A bus shelter obstructing a highway bus bay was held liable to removal despite standing outside the carriageway. The court held that notice to the political organisation that constructed it was unnecessary and dismissed the review petition, leaving the removal direction intact.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942
R.P.No.998 OF 2019 in W.P.(C)No.38888 of 2018
AGAINST THE JUDGMENT IN W.P.(C)No.38888 of 2018(I) OF HIGH COURT OF KERALA DT.05.08.2019
REVIEW PETITIONER :
SIVAPRASAD AGED 29 YEARS
S/O.P.V.KRISHNAN, NANDANAM, AMBANGAD HOUSE, PANYAL.P.O., BAKEL, KASARGOD, PIN CODE-671318.
BY ADVS.
SRI.S.VISHNU (TRIPUNITHURA) SRI.KARTHIK BHAVADASAN
RESPONDENTS/RESPONDENTS/PETITIONER:
REP. BY THE SECRETARY, PUBLIC WORK DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN CODE-695001.
5 MUHAMMED HASEEB.T.K., UDUMA POST, KASARGODE, PINCODE-671319.
R1, R3-4 BY SRI.K.V.SOHAN, STATE ATTORNEY R2 BY ADV. SMT.HEMALATHA R2 BY ADV. SRI.BINU GEORGE R5 BY ADV. SRI.K.RAKESH ROSHAN R5 BY ADV. SMT.THUSHARA.V
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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C.R.
ORDER
The petitioner, who is a third party to W.P.(C)No.38888 of 2018, has filed this review petition under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, after obtaining leave of this Court, seeking review of the judgment of this Court dated 05.08.2019 in that writ petition. The said writ petition was one filed by the 5th respondent herein, who is a resident of Uduma Grama Panchayat, seeking a writ of mandamus commanding the Secretary, Uduma Grama Panchayat; the Chief Engineer, Kerala State Transport Project (KSTP); and the District Collector, Kasaragod, respondents 2 to 4 herein, to remove the existing bus waiting shed situated inside the road margin of Kanhangad - Kasaragod KSTP Road at Uduma Junction, more particularly identified in Ext.P1 photographs. The petitioner has also sought for an order directing the 3rd respondent Chief Engineer to construct median/divider on the road so as to reduce traffic accidents at Uduma town and junction, as per the approval already granted.
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Ext.P4 resolution No.6/2018 dated 11.10.2018, the Panchayat Committee decided to request the 4th respondent District Collector to take necessary steps to remove the bus shelter at Uduma Junction, in front of the railway gate, which is causing obstruction to the development of KSTP Road at Uduma Town. Based on Ext.P4, the District Road Safety Council, Kasaragode, vide Ext.R2(a) resolution dated 16.11.2018, authorised KSTP to take necessary steps to remove the bus shelter at Uduma Junction, on the western side of the railway gate. As evident from Ext.P1 photographs, the bus shelter in question is protruding into the tarred portion of KSTP Road earmarked as bus bay, posing danger to pedestrians and also to motorists. A few meters away from the said bus shelter there are two bus shelters constructed by KSTP on the road margin, without protruding into the tarred portion of the road earmarked as bus bay.
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Government Pleader. Having considered the submissions made by the learned counsel on both sides, this Court by the judgment dated 05.08.2019 disposed of W.P.(C)No.38888 of 2018 by directing the 3rd respondent Chief Engineer and the 4th respondent District Collector to take necessary steps in furtherance of Ext.R2(a) decision of the District Road Safety council (item No.12), within a period of one month from the date of receipt of a certified copy of that judgment.
“5. It is submitted that the road at Uduma Junction at present is only four-lane having a total width of 7 Mts. on the one side and having 14 Mts. on both sides. The disputed bus
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shelter is outside the road carriage way, i,e., outside the 7 Mts. It is 1.50 Mts. from the two-lane carriageway. But at that place, the bus bay having a width of 3 Mts. was constructed by KSTP, which starts 35 Mts. before reaching the disputed bus shelter from Kanjangad side. The disputed bus shelter is jetting into the bus bay to the extent of 1.50Mts. All other dimensions are shown in the sketch plan. 6. Though the disputed bus shelter is not jetting into the tarred portion of the road, it is actually jetting into the tarred portion of the bus bay. The disputed bus shelter though not a hindrance to the free flow of traffic through the road, it is a hindrance to the bus which enters the bus bay. It is also submitted that two bus shelters newly constructed by KSTP are beyond the bus bay."
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support of the said contention, the petitioner placed reliance on Annexure I communication dated 08.01.2019 of the Executive Engineer, Public Works Department, Kerala State Transport Project Division, Kannur. In Annexure I it is stated that Uduma township extends from Ch.8+700 to 9+000km along the route of KSTP Road. As per the original contract drawing the said stretch of the road was envisaged as two-lane carriageway of 10m overall width. Due to the presence of a railway crossing in the approach road at 8+850km, tailgating of vehicles from the level crossing extends to the project road during periodic closure of the railway gate during busy hours. Hence, in order to ease traffic flow, KSTP took up and completed four-lining of the project road at Uduma Junction with a central median. As clarified by the Supervision Consultant, the disputed bus shelter falls outside the four-lane limit and the said bus shelter needs to be demolished in case of further expansion plan (six-lane), which is not included in the current purview of the project. In the review petition, the petitioner would contend that the bus shelter is in existence for the last 22 years, which cater the needs of the public at large. The decision to remove the bus shelter on the ground that it causes hindrance to the traffic, was taken on extraneous considerations.
