Suo Motu vs State Of Kerala on 3 February, 2023

[Cites 12, Cited by 0]

Kerala High Court

Suo Motu vs State Of Kerala on 3 February, 2023

This DBP is registered suo motu based on the proceedings dated 23.12.2022, when it was brought to the notice of this Court that there is accumulation of waste at Aluva Sivarathri Manappuram and that Manappuram is not being maintained clean and tidy. A screenshot taken from the video appeared in online news report is extracted in the proceedings dated 23.12.2022.

2. On 23.12.2022, when this DBP came up for admission, the learned Standing Counsel for Travancore Devaswom Board and also the learned Standing Counsel for Aluva Municipality sought time to get necessary instructions.

3. On 05.01.2023, when this matter was taken up for consideration, a statement dated 01.01.2023 filed on behalf of the 5th respondent Aluva Municipality is placed on record, wherein it is stated that the premises referred to in the news report belongs to Travancore Devaswom Board and the Board has been carrying out the sanitation work. However, all major roads and ways leading to Manappuram are maintained by the -4- DBP No.95 of 2022 Municipality, including sanitation work. Apart from that, the Municipality is maintaining the river banks (Balitharpana kadavus) other than those kadavus, which are under the control and possession of the Travancore Devaswom Board.

4. Heard the learned Senior Government Pleader for the 1st respondent, the learned Standing Counsel for Travancore Devaswom Board for respondents 2 to 4 and also the learned Standing Counsel for the 5th respondent Municipality.

5. The learned Standing Counsel for Travancore Devaswom Board, based on written instructions received on 31.12.2022, would submit that the temple premises is being maintained clean and tidy by the Board. During Mandala- Makaravilakku festival season, in addition to the temple employees, four daily wage employees are being engaged for removing waste. The 4th respondent Administrative Officer of Aluva Sree Mahadevar Temple is taking necessary steps to ensure that the Thanathu Devaswom land, which is having an extent of 1.14 Acres and the additional extent of 10.56 Acres, totalling 11.70 Acres, covered by G.O.(Ms.)No.977/1961/RD -5- DBP No.95 of 2022 dated 19.11.1961 are being maintained clean and tidy, without any encroachment whatsoever.

6. The learned Standing Counsel for Aluva Municipality would submit that all major roads and ways leading to Manappuram and also the Balitharpana kadavus, other than those under the Devaswom Board, are being maintained by the Municipality clean and tidy.

7. In C.S.S. Motor Service v. Madras State [AIR 1953 Madras 279] a Division Bench of the Madras High Court held that all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally.

8. In Saghir Ahmad v. State of U.P. [AIR 1954 SC 728] a Constitution Bench of the Apex Court agreed with the -6- DBP No.95 of 2022 statement of law made by the Division Bench of the Madras High Court in Para.24 of the decision in C.S.S. Motor Service [AIR 1953 Madras 279].

9. In Sodan Singh v. New Delhi Municipal Committee [(1989) 4 SCC 155] a Constitution Bench of the Apex Court held that the primary object of building roads is undoubtedly to facilitate people to travel from one point to another.

10. In Suo Motu v. Travancore Devaswom Board and others [2021/KER/46194 : 2021 SCC OnLine Ker. 13182] - order dated 16/11/2021 in SSCR No.9 of 2021 - a Division Bench of this Court, in which both of us were parties, noticed that despite the enactment of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 by the State Legislature, the law laid down by the Apex Court in Union of India v. State of Gujarat [orders in SLP(Civil)No.8519 of 2006] and the law laid down by this Court in Centre for Consumer Education v. State of Kerala [2019 (3) KHC 957], Shani Johnson v. Kochi Corporation [2019 (3) KHC 928], Shali v. State of Kerala -7- DBP No.95 of 2022 [2019 (5) KHC 118], Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Advisory Committee v. State of Kerala [2019 (5) KHC SN 27 : 2019/KER/48273], Sivaprasad v. State of Kerala [2020 (6) KHC 373], the State of Kerala and the law enforcement machinery have not taken necessary steps to ensure strict enforcement of the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads congress (IRC:103-2012), in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or on the pedestrian facilities on public roads, since any such encroachment will adversely affect the mobility and safety of all pedestrians including those with disabilities and reduced mobility.

11. In Suo Motu [2021/KER/46194 : 2021 SCC OnLine Ker. 13182] this Court directed respondents 2 to 4 in SSCR No.9 of 2021 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 -8- DBP No.95 of 2022 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.

