Kerala High Court
D.B.Binu vs State Of Kerala on 23 June, 2021
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 23RD DAY OF JUNE 2021 / 2ND ASHADHA, 1943
WP(C) NO. 6660 OF 2017
PETITIONER:
D.B.BINU, AGED 48 YEARS, ADVOCATE, 2ND FLOOR, FATHIMA PLAZA,
PROVIDENCE ROAD, ERNAKULAM DIST. PIN- 682 018
BY ADVS.SMT.REENA ABRAHAM, SRI.SUNNY MATHEWS
RESPONDENTS:
1 STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695 001
2 DIRECTOR GENERAL OF POLICE (STATE POLICE CHIEF)
KERALA POLICE HEADQUARTERS, THIRUVANANTHAPURAM- 695 001
3 TRANSPORT COMMISSIONER AND ROAD SAFETY COMMISSIONER, KERALA
TRANS TOWERS, VAZHUTHACAD, THIRUVANANTHAPURAM- 695 001
4 THE KERALA STATE DISASTER MANAGEMENT AUTHORITY,
REP. BY ITS MEMBER SECRETARY, TRIVANDRUM- 695 001
5 THE MANAGING DIRECOR, STEEL INDUSTRIES KERALA (SILK) ATHANI POST, THRISSUR DIST.
6 THE SECRETARY, KOCHI MUNCIPAL CORPORATION,P.B.NO.1016, ERNAKULAM DIST PIN- 682 011
7 KOCHI BYPASS BEAUTIFICATION SOCIETY, REP. BY ITS SECRETARY REG.NO.EKM/TC/772/2014
EASTERN CORPORATE OFFICE N.H.BYPASS, EDAPPALLY, ERNAKULAM DIST.- 682 024
8 CITY POLICE COMMISSIONER, OFFICE OF THE COMMISSIONER OF POLICE,
REVENUE TOWER, ERNAKULAM DIST. PIN- 682 011
9 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD ERNAKULAM, PIN- 682 030
10 THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, NATIONAL HIGHWAY AUTHORITY OF
INDIA, 2B, RAK TOWER, 2ND FLOOR, LULU SHOPPING COMPLEX, EDAPPALLY ERNAKULAM-682 024
BY ADVS.SRI.K.V.SOHAN, STATE ATTORNEY, SRI.THOMAS ANTONY, SRI.P.G.PRAMOD, G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.6660 of 2017
:: 2 ::
JUDGMENT
Dated this the 23rd day of June 2021 S.MANIKUMAR, C.J.
The issue involved in this public interest litigation is regarding the removal of flex and hoardings in the public roads belonging to the Local Self Government Institutions, State Government as well as the National High ways. Main reliefs sought for in this writ petition are as follows:
"1. issue a writ of mandamus, appropriate order or direction directing respondent No.3 to remove the advertisement boards, flex boards and flags of political parties erected illegally along the stretch starting from Ch.Km 342 to Km 348.382 (Edappally Junction to Vytila Junction) on NH47 Cochin Bypass.
2. Issue appropriate order or direction directing respondent No.3, 6, 8 and 10 to ensure that no advertisement boards, flexes or flags of political parties are erected illegally along the stretch starting from Ch.Km 342 to Km 348.382 (Edappally Junction to Vytila Junction) on NH47 Cochin Bypass.
3. Issue a writ of mandamus, appropriate order or direction directing respondent No.1 to 3 to remove the advertisement boards, flex boards and flags of political parties erected illegally on all public roads in the State in view of Exts.P4, P5 and P6.
4. Issue appropriate order directing 5 th respondent to consider and dispose of Ext.P5 representation."
W.P.(C)No.6660 of 2017:: 3 ::
2. The basic contentions raised in the writ petition is that unauthorised hoardings, flex boards and other installations are put up on the road and public properties without securing any permission from the local bodies/respective authorities of the State Government and the respective authorities of the Government of India. It is true that the Kerala Municipality Act, 1994, the Kerala Panchayat Raj Act, 1994, Kerala Highway Protection Act, 1999 and the Control of National Highways (Land and Traffic) Act, 2002 and other statutory enactments, provisions are made to regulate, putting up of installations on public streets and public places. But, in gross violation of the statutory provisions, installations are put up by political parties and business and other organizations thus creating difficulties to the general public in many ways. However, in spite of earnest efforts made by the petitioner, no action was taken by the statutory authorities to implement the provisions of the Act, and consequent to which the public at large are put to a lot of difficulties and inconveniences. It is also pointed out that due to the unscientific way of putting up of boards, hoardings etc., traffic congestions and accidents are occurring causing serious prejudice and inconvenience to the public.W.P.(C)No.6660 of 2017
:: 4 ::
3. Learned Government Pleader, on instructions, submitted that steps are being taken by the authorities to implement the provisions of respective statutes in its letter and spirit.
