Allowed

Shali P. v. State of Kerala

Kerala HC8 Jul 2019WP(C)/10499/2019

Case brief

AI extract

What is this about?

This writ petition sought enforcement of Section 367(3) of the Kerala Municipality Act to remove unauthorised seating constructs and platforms encroaching on public footpaths in Thiruvananthapuram. The Single Judge held that local authorities must remove such obstructions summarily to ensure pedestrian safety, invoking IRC guidelines and relevant municipal sections.

What did the court decide?

Director that the Secretary remove unauthorised constructions encroaching on public streets causing obstruction within three weeks of judgment.

Shali P. Vs State of Kerala — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

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WP(C).No.10499 of 2019

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PETITIONER:

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SHALI P.,

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AGED 41 YEARS, W/O.DR.UNNIKRISHNAN, RESIDING AT KESHAVABHAVANAM, TC 28/2729, KUNNUMPURAM, VANCHIYOOR, THIRUVANANTHAPURAM- 695572.

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BY ADVS. SRI.V.G.ARUN (K/795/2004) SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM- 695001.

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2 THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM- 695001.

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3 THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM- 695001.

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4 DYFI KOVALAM UNIT, REPRESENTED BY BRANCH COMMITTEE SECRETARY, SAJITH, KOVALAM, THIRUVANANTHAPURAM- 695527.

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Addl.R5 5 THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVNANTHAPURAM. (SUO MOTU IMPLEADED AS PER ORDER DATED 14-06-2019).

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BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION

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SRI MANU RAJ K.J- GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“CR”

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JUDGMENT

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The petitioner, who is stated to be the owner in possession of 4 Ares 5 Sq.Mtr. of property comprised in Re-survey No.53/12 of Vizhinjam Village in Neyyattinkara Taluk, covered by Ext.P1 sale deed No.1513/2018 dated 22.10.2018 of the Sub Registrar Office, Venganoor has filed this writ petition under Article 226 of the constitution of India, seeking a writ of mandamus commanding the 3^rd respondent, who is the Secretary of the 2^nd respondent Corporation to exercise his powers under subsection (3) of Section 367 of the Kerala Municipality Act, 1994 and summarily evict the encroachment of the 4^th respondent DYFI Kovalam Unit, within a time frame to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding the 3^rd respondent to consider Ext.P4 representation dated 27.02.2019, after hearing the petitioner within a time limit to be fixed by this Court.

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Going by the averments in the writ petition, the property covered by Ext.P1 sale deed is being used as a parking area for an Ayurvedic Hospital run by the petitioner's husband. The employees as well as patients coming to that hospital are using that parking area. The said property lies on the eastern

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W.P.(C)No.10499 of 2019 3

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side of a Corporation Road by name 'Peacock Road'. The members of the 4^th respondent unit have put up a seating arrangement in front of the petitioner's property, by placing a concrete slab, partially blocking the entry to her property. The petitioner has placed on record Exts.P2 and P3 photographs showing the unauthorised constructions made in front of her property and that on the road leading to the hospital of her husband. The petitioner preferred Ext.P4 representation dated 27.02.2019 before the 3^rd respondent to remove the illegal encroachment and the said representation has already been acknowledged vide Ext.P5 receipt dated 27.02.2019. Due to inaction on the part of respondents 2 and 3 in removing those unauthorised constructions, the petitioner has approached this Court in this writ petition, seeking various reliefs.

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On 03.04.2019, when this writ petition came up for admission, the learned Government Pleader took notice on admission for the 1^st respondent. The learned Standing Counsel for the Corporation took notice on admission for respondents 2 and 3. Urgent notice on admission by speed post was ordered to the 4^th respondent, returnable by 12.04.2019. The learned Standing Counsel for the Corporation was directed to file a statement.

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Since service of notice was not complete on the 4^th respondent, fresh notice was ordered to the said respondent on 29.05.2019, by special messenger, returnable by 06.06.2019.

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On 06.06.2019, when this writ petition came up for consideration, despite service of notice, none appeared for the 4^th respondent. The learned Standing Counsel for respondents 2 and 3 sought further time to get instructions. This Court ordered that a statement of the 3^rd respondent shall be placed on record by 14.06.2019 explaining the steps, if any, taken for removing the encroachment on public road by the 4^th respondent and others.

