Disposed

Narayana Iyer v. State of Kerala

Kerala HC1 Nov 2022DBP/15/2022

Case brief

AI extract

What is this about?

An unauthorised trade union shed beside a temple was removed during the proceedings. The Court deprecated municipal inaction and held that removal did not end statutory proceedings. It disposed of the petition directing the competent municipal authority to initiate action under Section 406(4) within one month of receiving a certified copy.

What did the court decide?

Competent municipal authority directed to initiate Section 406(4) proceedings against the trade union, taking necessary steps within one month of receipt of a certified copy.

Narayana Iyer Vs State of Kerala — Municipal and Town Planning | Kerala HC (2022)

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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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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 1ST DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944

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DBP NO.15OF 2022

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IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS INITIATED
- REG.

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PETITIONER:

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NARAYANA IYER,

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11ND PUTHEN STREET, NEAR SREE VARAHAM KSHETRAM,
SRIVARAHAM, MANCAUD P.O., THIRUVANANTHAPURAM.

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BY ADV SUO MOTU

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RESPONDENTS:

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

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2 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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3 SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT INSTITUTIONS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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4 THE TRAVANCORE DEVASWOM BOARD, REPRESENTD BY ITS SECRETARY, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM - 695 003.

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5 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM - 695 003.

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6 ASSISTANT DEVASWOM COMMISSIONER, THIRUVANANTHAPURAM GROUP, NEAR VETTAKKORUMAKAN TEMPLE, EAST FORT - 695 023.

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DBP No.15 of 2022

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7 MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, KERALA, INDIA, PIN - 695 033.

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*CORRECTED AS
THIRUVANTHAPURAM MUNICIPAL CORPORATION
REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, KERALA, INDIA, PIN - 695 033.
*7TH RESPONDENT IS SUO MOTU CORRECTED AS THIRUVANANTHAPURAM
MUNICIPAL CORPORATION INSTEAD OF MUNICIPAL CORPORATION OF
THIRUVANANTHAPURAM VIDE ORDER DATED 19/05/2022 IN
DBP.NO.15/2022

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8ADDL R8- CITU
KILIKKODE SECTION UNDER PERUNTHANNI REGION COMMITTEE,
SREEVARAAHA MOORTHI TEMPLE, SREEVARAHAM,
THIRUVANANTHAPURAM - 695 009.
REPRESENTED BY ITS UNIT CONVENER, SRI.JAYAKUMAR,
S/O.KRISHNAN NAIR,
TC 40/996, NJAYAKODU VEEDU, SREEVARAHAM, MANACAUD,
THIRUVANANTHAPURAM - 695 001
*IS SUO MOTU IMPLEADED AS THE ADDITIONAL 8TH RESPONDENT VIDE
ORDER
DATED 24/05/2022 IN DBP 15/2022
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SC, TRAVANCORE DEVASWOM BOARD - TDB
SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD
N.NANDAKUMARA MENON (SR.)
SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
SUMAN CHAKRAVARTHY, SC, THIRUVANANTHAPURAM CORPORATION

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OTHER PRESENT:

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SRI S.RAJMOHAN- -SR GOVERNMENT PLEADER

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THIS DEVASWOM BOARD PETITION HAVING BEEN FINALLY HEARD ON

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19.08.2022 THE COURT ON 01.11.2022, DELIVERED THE FOLLOWING:

DBP No.15 of 2022

O R D E R

Anil K. Narendran, J.

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This DBP is registered based on a petition dated nil filed by

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Sri.Narayana Iyer of Sree Varaham, alleging that a trade union, namely, CITU, has put up a temporary shed made of tin sheets adjacent to the Kanikkavanchi at the eastern entrance of Sree Varaham Temple, Manacaud, Thiruvananthapuram, which is under the management of the Travancore Devaswom Board. A few photographs of that structure are also been enclosed along with the complaint. By proceedings dated 13.05.2022, Registry was directed to register this DBP suo motu proceedings and list the matter before the Devaswom Bench, on 19.05.2022.

