Kerala High Court
Dejo Kappen vs State Of Kerala on 3 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
WP(C).No.22557 OF 2015(S)
PETITIONER/S:
DEJO KAPPEN
AGED 55 YEARS
S/O.LATE K.C.JOSEPH, KAPPIL HOUSE, MEENACHIL P.O,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.JOHNSON MANAYANI
SRI.JEEVAN MATHEW MANAYANI
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
2 DIRECTOR GENERAL OF POLICE (STATE POLICE CHIEF)
KERALA, POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM 695 001.
3 TRASPORT COMMISSIONER AND ROAD SAFETY COMMISSIONER
KERALA, TRANS TOWERS, VAZHUTHACAD,
THIRUVANANTHAPURAM 695 001.
4 PRINCIPAL SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
5 PRINCIPAL SECRETARY
PUBLIC WORKS DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
6 THE KERALA STATE DISASTER MANAGEMENT
AUTHORITY, REPRESENTED BY ITS MEMBER SECRETARY,
TRIVANDRUM 695 001.
7 THE MANAGING DIRECTOR
STEEL INDUSTRIES LTD., KERALA (SILK), ATHANI POST,
THRISSUR DISTRICT - 680 581.
W.P.(C) Nos. 22557 & 22858 of 2015
& 9914 of 2016 :2:
8 NATIONAL HIGHWAYS AUTHORITY OF INDIA
G.5 AND 6 SECTOR -10, DWARAKA, NEW DELHI -110 075,
REPRESENTED BY ITS SECRETARY.
9 ADDL. R9 & R10 IMPLEADED:
KERALA ADVERTISING INDUSTRIES ASSOCIATION
REG.NO.EKM/TC/536/2012
STATE OFFICE IVTH FLOOR, MATHEWSONS TRADE CENTRE, NEAR
TVS, KALOOR, COCHIN - 682 017 REPRESENTED BY ITS PRESIDENT
VARGHESE THOMAS.
(ADDL.R9 IS IMPLEADED VIDE ORDER DATED 03/09/2015 IN IA
12315/2015
10 P.V.JAYAKUMAR
AGED 45 YEARS
S/O.VELAYUDHA MENON, MANAGING PARTNER, PREA ADVERTISING
AND MARKETING, 1ST FLOOR, SRILAKSHMI BUILDING, S.A ROAD,
ERNAKULAM - 682 036.
[ADDL. R10 IS IMPLEADED VIDE ORDER DATED 22/09/2015 IN IA
12982/2015.]
R1 BY ADV. SRI.K.RAMKUMAR
R1 BY ADV. SRI.D.AJITHKUMAR
R1 BY ADV. SRI.JOSE JONES JOSEPH
R1 BY ADV. SRI.D.JEEVAN
R1 BY ADV. SMT.T.MANASY
R1 BY ADV. SRI.PEEYUS A.KOTTAM
R1 BY ADV. SRI.M.PRAVEESH
R1 BY ADV. SRI.A.SUDHI VASUDEVAN SR.
R1 BY ADV. SRI.K.I.SAGEER
R1-R6 BY GOVERNMENT PLEADER
R8 BY ADV. SRI.THOMAS ANTONY
R9 BY ADV. SRI.K.H.ANSAR
R9 BY ADV. SRI.K.JAYAKUMAR (SR.)
R9 BY ADV. SRI.A.A.ZIYAD RAHMAN
R9 BY ADV. SRI.LAL K.JOSEPH
R9 BY ADV. SRI.V.S.SHIRAZ BAVA
R9 BY ADV. SRI.JOSEPH KURIAN VALLAMATTAM
R1 TO R6 BY SRI. K.V.SOHAN STATE ATTORNEY
R7 BY SRI.T.V.GEORGE, SC
R8 BY SRI.THOMAS ANTONY
R9 BY SRI.K.JAYAKUMAR(SR)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2021,
ALONG WITH W.P.(C) NOS.22858/2015(S) & 9914/2016(S), THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 22557 & 22858 of 2015 :3:
& 9914 of 2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
WP(C).No.22858 OF 2015
PETITIONER/S:
ANZAR R.A.
S/O.ASHRAF, RAYAMVEETTIL HOUSE, MANNAM, N.PARUR,
ERNAKULAM.
BY ADVS.