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On 14.06.2019, when this writ petition came up for consideration, this Court suo motu impleaded the Secretary to Government, Local Self Government Department, as additional 5^th respondent. The order of this Court dated 14.06.2019 reads thus:

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“The Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram, is suo motu impleaded as the additional 5^th respondent.

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The learned Government Pleader enters appearance for the additional 5^th respondent.

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The Indian Road Congress has issued Guidelines for Pedestrian Facilities vide IRC:No.103-2012. Paragraph 3 of the said guidelines deals with the scope of those guidelines.

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These guidelines cover engineering design and planning aspects of pedestrian facilities on road sides and road crossings in urban and semi-urban areas (para 3.2). The guidelines are intended for use by the local authorities responsible for creating and maintaining semi urban road transport facilities and the guidelines are framed to serve the objectives of universal accessibility and social equity for sustainable transportation (para 3.3).

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Paragraph 4 of the guidelines deals with general principles. As per para 4.2, an effort should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances, and that the motorists respect the position of pedestrian. The aforesaid guidelines have the approval of the Ministry of Road Transport and Highways. Every local authority in the State is bound to provide pedestrian facilities on public roads in conformity with these guidelines.

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The learned Standing Counsel for Thiruvananthapuram Corporation would submit that notice has already been issued to the 4^th respondent for removal of the unauthorised constructions on the Corporation road by name 'Peacock Road' and necessary materials shall be placed on record.

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The 3^rd respondent, who is the Secretary of the 2^nd respondent Corporation, shall file a counter affidavit explaining the steps taken against the unauthorised constructions made by the 4^th respondent and others on public road, as evident from Ext.P3 photographs, which includes even an open stage on public road.

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The additional 5^th respondent shall also file counter affidavit.”

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A statement has been filed by the 3^rd respondent,

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producing therewith a copy of the Annexure I notice dated 10.06.2019 issued by the Assistant Engineer of the Corporation to the 4^th respondent, whereby the 4^th respondent has been directed to remove the unauthorised constructions made in front of the petitioner's property. Paragraph 3 of the statement reads thus;

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“3. It is submitted that as per the directions issued by this Hon'ble Court on 06.06.2019 the Public Works Overseer made a local inspection of the property in question and has filed a report dated 10.06.2019 before the Corporation. It is submitted that on inspection it is found that the property of the petitioner is situated in the Harbour Ward, of the Vishinjam Zone of Trivandrum Corporation. It is also found that just in front of the gate of the plot of the petitioner an unauthorised construction has been made by the 4th respondent by constructing some seats having 5 meters length and 0.50. meters width obstructing fee access to the property of the petitioner to the gate. It is submitted that on the basis of the complaint filed by the petitioner dated 09.03.2019, a notice has been issued to the 4^th respondent to remove the unauthorised construction made by them causing obstruction to the free flow of vehicular traffic as well as pedestrians, invoking the statutory powers conferred on the Secretary, under Section 376(3), read with Section 372 of the K.M. Act 1994.” (underline supplied)

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Heard the learned counsel for the petitioner, the

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learned Government Pleader appearing for the 1^st respondent

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and the additional 5^th respondent and also the learned Standing Counsel for Thiruvananthapuram Corporation, representing respondents 2 and 3. Despite service of notice none appears for the 4^th respondent.

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The grievance of the petitioner, which is highlighted in this writ petition, is the unauthorised constructions made by the 4^th respondent, in front of her property, as seen from Ext.P2 photograph and also construction made on the side of the road leading to the hospital of her husband, as seen from Ext.P3 photographs.

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As evident from Ext.P2 photograph, just in front of the petitioner's property, the 4^th respondent has placed a concrete slab for seating arrangement. The constructions made on the road leading to the hospital of the petitioner's husband, as evidenced by Ext.P3 photographs, include seating arrangement and a concrete platform, which looks like an open stage.