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In the complaint it is alleged that a trade union office associated with a political party has been set up recently, adjacent to the 'Kaanikkavanchi' in the eastern entrance of Sree Varaham Temple, Manacaud. The union office is set up at the place where the devotees used to park their vehicles. Now, when the devotees park their vehicles near the union office, those inside the office verbally abused the devotees and also caused damage to the parked vehicles. In the complaint, it is alleged that those inside

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DBP No.15 of 2022

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the union office consume liquor and they also indulge in gambling inside the office and throw food waste into the premises of the temple. If anyone questions the above conduct of the members of the union, they are physically harmed by those in the union office. In the complaint, it is alleged that despite several complaints made by the Ward Councillor Sri. Subash, no action has been taken by the 7^th respondent Thiruvananthapuram Municipal Corporation and the concerned authorities, for dismantling the illegally constructed shed. Two photographs of the said shed, which are enclosed along with that complaint, are reproduced

hereunder;

DBP No.15 of 2022

On 20.05.2022, when this DBP came up for

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consideration, the learned Senior Government Pleader, the learned Standing Counsel for Travancore Devaswom Board and also the learned counsel for the 7^th respondent Municipal Corporation sought time to get instructions. The learned Senior Government Pleader was directed to get, through the concerned Station House Officer, the address of the trade union, which had erected the shed, as seen from the aforesaid photographs enclosed.

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On 24.05.2022, when this DBP came up for consideration, the learned Senior Government Pleader had furnished the address of the trade union, which had erected the

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shed, and also the name and address of its office bearer, along with a memo dated 23.05.2022. By the order dated 24.05.2022, CITU, Kilikkode Section under Perunthanni Region Committee, Sreevaraaha Moorthi Temple, Sreevaraham, Thiruvananthapuram – 695 009, represented by its Unit Convener was suo motu impleaded as the additional 8^th respondent in the DBP and notice was issued to the said respondent through the concerned Station House Officer, namely, Station House Officer, Fort Police Station, Thiruvananthapuram City, returnable by 31.05.2022. Registry was directed to send a copy of the notice along with the DBP to the e-mail id of the Station House Officer, Fort Police Station, i.e., [email protected], who was directed to ensure service of notice on the additional 8^th respondent, within two days. 5. On 31.05.2022 when this DBP came up for consideration, despite service of notice, none appeared for the additional 8^th respondent. The learned Senior Counsel for the 7^th respondent Municipal Corporation submitted that the temporary shed constructed by the additional 8^th respondent is an illegal construction against which proceedings are being initiated.

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The Secretary of the 7^th respondent Municipal

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Corporation has filed an affidavit dated 06.06.2022. Paragraphs 2

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to 6 of that affidavit read thus:

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“2. It is respectfully submitted that on the basis of the Suo Motu proceedings initiated by this Hon'ble Court a local inspection was made by the concerned Assistant Engineer and the Overseer of the Corporation at the premises of the shed constructed by the additional 8^th respondent near the Sreevaraham Sreelakshmi Varahamoorthy temple.

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I respectfully take leave to submit that on inspection it was found that the shed has been constructed by the additional 8^th respondent unauthorisedly, without obtaining any permit from the Corporation in accordance with law. It is brought to the kind notice of this Hon'ble Court that the shed is situated at the eastern 'Nada' of the Sreevaraham temple and in front of the temple compound, on the road side, and the shed is having 2.10 M. x 1.90 M. area and a height of 2 meters. The same is covered by tin sheets on its sides and is having a roof covered with tin sheets. The Corporation has not given any building number for the shed and no application has been submitted before the Corporation for the issue of any permit for the construction of the same by anybody in accordance with the provisions of law contained in the Kerala Municipality Act 1994 or under the Building Rules framed there under.

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I may be permitted to submit that since the construction of the aforesaid shed was found to be unauthorised steps have been taken to demolish the same in accordance with law. It is submitted that a provisional order dated 30.05.2022 under

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DBP No.15 of 2022

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Section 406(1) and (2) of the Kerala Municipalities Act 1994 has already been issued to the additional 8^th respondent to show cause why a confirmation order as contemplated under Section 406(3) of the Kerala Municipalities Act 1994 shall not be issued against the additional 8^th respondent for the demolition of the unauthorised shed.

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I may be permitted to submit that final order under Section 406(3) of the Kerala Municipalities Act will be passed for demolition of the unauthorised shed in accordance with law without any further delay.

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Hence I humbly pray that this Hon'ble Court may kindly be pleased to pass appropriate orders in accordance with law in this Suo-Motu proceedings in the light of the facts stated above.”

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The learned Senior Government Pleader has filed an

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affidavit dated 18.07.2022 of the 3^rd respondent. Paragraphs 4 to

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7 of that affidavit read thus:

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“4. It is submitted that on receipt of the interim order dated 31.05.2022 in the instant case (DBP.No.15 of 2022), this respondent authorised the 7^th respondent, the Secretary, Thiruvananthapuram Corporation to file a detailed statement on behalf of the Government, including the Action Taken Report within the time frame set therein.

