Kerala High Court
Johnson Mathew vs State Of Kerala on 1 October, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY,THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940
WP(C).No. 31825 of 2018
PETITIONERS:
1 JOHNSON MATHEW
S/O.MATHEW, THOPPIKUDIYIL HOUSE, VALARA P.O., VALARA,
IDUKKI - 685 561.
2 JOHNSON,
S/O.ALEXANDER,
VAZHAKUNNATHU VEEDU,
MANKULAM.P.O.,
IDUKKI - 685565.
3 ELDHO M VARGHESE,
S/O.VARGHESE, VALARA.P.O., COLONYPALAM,
IDUKKI-685561.
4 T.K. RAVI,
S/O.KARUNAKARAN,
THOTTIYIL VEEDU,
NERIYAMANGALAM.P.O.,
ERNAKULAM-686693.
5 ABDUL KAREEN E.A.,
S/O.ABDUL RAHMAN,
ERACKAL VEEDU, VALARA.P.O., 10TH MILE, IDUKKI-685561.
6 SIYAD K.S,
S/O.SYED MUHAMMED,
KEEPOTHY VEEDU, VALARA.P.O.,
COLONYPPALAM, ADIMALY,
IDUKKI-685561.
7 OMANA DEVI,
W/O.LATE BABY,
KANDATHIKUDY, VALARA.P.O., 10TH MILE, IDUKKI-685561.
8 VARGHESE C.G.,
S/O.GEORGE,
CHUTTUVANNIL VEEDU, VALARA.P.O., IDUKKI-685561.
W.P(C)No.31825 of 2018
2
9 MATHEW AUGUSTHY,
S/O.AUGUSTHY,
KAITHOPPIL VEEDU, VALARA.P.O., IDUKKI-685561.
10 DAISY BABU,
W/O.BABU VARKEY,
KOMBANAVALLIL, VALARA.P.O., IDUKKI-685561.
11 MOIDEEN K.M,
S/O.MANNAR VEERAN,
KODAKKANAYIL VEEDU,
VALARA.P.O., IDUKKI-685561.
12 YOUSUF E.A.,
S/O.ABDUL RAHMAN,
ERACKAL VEEDU,VALARA.P.O.,
DEVIYAR COLONY, IDUKKI-685561.
13 VARGHESE MICKLE,
S/O.MICLE, PURAYIDATHIL VEEDU, NERIYAMANGALAM P.O.,
KANJIRAVELI,
ERNAKULAM DISTRICT.
14 JAYADEV K.A.,
W/O.AUGUSTHY,
KOTTAKUDY VEEDU,
NERIYAMANGALAM P.O., HINDU COLONY, ERNAKULAM-686693.
15 ALIYAR S.K.,
S/O.ABDUL KHADER,
SRAMBICAL VEEDU,
ADIMALY.P.O., IDUKKI-685561.
16 BIJU M.R.,
S/O.RAGHAVAN,
VADAPPALLIL VEEDU,
MAMALAKANDOM,
MAMALAKANDOM.P.O.,
ERNAKULAM-686681.
17 V.M. MUHAMMED,
S/O.MOIDEEN, VALIYAPARAMBIL, PALLARIMANGALAM.P.O.,
ERNAKULAM - 686671.
W.P(C)No.31825 of 2018
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18 M.K. KARIM,
S/O.BAPPUTTY,
MARADATHIL VEEDU,
NERIYAMANGALAM.P.O.,
ERNAKULAM - 686693.
19 K.K. SIVARAMAN,
S/O.KOCHAPPAN,
KANIYAPARAMBIL VEEDU,
VALARA.P.O., KOLAMANKUZHU,
IDUKKI-685561.
20 SYED MUHAMMED,
S/O.SEETHI, KEEPPETH VEEDU,
VALAR.P.O., COLONYPALAM, IDUKKI-685561.
21 ABDUL SALEEM P.A,
S/O.ABDUL SAMAD,
PALAMOOTTIL VEEDU,
VALARA.P.O., 10TH MILE, IDUKKI-685561.