SRI.M.K.FAISAL
SRI.K.S.RAJESH
SRI.M.SHAJU PURUSHOTHAMAN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, DISASTER
MANAGERMENT, (REVENUE-K) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE KERALA STATE DISASTER MANAGEMENT AUTHORITY
THIRUVANANTHAPURAM 695 001,
REPRESENTED BY ITS CHAIRMAN.
3 THE STATE EXECUTIVE COMMITTEE
KERALA STATE DISASTER MANAGEMENT AUTHORITY,
REPRESENTED BY ITS CHAIRPERSON, THIRUVANANTHAPURAM
695 001.
4 THE TRANSPORT COMMISSIONER AND ROAD SAFETY
COMMISSIONER, TRANS TOWERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM 695 001.
R1-4 BY GOVERNMENT PLEADER
R5 BY ADV. A.SUDHI VASUDEVAN (SR.)
R5 BY ADV. SRI.JOSE JONES JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.02.2021, ALONG WITH W.P.(C).NOS. 22557/2015(S) & 9914/2016(S)
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 22557 & 22858 of 2015 :4:
& 9914 of 2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
WP(C).No.9914 OF 2016
PETITIONER:
GEORGE JOHN
S/O. SRI.GEORGE JOHN, 230, MATHER NAGAR,
S.KALAMASSERY, KOCHI-682 033.
BY ADVS.
SRI.JOY THATTIL ITTOOP
SRI.A.G.ADITYA SHENOY
SRI.BIJISH B.TOM
RESPONDENT/S:
1 THE CHIEF SECRETARY
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR GENERAL OF POLICE
POLICE HEAD QUARTERS, VELLAYAMBALAM,
THIRUVANANTHAPURAM-695 001.
3 THE SECRETARY
TRANSPORT DEPARTMENT, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 THE HONBLE MINISTER FOR HOME AFFAIRS
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
R1 BY ADV. SRI.JOSE JONES JOSEPH
R1 BY ADV. SRI.P.A.MOHAMMED SHAH
R1 BY ADV. SMT.P.M.MAZNA MANSOOR
R1 BY ADV. SRI.K.NANDAKUMAR
R1 BY ADV. SRI.A.SUDHI VASUDEVAN SR.
R1 BY ADV. SRI.SOORAJ T.ELENJICKAL
SRI. K.V. SOHAN, STATE ATTORNEY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.02.2021, ALONG WITH W.P.(C) NOS. 22557/2015(S) & 22858/2015(S),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 22557 & 22858 of 2015 :5:
& 9914 of 2016
Dated this the 3rd day of February, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The subject issue raised in the writ petitions is in regard to the
removal of flex and hoardings in the public road belonging to the
Local Self Government Institutions, State Government as well as the
National Highways. In one of the writ petitions namely W.P.(C) No.
9914 of 2016, apart from seeking the relief of removal of
unauthorised installations, the petitioner therein has sought for
implementation of Ext.P1 policy issued by the State Government on
Outdoor Advertising under the provisions of the Kerala Road Safety
Act, 2007.
2. The basic contentions raised in the writ petitions is that
unauthorised hoardings, flex boards and other installations are put
up on the road and public properties without securing any
permission from the local bodies/respective authorities of the State
Government and the respective authorities of the Government of
India. According to the petitioners, the Kerala Municipality Act,
1994, the Kerala Panchayat Raj Act, 1994, Kerala Highway
Protection Act, 1999 and the Control of National Highways (Land
and Traffic) Act, 2002 and other statutory enactments, provisions
are made to regulate, putting up of installations on public streets
W.P.(C) No. 22557 & 22858 of 2015 :6:
& 9914 of 2016
and public places. But, in gross violation of the statutory provisions,
installations are put up by political parties and business and other
organizations thus creating difficulties to the general public in many
ways. However, in spite of earnest efforts made by the petitioners,
no action was taken by the statutory authorities to implement the
provisions of the Act, and consequent to which the public at large
are put to a lot of difficulties and inconveniences. It is also pointed
out that due to the unscientific way of putting up of boards,
hoardings etc., traffic congestions and accidents are occurring
causing serious prejudice and inconvenience to the public.
3. Counter affidavits are filed in many of the cases basically
stating that steps are being taken by the authorities to implement
the provisions of respective statutes in its letter and spirit.