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of KSTP showing the lie of the State Highway at Uduma Junction, with specific reference to the width of the tarred portion, road margin, footpath, etc. and the location of the bus shelters is placed on record by 01.11.2019.
the tarred portion of the road, the disputed bus shelter which protrudes into the bus bay and also the newly constructed bus
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shelters by KSTP, is reproduced hereinbelow;
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perusal of this Court a photograph of the disputed bus shelter opposite to the railway gate at Uduma Junction. The said photograph is reproduced hereinbelow;
As evident from the photograph, the 'hip-roof' of the bus shelter, which slops downwards, is only a few feet away from the edge of the carriageway of the four-lane KSTP Road, which is marked with white line. A stage carriage by name 'Rahi Deluxe' operating on the route Kasaragod - Kanhangad is seen stopped inside the carriageway, in front of the bus shelter, allowing the passengers to board and alight near the edge of the carriageway. [The registration mark on the front of the said stage carriage is not clearly visible, as the said vehicle is fitted with an unauthorised 'crash guard/bull bar', posing serious safety concerns to the pedestrians.] Passengers are seen standing near the edge of the carriageway in front of the bus shelter, in order to board stage carriages. In the order dated 07.01.2020, this Court noticed that the bus shelter in
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question at Uduma Junction poses serious safety concerns to bus passengers and also to pedestrians, including those with disabilities and reduced mobility.
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disputed bus shelter at Uduma Junction protrudes into the bus bay having a width of 3m, to the extent of 1.5m. The said fact is evident from Ext.P1 photographs produced along with W.P.(C)No.38888 of 2018 and also Annexure 2, Annexure 2(a) and Annexure 2(b) photographs produced along with the reply affidavit filed by the review petitioner. The bus shelter in question at Uduma Junction poses serious safety concerns to bus passengers and also to pedestrians, including those with disabilities and reduced mobility. The disputed bus shelter causes hindrance to the buses which enter the bus bay. The two new bus shelters constructed by KSTP on the road margin, without protruding into the tarred portion of the road earmarked as bus bay, are at a distance of only 30m from the disputed bus shelter.
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be determined by the competent authority under Section 18. Clause (d) of Section 2 define 'competent authority' to mean any officer of the Government in Public Works Department appointed by Government by notification in the Gazette to be the competent authority for the purposes of the Act. Clause (e) of Section 2 define 'control line' to mean a line beyond the building line as may be determined by the competent authority under Section 18.
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water or other effluents into the highway and using the highway for bathing, washing, watering and defecating; (v) blocking, closing, choking or restricting water flow along the sides of the highway or across it, either free flow or guided flow through drains, channels, conduits, sewers, cross drainage works such as culverts, weirs, under-tunnels, bridges, or aqueducts; and (vi) blocking or closing of channels, streams or any water course which passes through any property, either private or public, and forming part of a natural water course which may result in accumulation of water on a highway causing damage to road crust.
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land as highway. As per sub-section (1) of Section 3, the Government may, by notification in the Gazette, declare any road, way or land appurtenant thereto to be a highway and classify it as a State highway or a Hill Highway or a Major District Road or any other category of road. Section 4 of the Act deals with appointment of highway authority. As per Section 4, for the purpose of exercising the powers and performing the duties of a highway authority under the Act for any area or for a highway or part of a highway, the Government shall appoint, by notification, the Executive Engineer (Roads) or Executive Engineer (National Highways) of the Public Works Department as the highway authority of the respective area. Section 5 of the Act deals with powers and functions of highway authority, which includes the powers and functions to control ribbon development; and to prevent and remove encroachment.
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after having made a survey of each highway and its boundaries, prepare and maintain a plan as approved by the competent authority in respect of such highway. As per sub-section (2), a plan maintained under subsection (1) shall show clearly the boundaries of the highway, the detailed measurements of road widths, the distance between boundary marks and sufficient measurements from fixed points to enable the re-fixation in position of boundary marks in case they have been displaced or tampered with.
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the highway authority to conduct annual check of the boundaries of the highway in its charge with a view to locate and remove encroachments, if any.
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writing to take such measures as may be necessary to remove any obstruction or to provide for free flow of water. As per sub-section (2), any person who has been issued a direction under sub-section (1) shall comply with it within fifteen days from the date of its receipt and such person, if fails to comply with the direction, shall be deemed to have contravened the provisions of Section 13 or Section 19, as the case may be.
