Muhammed Haseeb T.K. v. Darlene Carmalita D Cruz and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **CON.CASE(C) NO. 2007 OF 2019** **AGAINST THE JUDGMENT DATED 05.08.2019 IN WP(C) 38888/2018** **OF HIGH COURT OF KERALA** ## **PETITIONER:** **MUHAMMED HASEEB T.K., AGED 36 YEARS S/O.T.K.MOOSA, THEKKEKARA HOUSE, UDUMA P.O., KASARAGOD DISTRICT.** **BY ADV K.RAKESH ROSHAN** ## **RESPONDENTS:** - **1 DARLENE CARMALITA DCRUZ,** - **AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER, CHIEF ENGINEER, KERALA STATE TRANSPORT PROJECT (KSTP), TC 11/339, SREE BALA BUILDING, NANDANKOD, KAVADIYAR, THIRUVANANTHAPURAM - 695 610.** - **2 DR.SAJITH BABU I.A.S.,** **AGED 47 YEARS, FATHERS NAME NOT KNOWN TO THE PETITIONER, DISTRICT COLLECTOR, COLLECTORATE, VIDYANAGAR P.O., KASARAGOD, PIN - 671 123, R/AT.COLLECTORS CAMP OFFICE, VIDYANAGAR P.O., KASARAGOD, PIN - 671 123.** **BY ADVS.** **SRI.K.V.SOHAN, STATE ATTORNEY GOVERNMENT PLEADER** ## **SRI RANJITH K.R- GOVERNMENT PLEADER** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Cont.case(c)2007 OF 2019 ## **JUDGMENT** The petitioner has filed this Contempt Case alleging noncompliance of the directions contained in Annexure-A1 judgment of this Court dated 05.08.2019 in W.P.(C)No.38888 of 2018, whereby that writ petition was disposed of recording the submission made by the learned Government Pleader that the decision taken by the Road Safety Council, vide item No.12 in Ext.R2(a) shall be implemented forthwith by the respondents herein. Item No.12 of Ext.R2(a) deals with removal of bus shelter on the western side of Uduma Railway Gate. By that judgment, the respondents herein were directed to take steps in furtherance of Ext.R2(a) decision of the District Road Safety Council, vide item No.12, within a period of one month from the date of receipt of a certified copy of that judgment. 2. Subsequent to the filing of this Contempt Case, Annexure A1 judgment of this Court dated 05.08.2019 in W.P. (C)No.38888 of 2018 was sought to be reviewed in R.P.No.998 of 2019 filed by one Sivaprasad, who is a resident of Uduma Grama Panchayat and also DYFI Block Secretary, Uduma. That review petition was dismissed by the order dated 22.08.2020 – 3 Cont.case(c)2007 OF 2019 ## **Sivaprasad v. State of Kerala and others [2020 (6) KHC** **373]** . In Para.55 of that order, this Court noticed that the work relating to up-gradation of Link-69 Kasargod-Kanhangad Road - (km:0+000 to km:27+780), which is a section of State Highway 57 has already been completed on 23.04.2015, which passes through Uduma, Pallikkara, Chithari, Ajanoor and Hosdurg. As per Para.E.2 of the Executive Summary of Environmental Impact Assessment (EIA) and Environmental Management Plan (EMP) published by the Kerala Public Works Department in October 2012, the improvements proposed includes widening of project roads, strengthening/ reconstruction of the existing pavement for the entire length, provision for footpath cum built-up drain, junction improvements, provision for pedestrian crossing facilities, traffic signs, road furniture and bus shelters. The summary of improvement proposals in Table 1 of Executive Summary of EIA and EMP for Link-69 Kasargod-Kanhangad road includes 43 passenger shelters, 12 new parking spaces for taxi, auto and jeep. Para.E.9 of Executive Summary, the proposed environmental enhancement measures include construction of retaining walls and guardrails, bus bays, parking areas, bus Cont.case(c)2007 OF 2019 4 shelters with kiosk, etc. 3. In the order dated 22.08.2020 this Court noticed further that, as evident from Ext.R3(a) sketch produced along with the counter affidavit filed by the 3[rd] respondent Chief Engineer, the disputed bus shelter at Uduma Junction protrudes into the bus bay having a width of 3m, to the extent of 1.5m. The two new bus shelters constructed by KSTP on the road margin, without protruding into the tarred portion of the road earmarked as bus bay, are at a distance of only 30m from the disputed bus shelter. As per sub-section (1) of Section 198A of the Motor Vehicles Act, 1988 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. The bus bay at Uduma Junction is one constructed by KSTP as per the specifications and standards prescribed by the Indian Roads Congress in the Manual of Specifications and Standards, since, due to the presence of a railway crossing in the approach road at Uduma Junction (at 8+850km), tailgating of 5 Cont.case(c)2007 OF 2019 vehicles from the level crossing extends to the project road during periodic closure of the railway gate during busy hours. KSTP has also constructed two new bus shelters on the road margin, without protruding into the tarred portion of the road earmarked as bus bay, are at a distance of only 30m from the disputed bus shelter. 