4. We have heard the learned counsel for the parties, and perused the pleadings and materials on record.
5. As regards the same issue, in a batch of writ petitions W.P.(C) No.5218 of 2012 and connected cases, this Court has taken into account the relevant provisions of the respective statutes and issued the following directions to the State and Central Governments, local bodies and other stake holders, which have to take care of the policy formulated by the Government in accordance with the provisions of the Kerala Road Safety Act, 2007:
"56. In addition to the directions issued in Shani Johnson's case (cited supra), in the light of the statutory provisions, we dispose of the writ petitions with the following directions:
A) All the unauthorised arches, display boards, hoardings, placards, and banners with poles or frames, etc., fixed to and/or dug into the ground, which abuts the highways, public streets, and pedestrian pavements, shall forthwith be removed. No poles or frames or structures for arches, boards, placards, hoardings, display boards or banners shall be erected on any highway, public road, public passage or pedestrian pathway or pavement. Holes caused on pavements and roads, by reason of erection of frames, poles, structures, placards, hoardings, displaying boards, banners, etc., shall forthwith be repaired.W.P.(C)No.6660 of 2017
:: 5 ::
B) The Secretaries to the Government, LSGD, PWD, State Highways and Heads of Departments, under the respective Acts, extracted above, shall issue appropriate instructions for effective implementation of the above said directions.
C) The District Collectors and the Secretaries of the aforementioned departments shall oversee the implementation of the directions issued by this Court, issue suitable orders, and take appropriate action against the erring officers.
D) The Principal Secretaries to the Government, Public Works Department, Local Self Government Institutions, Government of Kerala, are directed to issue appropriate instructions to the field officers, to remove the nailing, in other words, de-nailing, make trees nail free and thereby, remove all the unauthorised signboards, advertisements, pamphlets etc. The District Collectors shall act in accordance with the orders issued in that regard.
E) The Executive Engineer (Roads) or Executive Engineer (National Highways) of the Public Works Department, who are designated as Highway Authorities as per the provisions of the Kerala Highway Protection Act, 1999, are directed to identify those structures, hoardings, advertisement boards and displays etc., endangering road safety, and take immediate steps for removal thereof, under Section 22 of the said Act.
F) The Project Directors / National Highways Authority of India are directed to take appropriate action, to effectively implement the directions.
G) The Secretaries of Municipal Corporations and Municipalities in the State, under Section 275 of the Kerala Municipalities Act, 1994, are directed to take steps, to identify and remove unauthorised hoardings, banners, flex boards, temporary arches, posters etc. H) Likewise, the Secretaries of the Panchayats are directed to take steps to identify and remove unauthorised hoardings, W.P.(C)No.6660 of 2017 :: 6 ::
banners, flex boards, temporary arches, posters, and other similar structures.
I) The concerned Secretaries are directed to supervise dismantling of outdoor billboards, unauthorised hoardings etc., which causes inconvenience to the commuters.
J) The Secretaries of the concerned Panchayat under Section 209C of the Kerala Panchayat Raj Act, 1994, shall provide necessary assistance to the NHAI for removal of illegal hoardings, banners, flexes, temporary arches, posters etc. K) In the event, the Municipal Authorities/officials, who come across the cases of breaches, not attracting any of the Municipal Laws, shall forthwith report the same to the District Collectors. On such information, being received by the District Collectors, necessary action for removal of such nuisance shall be taken in a time bound manner.
L) Since, in the State of Kerala, certain notified portions of the National Highways are maintained by the National Highways Authority of India the outdoor advertising boards which cause distraction to traffic on such stretches of the Highways shall be identified by the concerned Project Director of NHAI and appropriate remedial action be taken, in accordance with law.