As per sub section (1) of Section 15, where, as a result of the annual check of highway boundaries made under Section 11 or otherwise, the highway authority is satisfied that an encroachment has taken place on the highway under its jurisdiction, it shall serve a notice on the person responsible for the encroachment to remove the encroachment within such time as may be specified in the notice and if the person fails to comply with the notice the highway authority or the officer authorised by it in this behalf shall cause the encroachment to be removed, with the assistance of police, if required. As per sub-section (2), whenever an encroachment is made for the purpose of exposing articles for sale, for opening temporary booth for vending or publicity or for other like purposes, the highway authority shall with the help of police, if necessary, have such encroachment summarily removed. Section 16 of the Act deals with recovery of cost of removal of encroachment. As per
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Section 16, whenever a highway authority or the officer authorised by it remove any encroachment or carry out any protective work in respect of such encroachment, the actual expenditure incurred for such removal or protective work together with fifteen per cent of such amount as overhead charges, shall be recovered from the person responsible for the encroachment, in the manner as may be prescribed.
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Concessionaire must conform to. It was felt that a Standard Manual of Specifications and Standards should be brought out by the Indian Roads Congress (IRC) to ensure uniformity of approach and to facilitate easy implementation by various State Governments. For evolving standards conforming to the Design, Build, Finance and Operate approach, the Planning Commission asked the Indian Roads Congress to develop a Manual of Specifications and Standards for Two-lane Highways, which would, by reference, form an integral part of the Model Concession Agreement and would be binding on the Concessionaire. Its provisions would be enforceable and any breach would expose the Concessionaire to penalties, including termination of the concession.
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Committee. There are Technical Committees under each Apex Committees. The Director General (Road Development) and Special Secretary, MoRTH; the President and Secretary General of Indian Roads Congress are Ex-Officio members of all Technical Committees.
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Concessionaire only for its own reference and for carrying out further investigations. The Concessionaire shall be solely responsible for undertaking all the necessary surveys, investigations and detailed designs in accordance with the good industry practice and due diligence, and shall have no claim against Government for any loss, damage, risk, costs, liabilities or obligations arising out of or in relation to the project report and other information provided by the Government.
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contained in this Manual, the following Standards shall apply in order of priority: (i) Bureau of Indian Standards (BIS); (ii) British Standards, or American Association of State Highway and Transportation Officials (AASHTO) Standards, or American Society for Testing and Materials (ASTM) Standards; (iii) any other specifications/standards proposed by the Concessionaire and reviewed by the Independent Engineer (IE).
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of 300m from the tangent point of intersections to start/end of the bus bay shall be desirable. At minor intersections (e.g. junctions with village roads), distance of 60m may be adopted. However, if a substantial volume of buses is to turn right at the intersection, it is necessary that the bus bay shall be located sufficiently ahead of the intersection so that
the buses can be maneuvered easily from the pick-up stop on the left hand side to the extreme right lane for turning. The location of the bus bays may be fixed after due consultation with the local communities expected to use such facilities. (v) At major four-way intersections involving transfer of a substantial number of passengers from one pickup stop to the other, it might be desirable to construct a single, composite bus stop of suitable design to cater to all the bus routes collectively. (vi) In hilly areas, the bus bays shall be located, preferably, where the road is straight on both sides, gradients are flat and the visibility is reasonably good (usually not less than 50m). Subject to these requirements, it will be advisable to choose locations where it is possible to widen the roadway economically for accommodating bus bays.
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is likely to halt at the bus bay at one time. As per clause (ii), for hilly areas, where there is a general constraint on space, the layout indicated in Fig.13.3 may be adopted. As per clause (iii), bus bays shall be provided on both sides of the Project Highway for each direction of travel independently, so that the buses do not have to cut across the road. Bus bays on opposite sides shall be staggered to a certain extent to avoid undue congestion on the highway. At intersections, the bus bays for up and down direction shall be located on farther sides of the intersection. As per clause (iv), the bus bay shall be provided with a shelter for passengers. The shelter shall be structurally safe and aesthetic in appearance, while also being functional so as to protect the waiting passengers adequately from sun, wind and rain. If the shelter is constructed on the hillside, slopes shall be properly dressed and suitably protected to avoid slips. The shelter shall be set back from the kerb line by at least 500mm.
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pavement markings with thermoplastic paint having glass beads shall be provided at the bus stops as shown in Figs.13.2 and 13.3 with the word 'BUS' written prominently on the pavement. Pedestrian crossings shall be marked slightly behind the standing position of the buses in order to reduce pedestrian conflicts. The kerbs shall be marked with continuous yellow line to indicate "No Parking".