4. Paragraphs 77 to 70 of the order dated 22.08.2020 in R.P.No.998 of 2019 read thus; “77. Despite the order of this Court dated 07.01.2020, the competent officer of the 1[st] respondent State has not chosen to file an affidavit explaining the facts and circumstances in which the bus shelter in question at Uduma Junction, which protrudes into the bus bay having a width of 3m, to the extent of 1.5m, was not demolished after the construction of two new bus shelters by KSTP on the road margin, without protruding into the tarred portion of the road earmarked as bus bay, at a distance of only 30m from the said bus shelter. As already noticed, as per Ext.R3(a) sketch, after the improvement of KSTP road at Uduma junction as a four-lane road with bus bay, the disputed bus shelter constructed in road puramboke falls - within the boundaries of State Highway 57. For demolition of that bus shelter, which protrudes into the bus bay, causing hindrance to the buses which enter the bus bay, no notice need be issued to the political party or the political organisation which had constructed that bus shelter. 6 Cont.case(c)2007 OF 2019 78. 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. 79. In the instant case, as evident from Ext.P1 photographs and also Ext.P2 approved plan of KSTP Road at Uduma Junction, produced along with the writ petition, the disputed bus shelter protrudes into the tarred portion of KSTP Road earmarked as bus bay. The said fact is also evident from Ext.R3(a) sketch produced along with the counter affidavit filed by the 3[rd] respondent Chief Engineer. The said bus shelter, which poses serious safety concerns to bus passengers and also to pedestrians, including those with disabilities and reduced mobility, has to be removed, as directed in the judgment sought to be reviewed.” 5. On 24.11.2020, when this Contempt Case came up for Cont.case(c)2007 OF 2019 7 consideration, the learned State Attorney has filed a memo dated 24.11.2020, producing therewith a communication dated 19.11.2020 of the Executive Engineer, Public Works Department, KSTP Division, Kannur addressed to the 1[st] respondent Chief Engineer, KSTP, wherein it is stated that the disputed bus shelter at Uduma Junction has already been demolished on 18.11.2020. The learned counsel for the petitioner submitted that after the demolition of that structure another bus shelter has already been put up. Therefore, the learned State Attorney was directed to get instructions. 6. Along with a memo dated 03.12.2020 filed by the learned State Attorney, a report dated 02.12.2020 of the Executive Engineer, Public Works Department, KSTP Division, Kannur, addressed to the State Attorney is placed on record along with a site plan showing the newly constructed bus shelter at Uduma Junction and few photographs of bus shelters constructed by various political parties and other organisations on the side of KSTP Road. In the said report, it is stated that if an attempt is made to demolish the newly constructed bus shelter of DYFI Block Committee at Uduma, there will be wild protest. As Cont.case(c)2007 OF 2019 8 can be seen from the site plan produced along with the report dated 02.12.2020 and also the photographs, the newly constructed bus shelter is on the pavement of KSTP Road, nearly 30 meters away from two new bus shelters constructed by KSTP at Uduma Junction, as per Executive Summary of EIA and EMP (table 1) for Link-69 Kasargod-Kanhangad Road, published by the Kerala Public Works Department. 7. By the order dated 18.01.2013 in SLP (Civil)No.8519 of 2006 [ **Union of India v. State of Gujarat and others** ], the Apex Court issued a general direction to the effect that from the date of that order the Government of Kerala shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. The Apex Court made it clear that the said order shall not apply to installation of high-mast lights, street lights or construction relating to electrification, traffic, toll or for development and beautification of streets, highways, roads, etc., and relating to public utility and facilities. The above order was made applicable to all other States and Union Territories and the concerned Chief Secretary/Administrator is directed to ensure Cont.case(c)2007 OF 2019 9 compliance of that order. Paragraphs 2 to 5 of the order dated ## 18.01.2013 in I.A.No.10 of 2012 in SLP(Civil)No.8519 of 2006 read thus; “2. Mr. M.T. George, learned counsel for the State of Kerala placed before us a copy of the order dated September 7, 2011 passed by the Government of Kerala granting permission for installation of statue of late Shri N. Sundaran Nadar, Ex-Deputy Speaker of Kerala Legislative Assembly near to Neyyattinkara – Poovar Road in the curve turning to the KSRTC Bus Stand Neyyattinkara in the Kanyakumari National Highway near bus stand. 3. We have our doubt whether such permission could have been granted by the State Government for installation of statue on the national highway. 4. Until further orders, we direct that the statusquo, as obtaining today, shall be maintained in all respects by all concerned with regard to the Triangle Island where statue of late Shri N. Sundaran Nadar has been permitted to be sanctioned. We further direct that henceforth, State Government shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. Obviously, this order shall not apply to installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for development and beautification of the streets, highways, roads, etc. and relating to public utility and facilities. 