage permits for autorickshaws with parking place as 'Murikkumpuzha', which is the disputed place in front of the petitioners' shops. 73. The petitioners have produced Ext.P5 master plan of Pala Municipality along with an enlarged copy of the area showing Murikkumpuzha junction, in order to contend that the places called 'Thekkekara' and 'Murikkumpuzha' are not one and the same. W.P.(C)No.15247 of 2020 61 74. As already noticed hereinbefore, there is sufficient space in front of the petitioners' shops in Ward No.XIX of Pala Municipality, on the eastern side of Pala - Ponkunnam road, for parking autorickshaws, which is evident from Ext.R4(d) photographs produced along with I.A.No.2 of 2020. In front of the shops, the public drain is covered using concrete slabs of sufficient width for movement of pedestrians. In front of some of the shops, that area is used for stocking articles and even for display of goods, which is legally impermissible in view of the law laid down by this Court in **Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Adversory Committee [2019 (5) KHC SN 27]** and **Sivaprasad [2020 (6) KHC 373]** . In view of the law laid down in the said decisions, National Highways and State Highways constructed by acquiring private property and using public funds can be used only for the travelling needs of public. Once National Highways or State Highways are constructed as per the standards and guidelines prescribed by the Indian Roads Congress, it has to be maintained as such without any encroachment on the right of way or on the pedestrian facilities provided as per such standards and guidelines. W.P.(C)No.15247 of 2020 62 75. In the instant case, as noticed hereinbefore in paragraphs 38 and 39, there are 55 parking locations in Punalur - Ponkunnam - Thodupuzha Road. Existing auto, jeep taxi stands at 40 locations are retained and new parking places are proposed at 15 places mentioned in Table 2.2 (Sl.No.13). Therefore, in case the autorickshaw stand in front of the petitioners' shops in Ward No.XIX of Pala Municipality, on the side of Pala - Ponkunnam Road, is one among the existing autorickshaw stands retained as per the Improvement Proposal in Table 2.2 or is one of among the new parking places proposed at 15 locations, it has to be maintained as such, permitting the parking of autorickshaws, without causing any obstructions whatsoever to passage of pedestrians and without violating the relevant provisions under the Motor Vehicles (Driving) Regulations, 2017. 76. As held in **Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Adversory Committee** , a reading of the decision of the Division Bench in **Noushad** and also the decisions referred to therein in no way support the contention that no autorickshaw stand can be permitted to be established at any point, the temple property touches the National Highway. W.P.(C)No.15247 of 2020 63 Therefore, the petitioners herein, who are conducting shops on the side of a State Highway cannot contend that no autorickshaw stand can be permitted to be established at any point, their property touches the State Highway. 77. It is not discernible from the pleadings and materials on record as to whether the autorickshaw stand in front of the petitioners' shops is one among the 55 parking spaces (existing 40 locations + 15 new parking spaces proposed) in the Improvement Proposal for Punalur - Ponkunnam - Thodupuzha Road in Table 2.2 in Chapter 2 of the Executive Summary of EIA and EMP for Punalur - Ponkunnam - Thodupuzha Road. Autorickshaw has become an integral part of both rural and urban life, as noticed in Section 10.4.1. When, in almost all rural and urban areas, the populace is heavily dependant on autorickshaws, the improvement proposal of every State Highway should provide for parking spaces for autorickshaws, which should be provided without interfering with the smooth flow of traffic, without causing any obstruction to the passage of pedestrians, and without violating the relevant provisions under the Motor Vehicles (Driving) Regulations, 2017. The parking of autorickshaws in an autorickshaw stand on the side W.P.