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It is submitted that the 7^th respondent took action in the instant case (DBP.No.15 of 2022) and issued a show-cause notice to the Additional 8^th respondent. A true copy of the report by the Thiruvananthapuram Corporation dated

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DBP No.15 of 2022

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25.06.2022 is produced herewith and marked as Annexure R3(a). The 7^th respondent passed a confirmation order dated 04.07.2022 directing the Additional 8^th respondent to remove the unauthorized construction and to report within 15 days from the date of receipt of the copy of the order. A true copy of the confirmation order passed by the Thiruvananthapuram Corporation is produced herewith and marked as Annexure R3(b).

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It is respectfully submitted that this respondent will take strict and necessary follow-up action in the matter.

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It is submitted that this respondent will take efforts to take action in all such cases. A circular was issued with respect to the removal of unauthorized structures from the roads in compliance with the interim order dated 08.06.2021 in WP(C) No.11886 of 2021 by Division Bench of this Hon'ble Court to ensure strict compliance of the enforcement of orders of the Hon'ble Apex Court in SLP (Civil) No.8519 of 2006 and connected cases. A true copy of the Circular dated 16.08.2021, issued by the Secretary (LSGD) is produced herewith and marked as Annexure R3(c).”

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Along with the said affidavit the 3^rd respondent has placed on record Annexure R3(a) report dated 25.06.2022 of the Secretary of the Thiruvananthapuram Municipal Corporation regarding the issuance of show cause notice to the additional 8^th respondent. A copy of the confirmation order passed by the

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DBP No.15 of 2022

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Secretary of the Corporation is also placed on record as Annexure R3(b). The 3^rd respondent has also placed on record the circular dated 16.08.2022 issued in compliance with the interim order dated 08.06.2021 of a Division Bench of this Court in W.P.(C)No.11886 of 2021, in which one among us [Anil K. Narendran, J] was a party, to ensure strict enforcement of the orders of the Apex Court, including the order dated 18.01.2013 in SLP(C)No.8519 of 2006 and connected cases.

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On 22.07.2022 when this DBP came up for

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consideration, this Court passed the following order;

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“By the order dated 07.07.2022, this Court has recorded the submission made by the learned Senior Government Pleader that the 3^rd respondent has already issued a circular dated 16.08.2021 in terms of the directions contained in the order of this Court dated 10.12.2021 in DBP No.30 of 2021 [Sic: order dated 16.11.2021 in S.S.C.R.No.9 of 2021].

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Along with the counter affidavit filed by the 3^rd respondent a copy of circular dated 16.08.2021 issued by the 3^rd respondent is placed on record, which is one issued pursuant to the direction contained in the order of a Division Bench of this Court dated 08.06.2021 in W.P.(C)No.11886 of 2021, in which one among us [Anil K. Narendran, J.], was a party, whereby the State of Kerala was directed to file a counter affidavit explaining the steps already taken to ensure strict

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DBP No.15 of 2022

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enforcement of the orders of the Apex Court, including the order dated 18.01.2013 in SLP(C)No.8519 of 2006, the decision of this Court in Shivaprasad v. State of Kerala and others [2020 (6) KHC 373] , etc., the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads Congress [IRC:103-2012], in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public road.

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Pursuant to the direction contained in the order dated 08.06.2021 in W.P.(C)No.11886 of 2021, the 3^rd respondent has issued Annexure R3(c) circular dated 16.08.2021 whereby the Director of Urban Affairs and the Director of Panchayats are directed not to grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places, except for installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for the development and beautification of streets, roads, highways, etc. and relating to public utility and facilities in connection with the direction of the Apex Court. The Director Urban Affairs and the Director of Panchayats are directed to instruct Local Self Government Institutions accordingly and shall regularly monitor removal of unauthorized constructions from the roads as per the provisions in the respective statutes in compliance with the directions contained in the orders referred to therein.

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The directions contained in the Circular dated 16.08.2021

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DBP No.15 of 2022

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are being openly flouted by the Local Self Government Institutions, which is evident from the photograph which forms part of this DBP.

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In the order dated 16.11.2021 in SSCR No.9 of 2021, we have directed the State of Kerala to take necessary steps to ensure strict compliance of the directions contained in the decision referred to therein, in letter and spirit, by maintaining the roads and pedestrian facilities in the State strictly in conformity with the relevant standards and guidelines, without any encroachment whatsoever on the right of way or on the pedestrian facilities provided as per such standards and guidelines, in order to ensure the safety of most vulnerable road users, such as pedestrians, cyclists, children, elderly and the differently-abled persons.

