Disposed

Saji Joy v. the Executive Engineer

Kerala HC7 Aug 2018WP(C)/18356/2018

Case brief

AI extract

What is this about?

The Court dismissed pleas for quashing eviction notices against street vendors on National Highways. It directed petitioners to apply for permission under the Control of National Highways Act, holding that vending there requires specific highway authority approval rather than general vending laws.

What did the court decide?

Petitioners directed to apply for permission under Section 24 of the Control of National Highways Act within two weeks to maintain status quo; preliminary constitutional challenges stayed pending deci

Saji Joy Vs the Executive Engineer — Kerala HC (2018) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940

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PETITIONER :-

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SAJI JOY, D/O ROSSA, AGED 45 YEARS, THANIPPILLIL HOUSE, LAKKIDI, WAYANAD-673576.

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BY ADVS.SMT.K.K.PREETHA SRI.R.K.PRASANTH

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RESPONDENT(S):

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1. THE EXECUTIVE ENGINEER PWD NH DIVISION, PWD COMPLEX, MANANCHIRA, KOZHIKODE-673001. 2. ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY, SUB DIVISION, KODUVALLY-673572.

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3. THE UNION OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI-110001, REPRESENTED BY THE SECRETARY.

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4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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5. THE CHIEF EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.

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6. VYTHIRI GRAMA PANCHAYATH, VYTHIRI REPRESENTED BY ITS SECRETARY, VYTHIRI PO, WAYANAD.

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R3 BY ADV. SRI.T.V.VINU, CGC R3 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R6 BY ADVS. SRI.V.A.MUHAMMED SRI.V.K.GOPALAKRISHNAN R1,R2,R4 AND R5 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY R4 BY SMT.A.C.VIDYA, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-08-2018, ALONG WITH W.P.(C)NO.23827/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 18356 of 2018 (T)

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			APPENDIX
PETITIONER(S) -------------	' EXHIBIT ---------	S :- -----
EXHIBIT P1	TRUE ISSUE AUTHO	COPY D BY RITY	OF THE REGISTRATION CERTIFICATE THE FOOD SAFETY AND STANDARDS OF INDIA.
EXHIBIT P2	TRUE AFFIX	COPY ED ON	OF THE NOTICE DATED 2.5.2018 THE BUNK SHOP OF THE 1ST PETITIONER.
RESPONDENTS' -------------	EXHIBITS ---------	:- -----	NIL

//TRUE COPY//

P.A. TO JUDGE

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ALEXANDER THOMAS, J.

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W.P.(C)Nos.18356 & 23827 of 2018

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Dated this the 07^th day of August, 2018

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JUDGMENT

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The petitioners in these two writ petitions are street vendors who claimed to eke out their livelihood by vending tea, coffee, fruits, vegetables, ice cream, snacks, mini tiffins, etc. in small bunk shop/shed erected on the side of the National Highway for the last more than 20 years between Lakidi and Chundel in Wayanad District. It is further stated that most of the petitioners who are conducting the said trades are senior citizens who are affected by chronic diseases and some of them are widows. By the impugned notice at Ext.P2 in W.P.(C)No.18356 of 2018 and Ext.P1 in W.P.(C)No.23827 of 2018, issued by respondent No.1, they have been directed to remove all bunk shops, handcrafts, hoarders, banners, flags, construction materials, etc. on the both sides of National Highway-212 (NH-766) from Kunnamangalam to Chundel (KM 15/000 to 66/000) within three days and that respondents 1 and 2 have already started demolition even without allowing the vendors to shift their valuables. That the petitioners

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W.P.(C)Nos.18356 & 23827 of 2018

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have not been given an opportunity of hearing or to represent their cause before the competent authorities. That the impugned action is in violation of the constitutionally protected fundamental rights guaranteed in Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution of India. The petitioners would claim that they are not obstructing the National Highway in any manner and that they are not against any development work but that there is no exigency in abruptly evicting the petitioners without opportunity to shift their business or without making any alternative arrangements. Accordingly the petitioners would contend that respondents 4 and 6 are liable to be directed to provide alternative accommodation to the petitioners before demolishing their bunk shops/sheds. In the light of these factual averments that the petitioners have filed these instant writ petitions.

