Sudheesh T.S v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 10TH DAY OF JULY 2018 / 19TH ASHADHA, 1940** **WP(C).No. 17792 of 2018** ## **PETITIONER** **SUDHEESH T.S,** **AGED 41 YEARSM,S/O SUBRAMANIAN,THALIKKAL HOUSE, LOKAMALESWARAM.P.O,KODUNGALLOOR-680664,THRISSUR DISTRICT, PRESENTLY RESIDING AT:OPPOSITE ARRAKKAL BUILDING, SANTHI NAGAR,KODUNGALLOOR-680664.** **BY ADVS.SRI.R.SUDHIR** **SRI.V.K.PRASAD SRI.C.SIVADAS SRI.CIBI C.CHEERAN** ## **RESPONDENTS:** **1. STATE OF KERALA, REP.BY CHIEF ENGINEER,NATIONAL HIGHWAYS,PUBLIC WORKS DEPARTMENT,GOVERNMENT OF KERALA,MUSEUM.P.O, THIRUVANANTHAPURAM-695033.** ## **2. THE EXECUTIVE ENGINEER,** **NATIONAL HIGHWAYS DIVISION,OFFICE OF THE EXECUTIVE ENGINEER(N H DIVISION),KODUNGALLOOR-680664.** **3. THE ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY SUB DIVISION,OFFICE OF THE ASSISTANT ENGINEER,N H SUB DIVISION,MINI CIVIL STATION, NORTH PARAVUR-683513,ERNAKULAM DISTRICT.** **4. KODUNGALLOOR MUNICIPALITY, KODUNGALLOOR-680664,REP.BY SECRETARY.** **R1 TO R3 BY GOVERNMENT PLEADER SMT. A.C . VIDHYA R4 BY ADV. SRI.K.A.NOUSHAD, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 17792 of 2018 (Y)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF AADHAAR CARD NO:5337 4239 OF 40 87 OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE ID CARD NO:08080050090 OF THE PETITIONER ISSUED BY 4TH RESPONDENT EXHIBIT P3 TRUE COPY OF NOTICE NO:DB2/368/02 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE REPLY NOTICE ISSUED DATED 15.05.2018 SENT BY THE PETITIONER EXHIBIT P5 TRUE COPY OF THE NOTICE DB2/368/02 DATED 18.05.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 COPY OF THE APPLICATION UNDER RTI ACT SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** ## **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/24.7.18** **ALEXANDER THOMAS, J. ------------------------------------------W.P.(C)No.17792 of 2018 --------------------------------------------Dated this the 10[th] day of July, 2018** ## **JUDGMENT** According to the petitioner, he is a poor street vendor running a small movable bunk on the remote corner of the Northern side of the Government Girls High School, Kodungalloor in the territorial limits of the fourth respondent Kondugalloor Municipality, with valid identity card issued by the fourth respondent from 2001 onwards for the livelihood, without causing any hazard or obstruction to the traffic and the public. According to the petitioner, he is using whole bunk on a payment which is not directly abutting the National Highway and merely because the payment in question is situated nearby to a National Highway, respondents 2 and 3 are taking steps to evict him and it is causing difficulties for him in the matter of use of his movable bunk. The impugned Ext.P3 notice was initially issued to the petitioner by the third respondent Assistant Executive Engineer, National Highway Sub Division, North Paravur and the petitioner had submitted Ext.P4 objection thereto. Thereafter, the third respondent has issued a fresh show cause notice as per Ext.P5 dated 18.05.2018 directing him to remove his movable bunk from the above said location in question. The W.P.(C)No.17792 of 2018 ..2.. petitioner had submitted Ext.P6 application under the Right to Information Act, 2005 before the third respondent seeking certain details including the copy of the alignment map of the National Highway in the area in question. According to the petitioner, there was no proper reply was given to Ext.P6 application filed under the RTI. It is in the light of these factual aspects that the petitioner had preferred the above said writ petition with the following prayers:- “ _i) to call for the entire records of the petitioner's case leading to the issue of Exhibit P-3 and Exhibit P-5 and quash the same;_ _ii) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction declaring that the action of the 3[rd] respondent in issuing Exhibit P-3 and Exhibit P-5 Notices and all actions in pursuance of the same is highly illegal, arbitrary, malafide in nature, discriminatory in character, unjust, unfair, unreasonable and unsustainable and liable to be set aside by this Hon'ble Court._ _iii) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 3[rd] respondent not to take any action in pursuance of the issue of Ext.P-3 and Ext.P-5 Notices to demolish or break the bunk shop of the petitioner or otherwise;_ _iv) To issue a writ in the nature of mandamus or any other writ order or direction directing the 3[rd] respondent to dispose of Ext.P-6 RTI Application submitted by the petitioner by verifying the relevant records._ _v) to issue such other order or orders which are deemed fit and proper in the facts and circumstances of the case;_ _A N D vi) to award cost to the petitioners._ W.P.(C)No.17792 of 2018 ..3.. 