Allowed

Jacob George v. Assistant Executive Engineer

Kerala HC13 Dec 2021WP(C)/25216/2021

Case brief

AI extract

What is this about?

The Kerala High Court directed the Assistant Executive Engineer to remove unauthorised bunks and structures encroaching on the road margin of NH-183 at Velichiyani, citing the successor's duty under Section 26(2) of the Control of Nation Highways Act.

What did the court decide?

Direction to 1st respondent to remove unauthorised bunks and constructions; direction to 3rd respondent to afford adequate protection.

Jacob George Vs Assistant Executive Engineer — Property and Title | Kerala HC (2021)

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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 N.NAGARESH

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MONDAY, THE 13^TH DAY OF DECEMBER 2021/22ND AGRAHAYANA, 1943

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WP(C) NO. 25216 OF 2021

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PETITIONER:

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JACOB GEORGE AGED 45 YEARS S/O. JAMES JACOB, KOLLAMKULAM HOUSE, PARATHODE P.O., VELICHIYANI, KOTTAYAM

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BY ADVS.

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LIJI.J.VADAKEDOM(K/614/1993) REXY ELIZABETH THOMAS ARYA JOSEPH

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RESPONDENTS:

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1 ASSISTANT EXECUTIVE ENGINEER OFFICE OF ASSISTANT EXECUTIVE ENGINEER, NH SUB DIVISION, KANJIRAPPALLY, KOTTAYAM DISTRICT, PIN-686 507

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2 THE EXECUTIVE ENGINEER, OFFICE OF EXECUTIVE ENGINEER, NH SUB DIVISION, MUVATTUPUZHA, ERNAKULAM-686 661

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3 ADDL.R3. THE CIRCLE INSPECTOR OF POLICE, KANJIRAPPALLY POLICE STATION, KANJIRAPPALLY PO, KOTTAYAM DISTRICT-686 507

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(ADDL.R3 IS IMPLEADED AS PER ORDER DATED 06.12.2021 IN IA.1/2021 IN WPC.25216/2021)

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BY SMT.VINITHA B, SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.25216/2021

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N. NAGARESH, J.

W.P.(C) No.25216 of 2021 B

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Dated this the 13^th day of December, 2021

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioner seeks to direct the 1^st respondent to

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take necessary steps to remove the unauthorised bunks and structures made in the road margin at the side of the property of the petitioner covered by Ext.P1 tax receipt.

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The petitioner is a resident of Ward No.6 of Parathode Grama Panchayat in Kanjirappally Taluk. During 2020, the petitioner noted that on both sides of the road margin of NH-183, which abuts the property of the petitioner, there started unauthorised vending activities by several persons. Even temporary structures were seen constructed.

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The petitioner states that most of the stalls were selling food articles and the waste materials from the

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W.P.(C) No.25216/2021

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unauthorised vending were being dumped into the property of the petitioner. The petitioner therefore submitted Ext.P3 representation dated 06.11.2020 to the Secretary of the Grama Panchayat. Ext.P4 representation was submitted to the 1^st respondent-Assistant Executive Engineer, NH Sub Division. No action was taken on Exts.P3 and P4. Thereupon, the petitioner submitted Ext.P5 representation dated 24.11.2020 to the 1^st respondent. To Ext.P5, the petitioner was served with Ext.P6 communication dated 19.01.2021 divulging that on enquiry, it was confirmed that illegal vending activities were being conducted on the road side and such persons were issued with eviction notice on 29.12.2020.

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The petitioner submits that even after the eviction of such persons, three months thereafter, the vending activities are resumed at the road margin, even erecting permanent structures. The petitioner again submitted Ext.P7 complaint to the 1^st respondent. By Ext.P8 communication dated 29.07.2021, the 1^st respondent informed that there are

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W.P.(C) No.25216/2021

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further evictions and notice has been issued to remove the unauthorised constructions. The petitioner is aggrieved by the fact that in spite of Ext.P8, no action has been taken against the road encroachers.

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The 1^st respondent filed a statement in the writ petition, wherein it is stated thus-

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“4. Eviction of the encroachers from Pullupara to Chenkallelppally of NH 183 was arranged. For that, notice was Issued to the unauthorized encroachers on 29.12.2020 and started eviction from Pullupara on 08.01.2021. When the officers reached Velichiyani on 09.01.2021, a group of persons belonging to street vendors union and trade unions forcefully objected the eviction procedures and police had arrested eviction was carried out. The arrested persons on getting station the protesters and thus ball came back after two hours and objected further eviction procedures from Velichiyani. On another day, a group of persons belonging to street vendors union picketed the office premises raising slogans against the eviction procedures. Thus the officers could not complete the eviction work arranged.

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On 29.04.2021, another letter was received from the petitioner stating that though the unauthorized street vendors had been evicted on 08.01.2021, they had again restored the positions and such vending activities have been going on well better than before. Again officers from the undersigned office visited the site and found such unauthorized vendors at the place from which they were evicted on 08.01.2021. Again notices were issued to such encroaches and the matter was intimated to the petitioner on 29.07.2021.