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List on 09.08.2022 for final hearing.

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The learned Senior Counsel for Thiruvananthapuram Municipal Corporation would submit that an Action Taken Report of the Secretary of the 7^th respondent Municipal Corporation, in the form of an affidavit, shall be placed on record within two weeks.”

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Pursuant to the direction contained in the order dated

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22.07.2022, the 7^th respondent has filed an additional affidavit dated 02.08.2022. Paragraphs 3 to 5 of that affidavit read thus:

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“3. I respectfully take leave to submit that on inspection it was found that the shed has been constructed by the additional 8^th respondent unauthorisedly, without obtaining any permit from the Corporation in accordance with law. It is

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DBP No.15 of 2022

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brought to the kind notice of this Hon'ble Court that the shed is situated at the eastern 'Nada' of the Sreevaraham temple and in front of the temple compound, on the roadside, and the shed is having 2.10 M. x 1.90 M. area and a height of 2 meters. The same is covered by tin sheets on its sides and is having a roof covered with tin sheets. The Corporation has not given any building number for the shed and no Application has been submitted before the Corporation for the issue of any permit for the construction of the same by anybody in accordance with the provisions of law contained in the Kerala Municipality Act 1994 or under the Building Rules framed thereunder.

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I may be permitted to submit that since the construction of the aforesaid shed was found to be unauthorized steps have been taken to demolish the same in accordance with law. It is submitted that a provisional order dated 30.05.2022 under Section 406(1) and (2) of the Kerala Municipalities Act 1994 has been issued to the additional 8^th respondent to show cause why confirmation order as contemplated under Section 406(3) of the Kerala Municipalities Act, 1994 shall not be issued against the additional 8^th respondent for the demolition of the unauthorised shed.

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I take leave to submit that the copy of the provisional order issued by the Corporation dated 30.05.2022 has been produced before this Hon’ble Court as an additional document and has been marked as Annexure-l, along with I.A.No.1 of 2022 dated 09.06.2022. It is submitted that after

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issuing notice of hearing to the 8^th respondent the Confirmation order under Section 406(3) of the Kerala Municipality Act, has been passed by the Corporation, and the same has been served on the 8^th respondent. The Photostat copy of the Confirmation order dated 04.07.2022 passed by the Corporation is produced herewith and is marked as Annexure-ll. I respectfully beg to submit that since, the 8^th respondent did not remove the unauthorized construction in accordance with the Confirmation order issued by the Corporation, on 21.07.2022 it was decided to remove the unauthorized construction of the shed constructed by the 8^th respondent, departmentally and the Assistant Engineer of the Corporation Smt.Sunana Kumari, was authorised to implement the Confirmation order. It is submitted that on that day when the Officers of the Corporation reached the site for carrying out the demolition of the shed, the 8^th respondent had removed the unauthorized shed, by themselves.”

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Heard the learned Senior Government Pleader for respondents 1 and 2, the learned Special Government Pleader for the 3^rd respondent, the learned Standing Counsel for respondents 4 to 6 and also the learned Senior Counsel for the 7^th respondent Municipal Corporation.

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In C.S.S. Motor Service v. Madras State [AIR 1953 Madras 279] a Division Bench of the Madras High Court held that

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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.

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In Saghir Ahmad v. State of U.P. and others [AIR 1954 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 [AIR 1953 Madras 279] .

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

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The Indian Roads Congress has issued Guidelines for Pedestrian Facilities vide IRC:103-2012. Paragraph 3 of the said guidelines deals with the scope of those guidelines. These

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guidelines cover engineering design and planning aspects of pedestrian facilities on roadsides 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). Paragraph 4 of the guidelines deals with general principles.

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In Shali v. State of Kerala [2019 (5) KHC 118] this

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Court held that, as per Para.4.2 of the Guidelines for Pedestrian Facilities [IRC:103-2012], an effort should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances, and that 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.

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In Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Advisory Committee v. State of Kerala [2019 (5) KHC SN 27] this Court held that, in view of the

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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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In Sivaprasad v. State of Kerala and others [2020

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(6) KHC 373] this Court held that, in view of the law laid down 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

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and guidelines. The primary object of building roads is to facilitate people to travel from one point to another and carriage of goods. Footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid

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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 laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable measure of safety and security.

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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.

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In Sivaprasad [2020 (6) KHC 373] this Court held further that, 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

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by acquiring private property and by using public funds, can be used only for the travelling needs of public. It cannot be converted

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for other collateral purposes like erection of statues and

DBP No.15 of 2022

memorials.