2. When the matter had come up for consideration on 01.06.2018, this Court had admitted the writ petition and directed that there shall be an order of ‘status quo’ as on that date for a period of two months. The said interim ‘status quo’ order is now in force. 3. Heard Sri.C.Sivadas, learned counsel appearing for the petitioner, Smt.A.C.Vidhya, learned Government Pleader appearing for official respondents 1 to 3 and Sri.K.A.Noushad, learned Standing Counsel appearing for respondent No.4 Kodungalloor Muncipality. 4. The learned Government Pleader has made submissions on the basis of the instructions furnished by the 3[rd] respondent and would submit that the petitioner’s bunk is placed on the right side footpath of the National Highway-66 at Kodungalloor Vadakkekada and the curve portion where the side road leads to Kodungalloor Govt. Hospital reach the National Highway and that the petitioner's bunk placed in the footpath is not a movable one as the same is now seen fixed by the covering polythene sheets in support of such will fully obstructed the entry to footpath and leading to serious to the injuries to the pedestrians and students of nearby schools as this is situated in the heart of Kodungalloor Town. 5. That the impugned Exts.P3 and P5 notices were issued only to ensure that the said encroachment made by the petitioner is removed W.P.(C)No.17792 of 2018 ..4.. otherwise as it causes serious indemnities and hardships to the pedestrians and users of the road and that the conduct of the shop by the petitioner is in violation of the provisions contained in the Control of National Highways (Land and Traffic) Act, 2002. 6. It is also stated that Ext.P6 application under the RTI Act has been received from the petitioner and that reply has not so far been given thereto. It is further submitted by the learned Government Pleader that it has been now conclusively held by a Division Bench of this Court in the cases dealt with National Highways (Land and Traffic) Act, 2002 in **Cherian Philip v. National Highways Authority of India (2015 (3) KLT 723)** and held therein that the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 does not contemplate any such street vending on the National Highway and that National Highways which have been used for passing of vehicles from one place to another including long distance and matters relating to land and traffic pertaining to National Highways has been regulated by the parliament by a separate enactment, viz., the Control of National Highways (Land and Traffic) Act, 2002 which stipulate that for occupation or use of any part of National Highways permission of the competent authority of the National Highway is required and without such permission of the competent authority under the said Act no one W.P.(C)No.17792 of 2018 ..5.. can use any part of the National Highway. It will be profitable to refer to paras.17 and 19 of the Division Bench of this Court in **Cherian Philip's** case **(supra)** which reads as follows:- _“17. Right to street vendors have been given in vending zone in the local authority to render services to public and rights of street vendors have been recognised on such a street, lane, side walk, footpath, pavement, public park, etc., where such activities can be easily without any hindrance can be carried out. The 2014 Act does not contemplate any such street vending on the National Highway. National Highways are being used for passing of vehicles from one place to other including long distance. As noted above, provisions of the 2002 Act indicate that for occupation or use of any part of National Highways permission of the Highway Authority is required. Without permission of the Highway Authority no one can use any part of the National Highways. Present is a case where petitioner claim carrying on business with the permission of the Kochi Corporation. The place where the petitioner carries business being part of National Highways, no permission can be granted by the Kochi Corporation to the petitioner to carry on business in the National Highways._ _19. The key words in Section 33 are "..notwithstanding anything inconsistent therein contained in any other law.." Thus the overriding effect to the 2014 Act is given if there is anything "inconsistent'' in any other law. There is nothing inconsistent in 1956 Act, 1988 Act and 2002 Act to the provisions of the 2014 Act. The provisions relating to National Highways and that of the 2014 Act operate in different fields and there is no inconsistency, hence Section 33 of the 2014 Act has no application. Thus it is held that the provisions of the 2014 Act do not override the provisions of 1956 Act, 1988 Act and 2002 Act.”