4. Counter affidavit is also filed in one of the writ petitions by
the Kerala Advertising Industries Association opposing the omnibus
relief sought for in the writ petition and also pointing out that if the
policy of the State Government in regard to the advertisement as is
specified above is implemented, serious prejudice will be caused to
the right to livelihood of the persons depending on the income from
the advertising activities.
5. We have heard the learned counsel for the petitioners, Sri.
Johnson Manayani, Sri. M.K. Faisal and Sri. Joy Thattil Ittoop,
learned State Attorney Sri. K.V. Sohan and the respective Standing
W.P.(C) No. 22557 & 22858 of 2015 :7:
& 9914 of 2016
Counsel for the Local Bodies and other authorities, and perused the
pleadings and materials on record.
6. In fact, in regard to the same issue, in a batch of writ
petitions namely W.P.(C) No.5218 of 2012 and connected cases, this
Court has taken into account the relevant provisions of the
respective statutes and issued the following directions to the State,
the Central Government, the local bodies and other stake holders,
which also take care of the policy formulated by the Government in
accordance with the provisions of the Kerala Road Safety Act, 2007:
"56. In addition to the directions issued in Shani Johnson's case
(cited supra), in the light of the statutory provisions, we dispose of
the writ petitions with the following directions:
A) All the unauthorised arches, display boards,
hoardings, placards, and banners with poles or frames,
etc., fixed to and/or dug into the ground, which abuts
the highways, public streets, and pedestrian pavements,
shall forthwith be removed. No poles or frames or
structures for arches, boards, placards, hoardings,
display boards or banners shall be erected on any
highway, public road, public passage or pedestrian
pathway or pavement. Holes caused on pavements and
roads, by reason of erection of frames, poles, structures,
placards, hoardings, displaying boards, banners, etc.,
shall forthwith be repaired.
B) The Secretaries to the Government, LSGD, PWD,
State Highways and Heads of Departments, under the
respective Acts, extracted above, shall issue appropriate
instructions for effective implementation of the above
said directions.
C) The District Collectors and the Secretaries of the
aforementioned departments shall oversee the
implementation of the directions issued by this Court,
W.P.(C) No. 22557 & 22858 of 2015 :8:
& 9914 of 2016
issue suitable orders, and take appropriate action against
the erring officers.
D) The Principal Secretaries to the Government, Public Works
Department, Local Self Government Institutions, Government of
Kerala, are directed to issue appropriate instructions to the field
officers, to remove the nailing, in other words, de-nailing, make
trees nail free and thereby, remove all the unauthorised
signboards, advertisements, pamphlets etc. The District
Collectors shall act in accordance with the orders issued in that
regard.
E) The Executive Engineer (Roads) or Executive Engineer (National
Highways) of the Public Works Department, who are designated
as Highway Authorities as per the provisions of the Kerala
Highway Protection Act, 1999, are directed to identify those
structures, hoardings, advertisement boards and displays etc.,
endangering road safety, and take immediate steps for removal
thereof, under Section 22 of the said Act.
F) The Project Directors / National Highways Authority of India are
directed to take appropriate action, to effectively implement
the directions.
G) The Secretaries of Municipal Corporations and Municipalities in
the State, under Section 275 of the Kerala Municipalities Act,
1994, are directed to take steps, to identify and remove
unauthorised hoardings, banners, flex boards, temporary arches,
posters etc.
H) Likewise, the Secretaries of the Panchayats are directed to take
steps to identify and remove unauthorised hoardings, banners,
flex boards, temporary arches, posters, and other similar
structures.
I) The concerned Secretaries are directed to supervise dismantling
of outdoor billboards, unauthorised hoardings etc., which causes
inconvenience to the commuters.
J) The Secretaries of the concerned Panchayat under Section 209C
of the Kerala Panchayat Raj Act, 1994, shall provide necessary
assistance to the NHAI for removal of illegal hoardings, banners,
flexes, temporary arches, posters etc.
K) In the event, the Municipal Authorities/officials, who come
across the cases of breaches, not attracting any of the Municipal
Laws, shall forthwith report the same to the District Collectors.
On such information, being received by the District Collectors,
necessary action for removal of such nuisance shall be taken in a
W.P.(C) No. 22557 & 22858 of 2015 :9:
& 9914 of 2016
time bound manner.