5. The above order shall also apply to all other states and Cont.case(c)2007 OF 2019 10 union territories. The concerned Chief Secretary/ Administrator shall ensure compliance of the above order.” (underline supplied) 8. By the order dated 05.07.2013 in SLP(Civil) No.8519 of 2006, the Apex Court directed the States and Union Territories to state on affidavit the position with regard to unauthorised structures including unauthorised religious structures on public roads, pavements, sideways and other public utility places as existing on 30.06.2013 in their respective States and the steps taken upto 30.06.203 for removal of such unauthorised structures. In the said order, the Apex Court noticed the submission of the learned counsel for the States of Madhya Pradesh, Kerala, Punjab and Rajasthan that they have already filed their affidavits. By the order dated 05.07.2013, the Apex Court directed the States of Madhya Pradesh, Kerala, Punjab and Rajasthan to file fresh affidavits indicating the position as on 30.06.2013. 9. By the order dated 31.01.2018 in SLP(Civil) No.8519 of 2006 and connected cases, the Apex Court ordered that the implementation of its orders should be supervised by the concerned High Courts. Consequently, the Apex Court remitted Cont.case(c)2007 OF 2019 11 the matters to the respective High Courts for ensuring implementation of orders in an effective manner. While ordering transmission of concerned records to the respective High Courts, the Apex Court ordered that, the interim orders wherever passed shall continue, until the matters are considered by the High Courts. In case any clarification is required, it would be open to the parties to approach the Apex Court. The High Court will have the jurisdiction to proceed in the contempt of any of the orders passed by the Apex Court. 10. The order of the Apex Court referred to hereinbefore dated 18.01.2013 in I.A.No.1 of 2012 in SLP(Civil)No.8519 of 2006 was in relation to the permission granted by the State of Kerala, by the order dated 07.09.2011, granting permission for installation of statue of late Shri.N.Sundaran Nadar, Ex-Deputy Speaker of Kerala Legislative Assembly near to NeyyantinkkaraPoovar Road in the curve turning to KSRTC bus stand, Neyyatinkkara in Kannyakumari National Highway. 11. In **Yoosaf K. and another v. State of Kerala and another [2019 (4) KLT 832]** , this Court noticed GO(Rt)No.932/2014/PWD dated 03.07.2014 issued by the State Cont.case(c)2007 OF 2019 12 of Kerala (Ext.P24 in that writ petition), whereby the Government imposed prohibition of unauthorised construction of bus shelters along PWD roads. The said Government Order reads thus; “In order to ease out the difficulties confronted by the general public who uses buses as primary mode of transport, Government constituted a new agency viz 'Pratheelaha Bus shelters Kerala Ltd.' (PBSKL) on CIAL model which is expected to be a single nodal agency for constructing, developing, maintaining and operating bus shelters at all authorised bus stops in Kerala. 2. Several instances have come to the notice of Government that some agencies other than PWD are constructing bus shelters beside PWD roads without prior sanction of PWD. Government have examined the matter in detail and are pleased to order that the construction of bus shelters along PWD road is entrusted only with PBSKL. No other agencies, including LSGD and DRSA are permitted to construct any amenities along PWD roads and they are strictly prohibited from the construction of bus shelters or any other amenities by the side of PWD roads.” (underline supplied) 12. On 15.02.2021, when this contempt case came up for consideration, this Court passed a detailed order. Paragraph 12 of the said order reads thus; “12. Having considered the submissions made by the Cont.case(c)2007 OF 2019 13 learned counsel for the petitioner, the learned State Attorney for the respondents also the averments in the report dated 02.12.2020, produced along with the memo filed by the learned State Attorney, this Court deem it appropriate to direct respondents 1 and 2 to file individual affidavits explaining the facts and circumstances in permitting unauthorised bus shelter at Uduma Junction, immediately after the demolishion of the existing bus shelter, showing scant regard to the direction contained in Annexure A1 judgment W.P.(C)No.38888 of 2018, the order dated 22.09.2020 in R.P.No.998 of 2019 and also the prohibitory orders issued by the Apex Court in SLP(Civil)No.8519 of 2006.” 13. The 1[st] respondent Chief Engineer, Public Works Department, Kerala State Transport Project and also the 2[nd] respondent District Collector, Kasaragod have filed individual affidavits, pursuant to the order of this Court dated 15.02.2021. In paragraph 7 of the affidavit filed by the 1[st] respondent, it is stated that, after the demolishion of existing bus shelter at Uduma Junction, the same political party has constructed another bus shelter near the same location, which is 1.3 meters away from the bus bay and 4.60 meters away from the edge line of carriage bay. The said bus shelter was constructed without permission from the Department. If any action is taken to Cont.case(c)2007 OF 2019 14 demolish the newly constructed bus shelter, it would lead to wild protest against the Department, since it is used by common people. The 2[nd] respondent District Collector has also taken a similar stand in paragraph 10 of the affidavit dated 13.11.2021. 