22 RAJESH C.R.,
S/O.RAJAPPAN,
CHILAMBIKUNNEL VEEDU, THATTEKANNI.P.O.,
IDUKKI - 685606.
23 NIDEESH P.O.,
S/O.MOHANAN,
PALAMOOTTIL VEEDU, THATTEKANNI.P.O., KUDAKALLU,
IDUKKI - 685606.
24 MOHANAN P.B.,
S/O.BHASKARAN,
PALAMOOTTIL VEEDU, THATTEKANNI.P.O., KUDAKALLU,
IDUKKI-685606.
25 FAISAL P.S.,
S/O.SHAJI P.M.,
PUTHUPARAMBIL VEEDU,
ADIMALY.P.O., IDUKKI-685561.
26 UDAYAKUMAR K.S,
S/O.SASIDHARAN NAIR,
KOMICKAL VEEDU, KALLAR, VATTAYAR.P.O., IDUKKI-685561.
27 ANSHAD P.K.,
S/O.KASIM P.M.,
PULLICHALIL VEEDU,
W.P(C)No.31825 of 2018
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NELLIMATTOM.P.O.,
ERNAKULAM-686693.
28 P.K. SHAMON
S/O.P.M.KOYAN, PONNIRIYAKKAL, PALLARIMANAGLAM.P.O.,
MYLOOR, ERNAKULAM - 686671.
BY ADVS.
SRI.KALEESWARAM RAJ
KUM.A.ARUNA
SMT.K.C.AISHWARYA
SMT.RIYA RAYMOL IYPE
KUM.THULASI K. RAJ
SRI.VARUN C.VIJAY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
LOCAL SELF GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 DISTRICT COLLECTOR,
IDUKKI.
3 ADIMALY GRAMA PANCHAYAT,
ADIMALY-685561,
IDUKKI DISTRICT,
REPRESENTED BY ITS SECRETARY.
4 SECRETARY,
ADIMALY GRAMA PANCHAYAT,
ADIMALY-685561,
IDUKKI DISTRICT.
5 NATIONAL HIGHWAY AUTHORITY OF INDIA,
REPRESENTED BY ITS CHAIRMAN, GG AND 6 SECTOR 10,
DWARKA, NEW DELHI-110075.
6 EXECUTIVE ENGINEER,
NATIONAL HIGHWAY (R DIVISION), MUVATTUPUZHA,
ERNAKULAM.
7 ASSISTANT ENGINEER,
NH(R) SECTION,
NERIYAMANGALAM.
W.P(C)No.31825 of 2018
5
8 CHIEF ENGINEER,
NATIONAL HIGHWAYS,
DEPARTMENT OF PUBLIC WORKS, MUSEUM.P.O.,
THIRUVANANTHAPURAM-695033.
OTHER PRESENT:
SRI.K.V.SOHAN, STATE ATTORNEY,
SRI.LATHEESH SEBASTIAN FOR R3 & R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.10.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P(C)No.31825 of 2018
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ALEXANDER THOMAS, J.
=============================
W.P(C)No.31825 of 2018
=============================
Dated this the 01st day of October, 2018
JUDGMENT
According to the petitioners, they are street vendors for conducting street vending activities adjacent to the National Highway No.85 near Cheeyapara Waterfalls in Idukki Revenue District. The petitioners had now been issued the impugned Exts.P-5 to P-17 notices by respondents 6 & 7, who are the officials of the National Highway Roads Division, whereby the petitioners have been ordered to be evicted from the present locations near to the National Highway etc.
2. The prayers in this Writ Petition (Civil) are as follows:
''i) To issue a writ of certiorari quashing Exts.P5 to P17 and all further proceedings on the basis of the same as unjust, illegal and arbitrary;
ii) To declare that the petitioners are not liable to be evicted from their W.P(C)No.31825 of 2018 7 place of street vending as shown in para 1 of the writ petition;
iii) To issue a writ of mandamus directing the respondents to refrain from obstructing/evicting the petitioners from their present place of street vending as shown in para 1 of the writ petition;
iv) To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit under the facts and circumstances of the case."