Section 5 of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 deals with regulation of conduct of festivals, assemblies, meetings, etc. In Basil Attipetti

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v. State of Kerala and others [2012 (2) KHC 85] a Division Bench of this Court declared clause (c) of sub-section (1) of Section 5 of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 as violative of the fundamental rights of the citizens conferred under Article 19(1) (d) and Article 21 of the Constitution of India, by virtue of the operation of Article 13(2) of the Constitution. The Division Bench upheld the constitutional validity of clauses (a) and (d) of subsection (1) of Section 5 of the Act, subject to limitations and restrictions on permissions to be granted, as stated in Paras.9 to 11 of the judgment.

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It is pertinent to note that, by the order dated 18.01.2013 in SLP(Civil)No.8519 of 2006 [Union of India v. State of Gujarat and others] , the Apex Court issued a general direction to the effect that, from the date of that order the Government of Kerala shall not grant any permission for installation of any statue or construction of any structure in public

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roads, pavements, sideways and other public utility places. The Apex Court made it clear that the said order shall not apply to installation of high-mast lights, street lights or construction relating to electrification, traffic, toll or for development and beautification of streets, highways, roads, etc., and relating to public utility and facilities. The above order was made applicable to all other States and Union Territories and the concerned Chief

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Secretary/Administrator is directed to ensure compliance of that

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order. Paragraphs 2 to 5 of the order dated 18.01.2013 in I.A.No.10 of 2012 in SLP(Civil)No.8519 of 2006 read thus;

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“2. Mr. M.T. George, learned counsel for the State of Kerala placed before us a copy of the order dated September 7, 2011 passed by the Government of Kerala granting permission for installation of statue of late Shri N. Sundaran Nadar, Ex-Deputy Speaker of Kerala Legislative Assembly near to Neyyattinkara – Poovar Road in the curve turning to the KSRTC Bus Stand Neyyattinkara in the Kanyakumari National Highway near bus stand.

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We have our doubt whether such permission could have been granted by the State Government for installation of statue on the national highway.

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Until further orders, we direct that the status quo, as obtaining today, shall be maintained in all respects by all concerned with regard to the Triangle Island where statue of

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late Shri N. Sundaran Nadar has been permitted to be sanctioned. We further direct that henceforth, State Government shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. Obviously, this order shall not apply to installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for development and beautification of the streets, highways, roads, etc. and relating to public utility and facilities.

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The above order shall also apply to all other states and union territories. The concerned Chief Secretary/ Administrator shall ensure compliance of the above order. (underline supplied)

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The order of the Apex Court dated 18.01.2013 in

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I.A.No.10 of 2012 in SLP(Civil)No.8519 of 2006 was in relation to the permission granted by the State of Kerala, by an order dated 07.09.2011, for installation of statue of late Shri.N.Sundaran Nadar, Ex-Deputy Speaker of Kerala Legislative Assembly near to Neyyantinkkara-Poovar Road in the curve turning to KSRTC bus stand, Neyyatinkkara in Kannyakumari National Highway.

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By the order dated 05.07.2013 in SLP(Civil) No.8519 of

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2006, the Apex Court directed the States and Union Territories to state on affidavit the position with regard to unauthorised

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structures including unauthorised religious structures on public roads, pavements, sideways and other public utility places as existing on 30.06.2013 in their respective States and the steps taken up to 30.06.2013 for removal of such unauthorised structures. In the said order, the Apex Court noticed the submission of the learned counsel for the States of Madhya Pradesh, Kerala, Punjab and Rajasthan that they have already filed their affidavits. By the order dated 05.07.2013, the Apex Court directed the States of Madhya Pradesh, Kerala, Punjab and Rajasthan to file fresh affidavits indicating the position as on 30.06.2013.

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By the order dated 31.01.2018 in SLP(Civil) No.8519 of 2006 and connected cases, the Apex Court ordered that the implementation of its orders should be supervised by the concerned High Courts. Consequently, the Apex Court remitted the matters to the respective High Courts for ensuring implementation of orders in an effective manner. While ordering transmission of concerned records to the respective High Courts, the Apex Court ordered that, the interim orders wherever passed shall continue, until the matters are considered by the High Courts. In case any

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clarification is required, it would be open to the parties to approach the Apex Court. The High Court will have the jurisdiction to proceed in the contempt of any of the orders passed by the Apex Court.