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Section 364 of the Kerala Municipality Act deals with Prohibitions of obstruction in or over streets. As per Section 364, no person shall build any wall or erect any fence or other obstruction, or projection, or make any encroachment in or over any street. As per Section 365, all streets vested in or

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maintained by a Municipality shall be open to all members of the public. Section 367 of the Act deals with removal of encroachments. As per Sub-section (1) of Section 367, the Secretary may, by notice, require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction other than a door, gate, bar or ground floor window situated against or in front of such premises and in or over any street. As per sub-section (2) of Section 367, where the owner

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or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give any person a prescriptive title thereto or that it was erected or may with the permission or licence of any authority duly empowered in that behalf, and that the period, if any, for which the permission or licence, is valid has not expired, the Municipality shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same. As per sub-section (3) of Section 367, where the Secretary is satisfied that any road or public street including footpath, if any, thereof belonging to the Municipality or vested in it or otherwise is encroached upon by any person in any form, either temporarily or permanently so as to cause obstruction or hindrance or inconvenience to traffic and

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users of the street, the Secretary may summarily evict such encroachments and may seize and dispose of any belonging or article that may be found on such road or street and no person shall be entitled to claim compensation for any action taken by the Secretary in this behalf.

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The Indian Road Congress has formulated Guidelines for Pedestrian Facilities, vide IRC:103-2012. Indian Road Congress was set up in December, 1934 on the recommendations of the Indian Road Development Committee (Jayakar Committee) set up by the Government of India, with the objective of Road Development in India. Indian Road Congress works in collaboration with Ministry of Road Transport and Highways (MoRTH). The Director General (Road Development) and Special Secretary, MoRTH, is the Honorary Treasurer of Indian Road Congress. There are three Apex Committees, which are responsible for formulation and updation of Codes of Practices, Standards and Guidelines, i.e., Highways Specifications and Standards Committee; Bridges Specifications and Standards Committee; and General Specifications and Standards Committee. There are Technical Committees under each Apex Committees. The Director General (Road Development) and Special Secretary, MoRTH; the President and

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Secretary General of Indian Road Congress are Ex-Officio members of all Technical Committees.

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In Chapter 1 of IRC:103-2012 'footpath' is defined as a portion of right of way of road used for the movement of pedestrian. Chapter 2 of IRC:103-2012 deals with introduction. As per Para 2.3, all pedestrian facilities ensure social equity. Developing a pedestrian environment means more than laying down a footpath or installing a signal. A truly viable pedestrian system takes into account both the big pictures and smallest details-from how a city is formed and built to what materials are under our feet. Chapter 3 of IRC:103-2012 deals with its scope. As per Para 3.2, the guidelines cover engineering design and planning aspects of pedestrian facilities on roadside and at road crossing in urban and semi-urban areas. As per Para 3.3, the guidelines are intended for use by the local authorities responsible for creating and maintaining semi urban and urban road transport facilities. The guidelines are framed to serve the objectives of universal accessibility and social equity for sustainable transportation. As per Para 4.2, efforts should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances and that the motorists respect the position of pedestrians. As per Para 4.5, the mobility and

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safety of all pedestrians including those with disabilities and reduced mobility should be ensured to promote inclusive mobility and universal accessibility. As per Para 4.6, regular maintenance of all facilities and design elements should be undertaken to maintain accessibility, reliability, usability, safety and continuity. As per Para 4.7, while planning and designing pedestrian facilities, over all objectivity could be continuity and overall safety.

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Chapter 5 of IRC:103-2012 deals with pedestrian level of service. As per Para 5.1, pedestrian spaces should be designed in consideration of human convenience and have to be qualitatively suitable to the needs of human beings. 9 parameters affect the quality of service of a footpath out of which 6 are pertaining to physical characteristics of footpath facility, like footpath width, footpath surface, obstruction, encroachment, potential of vehicular conflict and continuity. The 3 user factors are pedestrian volume, security, comfort and walking environment. Para 5.2 of IRC:103-2012 deals with concept of pedestrian level of service; Para 5.3 deals with physical characteristics; and Para 5.4 deals with user characteristics. Para 6 of IRC:103-2012 deals with pedestrian facility design standards.

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In the instant case, as evident from Ext.P2 photograph, the 4^th respondent has placed a concrete slab for seating arrangement, in front of the petitioner's property, encroaching upon the public street vested in the 2^nd respondent Corporation, causing obstruction to the users of the street, including pedestrians. As evident from Ext.P3 photographs, unauthorised constructions have been made on the road leading to the hospital of the petitioner's husband, by placing a concrete slab for seating arrangement and a concrete platform, which looks like an open stage, encroaching upon the public street, causing obstruction to the users of the street, including pedestrians. In view of the provisions under sub-section (3) of Section 367 of the Kerala Municipality Act, where the Secretary is satisfied that any road or public street including footpath, if any, thereof belonging to the Municipality or vested in it or otherwise is encroached upon by any person in any form, either temporarily or permanently so as to cause obstruction or hindrance or inconvenience to traffic and users of the street, he has ample power to summarily evict such encroachments and seize and dispose of any belonging or article that may be found on such road or street.