3. Heard Sri.Kaleeswaram Raj, learned counsel appearing for the petitioners, Sri.K.V.Sohan, learned State Attorney appearing for respondents 1, 2, 6 to 8 and Sri.Latheesh Sebastian, learned counsel appearing for respondents 3 & 4 (Adimaly Grama Panchayath). It is brought to the notice of this Court that National Highway Authority of India(NAHAI) is not a necessary party in this proceedings, as it has not been entrusted with any powers and functions under the provisions of the Control of National Highways (Land and Traffic) Act, 2002. Hence, notice to R5 will stand dispensed with.
W.P(C)No.31825 of 20188
4. According to the petitioners, they are street vendors who are conducting street vending activities adjacent to the National Highway No.85 and that as the said area comes within the limit of the 3rd respondent-Adimaly Grama Panchayath, the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 will not apply and that the rights to conduct street vending has been recognized in judgments of the Apex Court as in Gainda Ram and others v. M.C.D and others reported in (2010) 10 SCC 715.
5. A Division Bench of this Court in the judgment in Cherian Philip v. National Highways Authority of India reported in 2015 (3) KLT 723 has held that even street vendors who had claimed that they are regulated by the abovesaid Street Vendors Act, will not have any right to conduct street vending in National Highways, which are regulated by the W.P(C)No.31825 of 2018 9 provisions contained in the Control of National Highway (Land and Traffic) Act, 2002. It has been held therein by the Division Bench that as per the provisions contained in the Control of National Highway (Land and Traffic) Act, 2002, for occupation or use of any part of the National Highways, permission of the competent authority under the said Act is required and that without permission of the said statutory authority, no one can use any part of the National Highway, for purposes other than the one envisaged for the use of National Highways. It is further held that the provisions of the Street Vendors Act and Control of National Highway (Land and Traffic) Act, 2002, operated in separate fields and that there is no inconsistency between such enactments. Paras.12, 17 & 19 of the abovesaid judgment of the Division Bench in Cherian Philip's case (supra) reported in 2015 (3) KLT 723, reads as follows:
"12. The Parliament has enacted the National Highways Act, 1956 to provide for the declaration of certain Highways W.P(C)No.31825 of 2018 10 to be National Highways and for matter connected therewith. Section 4 provides that all National Highways shall vest in the Union. Another enactment enacted by the Parliament under Entry 23 of the Union List of the 7th Schedule of the Constitution, viz., the National Highways Authority of India Act, 1988. Under Section 3, the Central Government constituted an authority, viz., National Highways Authority of India. Section 16 provides for functions of the Authority. Another enactment, viz., the Control of National Highways (Land and Traffic) Act, 2002 has been enacted by the Parliament to provide for control of land within the National Highways, right of way and traffic moving on the National Highways and also for the removal of the unauthorised occupation thereof. Under Section 3 of the Central Government by Notification in the Official Gazette is empowered to establish Highway Administration. Chapter III contains the heading "prevention of unauthorised occupation of highways land and their removal". Under Section 23 Highway land is demeed to be the property of Central Government. Section 24 contains provision for prevention of occupation of highway land. Section 24(1) and 24(2) are relevant and are quoted below:
"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.31825 of 2018 11 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 desposited, 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".
Section 26 provides for removal of unauthorized occupation. Section 26(1) provides as follows:
"26. Removal of unauthorised occupation.-- (1) Where the Highway Administration or the officer authorised by such administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the W.P(C)No.31825 of 2018 12 reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the Highway Administration and in case such person fails to deliver such possession within such period, be shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27".
From the above Parliamentary enactments it is clear that all affairs pertaining to the National Highways are to be conducted in accordance with the Parliamentary enactments as mentioned above. Without permission of the Highway Administration no one can occupy or use any land of Highway."