M) The Kerala State Road Safety Authority, constituted under the provisions of Kerala Road Safety Authority Act, 2007, to coordinate action on areas related to road safety among various departments, advice the Government on road safety policy, prescribe and enforce road safety standards and procedures, formulate and implement schemes / projects and programmes relating to road safety and is directed to conduct a detailed study, with the help of various District Road Safety Councils in the State, as regards the harmful effects caused on account of the outdoor hoardings / billboards, installed at various National/ State Highways and elsewhere, and submit a report to the Chief Secretary, to facilitate the State Government to regulate the hazardous outdoor hoardings / billboards.W.P.(C)No.6660 of 2017
:: 7 ::
N) The Road Safety Commissioner/Transport Commissioner, who is the ex officio under Section 9 of the Kerala Road Safety Authority Act, 2007, is directed to look into the damaging effect of roadside advertisements in the light of 'Policy on Roadside Advertisements' published by the Indian Road Congress, 1992.
O) Cluster of wires on trees and electrical poles, be regulated by the statutory authorities and the District Collectors are directed to take appropriate action for removal as per the existing rules.
P) The Commissioner of Police or the Superintendent of Police, as the case may be, shall issue directions to the concerned police personnel, who are entrusted with the job of night patrolling, including the beat marshals, to keep a constant vigil, for preventing the activity of erection/display of illegal hoardings, banners, flexes, temporary arches, posters etc., during night time.
Q) The Commissioner of Police/District Police Chief, shall provide necessary assistance to the Highways Authority under Sections 44 and 15(2) of the Act, 1999 for removal of the unauthorised structures, hoardings, advertisement boards and displays, endangering road safety.
R) Whenever an action is proposed to be taken by the authorities, as stated above, the concerned Assistant Commissioner / Deputy Superintendent of Police shall extend adequate police protection and police help to the local authorities, in the process.
S) Report regarding removal of the above-mentioned unauthorised structures, outdoor hoardings / billboards, be submitted by the competent authorities under the respective enactments, to the District Collectors, every month.
57. The directions issued above, shall be scrupulously implemented, within a period of three months from the date of receipt of a copy of this judgment. The office of the learned Advocate General and the respective standing W.P.(C)No.6660 of 2017 :: 8 ::
counsel shall forward a copy of this judgment to the State Government, for appropriate action, in accordance with the directions issued.
Registry is directed to list the writ petitions after three months, for filing consolidated compliance reports, by the respective Secretaries to the Government."
6. Regarding the non implementation of the provisions of the Kerala Road Safety Authority Act, 2007, in W.P.(C)No.9670/2018 and connected writ petitions, this court by its judgment dated 31 st March 2021 held thus:
64. On an evaluation of the facts and figures in regard to the road accidents, the objectionable installations and other matters that detract the attention of the drivers, we are of the view that; 1) adequate steps shall be taken by the Road Safety Authority and the bodies constituted under the Road Safety Act, 2007 to avoid the road accidents in a war footing and without any delay;
2) The Road Safety Authority, have to undertake necessary investigations and enquiries in order to identify the dangerous installations put up, temporary or permanent, and dangerous trees or branches overhanging from private and public properties and standing by the side of the road which are likely to cause accidents and shall take adequate steps to remove them at the earliest and at any rate within three months from the date of receipt of a copy of the judgment;
3) The Authority shall take urgent steps for the removal of unused concrete and other poles and materials, debris and waste materials stacked on the footpaths and by the side of the roads, and the abandoned motor vehicles on the roads at the earliest and at any rate within three months from the date of receipt of a copy of the judgment;
W.P.(C)No.6660 of 2017:: 9 ::
4) Identify the lands and public properties agreed to be surrendered by the private parties and local bodies for improvement of road facilities on providing alternative lands or compensation to such persons or bodies within four months, and on failure to surrender immediately after adjudication with due notice, take steps to recover them at the earliest and at any rate within one month from the date of such adjudication;
5) The State and the Central Governments shall provide all required timely assistance under any law for the proper functioning of the Authority under Act 2007, especially for the recovery of lands as is specified above;
6) The Central and State Government shall take effective steps in coordination with the Authority under the Road Safety Act, 2007 to regulate the road works done by various departments in order to eliminate the possibility of digging the roads frequently by the different Departments and thereby saving public money and protect the public interest;
7) The Authority under the Road Safety Act, 2007 shall take urgent measures against any body or person for violating any instructions, regulations, rules, notifications etc. of the authority and the Government in regard to the road safety;
8) The Authority under the Road Safety Act, 2007 shall ensure that the local bodies are carrying out their mandatory functions in regard to the road safety and as permitted under the Act, 2007; and
9) The Authority shall also take steps to deal with the requirements of the accident victims in contemplation of the Road Safety Act, 2007 immediately, so as to translate the true intentions of the Act and to ensure timely financial assistance to tide over the urgent necessities , especially among the weaker section of the public.