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W.P.(C) No.25216/2021

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It is seen that due to the effect of Corona pandemic situation and the consequential loss of employment, a number of such street vendors and unauthorized box shops have been mushrooming along the road sides. When one group of such encroaches are evicted, another group takes in the positions and hence continued official action is required in this regard. The officers are facing stiff protests from the part of street vendors union and sufficient police protection is also required for such eviction steps.

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The undersigned office always is vigilant in evicting unauthorised encroaches periodically and no delay has been made willfully in such matters.”

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6. I have heard the learned counsel for the petitioner

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and the learned Government Pleader representing the

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respondents.

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The rod margin of NH-183 at Velichiyani is the site of encroachment. On the basis of complaints received, the 1^st respondent had taken action and issued eviction notice to such illegal encroachers as early in the month of December, 2020. The action proceeded and encroachers were evicted. However, the encroachments resumed subsequently in the year 2021. As per Section 26(2) of the Control of Nation Highways (Land and Traffic) Act, 2002, if on periodical inspection of Highway land, if the officer authorised is

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satisfied that an unauthorised occupation has taken place, then such officer can serve notice and direct to restore such highway in its original condition within a specified period.

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This Court had occasion to consider the undesirable activity of mushrooming of illegal, unauthorised and unlicensed bunks on road sides in the judgment in Prof.

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Sebastian Joseph v. Chirakkadavu Grama Panchayat and others [2021 6 KHC 51]. This Court held that the pedestrians have a right to freely walk through footpaths and where there is no paved or laid footpaths, along the side walks of surfaced roads. The said right of pedestrians cannot be permitted to be violated otherwise than in public interest and it cannot be infringed by erecting or parking unlicensed bunks or structures.

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In the case in hand, the 1^st respondent has initiated action as is evident from Ext.P8. The 1^st respondent has stated that when one group of encroachers are evicted, another group takes in the position and hence continued official action is required. The 1^st respondent has also stated

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that the officers are facing stiff protests from the part of street vendors Union and sufficient police protection is also required for such eviction.

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In the facts and circumstances of the case, this Court is of the considered view that such illegal and unauthorised constructions coming on the sides of the road margin of NH-183 are to be removed. Accordingly, there will be a direction to the 1^st respondent to implement Ext.P8 communication and take such necessary steps to remove the unauthorised bunks and constructions made in the road margin at the side of the property of the petitioner. The additional 3^rd respondent shall afford adequate protection for removal of unauthorised structures by respondents 1 and 2.

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Writ petition is disposed of as above.

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Sd/- N. NAGARESH, JUDGE

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aks/14.12.2021

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W.P.(C) No.25216/2021

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APPENDIX OF WP(C) 25216/2021

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PETITIONER'S EXHIBITS

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Exhibit P1	THE COPY OF THE TAX RECEIPT ISS FAVOUR OF THE PETITIONER S	UED IN HOWING
	REMITTANCE OF TAX FOR 1 HECTA	RE 32
	ARES OF LAND IN RESURVEY NO.261 NO.3 OF EDAKKUNNAM VILLAGE	/2, BL
Exhibit P2	PHOTOGRAPH SHOWING SALE ACTIVIT THE ROAD MARGIN OF THE PROPERTY PETITIONER	IES IN OF THE
Exhibit P2A	TWO PHOTOGRAPHS SHOWING TEM CONSTRUCTIONS MADE IN THE ROAD OF PETITIONERS PROPERTY	PORARY MARGIN
Exhibit P2B	PHOTOGRAPH SHOWING THE CONSTRUCT NEW TEMPORARY STRUCTURE IN TH MARGIN OF PETITIONERS PROPERTY	ION OF E ROAD
Exhibit P3	THE COPY OF THE REPRESENTATION 6.11.2020 SUBMITTED BEFORE SECRETARY OF THE GRAMA PANCHA THE PETITIONER AND HIS BROTHER	DATED THE YAT BY
Exhibit P4	THE COPY OF THE REPRESENTATION 17.11.2020 SUBMITTED BY THE PETI	DATED TIONER
	AND HIS BROTHER BEFORE TH RESPONDENT	E 1ST
Exhibit P5	THE COPY OF THE LETTER 24.11.2020 SUBMITTED BY THE PETI	DATED TIONER
	AND HIS BROTHER BEFORE TH RESPONDENT	E 1ST
Exhibit P6	THE COPY OF COMMUNICATION NO.3	2/2016
	DATED 19.1.2021 ISSUED BY TH RESPONDENT TO THE PETITIONER	E 1ST
Exhibit P7	THE COPY OF REPRESENTATION 29.4.2021 SUBMITTED BY THE PETI BEFORE THE 1ST RESPONDENT	DATED TIONER
Exhibit P8	THE COPY OF THE COMMUNI NO.DB2/182/2020 DATED 29.7.2021 BY THE 1ST RESPONDENT	CATION ISSUED

Jacob George v. Assistant Executive Engineer

Case brief

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Jacob George v. Assistant Executive Engineer

Case brief

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