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intersection so that the buses can be manoeuvered easily from the pickup stop on the left hand side to the extreme right lane for turning. The location of the bus bays may be fixed after due consultation with the local communities expected to use such facilities. (v) At major four-way intersections involving transfer of a substantial number of passengers from one pick-up stop to the other, it might be desirable to construct a single, composite bus stop of suitable design to cater to all the bus routes collectively. (vi) In hilly areas, the bus bays shall be located, preferably, where the road is straight on both sides, gradients are flat and the visibility is reasonably good (usually not less than 50m). Subject to these requirements, it will be advisable to choose locations where it is possible to widen the roadway economically for accommodating bus bays. (vii) Where grade separator is provided, the location of bus bays shall be as under (a) Sufficiently away from the ground intersection. (b) Sufficiently away from the longitudinal slope of the approaches. (viii) The bus bay and passenger shelter shall be designed to provide for safe and convenient use by physically challenged persons as well.
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hilly areas, where there is a general constraint on space, the layout indicated in Fig.12.2 may be adopted. As per clause (iii), the chanelizing island between the paved shoulder and bus-bay shall not be raised; it shall be paved. As per clause (iv), bus bays shall be provided on both carriageways of the Project Highway for each direction of travel independently. At intersections, the bus bays for up and down direction shall be located on farther sides of the intersection. As per clause (v), the bus bay shall be provided with a shelter for passengers. The shelter shall be structurally safe and aesthetic in appearance, while also being functional so as to protect the waiting passengers adequately from sun, wind and rain. If the shelter is constructed on the hillside, slopes shall be properly dressed and suitably protected to avoid slips. The shelter shall be set back from the kerb line by at least 500mm. Para.12.5.6 deals with road markings. As per Para.12.5.6, pavement markings as specified in Section 9 of this Manual shall be provided at the bus stops as shown in Figs.12.1 and 12.2 with the word ‘BUS’ written prominently on the pavement. Pedestrian crossings shall be marked slightly behind the standing position of the buses in order to reduce pedestrian conflicts. The kerbs shall be marked with continuous yellow line to indicate “No Parking”.
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State Highway network, in two phases, with the assistance of the World Bank. The work relating to up-gradation of Kasargod - Kanhangad Road (km:0+000 to km:27+780), under KSTP Phase-II, has already been completed on 23.04.2015. As per the Executive Summary of Environmental Impact Assessment (EIA) and Environmental Management Plan (EMP) for Kasargod - Kanhangad Road, Pilathara - Pappinisseri Road and Thalassery - Valavupara Road published by the Kerala Public Works Department in October 2012, Link-69 Kasargod - Kanhangad road starts at Kasargod (Chainage 0+000) and ends at Kanhangad South (Chainage 28+600), the total length of the stretch being 28.60 km. This link road is a section of State Highway-57 (SH-57), which runs parallel to National Highway-66 (NH-66), formerly NH-17, one of the major National Highway in Kerala. Link-69 passes through Uduma, Pallikkara, Chithari, Ajanoor and Hosdurg.
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for Link-69 Kasargod - Kanhangad road in Table 1 of Executive Summary
of EIA and EMP reads thus;
Table 1 Summary of Improvement Proposals
| Sl.No. | Particulars | Link-69 |
|---|---|---|
| 1 | Starting Chainage | km 0+000 (Kasargod) |
| 2 | Ending Chainage | km 27+744 (Kanhangad) |
| 3 | Length | 27.74 km |
| 4 | Classification | State Highway (SH) 57 |
| 5 | Proposed RoW | Min - 13 m & Max – 20 m |
| 6 | Proposed Carriage Way width |
10 m |
| 7 | Junction Improvements | Major junctions - 4 Nos Minor junctions - 126 Nos |
| 8 | Pavement Composition Details |
Existing CW: Overlaid with 40 mm BC + PCC Widening : 40 BC + 75 DBM +250 WMN + 200 GSB |
| 9 | Drains (both sides) | 22,194 m |
| 10 | Passenger Shelter | 43 Nos |
| 11 | Crash Barrier | 1,010 m |
| 12 | Pedestrian Guard Rail | 4,912 m |
| 13 | Parking Spaces (Taxi, Auto, Jeep) |
Exiting: 19 Nos New: 12 Nos |
| 14 | Oxbow Land | 4 Nos |
| 15 | Bridge/Culvert | Total - 59 Nos Major Bridge - 3 Nos Minor Bridge - 3 Nos Viaduct - 1 No ROB - 2 Nos Culverts - 50 Nos |
| 16 | Noise Barrier | At all educational buildings for a height of 2 to 3 m - Total length - 42 m |
| 17 | Protection measures | Retaining Wall - 4,310 m (including both sides) Stone Pitching - 335 m Turfing Length - 16,350 m on LHS, 15,750 m on RHS |
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“Several measures have been proposed for enhancing the environment and social aspects. These measures include planting of trees and shrubs beyond that is required according to the law, construction of retaining walls and guardrails, bus bays, parking areas, bus shelters with kiosk, cultural property enhancement, landscaping of oxbow lands, providing sign boards, preserving and landscaping cultural properties, etc. The link specific Mangrove Afforestation Plan, which aims to enhance coastal environment, is one of the major enhancement measure proposed as part of this project. It includes planting of mangroves, construction of retaining walls and guardrails.”
