V. Prabhakaran and others v. National Highways Authority of India and others (W.P.(C) No. 17377 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940** **WP(C).No. 17377 of 2018** ## **PETITIONERS :** **1 V. PRABHAKARAN, AGED 65 YEARS, S/O.RAMANKUTTY, VEETTIKKAD (H), CHUNDEL P.O., WAYANAD 673 123.** - **2** **SHAMEER P.K., AGED 31 YEARS, S/O.KUNJIMUHAMMED, PUTHAN VEEDU, CHUNDEL P.O, WAYANAD 673 123.** **3** **V.N. SHANMUKHAN NAIR, AGED 59 YEARS,S/O.NARAYANAN NAIR, VAYYATTE HOUSE, KUNJANGODE, CHUNDEL P.O. - 673 123.** - **4** **SEYD P., AGED 48 YEARS, S/O.ABDU RAHMAN, NASEEYATH HOUSE, CHUNDEL P.O, WAYANAD 673 123.** **5 SAHIRA K.T., AGED 45 YEARS,D/O.ADRU, NASIATH MANZIL, CHUNDEL, WAYANAD 673 123.** **BY ADVS.SRI.E.NARAYANAN SMT.K.K.PREETHA SRI.R.K.PRASANTH** ## **RESPONDENTS :** ***1. NATIONAL HIGHWAY AUTHORITY, KOZHIKODE, REPRESENTED BY THE EXECUTIVE ENGINEER, PWD NH DIVISION, PWD COMPLEX, MANANCHIRA, KOZHIKODE - 673 001.** **[DELETED]** **WP(C).No. 17377 of 2018** - **1ST RESPONDENT IS DELETED AS PER ORDER DATED 27/06/2018.** **2. ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY, SUB DIVISION, KODUVALLY - 673 572.** **3. THE UNION OF INDIA, REPRESENTED BY THE CHIEF SECRETARY, NEW DELHI - 110 001.** **4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **5. THE CHIEF EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** ## ***ADDL. 6TH RESPONDENT IMPLEADED :** **6. VYTHIRI GRAMA PANCHAYAT, VYTHIRI, REPRESENTED BY ITS SECRETARY, VYTHIRI P.O., WAYANAD-673123.** - **ADDL. 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 4.6.2018 IN I.A.9618/2018.** **R2, R4 & R5 BY SRI.K.V.SOHAN, STATE ATTORNEY R3 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 17377 of 2018 (V)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 2.5.2018 AFFIXED ON THE BUNK SHOP OF THE 1ST PETITIONER.** ## **RESPONDENT(S)' EXHIBITS** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** **24.7.2018** ## **ALEXANDER THOMAS, J. -------------------------------------------** ## **W.P.(C)No.17377 of 2018 --------------------------------------------Dated this the 17[th] day of July, 2018** ## **JUDGMENT** Petitioners claim to be street vendors who make out their livelihood by vending tea, coffee, fruits, vegetables, ice cream, tiffins, etc. in small bunk shops and sheds situated on the side of the National Highway for the last 15 to 18 years. It is further averred that by the impugned Ext.P1 notice dated 2.5.2018 issued by the Executive Engineer, National Highways under the 5[th] respondent wherein it has been directed that all bunk shops, handcarts, hoarders, banners etc. should be removed from both sides of National Highway 212 (NH 766) from Kudamangalam to Chundel (KM 15/000 upto 66/000) within three days. According to the petitioners, they were not given an opportunity of being heard or represent the case before the competent authority before the issuance of the impugned Ext.P1 notice and that the impugned action is a clear violation of the fundamental rights guaranteed to the petitioners under Articles 14, 19(1) (a), 19(1)(g) and 21 of the Constitution of India. That the petitioners were not against any development work but that there is no exigency to abruptly evict the petitioners without opportunity to shift their business or without making any alternative remedies. It is in the light of these factual W.P.(C)No.17377 of 2018 ..2.. ## averments the petitioners have filed this writ petition with the following prayers:- _“i)To issue a writ of certiorari or other appropriate writ or order quashing Ext. P1 as far as petitioners 1 to 5 are concerned;_ _ii) To issue a writ or mandamus or other appropriate writ or order direction to respondents 1& 2 to arrange alternative place for continue their occupation before the eviction from present place;_ _iii) To declare that section 26(7) of Control of National Highways (Land and Traffic) Act, 2002 is unconstitutional, as it is in violation of Article 14,19(1) (a), 19(1)(g) and 21 of constitution of India;_ _iv) To declare that section 15 of Kerala Highway Protection Act 2000 unconstitutional, as it is in violation of Article 14,19(1)(a),19(1)(g) and 21 of constitution of India;_ _v) To protect the interest of poor street vendors in rural areas in the interest of justice, as there is no right protected like urban street vendors;_ _vi) To issue such other writ, order or directions which are deemed fit and proper on facts and circumstances of the case and in the interest of justice.”_ 2. The Division Bench of this Court in the judgment in **Cherian Philip v. National Highways Authority of India (2015** **(3) KLT 723)** has construed the provisions contained in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and the provisions contained in the Control of National Highways (Land and Traffic) Act, 2002 and held that the Street Vendors W.P.(C)No.17377 of 2018 ..3.. (Protection of Livelihood and Regulation of Street Vending) Act, 2014 does not contemplate any street vending in the National Highway areas and that the National Highways are being used for passing of vehicles from one place to another including long distance and that the provisions contained in the Control of National Highways (Land and Traffic) Act, 2002 more particularly the provision in Section 24 thereof indicate that the occupational use of any part of the National Highway, permission of the competent authority is required and without permission of such competent authority, no one can use any part of the National Highways. Further it was held that there is nothing in the provisions in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which is inconsistent with the provisions in the Control of National Highways (Land and Traffic) Act, 2002 and that therefore there is no question of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 having any overriding effect over the Control of National Highways (Land and Traffic) Act, 2002. 