L) Since, in the State of Kerala, certain notified portions of the
National Highways are maintained by the National Highways
Authority of India the outdoor advertising boards which cause
distraction to traffic on such stretches of the Highways shall be
identified by the concerned Project Director of NHAI and
appropriate remedial action be taken, in accordance with law.
M) The Kerala State Road Safety Authority, constituted under the
provisions of Kerala Road Safety Authority Act, 2007, to
coordinate action on areas related to road safety among various
departments, advice the Government on road safety policy,
prescribe and enforce road safety standards and procedures,
formulate and implement schemes / projects and programmes
relating to road safety and is directed to conduct a detailed
study, with the help of various District Road Safety Councils in
the State, as regards the harmful effects caused on account of
the outdoor hoardings / billboards, installed at various
National/ State Highways and elsewhere, and submit a report to
the Chief Secretary, to facilitate the State Government to
regulate the hazardous outdoor hoardings / billboards.
N) The Road Safety Commissioner/Transport Commissioner, who is
the ex officio under Section 9 of the Kerala Road Safety
Authority Act, 2007, is directed to look into the damaging effect
of roadside advertisements in the light of 'Policy on Roadside
Advertisements' published by the Indian Road Congress, 1992.
O) Cluster of wires on trees and electrical poles, be regulated by
the statutory authorities and the District Collectors are directed
to take appropriate action for removal as per the existing rules.
P) The Commissioner of Police or the Superintendent of Police, as
the case may be, shall issue directions to the concerned police
personnel, who are entrusted with the job of night patrolling,
including the beat marshals, to keep a constant vigil, for
preventing the activity of erection/display of illegal hoardings,
banners, flexes, temporary arches, posters etc., during night
time.
Q) The Commissioner of Police/District Police Chief, shall provide
necessary assistance to the Highways Authority under Sections 44
and 15(2) of the Act, 1999 for removal of the unauthorised
structures, hoardings, advertisement boards and displays,
endangering road safety.
R) Whenever an action is proposed to be taken by the authorities,
W.P.(C) No. 22557 & 22858 of 2015 : 10 :
& 9914 of 2016
as stated above, the concerned Assistant Commissioner / Deputy
Superintendent of Police shall extend adequate police protection
and police help to the local authorities, in the process.
S) Report regarding removal of the above-mentioned unauthorised
structures, outdoor hoardings / billboards, be submitted by the
competent authorities under the respective enactments, to the
District Collectors, every month.
57. The directions issued above, shall be scrupulously
implemented, within a period of three months from the date of
receipt of a copy of this judgment. The office of the learned Advocate
General and the respective standing counsel shall forward a copy of
this judgment to the State Government, for appropriate action, in
accordance with the directions issued.
Registry is directed to list the writ petitions after three months,
for filing consolidated compliance reports, by the respective
Secretaries to the Government."
7. The subject matter in this batch of writ petitions is
materially and substantially similar in nature and therefore, we
dispose of the writ petitions in terms of the judgment dated
14.01.2021 in W.P.(C) No. 5218 of 2012 and connected cases.
8. We also make it clear that in all respects, the directions
contained thereunder and extracted above would apply to these writ
petitions also.
S. MANIKUMAR,
CHIEF JUSTICE.
SHAJI P. CHALY,
JUDGE.
Rv
W.P.(C) No. 22557 & 22858 of 2015 : 11 :
& 9914 of 2016
APPENDIX OF WP(C) 22557/2015
PETITIONER'S EXHIBITS:
EXHIBIT P1 P1-JUDGMENT OF THE HONOURABLE HIGH COURT IN
WP(C) NO.27011 OF 2012 DATED 21.02.2013
DIRECTING THE REMOVAL OF FLEX BOARDS AND
HOARDINGS.
EXHIBIT P2 P2- JUDGMENT IN CONT.CASE (C) NO.651 OF 2013
DATED 25.9.2013 REITERATING THE DIRECTIONS
CONTAINED IN EXT. P1 JUDGMENT.
EXHIBIT P3 P3- LETTER ISSUED BY HTE THIRD RESPONDENT
DATED 10.12.2013 TO THE PETITIONER'S COUNSEL.
EXHIBIT P4 P4- TRUE COPY OF THE LETTTER ISSUED BY THE
THIRD RESPONDENT DATED 10.3.14 TO THE
PETITIONER'S COUNSEL.