65. On an appreciation of the provisions of the Road Safety Act, 2007, it is unequivocal that all the functionaries under the Act shall coordinate the activities of all the W.P.(C)No.6660 of 2017 :: 10 ::
Departments functioning under the State and the Central Government within the State of Kerala in order to attain the goal as is envisioned by the framers of Road Safety Act, 2007.
66. Taking into account the above aspects, the authority and other functionaries under the Road Safety Act, 2007 and the State and the Central Governments, are directed to discharge their functions and duties under the Road Safety Act, 2007 and other enactments that are involved in the road safety without fail and immediately as specified above, also taking into consideration the report of the expert discussed above and other guidelines/rules issued by the Central and State Governments and the authority under the Road Safety Act, 2007.
68. The authority shall also ensure that the State Government is diverting the funds to it from the consolidated fund of the State as is provided under the Road Safety Act, 2007 and utilise the same in accordance with the powers conferred on it in all areas of the functions entrusted to it under the Act. Before parting with the judgment, we think it deem and appropriate to state that if the objectives of the Road Safety Act, 2007 are to be achieved and attained, the functionaries under the Road Safety Act, 2007, other road safety authorities and others functioning under other enactments and the Central and State Governments shall function like a well oiled machine. The observations and the directions are made by us also bearing in mind that the right for a safe road to every citizen is a facet of Articles 19 (1) (d) and 21 of the Constitution of India and thus all authorities are duty bound to discharge them without fail. We hope that such authorities and the Governments would rise to the occasion and do the needful in the larger interest of the public and remove all obstacles causing threat and danger to the road safety at the earliest possible time and as specified above.
The Writ Petitions are allowed accordingly."
W.P.(C)No.6660 of 2017:: 11 ::
7. The subject matter in this writ petition is materially and substantially similar in nature and therefore, we dispose of this writ petition in the light of the aforementioned judgments. Comprehensive directions have already been issued in the abovesaid writ petitions and those directions would be applicable to this case also. However, we make it clear that there shall be a direction to the respondents to remove the advertisement boards, flex boards and flags of political parties erected illegally along the stretch starting from Ch.Km 342 to Km 348.382 (Edappally Junction to Vytila Junction) on NH47 Cochin Bypass as early as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.
Writ petition is disposed of.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P. CHALY JUDGE jes W.P.(C)No.6660 of 2017 :: 12 ::
APPENDIX PETITIONER'S ANNEXURE EXHIBITP1 THE TRUE PHOTOCOPY OF THE AGREEMENT DATED 31-12-2014 EXHIBIT P2 TRUE COPY OF THE NEW ITEM PUBLISHED IN MATHRUBHOOMI DAILY DATED 30-01-2017 WIH ENGLISH TRANSLATION EXHIBIT P3 TRUE COPY OF THE NEWS ITEM REPORTED IN MALAYALA MANORAMA DAILY DATED 06-02-2017 WITH ENGLISH TRANSLATION EXHIBITP4 TRUE COPY OF THE JUDGMENTDATED 21-02-2013 IN WPC NO.27011 OF 2012 EXHIBITP5 TRUE COPY OF THE GO(MS)NO.271/2015/DMT DATED 24-06-2015 EXHIBITP6 TRUE COPY OF THE JUDGMENT DATED 08-07-2015 IN WPC NO.20474 OF 2015 EXHIBITP7 TRUE COPY OF THE REPLY DATED 08-02-20-17 OBTAINED BY THE PETITIONER WITH RESPECT TO THE ALLOCATION OF ROAD SARFETY FUND UNDER RIHT TO INFORMATION ACT2005 WITH ENGLISH TRANSLATION EXHIBITP8 TRUE PHTOGRAPHS OF THE ILLEGALLAY ERECTED ADVERTISEMENT BOARDS, FLEXES AND FLAGS EXHIBITP9 TRUE COPY OF THE REPRESENTATION DATED 04-02-2017 FILED BEFORE THE 5TH RESPONDENT WITH COPY TO THE OTHER RESPONDENTS EXCEPT 2ND RESPONDENT EXHIBIT P9(A) TRUE COPY OF THE POSTAL RECEIPT DATED 11-02-2017 EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE RESPONDETS 4 AND 5 ON 04-02-2017.
EXHIBIT P10(A) TRUE COPY OF THE POSTAL RECEIPT DATED 04-02-2017.
// TRUE COPY // P.S. TO JUDGE