17. Right to street vendors have been given in vending zone in the local authority to render services to public and rights of street vendors have been recognised on such a street, lane, side walk, footpath, pavement, public park, etc., where such activities can be easily without any hindrance can be carried out. The 2014 Act does not contemplate any such street vending on the National Highway. National Highways are being used for passing of vehicles from one place to other including long distance. As noted above, provisions of the 2002 Act indicate that for occupation or use of any part of National Highways permission of the Highway Authority is required. Without permission of the Highway Authority no one can use any part of the National Highways. Present is a case where petitioner claim 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 W.P(C)No.31825 of 2018 13 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."
6. Based on the abovesaid aspects, it has been held by the Division Bench that no person can use the National Highway or any part thereof, for any purpose other than the one for which the National Highways are meant to be used and that nobody can claim any right to conduct any street vending, trade or business, without securing permission of the statutory functionary as envisaged in Sec.24 of the Control of National Highway (Land and Traffic) Act, 2002. Accordingly, it is ordered that it will be open to W.P(C)No.31825 of 2018 14 the petitioners to submit necessary applications, reqesting for grant of licence/permission under the provisions of Sec.24(2) of the Control of National Highway (Land and Traffic) Act, 2002, before the competent authority, viz., respondent No.6, to consider the issue as to whether the permission is to be granted.
7. The petitioners will furnish the details of their street vending activities in the said application and it is for the said authority, to take a decision as to whether on the issue of grant of permission as per the provisions of Sec.24(2) of the abovesaid Act, without much delay and affording a reasonable opportunity of being heard to the petitioners through their authorized representatives. Petitioners may file an application in that regard before the 6th respondent, within 2 weeks from the date notified for receiving the certified copy of this judgment and the said application should also be accompanied by the certified copy of this W.P(C)No.31825 of 2018 15 judgment. Thereafter, the 6th respondent, after affording a reasonable opportunity of being heard to the petitioners through their authorized representatives will take a decision thereon and communicate the same to the petitioners, without further delay. The entire exercise in this regard should be duly completed, within a period of 3 months from the date of production of a certified copy of this judgment. Until a decision is taken by the 6th respondent on the abovesaid applications of the petitioners, further coercive steps for evicting the petitioners pursuant to notices as in Exts.P-5 to P-17,will be kept in abeyance. However, it is ordered that in case petitioners do not file the requisite applications for grant of permission under Sec.24(2) before the 6th respondent, within the abovesaid time limit, as aforestated, then the benefit of this direction will stand automatically vacated, without any further orders from this Court.
W.P(C)No.31825 of 201816
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE vgd/05.10.18 W.P(C)No.31825 of 2018 17 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 28.4.2011 REQUESTING SRI.RAVI TO PARTICIPATE THE MEETING HELD ON 10.5.2011.
EXHIBIT P2 TRUE COPY OF THE PHOTOGRAPHS OF THE MEETING HELD ON 10.5.2011.
EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 4.6.2016 ISSUED BY THE RANGE FOREST OFFICER, NERIYAMANGALAM.
EXHIBIT P4 TRUE COPY OF G.O.(MS)NO.90/2011/LSGD DATED 30.4.2011.
EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 17.8.2017 ISSUED BY THE 6TH RESPONDENT TO THE 4TH PETITIONER.
EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 7TH RESPONDENT TO THE 4TH PETITIONER.
EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 5TH PETITIONER.
EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 6TH PETITIONER.
EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 8TH PETITIONER.
EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 11TH PETITIONER.
EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 30.7.2018 W.P(C)No.31825 of 2018 18 ISSUED BY THE 6TH RESPONDENT TO THE 12TH PETITIONER.
EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 15TH PETITIONER.
EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 17TH PETITIONER.
EXHIBIT P14 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 20TH PETITIONER.
EXHIBIT P15 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 21ST PETITIONER.
EXHIBIT P16 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 27TH PETITIONER.
EXHIBIT P17 TRUE COPY OF THE NOTICE DATED 30.7.2018 ISSUED BY THE 6TH RESPONDENT TO THE 28TH PETITIONER.