(C)No.15247 of 2020 64 of a public road shall be arranged in such a manner that it will not cause any obstruction to free ingress and egress to shops and other buildings or entrance or exit of a property. No parking of autorickshaws can be permitted on the footpath. In such circumstances, this writ petition is disposed of by directing the additional 8[th] respondent Traffic Regulatory Committee, Pala Municipality to consider the question as to whether the autorickshaw stand in front of the petitioners' shops in Ward No.XIX of Pala Municipality, on the eastern side of Pala - Ponkunnam Road, is one among the existing/proposed parking space in the Improvement Proposal for Punalur - Ponkunnam - Thodupuzha Road in Table 2.2 of Chapter 2 of the Executive Summary of EIA and EMP. The Committee has to consider that question and take an appropriate decision with public notice to the petitioners and other affected parties including respondents 4 to 7, after consulting the competent officer, who is in-charge of the State Highway, and also the additional 9[th] respondent Regional Transport Officer. In case the autorickshaw stand in front of the petitioners' shops is one among the parking spaces included in Table 2.2, while permitting parking of autorickshaws in that W.P.(C)No.15247 of 2020 65 autorickshaw stand, the Traffic Regulatory Committee shall ensure that the parking of autorickshaws is without causing any obstruction to the passage of pedestrians and without violating the provisions under the Motor Vehicles (Driving) Regulations, 2017 and that, no obstruction is caused to free ingress and egress to the shops or entrance or exit of any property. The Traffic Regulatory Committee shall take an appropriate decision in the matter, as directed above, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The decision so taken shall be forwarded to the Regional Transport Authority for approval under Rule 344 of the Kerala Motor Vehicles Rules, 1989, if found necessary. Sd/- **ANIL K. NARENDRAN JUDGE** yd W.P.(C)No.15247 of 2020 66 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PHOTOGRAPH SHOWING THE UNAUTHORISED PARKING OF AUTORIKSHAWS IN FRONT OF THE PETITIONER'S SHOP.** **EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED 22.06.2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT WITH THE ACKNOWLEDGEMENT RECEIPT.** - **EXHIBIT P3 A TRUE COPY OF THE QUESTION SUBMITTED UNDER RIGHT TO INFORMATION ACT, 2005 ALONG WITH LETTER DATED 04.09.2020 ISSUD BY THE PUBLIC INFORMATION OFFICER OF THE JOINT REGIONAL TRANSPORT OFFICE, PALA.** - **EXHIBIT P4 A PHOTOGRAPH SHOWING THE ROAD MARGIN USED AS PARKING AREA FOR AUTORICKSHAW PARKING IN FRONT OF THE PETITIONERS' SHOP.** - **RESPONDENTS 4 TO 7 EXHIBITS:** **EXHIBIT-R4(A)** - **TRUE COPY OF THE DECISION NO.17 OF THE PALA MUNICIPALITY DATED 01.11.2013** **EXHIBIT-R4(B) TRUE COPY OF THE MINUTES OF THE MEETING OF THE TRAFFIC REGULATORY COMMITTEE HEADED BY THE MUNICIPAL CHAIRMAN DATED 29.11.2013.** - **EXHIBIT-R4(C) TRUE COPY OF THE COMMUNICATION NO.R1786/20 ISSUED BY THE SECRETARY, PALA MUNICIPALITY DATED 07.08.2020** - **EXHIBIT R4 (D) TRUE COPY OF THE ORIGINAL PHOTOGRAPHS OF THE AUTO RICKSHAW PARKING STAND/AREA** - **EXHIBIT 4 (E) TRUE COPY OF THE COMMUNICATION NO RI(A)857/2020 ISSUED BY THE PUBLIC INFORMATION OFFICER, PALA MUNICIPALITY DATED 27.08.2020** W.P.(C)No.15247 of 2020 67 **EXHIBIT R4(F) TRUE COPY OF THE CONTRACT CARRIAGE PERMIT ISSUED BY THE SECRETARY, REGIONAL TRANSPORT DATED 23.01.2013** **8TH RESPONDENT'S ANNEXURES: ANNEXURE-R8(A) TRUE COPY OF THE RESOLUTION NO.17 DATED 01.11.2013 OF THE PALA MUNICIPAL COUNCIL. ANNEXURE-R8(B) TRUE COPY OF THE FORWARDING LETTER DATED 18.12.2013.** ## **TRUE COPY** **P.A. TO JUDGE**