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The prayers in W.P.(C)No.18356 of 2018 are as

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follows:-

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“i) To issue a writ of certiorari or other appropriate writ or order quashing Ext.P2 as far as petitioner is concerned;

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W.P.(C)Nos.18356 & 23827 of 2018

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ii) To issue a writ of mandamus or other appropriate writ or order directing respondents 4 & 6 to provide alternative accommodation to the petitioner to continue her bunk shop for eking out her livelihood before the existing bunk shop of the petitioner is removed.

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iii) To declare section 26(7) of Control of National Highways (Land and Traffic) Act, 2002 as unconstitutional, as it is in violation of Article 14,19(1)(a),19(1)(g) and 21 of constitution of India;

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iv) To declare section 15 of Kerala Highway Protection Act 1999 as unconstitutional, as it is in violation of Article 14,19(1)(a), 19(1)(g) and 21 of constitution of India.

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v) 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.”

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The prayers in W.P.(C)No.23827 of 2018 are as

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follows:-

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i) To issue a writ of certiorari or other appropriate writ or order quashing Ext.P1 as far as the petitioners are concerned;

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ii) To issue a writ of mandamus or other appropriate writ or order forbearing respondents 1&2 from evicting the petitioners as they have vested with no authority to do so under the National Highways (Land and Traffic) Act 2002;

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iii) To issue a writ of mandamus or other appropriate writ or order directing respondents 4&6 to provide alternative accommodation to the petitioners to continue their bunk shop for eking out their livelihood before their existing bunk

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W.P.(C)Nos.18356 & 23827 of 2018

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shops/sheds are removed;

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iv)To declare section 26(7) of Control of National Highways (Land and Traffic) Act, 2002 as unconstitutional to the extent it is in violation of Article 14,19(1)(a),19(1)(g) and 21 of constitution of India;

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v) To declare section 15 of Kerala Highway Protection Act 1999 as unconstitutional to the extent it is in violation of Article 14, 19(1)(a) 19(1)(g) and 21 of constitution of India;

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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.”

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Heard Smt.K.K.Preetha, learned counsel appearing for

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the petitioners, Smt.A.C.Vidhya, learned Government Pleader appearing for official respondents 1 to 5 and Sri.V.A.Muhammed, learned counsel appearing for respondent No.6-Vythiri Grama Panchayat.

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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

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W.P.(C)Nos.18356 & 23827 of 2018

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held that the Street Vendors (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

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W.P.(C)Nos.18356 & 23827 of 2018

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profitable to refer to paras.17 and 19 of the Division Bench of this

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Court in Cherian Philip's case (supra) which reads as follows:-

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“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.

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18. xxx xxx xxx

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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.”

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6. It can be seen from the reading of the above said

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Division Bench judgment in Cherian Philip's case (supra) that

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W.P.(C)Nos.18356 & 23827 of 2018

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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:-

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“(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.”

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Since the area in question in these cases comes within

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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

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W.P.(C)Nos.18356 & 23827 of 2018

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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:-

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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

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(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

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(ii) to put up a temporary lawning or tent or other similar construction or a temporary stall or scaffolding on the Highway, or

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(iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or

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(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:

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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

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W.P.(C)Nos.18356 & 23827 of 2018

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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;

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(ii)the purpose of such permission;

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(iii) the portion of the Highway in respect of which the permission has been granted,

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and shall be accompanied with a plan or sketch of such portion of Highway.

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(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.

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(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.”

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Therefore it is for the petitioners to seek permission of

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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

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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

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W.P.(C)Nos.18356 & 23827 of 2018

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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 Court in W.P.(C)No.18356 of 2018 on 07.06.2018 will continue to have its efficacy. However it is made clear that in case the petitioners do

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W.P.(C)Nos.18356 & 23827 of 2018

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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.

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With these observations and directions these writ petitions (civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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skj

Saji Joy v. the Executive Engineer

Case brief

What is this about?

What did the court decide?

Saji Joy v. the Executive Engineer

Case brief

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What did the court decide?

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