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Despite the enactment of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 by the State Legislature and the law laid down by the Apex Court and this Court in the decisions referred to supra, the State, Local Authorities and also the law enforcement machinery have not taken necessary steps to ensure strict enforcement of the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads congress [IRC:103-2012], in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or on the pedestrian facilities on public roads, since any such encroachment will adversely affect the mobility and safety of all pedestrians including those with disabilities and reduced mobility.

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Once roads 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

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or on the pedestrian facilities provided as per such standards and guidelines. Footpaths are not intended for stocking articles for trade or for display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for holding campaigns, demonstrations, etc., by political parties and other organisations, by causing obstructions to free movement of pedestrians. No political party or organisation can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances.

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Showing scant regard to the law laid down in the decisions referred to supra, political parties and various organisations are permitted to put up structures on footpaths and even on the right of way on public roads, all over the State. The protesters/agitators having political backing are even permitted to lay carpet and place chairs on the footpath. On account of such encroachments, pedestrians including those with disabilities and reduced mobility are forced to walk through the right of way of

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public roads, in unsafe circumstances.

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The prohibition imposed by the Apex Court in the decision in Union of India v. State of Gujarat and others [SLP(Civil)No.8519 of 2006], whereby the Government of Kerala is restrained, with effect from 18.01.2013, from granting any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places, is being flouted by permitting unauthorised hoardings, structures like resting places for headload workers, bus shelters constructed by political and other organisations, etc., on public roads, pavements, footpaths, etc. Such encroachments are even permitted in front of the Office of the Local Self Government Institutions.

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The law laid down by this Court in Shali [2019 (5) KHC 118] , Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Advisory Committee [2019 (5) KHC SN 27] and Sivaprasad [2020 (6) KHC 373] that every Local Authority in the State is bound to provide pedestrian facilities on public roads in conformity with the Guidelines for Pedestrian Facilities [IRC:103-2012] and that, once the National

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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 is also being flouted by permitting encroachments on the right of way and on the pedestrian facilities.

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Section 198A of the Motor Vehicles Act, 1988, inserted by Section 84 of the Motor Vehicles (Amendment) Act, 2019, which came into force with effect from 01.09.2019, vide S.O. 3147(E) dated 30.08.2019, deals with failure to comply with standards for road design, construction and maintenance. As per sub-section (1) of section 198A, any designated authority, contractor, consultant or concessionaire responsible for the design or construction or maintenance of the safety standards of the road shall follow such design, construction and maintenance standards, as may be prescribed by the Central Government from time to time. As per sub-section (2), where failure on the part of the designated authority, contractor, consultant or concessionaire responsible under sub-section (1) to comply with standards for road design, construction and maintenance, results in death or

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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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As per sub-section (3) of Section 198A, for the purposes of sub-section (2), the court shall in particular have regard to the matters enumerated in clauses (a) to (g), namely, (a) the characteristics of the road, and the nature and type of traffic which was reasonably expected to use it as per the design of road; (b) the standard of maintenance norms applicable for a road of that character and use by such traffic; (c) the state of repair in which road users would have expected to find the road; (d) whether the designated authority responsible for the maintenance of the road knew, or could reasonably have been expected to know, that the condition of the part of the road to which the action relates was likely to cause danger to the road users; (e) whether the designated authority responsible for the maintenance of the road could not reasonably have been expected to repair that part of the road before the cause of action arose; (f) whether adequate warning notices through road signs, of its condition had been displayed; and (g) such other matters as may be prescribed by

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the Central Government. As per Explanation, for the purposes of Section 198A, the term ‘contractor’ shall include sub-contractors and all such persons who are responsible for any stage in the

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design, construction and maintenance of a stretch of road.

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Once roads have been constructed as per the required standards for road design, construction and maintenance, it cannot be converted into a parking space for commercial or other establishments, religious institutions, etc., or even for putting up temporary structures in connection with festivals in temples, churches, mosques, etc. or in connection with any protest by any political parties or for putting up temporary structures as resting place for headload workers, etc., or for putting up bus shelters by political parties or by any other organisations. Such roads are for vehicular traffic, which has to be maintained as such, in conformity with the relevant standards prescribed by the Indian Roads Congress. The State holds public roads as a trustee on behalf of the public. By permitting encroachments on public roads by way of temporary structures on the right of way or on the pavements or on the pedestrian facilities provided on such roads, on political considerations or otherwise, the State Government or

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the concerned Local Self Government Institution is committing breach of trust. Any failure on the part of the designated authorities, contractor, consultant or concessionaire in maintaining the safety standards of public roads will attract the penal consequences provided under Section 198A of the Motor Vehicles Act.