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concessionaire responsible under sub-section (1) to comply with standards for road design, construction and maintenance, results in death or disability, such authority or contractor or concessionaire shall be punishable with a fine which may extend to Rs.1,00,000/- and the same shall be paid to the Fund constituted under Section 164B.
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include sub-contractors and all such persons who are responsible for any stage in the design, construction and maintenance of a stretch of road.
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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, overall objectivity could be continuity and overall safety.
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motorists respect the position of pedestrian. The Guidelines for Pedestrian Facilities have the approval of the Ministry of Road Transport and Highways (MoRTH). Every local authority in the State is bound to provide pedestrian facilities on public roads in conformity with these guidelines.
(5) KHC SN 27] this Court held that, in view of the Guidelines for Pedestrian Facilities formulated by the Indian Roads Congress, vide IRC:103-2012, no parking of vehicles is legally permissible on the 'footpath', which is the portion of right of way of road used for the movement of pedestrians. Any such parking of vehicles on the footpath of 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.
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'parking' to mean the bringing of a vehicle to a stationary position and causing it to wait for any purpose other than that of immediately taking up or setting down persons, goods or luggage and includes stopping for more than three minutes. Clause (o) of Regulation 1 defines the term 'road user', which includes a person driving or traveling on the road in a vehicle or otherwise and a pedestrian. Clause (r) of Regulation 1 defines the term 'stopping' to mean halting a vehicle for a very short duration out of free will, either to allow the passenger to board or alight or quick loading or unloading of goods.
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or at a stretch of road where the notified maximum speed limit is 50 km per hour or more. As per sub-clause (c), a vehicle shall not be parked on footpath, cycle path and pedestrian crossing; as per sub-clause (d), before or after an intercession or a junction upto a distance of 50 meters from the edge of intercession or junction; as per sub-clause (e), where it would block access to designated parking places; as per sub-clause (i), in front of the entrance or exit of a property; and as per sub-clause (m), if it is likely to obstruct other vehicle or cause inconvenience to any person.
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enforcement of road safety norms and appropriate treatment of accident victims, constituted a 'Committee on Road Safety', vide its order dated 22.04.2014 - S. Rajaseekaran v. Union of India [(2014) 6 SCC 36] , and the said Committee was notified by the Ministry of Road Transport and Highways, Government of India, on 30.05.2014. In the said decision, after referring to the relevant provisions under the Motor Vehicles Act, which deals with licensing; vehicular fitness; etc. the Apex Court observed that, while improvements in different spheres of law are imminent with passage of time, any change of law has to be preceded by serious debate and consideration of a wide variety of factors all of which takes time. While such changes or amendments can be brought in only upon completion of the necessary exercise, the enforcement of the existing laws would stand on an entirely different footing. Strict and faithful enforcement of all existing laws and norms must be insisted upon not only as an absolute principle of law but also for the huge beneficial effects thereof. Though directions to the States to enforce the existing laws can be issued even in their absence, the Apex Court observed that the matter cannot be allowed to rest merely by issuance of directions. Observance and implementation of the directions to be issued by Court in exercise of the power under Article 142 of the Constitution of India would require continuing scrutiny and therefore, the Apex Court decided to monitor such implementation and to make the
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States accountable for any inaction or lapse in this regard. The Apex court impleaded all the States as party respondents and directed the Government of each State to effectively implement and enforce all the provisions of the Motor Vehicles Act in respect of which the States have the authority and obligation to so act under the Constitution, in addition to the tasks specifically alluded to in the subsequent paragraphs of that order dated 22.04.2014. By the said order, the Apex Court constituted a Committee having the composition, as enumerated in paragraphs 35, and the functions, as enumerated in paragraphs 36.4 to 36.8, to undertake the process of monitoring on behalf of the Court, the measures undertaken by the Central Government and the State Governments and the extent of affirmative action on part of the Union and the States, from time to time.
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remedial steps whenever necessary. In paragraph 94.13 of the said decision, in the context of Lane Driving, the Apex Court held that the Ministry of Road Transport and Highways has already issued the Motor Vehicles (Driving) Regulations, 2017, vide G.S.R.634(E) dated 23.06.2017, which should be implemented by the State Governments and Union Territories strictly. Paragraphs 94.1 to 94.25 of the said decision contains various directions issued by the Apex Court. In paragraph 95, the Apex court has made it clear that, if there is any doubt or clarity is required in implementing those directions, the State Government or Union Territory concerned is at liberty to move the Committee on Road Safety.
(5) KHC SN 27] this Court held that, as per clause (5) of Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017, the driver of a vehicle has to ensure that his vehicle, while moving or when stationary does not cause any hindrance or undue inconvenience to other road users or to occupants of any property. In view of the provisions under sub-clause (i) of clause (2) of Regulation 22, no vehicle shall be parked in front of the entrance or exit of the property. In view of the provisions under sub- clause (c) of clause (2), no vehicle shall be parked on the footpath. In view of the provisions under sub-clause (b) of clause (2) of Regulation
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22, no vehicle shall be parked on a main road or at a stretch of a road where the notified maximum speed limit is 50 km per hour or more. The three Apex Committees in the Indian Roads Congress, i.e., Highways Specifications and Standards Committee; Bridges Specifications and Standards Committee; and General Specifications and Standards Committee are responsible for formulation and updation of Codes of Practices, standards and Guidelines. The Indian Roads Congress has formulated the Manual of Specifications and Standards for the construction of the National Highways and once the National Highways are constructed as per the standards and guidelines prescribed by the Indian 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.