EXHIBIT P5 P5- ORDER OF THE 6TH RESPONDENT DATED
24.6.2015 ISSUED BY THE 1ST RESPONDENT UNDER
THE DISASTER MANAGEMENT ACT, 2005
EXHIBIT P6 P6- ORDER OF THE THIRD RESPONDENT DATED
26.6.15 IN PURSUANCE OF EXBT P5 ORDER.
EXHIBIT P7 P7- THE TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE COURT DATED 8.7.15 IN WPC 20474 OF
2015.
EXHIBIT P8 P8- THE TRUE COPY OF THE ORDER ISSUED BY THE
FIRST RESPONDENT DATED 15.7.15
RESPONDENT'S/S EXHIBITS:
EXHIBIR9(a) TRUE COPY OF BYE-LAW FRAMED BY THE ADDL.9TH
RESPONDENT ASSOCIATION.
EXHIBITR 9 (b) TRUE COPY OF REQUEST DATED 21.01.2016 BY THE
PETITIONER/ADDL.9TH RESPONDENT ASSOCIATION.
ANNEXURE R4(a) TRUE COPY OF GO(MS)NO.06/2016/TRANS. DATED
02.02.2016.
EXHIBIT R9(b) THE TRUE COPY OF THE BYE LAWS OF THE
THIRUVANANTHAPURAM CORPORATION PUBLISHED
IN EXTRAORDINARY GAZETTE NO.2339 DATED
16.12.2009.
EXHIBIT R9(c) THE TRUE COPY OF THE ENGLISH TRANSLATION OF
EXT.R9(b).
W.P.(C) No. 22557 & 22858 of 2015 : 12 :
& 9914 of 2016
EXHIBIT R9(d) TRUE COPY OF THE EXTRAORDINARY GAZETTE
NOTIFICATION NO.17 DATED 02.10.2012 PUBLISHED
BY COCHIN CORPORATIONS.
EXHIBIT R9(e) TRUE COPY OF THE ENGLISH TRANSLATION OF
EXT.R(d).
EXHIBIT R9(f) THE TRUE COPY OF THE REPRESENTATION DATED
20.01.2016 AND THE SUGGESTIONS ON THE POLICY.
EXHIBIT R9(g) THE TRUE COPY OF THE SUGGESTIONS ON THE
POLICY.
EXHIBIT R5(a) A TRUE COPY OF CERTIFICATE OF REGISTRATION
DATED 16.03.2016 ISSUED BY THE REGISTRAR OF
SOCIETIES, THIRUVANANTHAPURAM TO THE
PETITIONER.
W.P.(C) No. 22557 & 22858 of 2015 : 13 :
& 9914 of 2016
APPENDIX OF WP(C) 22858/2015
PETITIONER'S EXHIBITS:
EXHIBIT P1 EXHIBIT P1. COPY OF THE ORDER
G.O(MS)NO.271/2015/DMD DT. 24.6.15.
EXHIBIT P2 EXHIBIT P2. COPY OF THE ORDER
G.O(MS)NO.323/2015/DMD DATED 15.7.15.
EXHIBIT P3 EXHIBIT P3. COPY OF THE JUDGMENT IN WPC
27011/2012 DATED 21.2.2013.
RESPONDENT'S EXHIBITS:
EXHIBIT R4(a): TRUE COPY OF G.O.(MS) NO. 06/2016/TRANS.DATED
02.02.2016.
/True Copy/
PS to Judge.
rv
W.P.(C) No. 22557 & 22858 of 2015 : 14 :
& 9914 of 2016
APPENDIX OF WP(C) 9914/2016
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 P1 : COPY OF THE KERALA STATE POLICY ON
OUTDOOR ADVERTISING ISSUED UNDER THE ROAD
SAFETY ACT, 2007.
EXHIBIT P2 P2 : COPY OF THE GOVERNMENT ORDER BEARING
NO.GO(MS)NO.06/2016/TRANS DTD.2.2.2016.
EXHIBIT P3 P3 : COPY OF THE PHOTOGRAPHS EVIDENCING THE
CONTINUATION OF THE ILLEGAL HOARDINGS AND
POSTERS ON ROAD SIDES, PILLARS, POSTS AND
DIVIDERS.
RESPONDENT'S/S EXHIBITS: NIL
/True Copy/
P.S to Judge.
rv