_ 7. In the light of these aspects, Sri.C.Sivadas, learned counsel appearing for the petitioner would submit that directions may be issued by this Court to ensure that the 3[rd] respondent furnishes proper reply to the petitioner to Ext.P6 application filed under the RTI and thereafter if W.P.(C)No.17792 of 2018 ..6.. necessary the petitioner will file an application to the 3[rd] respondent or such other competent authority, under the provisions of Section 24(2) of the Control of National Highways (Land and Traffic) Act, 2002 seeking permission to use the bunk and that directions may be issued to the said competent authority to consider and grant such licence/permission. Section 24 of the Control of National Highways (Land and Traffic) Act, 2002 provides as follows:- ## _**24. Prevention of occupation of highway land.-**_ _(1) No person shall occupy any highway land or discharge any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any officer authorised by such Administration in this behalf_ _(2) The Highway Administration or the officer authorised under sub-section (1) may, on an application made by a person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person-_ _(i) to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway, or_ _(ii) to put up a temporary lawning or tent or other similar construction or a temporary stall or scaffolding on the Highway, or_ _(iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or_ _(iv) to make a temporary excavation for carrying out any repairs or improvements to adjoining buildings,_ _and such permission shall be granted subject to the conditions and on payment of the rent and other charges by issuing permit in the form as may be prescribed: Provided that no such permission shall be valid beyond a period of one month at a time from the date on which the permission has been granted unless it is renewed by the Highway Administration or such officer on an application made by such person for the renewal of the permission. (3) The permission granted under sub-section (2) shall specify therein- (i) the time up to which the permission is granted;_ W.P.(C)No.17792 of 2018 ..7.. _(ii) the purpose of such permission;_ _(iii) the portion of the Highway in respect of which the permission has been granted,_ _and shall be accompanied with a plan or sketch of such portion of Highway._ _(4) The person, to whom the permit has been issued under sub-section (2), shall produce the permit for inspection whenever called upon to do so by any officer of the Highway Administration and shall, on the expiry of the permission granted under such permit, restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration._ _(5) The Highway Administration or the officer issuing the permit under sub-section (2) shall maintain a complete record of all such permits issued, and shall also ensure in every case at the expiration of the period up to which the permission under a permit is granted under that subsection that the possession of the portion of the Highway in respect of which such permission was granted has been delivered to the Highway Administration.”_ 8. In these circumstances it is ordered that the 3[rd] respondent will without any further delay give proper and adequate response to the petitioner’s application as per Ext.P6 filed under the Right to Information Act and necessary steps in that regard should be effected by the 3[rd] respondent within two weeks from the date of receipt of a certified copy of this judgment. Thereafter it will be open to the petitioner to submit his application requesting for grant of licence/permission under the provisions of Section 24(2) of the above said enactment relating to National Highways for use of his bunk. The application in that regard should be filed by the petitioner before the 3[rd] respondent or such other competent authority as per that Act and this W.P.(C)No.17792 of 2018 ..8.. may be done within two weeks after the receipt of the requisite reply from the 3[rd] respondent on Ext.P6 application. Upon receipt of said application the 3[rd] respondent will afford a reasonable opportunity of being heard to the petitioner and then will take a considerable decision on the said application. Until a decision is taken by the 3[rd] respondent or such other competent authority on the above said application filed by the petitioner seeking permission under Section 24(2) of the above said Act, 'status quo' as ordered by this Court on 1.6.2018 will continue. However it is made clear that in case the petitioner does not file the aforesaid application seeking permission under Section 24(2) of the above said Act within the time limit stipulated hereinabove, then the above said 'status quo' order will lose its efficacy. With these observations and directions the above writ petition (civil) will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** skj