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Planning Commission asked the Indian Roads Congress to develop a Manual of Specifications and Standards for Two-lane/Four-lane Highways.
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Environmental Management Plan (EMP) published by the Kerala Public Works Department in October 2012, the improvements proposed includes widening of project roads, strengthening/reconstruction of the existing pavement for the entire length, provision for footpath cum built- up drain, junction improvements, provision for pedestrian crossing facilities, traffic signs, road furniture and bus shelters. The summary of improvement proposals in Table 1 of Executive Summary of EIA and EMP for Link-69 Kasargod - Kanhangad road includes 43 passenger shelters, 12 new parking spaces for taxi, auto and jeep. Para.E.9 of Executive Summary, the proposed environmental enhancement measures include construction of retaining walls and guardrails, bus bays, parking areas, bus shelters with kiosk, etc.
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Passengers are seen standing near the edge of the carriageway in front of the bus shelter, in order to board stage carriages.
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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. In view of the law laid down by this Court in Kottamom (Kottiyar Mangalam) Sri Darmasastha Temple Advisory Committee [2019 (5) KHC SN 27] , once the National Highways/State Highways are constructed as per the standards and guidelines prescribed by the Indian 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.
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of pedestrians to pass and re-pass, as it might if the street is narrow or congested, but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways. Paragraph 24 of the said decision reads thus;
“24. The true position, then is, 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. Thus the nature of the road may be such that it may not be suitable for heavy traffic and it will be within the competence of the Legislature to limit the use of the streets to vehicles which do not exceed specified size or weight. Such regulations have been held to be valid as within the police power of the State in America. Vide Morris v. Duby [(1927) 71 Law Ed. 966] , Sproles v. Binford [(1932) 76 Law Ed.1167] , and South Carolina State v. Barnwell Bros. [(1938) 82 Law Ed. 734] . For the same reason the State might even prohibit the running of transport buses and lorries on particular streets or roads, if such running would interfere with the rights of pedestrians to pass and re-pass, as it might if the street is narrow or congested, but subject to such limitations the right of a citizen to carry on business
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in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.”
SC 728] a Constitution Bench of the Apex Court agreed with the 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 .
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of another commences. Subject to this, a member of the public is entitled to legitimate user of the road other than actually passing or repassing through it.
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omission upon or near a highway, whereby the public are prevented from freely, safely, and conveniently passing along the highway and that the law requires of users of the highway a certain amount of 'give and take'. In Harper v. G.N. Naden and Sons Ltd. [(1933) 1 Ch. 298] it was held that the law relating to the user of highways is in truth the law of give and take. Those who use them must in doing so have reasonable regard to the convenience and comfort of others, and must not themselves expect a degree of convenience and comfort only obtainable by disregarding that of other people. They must expect to be obstructed occasionally. It is the price they pay for the privilege of obstructing others.
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hold the society to ransom by squatting on the busy thoroughfares, thereby paralysing all civic life. The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution of India, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads - to facilitate traffic - may be defeated. The right is subject to reasonable restrictions under clause (6) of Article 19 of the Constitution. The Apex Court in Sodan Singh held that the principle stated in Saghir Ahmad [AIR 1954 SC 728] in connection with transport business applies to the hawkers' case also. The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public, and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizen to use the pathways, and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application.
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connected together. The petitioners in Olga Tellis v. Bombay Municipal Corporation [(1985) 3 SCC 545] were very poor persons who had made pavements their homes existing in the midst of filth and squalor. It was not a case of a business of selling articles after investing some capital, howsoever meagre. The judgment in Bombay Hawkers Union [(1985) 3 SCC 528] and that in Olga Tellis were delivered within a week, both by Y.B. Chandrachud, C.J. and while dealing with the rights of the squatting hawkers in the former case the learned Chief Justice confined the consideration of the right under Article 19(1)(g) of the Constitution. Besides, in Olga Tellis the validity of Section 314 of the Bombay Municipal Corporation Act was affirmed on the ground that r emoval of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust. Footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laving out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. There
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is no substance in the argument that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing, re-passing, are competing claims and that, the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and re-passing. So long as a person does not transgress the limited purpose for which the pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised to use it, he becomes a trespasser. The common example which is cited in some of the English cases, for example, Hickman v. Maisey [(1900) 1 QB 752] is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass. But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised.