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It is pertinent to note that by the order dated 16.11.2021 in SSCR No.9 of 2021, we have directed the State of Kerala, represented by the Chief Secretary to Government; the Principal Secretary to Government, Public Works Department; and the Project Director, National Highway Authority of India, Thiruvananthapuram, to take necessary steps to ensure strict compliance of the directions contained in the decision referred to supra by all concerned, in letter and spirit, by maintaining the roads and pedestrian facilities in the State, strictly in conformity with the relevant standards and guidelines, without any encroachment whatsoever on the right of way or on the pedestrian facilities provided as per such standards and guidelines, in order to ensure the safety of most vulnerable road users, such as pedestrians, cyclists, children, elderly and the differently-abled

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persons.

In Satheesh v. Travancore Devaswom Board and

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others [2022 (1) KLT 940] this Court held that, once roads 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. Footpaths

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are not intended for stocking articles for trade or for display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for holding campaigns, demonstrations, etc., by political parties and other organisations, by causing obstructions to free movement of pedestrians. No political party or organisation can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced

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mobility to walk in unsafe circumstances. The service roads provided on the side of National Highway and bypass constructed

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as per the Manual of Specifications and Standards prescribed by

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the Indian Roads Congress in IRC:SP:73-2007 or IRC:SP:84-2009 cannot be converted as a parking space for commercial or other establishments, religious institutions, etc., or even for putting up temporary structures in connection with festivals in temples, churches, mosques, etc. or in connection with any protest by any political parties or for putting up temporary structures as resting place for headload workers, etc., or for putting up bus shelters by political parties or by any other organisations. Such service roads are for vehicular traffic, which has to be maintained as such, in conformity with the relevant standards prescribed by the Indian Roads Congress. The State holds public roads as a trustee on behalf of the public. By permitting encroachments on public roads by way of temporary structures on the right of way or on the pavements or on the pedestrian facilities provided on such roads, on political considerations or otherwise, the State Government or

DBP No.15 of 2022

Act, 1988.

Along with the counter affidavit filed by the 3^rd respondent, a copy of the Circular dated 16.08.2021 issued by the 3^rd respondent is placed on record, which is one issued pursuant to the direction contained in the order of a Division Bench of this Court dated 08.06.2021 in W.P.(C)No.11886 of 2021, in which one among us [Anil K. Narendran, J.], was a party, whereby the State of Kerala was directed to file a counter affidavit explaining the steps already taken to ensure strict enforcement of the orders of the Apex Court, including the order dated 18.01.2013 in SLP(C)No.8519 of 2006, the decision of this Court in Shivaprasad [2020 (6) KHC 373] , etc., the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads Congress [IRC:103-2012], in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public road.

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Pursuant to the direction contained in the order dated 08.06.2021 in W.P.(C)No.11886 of 2021, the 3^rd respondent has issued Annexure R3(c) circular dated 16.08.2021 whereby the

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Director of Urban Affairs and the Director of Panchayats are directed not to grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places, except for installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for the development and beautification of streets, roads, highways, etc. and relating to public utility and facilities in connection with the direction of the Apex Court. The Director Urban Affairs and the Director of Panchayats are directed to instruct Local Self Government Institutions accordingly and shall regularly monitor removal of unauthorised constructions from the roads as per the provisions in the respective statutes in compliance with the directions contained in the orders referred to therein.

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The directions contained in the Circular dated 16.08.2021 are being openly flouted by the Local Self Government Institutions, which is evident from the photographs which forms part of this DBP.

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In the order dated 16.11.2021 in SSCR No.9 of 2021, we have directed the State of Kerala to take necessary steps to

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ensure strict compliance of the directions contained in the decision referred to therein, in letter and spirit, by maintaining the roads and pedestrian facilities in the State strictly in conformity with the relevant standards and guidelines, without any encroachment whatsoever on the right of way or on the pedestrian facilities provided as per such standards and guidelines, in order to ensure the safety of most vulnerable road users, such as pedestrians, cyclists, children, elderly and the differently-abled persons.

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The specific allegations contained in the complaint made by a senior citizen, who is residing nearby, is that, a trade union office associated with a political party has been set up recently, adjacent to the 'Kaanikkavanchi' in the eastern entrance of Sree Varaham Temple, Manacaud. The union office is set up at the place where the devotees used to park their vehicles. Now, when the devotees park their vehicles near the union office, those inside the office verbally abused the devotees and also caused damage to the parked vehicles. In the complaint, it is alleged that those inside the union office consume liquor and they also indulge in gambling inside the office and throw food waste into the premises of the temple. If anyone questions the above conduct of

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the members of the union, they are physically harmed by those in the union office. In the complaint, it is alleged that despite several complaints made by the Ward Councillor Sri. Subash, no action has been taken by the 7^th respondent Thiruvananthapuram Municipal Corporation and the concerned authorities, for dismantling the illegally constructed shed.