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,_ W.P.(C)No.17377 of 2018 ..4.. _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._ ## _18. xxx xxx xxx_ _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.”_ 3. It can be seen from the reading of the above said Division Bench judgment in **Cherian Philip's** case **(supra)** that the said case concerned with an area in the Kochi Municipal Corporation; whereas in the instant case the area is stated to come within the limits of the 6[th] respondent-Vythiri Grama Panchayat, Wayanad District. Section 2(c) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 defines 'local authority' as follows:- W.P.(C)No.17377 of 2018 ..5.. _“(c) "local authority" means a Municipal Corporation or a Municipal Council or a Nagar Panchayat, by whatever name called, or the Cantonment Board, or as the case may be, a, civil area committee appointed under section 47 of the Cantonment Act, 2006 (41 of 2006) or such other body entitled to function as a local authority in any city or town to provide civic services and regulate street vending and includes the “planning authority" which regulates the land use in that city or town.”_ 4. Since the area in question in this case comes within the territorial limits of the 6[th] respondent-Vythiri Grama Panchayat, it can be seen that the said authority is not a local authority as understood in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. That apart even if the area is an urban area as envisaged under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, it has been held by the Division Bench of this Court in **Cherian Philip's** case **(supra)** that the said 2014 Act does not contemplate street vending in National Highway and that therefore the activity of street vending in a National Highway should be regulated by the prescriptions made in the Control of National Highways (Land and Traffic) Act, 2002. 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_ W.P.(C)No.17377 of 2018 ..6.. _person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person(i) to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway, or_ _(ii) to put up a temporary lawning or tent or other similar construction or a temporary stall or scaffolding on the Highway, or_ _(iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or_ _(iv) to make a temporary excavation for carrying out any repairs or improvements to adjoining buildings,_ _and such permission shall be granted subject to the conditions and on payment of the rent and other charges by issuing permit in the form as may be prescribed:_ _Provided that no such permission shall be valid beyond a period of one month at a time from the date on which the permission has been granted unless it is renewed by the Highway Administration or such officer on an application made by such person for the renewal of the permission. (3) The permission granted under sub-section (2) shall specify therein- (i) the time up to which the permission is granted;_ _(ii) the purpose of such permission;_ _(iii) the portion of the Highway in respect of which the permission has been granted,_ _and shall be accompanied with a plan or sketch of such portion of Highway._ _(4) The person, to whom the permit has been issued under sub-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.”_ W.P.(C)No.17377 of 2018 ..7.. 5. Therefore it is for the petitioners to seek permission of the competent authority under Section 24 (2) for placing a movable structure or putting up a temporary lawning or tent or such other temporary stall, etc. as envisaged in Section 24(2) of the said Act and it is for the said competent authority to consider whether the request of the petitioners for such permission is to be granted. It is open to the petitioners to make such application before the Executive Engineer/Assistant Executive Engineer of the National Highway Sub division under the 5[th] respondent-Public Works Department and such application seeking permission may be made by the petitioners within two weeks from the date notified for receiving a certified copy of this judgment. In the event of making such application the said competent authority concerned will ensure that an opportunity of hearing is granted to the petitioners either in person or through their authorised representative and then should take a considerable decision on the issue as to whether the permission is to be granted to them as envisaged in Section 24 of the above said Act. Decision in that regard should be taken by the competent authority concerned within six weeks from the date of submission of such application by the petitioner. Until such a decision is so rendered by the competent authority as envisaged under Section 24(2) of the above said Act, the interim 'status quo' order granted by this W.P.(C)No.17377 of 2018 ..8.. Court on 29.5.2018 will continue to have its efficacy. However it is made clear that in case the petitioners do not prefer any application seeking permission under Section 24(2) of the above said Act within the above said stipulated time period of two weeks as afore-stated, then the benefit of the above said direction for maintenance of 'status quo' will stand vacated without any further orders in this regard. It is made clear that all the contentions of the petitioners are left open and if the petitioners have any grievance after the decision is rendered by the competent authority as afore-stated, then it will be open to them to work out their remedies in accordance with law. With these observations and directions this writ petition (civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** skj