12. Pursuant to the direction contained in the order of a Division Bench of this Court dated 08.06.2021 in W.P. (C)No.11886 of 2021 - Trivandrum Chamber of Commerce and Industry v. State of Kerala and others - in which one among us (Anil K. Narendran, J.) was a party, whereby the State of Kerala was directed to file a counter affidavit explaining the steps already taken to ensure strict enforcement of the orders of the Apex Court, including the order dated 18.01.2013 in SLP(C)No.8519 of 2006, the decision of this Court in Shivaprasad [2020 (6) KHC 373], etc., the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads Congress (IRC:103-2012), in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the -9- DBP No.95 of 2022 right of way or pedestrian facilities on public road, the 1st respondent therein has issued a Circular dated 16.08.2021, whereby the Director of Urban Affairs and the Director of Panchayats are directed not to grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places, except for installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for the development and beautification of streets, roads, highways, etc. and relating to public utility and facilities in connection with the direction of the Apex Court. The Director Urban Affairs and the Director of Panchayats are directed to instruct Local Self Government Institutions accordingly and shall regularly monitor removal of unauthorized constructions from the roads as per the provisions in the respective Statutes in compliance with the directions contained in the orders referred to therein.

13. In Suo Motu v. State of Kerala and others [2022 (7) KHC 185] a Division Bench of this Court, in which both of us were parties, held that, once roads are constructed as per the standards and guidelines prescribed by the Indian -10- DBP No.95 of 2022 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 the display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organisations, by causing any obstruction whatsoever to the free movement of pedestrians. No political party or organisation can be permitted to encroach upon footpaths 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 reduced mobility to walk in unsafe circumstances. Showing scant regard to the law laid down in the decisions referred to supra, political parties and various organisations are permitted to put up structures on footpaths and even on the right of way on public roads, all over the State. The protesters/agitators having political backing are even -11- DBP No.95 of 2022 permitted to lay carpet and place chairs on the footpath. On account of such encroachments, pedestrians including those with disabilities and reduced mobility are forced to walk through the right of way of public roads, in unsafe circumstances. In view of the provisions under clause (4) of Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017, the driver and the riders shall take special care and precautions to ensure the safety of the most vulnerable road users such as pedestrians, cyclists, children, elderly and the differently - abled persons. As per sub-clause (c) of clause (2) of Regulation 22, a vehicle shall not be parked on footpath, cycle path and pedestrian crossing.

14. In view of the statutory provisions referred to hereinbefore and the law laid down in the decisions referred to supra, the roads constructed as per the standards and guidelines prescribed by the Indian Roads Congress 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. No political party, organisation or trader can be permitted to encroach upon footpaths or right of -12- DBP No.95 of 2022 way of public roads, in connection with any protests, demonstrations or trade, by erecting any temporary structures on the right of way or on the pedestrian facilities or by stocking articles for trade forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. Since the State holds public roads as a trustee on behalf of the public, the inaction on the part of the State and the Local Self Government Institutions in preventing such encroachments upon footpaths or right of way of public roads will amount to 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. In the above circumstances, the Secretary of the 5th respondent Aluva Municipality is directed to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public roads leading to Aluva Sree Mahadevar Temple, strictly in terms of the law laid down in the decisions referred to -13- DBP No.95 of 2022 supra, to ensure the safety of the road users, including children, senior citizen and differently-abled persons. He shall conduct periodical inspections, in order to ensure that roads and pedestrian facilities on the public road leading to Aluva Sree Mahadevar Temple are maintained without any encroachments whatsoever. Any such encroachments around Aluva Sree Mahadevar Temple, which would force the road users including those with disabilities and reduced mobility to walk in unsafe circumstances, shall be brought to the notice of the Secretary of the 5th respondent Municipality, by the 4th respondent Administrative Officer, by submitting representations, which shall be acted upon by respondents 4 and 5, taking note of the law laid down in the decisions referred to supra, if found necessary, seeking police aid under Section 550(5)(b) of the Kerala Municipality Act, 1994.

16. The 4th respondent Administrative Officer shall ensure that the temple premises having an extent of 1.14 Acres and the additional extent of 10.56 Acres covered by Government Order dated 19.11.1961 are maintained clean and tidy. The Secretary of the 5th respondent Aluva Municipality -14- DBP No.95 of 2022 shall ensure that all major roads and ways leading to Manappuram and also Balitharpana Kadavus, other than those under the Travancore Devaswom Board, are being maintained clean and tidy.

In the result, this DBP is disposed of with the above directions.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE AV/6/2

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