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[(2009) 15 SCC 351] , in the matter of erection of arches on the side of two Major District Roads, namely, Thuraiyur-Perambalur Road and Thuraimangalam-Bungalow Road, which are declared to be highways under Section 3 of the Tamil Nadu Highways Act, 2001, the Apex Court held that the State, being the principal protector of the rights of its citizens, keeping in view the doctrine of public trust as adumbrated in a large number of decisions, including M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] , M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] and Intellectuals Forum, Tirupathi v. State of A.P. [(2006) 3 SCC 549] should not have granted such permission.
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symbolises the will and wishes of people. The policy must reflect such social aspirations of the people. The Government have no special right to erect a statue on a public road. The regulations regarding prohibition of permanent structure like statues on roads would equally apply to the State.
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actually we are showing disrespect to such distinguishing personalities. The memorials should be erected only at unobjectionable places and in any case not on the middle of roads. The names of celebrated artists should not be dragged into the midst of litigation by the State by erecting his statue on the middle of road, to the dislike of motorists and pedestrians.
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bus shelter. In the order dated 07.01.2020, this Court noticed that the disputed bus shelter at Uduma Junction poses serious safety concerns to bus passengers and also to pedestrians, including those with disabilities and reduced mobility.
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measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. Removal of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust. The State, being the principal protector of the rights of its citizens, keeping in view the doctrine of public trust, should not permit any encroachments on the footpaths or pavements. Nobody has got a right to erect any structures on roads. The State is not an exception. The National Highways and State Highways constructed by acquiring private property and by using public funds, can be used only for the travelling needs of public. It cannot be converted for other collateral purposes like erection of statues and memorials.
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Specifications and Standards, since, due to the presence of a railway crossing in the approach road at Uduma Junction (at 8+850km), tailgating of vehicles from the level crossing extends to the project road
during periodic closure of the railway gate during busy hours. KSTP has also constructed two new bus shelters on the road margin, without protruding into the tarred portion of the road earmarked as bus bay, are at a distance of only 30m from the disputed bus shelter.
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railway gate during busy hours. As evident from Ext.R3(a) sketch, KSTP has constructed two new bus shelters on the road margin, without protruding into the tarred portion of the road earmarked as bus bay, as per the specifications and standards prescribed by the Indian Roads Congress.
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bus bay, is causing hindrance to the buses which enter the bus bay.
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Indian Roads Congress, in order to ensure the safety of pedestrians and passengers on State Highways. The State, which holds public streets and pavements as trustee on behalf of the public, cannot permit any political party or organisation to erect bus shelters or any other structures, arches, etc. on public streets and pavements. Pavements are for pedestrians. No political party or organisation has got a right to erect structures, arches, etc. on public streets and pavements.
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Andhra Pradesh [AIR 1964 SC 1372] the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors.
82. In Northern India Caterers (India) Ltd. v. Lt. Governor
of Delhi [(1980) 2 SCC 167] the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record.
83. In Meera Bhanja v. Nirmala Kumari Choudhury [(1995)
1 SCC 170] the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. In Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC 1047] , while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, the Apex Court observed that, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new
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and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'.
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224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/ judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.
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petition fall within the ambit and scope of Order XLVII, Rule 1 of the Code.
Registry shall incorporate a copy of this order in the Judge's Papers
of Cont.Case (C) No.2007 of 2019.
No order as to costs.
Sd/-
ANIL K. NARENDRAN, JUDGE
AV
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APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE COMMUNICATION DATED 8.1.2019 IN WPC.NO.38888 OF 2018 DATED 5.8.2019 PASSED BY THIS HON'BLE COURT.
| ANNEXURE 2 | TRUE COPY OF THE PHOTOGRAPHS TAKEN |
|---|---|
| FROM THE UDUMA JUNCTION REGARDING THE | |
| BUS SHELTER IN DISPUTE |
| ANNEXURE 2(a) | TRUE COPY OF THE PHOTOGRAPHS TAKEN |
|---|---|
| FROM THE UDUMA JUNCTION REGARDING THE | |
| BUS SHELTER IN DISPUTE |
| ANNEXURE 2(c) | TRUE COPY OF THE PHOTOGRAPHS TAKEN FROM THE UDUMA JUNCTION REGARDING THE BUS SHELTER IN DISPUTE |
|---|---|
| ANNEXURE 2(d) | TRUE COPY OF THE PHOTOGRAPHS TAKEN FROM THE UDUMA JUNCTION REGARDING THE BUS SHELTER IN DISPUTE |
| ANNEXURE 2(e) | TRUE COPY OF THE PHOTOGRAPHS TAKEN FROM THE UDUMA JUNCTION REGARDING THE BUS SHELTER IN DISPUTE |
| ANNEXURE 3 | TRUE COPY OF THE MEETINGS OF THE KSTP CONDUCTED ON 22.12.2018 (RELEVANT PAGE) |
RESPONDENTS' EXHIBITS: EXHIBIT R3(a) TRUE COPY OF THE SKETCH PLAN ANNEXURE R5(a) TRUE COPY OF THE LETTER FROM THE OFFICE OF ADVOCATE GENERAL DATED 25/09/2019
ANNEXURE R5(b) TRUE COPY OF THE RELEVANT PORTION OF THE DESHABHIMANI DAILY DATED 26.09.2019
R.P.No.998 of 2019 in 69 W.P.(C)No.38888 of 2018
ANNEXURE R5(c) TRUE COPY OF THE REPORT DATED 19.03.2019 OF VILLAGE OFFICER, UDUMA
3 issues framed by the court
Could removal of a bus shelter protruding into a highway bus bay be resisted because it stood outside the four-lane carriageway?