14. In **Satheesh v. Travancore Devaswom Board and others [2022 (1) KLT 940 (DB)]** this Court held that, once roads 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. Footpaths are not intended for stocking articles for trade or for display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for holding campaigns, demonstrations, etc., by political parties and other organisations, by causing obstructions to free movement of pedestrians. No political party or organisation can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and Cont.case(c)2007 OF 2019 15 reduced mobility to walk in unsafe circumstances. The service roads provided on the side of National Highway and bypass constructed as per the Manual of Specifications and Standards prescribed by the Indian Roads Congress in IRC:SP:73-2007 or IRC:SP:84-2009 cannot be converted as a parking space for commercial or other establishments, religious institutions, etc., or even for putting up temporary structures in connection with festivals in temples, churches, mosques, etc. or in connection with any protest by any political parties or for putting up temporary structures as resting place for headload workers, etc., or for putting up bus shelters by political parties or by any other organisations. Such service roads are for vehicular traffic, which has to be maintained as such, in conformity with the relevant standards prescribed by the Indian Roads Congress. The State holds public roads as a trustee on behalf of the public. By permitting encroachments on public roads by way of temporary structures on the right of way or on the pavements or on the pedestrian facilities provided on such roads, on political considerations or otherwise, the State Government or the concerned Local Self Government Institution is committing Cont.case(c)2007 OF 2019 16 breach of trust. Any failure on the part of the designated authorities, contractor, consultant or concessionaire in maintaining the safety standards of public roads will attract the penal consequences provided under Section 198A of the Motor Vehicles Act, 1988. 15. The 1[st] and 2[nd] respondents, as admitted in the affidavits filed on 16.11.2021, have not taken any action against the unauthorised construction of bus shelter by DYFI Uduma Block Committee, after the demolishion of the existing bus shelter at Uduma Junction, though such construction was made flouting the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra. By permitting such constructions encroaching the right of way or the pavements or the pedestrian facilities provided on public roads, the State Government, the concerned Local Self Government Institutions and the officers concerned like the 1[st] and 2[nd] respondents herein are committing breach of trust. The attempt made by the 1[st] and 2[nd] respondents to protect the unauthorised construction made by such political organisations has to be deprecated in the strongest words and I do so. Cont.case(c)2007 OF 2019 17 16. It is pertinent to note that by the order dated 16.11.2021 in SSCR No.9 of 2021, the Division Bench of this Court has directed the State of Kerala, represented by the Chief Secretary to Government; the Principal Secretary to Government, Public Works Department; and the Project Director, National Highway Authority of India, Thiruvananthapuram, to take necessary steps to ensure strict compliance of the directions contained in the decision referred to supra by all concerned, in letter and spirit, by maintaining the roads and pedestrian facilities in the State, strictly in conformity with the relevant standards and guidelines, without any encroachment whatsoever on the right of way or on the pedestrian facilities provided as per such standards and guidelines, in order to ensure the safety of most vulnerable road users, such as pedestrians, cyclists, children, elderly and the differently-abled persons. 17. Today, when the case is taken up for consideration, it is submitted by the learned counsel for the petitioner and also Sri.Renjith K.R., the learned Government Pleader that the bus shelter constructed at Uduma Junction, immediately after the demolishion of existing bus shelter, has already been demolished Cont.case(c)2007 OF 2019 18 on 08.12.2021. In such circumstances, recording the aforesaid fact, this Contempt Case is closed, subject to the observations contained hereinbefore at para 15. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** Cont.case(c)2007 OF 2019 19 ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1** **THE CERTIFIED COPY OF THE JUDGMENT DATED 05/08/2019 IN W.P.(C) NO.38888/2018 ON THE FILE OF THE SINGLE JUDGE.** ## **1ST RESPONDENT'S EXHIBITS:** **EXHIBIT R1(A) A TRUE PHOTOCOPY OF THE CERTIFICATE OF HANDING OVER ROAD KASARAGOD-KANHANGAD (KM 0/000-9/600) DATED 01.11.2021. EXHIBIT R1(B) A TRUE PHOTOCOPY OF THE CERTIFICATE OF HANDING OVER ROAD KASARAGOD-KANHANGAD (KM 9/600-27/780) DATED 01.11.2021.** ## **TRUE COPY** **P.A. TO JUDGE**