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Section 369 of the Kerala Municipality Act deals with

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prohibition of structures or fixtures which causes obstruction in public streets. As per Section 369, no person shall except with the written permission of a Municipality erect or set up within a municipal area any wall, fence, rail, post, step, booth or other structures or fixtures in or upon any public street or upon or over any open channel, well or tank in any street so as to form an obstruction, or an encroachment upon or a projection over, or to occupy any portion of such street, channel, drain, well or tank. As per clause (a) of Section 372, n otwithstanding anything contained in this Act, the Secretary may, without notice, cause to be removed any wall, fence, rail, step, booth, or other structure or fixture which is erected or set up in contravention of the provisions of Section 369.

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Sub-section (3) of Section 376 of the Kerala Municipality Act referred to in Annexure I notice issued to the 4^th respondent deals with eviction of a person in occupation of poramboke land belonging to or vested in a Municipality or under its control and clause (b) of sub-section (3) contemplates a notice to the occupant before eviction. The said provision has no application in the case of unauthorised constructions made encroaching upon the public street including footpath, causing obstruction to the users of the street, including pedestrians.

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In view of the provisions under sub-section (3) of Section 367, Section 369 and clause (a) of Section 372 of the Kerala Municipality Act, the unauthorised constructions made encroaching upon the public street including footpath, causing obstruction to the users of the street, including pedestrians, will have to be removed by the Secretary without any notice to the person who made such unauthorised constructions.

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In view of the Guidelines for Pedestrian Facilities formulated by the Indian Road Congress, vide IRC:103-201, no such constructions are legally permissible on the 'footpath', which is the portion of right of way of road used for the movement of pedestrians. Such constructions on public streets will force pedestrians to walk in unsafe circumstances, which will adversely affect the mobility and safety of all pedestrians including those with disabilities and reduced mobility. Therefore, no local authority shall permit any unauthorised constructions encroaching upon the public streets including footpaths and all such encroachments will have to be removed invoking the provisions under sub-section (3) of Section 367, Section 369 and clause (a) of Section 372 of the Kerala Municipality Act, in order to ensure the mobility and safety of all pedestrians including those with disabilities and reduced mobility.

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In the result, this writ petition is disposed of by directing the 3^rd respondent to take necessary steps to remove the unauthorised constructions seen in Exts.P2 and P3 photographs, i.e., the concrete slabs for seating arrangement and a concrete platform, which looks like an open stage, encroaching upon the public street, causing obstruction to the users of the street, including pedestrians, invoking the provisions under sub-section (3) of Section 367, Section 369 and clause (a) of Section 372 of the Kerala Municipality Act, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a certified copy of this judgment.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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YKB

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W.P.(C)No.10499 of 2019 16

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE PHOTOCOPY OF THE SALE DEED NO.1513/2018 DATED 22.10.2018. EXHIBIT P2 A TRUE PHOTOCOPY OF THE PHOTOGRAPHS EVIDENCING THE ILLEGAL AND UNAUTHORISED CONSTRUCTION IN FRONT OF THE PETITIONER'S GATE. EXHIBIT P3 A TRUE PHOTOCOPY OF THE PHOTOGRAPHS EVIDENCING THE ILLEGAL AND UNAUTHORISED CONSTRUCTION IN THE ROAD LEADING TO PETITIONER'S HUSBAND'S HOSPITAL.

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EXHIBIT P4 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 27.02.2019 PREFERRED BY THE PETITIONER BEFORE THE THIRD RESPONDENT.

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EXHIBIT P5 A TRUE PHOTOCOPY OF THE RECEIPT BY NO.15819 SHOWING THE RECEIPT OF P2 REPRESENTATION.

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RESPONDENTS' EXTS:

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ANNEXURE I:PHOTOSTAT COPY OF NOTICE NO.VZA1-1474/19 DT.10.6.19 ISSUED BY THE ASSISTANT ENGINEER, CORPORATION OF THIRUVANANTHAPURAM TO THE PETITIONER.

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//TRUE COPY//

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PA TO JUDGE

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YKB

Shali P. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shali P. v. State of Kerala

Case brief

What is this about?

What did the court decide?

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