Was notice to the political party or organisation that constructed the disputed bus shelter necessary before demolition?
Did the grounds raised disclose an error apparent warranting review under Order XLVII Rule 1?
Colour shows how this judgement treated each authority
Shali v. State of KeralaRelied on¶139
Shali v. State of Kerala [2019 (4) KLT 484]
Kottamom (Kottiyar Mangalam) Sri Darmasastha Temple Advisory Committee v. State of Kerala and othersApplied¶180
Kottamom (Kottiyar Mangalam) Sri Darmasastha Temple Advisory Committee [2019 (5) KHC SN 27]
S. Rajaseekaran v. Union of IndiaRelied on¶154
S. Rajaseekaran v. Union of India [(2014) 6 SCC 36] · Who else cites this
S. Rajaseekaran v. Union of IndiaRelied on¶157
S. Rajaseekaran v. Union of India [(2018) 13 SCC 532] · Who else cites this
C.S.S. Motor Service v. Madras StateRelied on¶181
C.S.S. Motor Service v. Madras State [AIR 1953 Madras 279] · Who else cites this
Saghir Ahmad v. State of U.P. and othersRelied on¶197
Saghir Ahmad [AIR 1954 SC 728] · Who else cites this
Sodan Singh v. New Delhi Municipal CommitteeRelied on¶189
Sodan Singh v. New Delhi Municipal Committee [1989 (4) SCC 155] · Who else cites this
H.A. Pal Mohd. v. R.K. SadaranganiReferred¶192
H.A. Pal Mohd. v. R.K. Sadarangani [AIR 1985 Madras 23] · Who else cites this
Harper v. G.N. Naden and Sons Ltd.Referred¶194
Harper v. G.N. Naden and Sons Ltd. [(1933) 1 Ch. 298]
Bombay Hawkers Union v. Bombay Municipal CorporationReferred¶195
Bombay Hawkers Union v. Bombay Municipal Corporation [(1985) 3 SCC 528] · Who else cites this
Olga Tellis v. Bombay Municipal CorporationRelied on¶200
Olga Tellis v. Bombay Municipal Corporation [(1985) 3 SCC 545] · Who else cites this
Hickman v. MaiseyReferred¶202
Hickman v. Maisey [(1900) 1 QB 752]
Abdul Farook v. Municipal Council, PerambalurRelied on¶206
Abdul Farook [(2009) 15 SCC 351] · Who else cites this
M.C. Mehta v. Kamal NathReferred¶205
M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] · Who else cites this
M.I. Builders Pvt. Ltd. v. Radhey Shyam SahuReferred¶205
M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] · Who else cites this
Intellectuals Forum, Tirupathi v. State of A.P.Referred¶205
Intellectuals Forum, Tirupathi v. State of A.P. [(2006) 3 SCC 549] · Who else cites this
P.N.Srinivasan (Deceased) and another v. State of Tamil Nadu and othersRelied on¶206
P.N.Srinivasan (Deceased) and another v. State of Tamil Nadu and others [2014 (1) CTC 561 : AIR 2015 NOC 80] · Who else cites this
Satyanarayan Laxminarayan Hedge v. Millikarjun Bhavanappa TirumaleApplied¶235
Satyanarayan Laxminarayan Hedge v. Millikarjun Bhavanappa Tirumale [AIR 1960 SC 137] · Who else cites this
Thungabhadra Industries Ltd v. Government of Andhra PradeshApplied¶238
[AIR 1964 SC 1372] · Who else cites this
Northern India Caterers (India) Ltd. v. Lt. Governor of DelhiApplied¶240
[(1980) 2 SCC 167] · Who else cites this
Meera Bhanja v. Nirmala Kumari ChoudhuryApplied¶241
Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] · Who else cites this
Aribam Tuleshwar Sharma v. Aribam Pishak SharmaApplied¶243
Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC 1047] · Who else cites this
Parsion Devi v. Sumitri DeviApplied¶246
Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] · Who else cites this
Lily Thomas v. Union of IndiaApplied¶249
Lily Thomas v. Union of India [(2006) 3 SCC 224] · Who else cites this
Anantha Reddy N. v. Anshu KathuriaApplied¶251
Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534] · Who else cites this
10 provisions across 4 enactments
SIVAPRASAD
THE STATE OF KERALA
THE SECRETARY, UDUMA GRAMA PANCHAYATH
CHIEF ENGINEER, KSTP
DISTRICT COLLECTOR, KASARGODE
MUHAMMED HASEEB.T.K.
ANIL K.NARENDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