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The photographs, which form part of this DBP, which we have extracted hereinbefore at para 2, would make it explicitly clear that the shed in question was put up by the additional 8^th respondent, CITU, Kilikode Section under Perunthanni Region Committee, openly flouting the law laid down by this Court in the decisions referred to supra. The 7^th respondent Municipal Corporation and its officials have not chosen to take any action against that illegal structure, till the initiation of suo motu proceedings in this DBP. In view of the law laid down in the decisions referred to supra, all public streets and roads vest in the State, but 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, which cannot be interfered with or defeated by permitting any constructions, whether permanent or

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temporary, on public roads or pavements, sideways and other public utility places, forcing pedestrians to walk in unsafe circumstances.

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In the instant case, the inaction on the part of the 7^th respondent Municipal Corporation in taking necessary action in terms of the directions contained in Annexure R3(c) circular dated 16.08.2021, which is one issued by the 3^rd respondent pursuant to the directions contained in the order of a Division Bench of this Court dated 08.06.2021 in W.P(C)No.11886 of 2021, has to be deprecated in the strongest words and we do so. The conduct of the 7^th respondent Municipal Corporation in permitting trade unions like the additional 8^th respondent to put up such unauthorised sheds on road pavements and the inaction on the part of the Municipal Corporation and its officials in taking prompt action against such constructions would certainly amount to breach of trust, since a Local Self Government Institution holds such public streets and roads vested in it as trustee on behalf of the public. The inaction on the part of the Local Self Government Institution in permitting such unauthorised structures in public roads, pavements, sideways and other public utility places, on

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political considerations or even otherwise, has to be dealt with appropriately, especially when such constructions will force the most vulnerable road users such as pedestrians, cyclists, children, elderly and differently abled persons to walk in unsafe circumstances.

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The Secretary of the additional 7^th respondent Municipal Corporation has initiated proceedings against the additional 8^th respondent, invoking the provisions under Section 406 of the Kerala Municipalities Act, by issuing Annexure R3(a) provisional order dated 25.06.2022, which was followed by Annexure R3(b) final order dated 04.07.2022. In the additional affidavit dated 02.08.2022 filed on behalf of the additional 7^th respondent, it is stated that on 21.07.2022 when the concerned Assistant Engineer reached the site for demolishing the unauthorized shed put up by the additional 8^th respondent trade union, they have removed that shed by themselves. Even after the removal of shed by the additional 8^th respondent, the proceedings initiated under then under Section 406 of the Municipalities Act, will have to be proceeded further in view of the provisions under Section 406(4) of the said Act, which contains a non obstante clause, which

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provides that, notwithstanding anything contained in sub-section (2) or (3) of the Act, prosecution against the authority or the person who had done the work may be initiated. Therefore, it is for the competent authority in the additional 7^th respondent Municipal Corporation to initiate proceedings against the additional 8^th respondent in terms of the statutory requirements of sub-section (4) of Section 406 of the Act. Necessary steps in this regard shall be taken within one month from the date of receipt of a certified copy of this order.

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With the above direction, this DBP is disposed of.

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Sd/- ANIL K. NARENDRAN, JUDGE

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Sd/- P.G. AJITHKUMAR, JUDGE

bkn/-

DBP No.15 of 2022

APPENDIX OF DBP 15/2022

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RESPONDENT ANNEXURES

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Annexure -R3(a)True copy of the Report by the
Thiruvananthapuram Corporation dated
25-06-2022

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Annexure -R3(b)True Copy of the confirmation Order passed
by the Thiruvananthapuram Corporation dated
04-07-2022

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Annexure -R3(c)True copy of the Circular dated 16-08-2021,
issued by the Secretary (LSGD)

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Annexure-I The photostat copy of the provisional order
No.FE3/4990/22 dated 30.05.2022 issued by
the Secretary, Corporation of
Thiruvananthapuram

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Annexure-II The photostat copy of the confirmation order
No.FE3/4990/22 dated 04.07.2022 passed by
the Corporation.

Narayana Iyer v. State of Kerala

Case brief

What is this about?

What did the court decide?

Narayana Iyer v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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