The Trivandrum Chamber Of ... vs State Of Kerala
2021 Latest Caselaw 12770 Ker

       ANIL K. NARENDRAN & ZIYAD RAHMAN A.A., JJ.
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                 W.P.(C) No.11886 of 2021
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            Dated this the 8th day of June, 2021

                           ORDER

Anil K.Narendran, J.

Heard the learned counsel for the petitioner and also the

learned Government Pleader for the respondents.

2. This writ petition is one filed by Trivandrum Chamber

of Commerce and Industry along with its President seeking a

writ of mandamus commanding the respondents as well as law

enforcement agencies including Police to formulate and issue

guidelines for earmarking certain public areas in State of Kerala

for the purpose of holding mass assemblies, including protests,

campaigns, demonstrations, etc. The petitioners have also

sought for a writ of mandamus commanding the respondents as

well as the law enforcement agencies including Police to remove

assemblies staged around Government Secretariat and Raj

Bhavan, including the adjoining footpaths; and a declaration

that staging or holding of assemblies including protests,

campaigns, demonstrations, etc., around Government

Secretariat, Raj Bhavan and the adjoining footpaths is illegal

and unconstitutional.

W.P.(C)No.11886 of 2021 :-2-:

3. In the writ petition, it is alleged that various

organisations and political parties are staging protests,

demonstrations, etc., in public places, including footpaths/

pavements, causing serious inconvenience to general public and

also commercial and other establishments set up at such places.

For the last several years, footpaths in front of Government

Secretariat and Raj Bhavan and also the nearby areas are the

targets for such protests, demonstrations, etc. Exts.P1, P1(A) to

P1(c) are printouts of news items regarding such protests,

demonstrations, etc., appeared in online news portals. Ext.P2 is

a copy of reply dated 09.01.2021 of the Public Information

Officer, Cantonment Police Station, Thiruvananthapuram and

Ext.P3 is a copy of reply dated 20.01.2021 of the State Public

Information Officer, Museum Police Station,

Thiruvananthapuram, obtained under the provisions of the Right

to Information Act, 2005, wherein it is stated that various

organisations have conducted strikes and protests in front of

Government Secretariat and Raj Bhavan causing traffic

congestion and difficulties to pedestrians. There have been

instances wherein campaigns or protests on footpaths, which

initially started on temporary basis, attained the nature of W.P.(C)No.11886 of 2021 :-3-:

permanence. In connection with such campaigns or protests,

sheds and other structures have come up on footpaths, which

provide shelter to the campaigners/ protesters. Such structures,

which gradually become permanent constructions, cause

hindrance to the general public using footpath for the purpose

for which it was constructed.

4. In C.S.S. Motor Service v. Madras State [AIR

1953 Madras 279] a Division Bench of the Madras High Court

held 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. 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.

 W.P.(C)No.11886 of 2021       :-4-:


      5.    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. P. Duraiswami Aiyangar in his book dealing with the

Law of Municipal Corporations in British India (1914 Edn.) has

observed that the primary and paramount use of the street is

public travel for man, beast and carriage for goods. Public have

a right of passing and re-passing through a street, but have no

right 'to be on it', which Sri Aiyangar has mentioned at page 542

of his book. Halsbury's Laws of England (Vol. 21 Para. 107) it

has been stated that the right of the public is a right to pass

along a highway for the purpose of legitimate travel, not to be

on it, except so far as the public's presence is attributable to a

reasonable and proper user of the highway as such. What is

required of him is that he should not create an unreasonable

obstruction which may inconvenience other persons having

similar right to pass; he should not make excessive use of the

road to the prejudice of the others. Liberty of an individual

comes to an end where the liberty of another commences.

Subject to this, a member of the public is entitled to legitimate W.P.(C)No.11886 of 2021 :-5-:

user of the road other than actually passing or re-passing

through it. As to what will constitute public nuisance and what

can be included in the legitimate user can be ascertained only by

taking into account all the relevant circumstances including the

size of the road, the amount of traffic and the nature of the

additional use one wants to make of the public streets. This has

to be judged objectively and here comes the role of public

authorities.

6. The Indian Roads Congress has formulated Guidelines

for Pedestrian Facilities, vide IRC:103-2012. In Chapter 1 of

IRC:103-2012 'footpath' is defined as a portion of right of way

of road used for the movement of pedestrian. Chapter 2 of

IRC:103-2012 deals with introduction. As per Para.2.3, all

pedestrian facilities ensure social equity. Chapter 3 of IRC:103-

2012 deals with its scope. As per Para.3.2, the guidelines cover

engineering design and planning aspects of pedestrian facilities

on roadside and at road crossing in urban and semi-urban areas.

As per Para.3.3, the guidelines are intended for use by the local

authorities responsible for creating and maintaining semi-urban

and urban road transport facilities. As per Para. 4.2, efforts

should be made to create such conditions that pedestrians are W.P.(C)No.11886 of 2021 :-6-:

not forced to walk in unsafe circumstances and that motorists

respect the position of pedestrians. As per Para.4.5, the mobility

and safety of all pedestrians including those with disabilities and

reduced mobility should be ensured to promote inclusive

mobility and universal accessibility. As per para 4.7, while

planning and designing pedestrian facilities, overall objectivity

could be continuity and overall safety.

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

this 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 the 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.

8. 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 Guidelines for Pedestrian Facilities formulated by the Indian W.P.(C)No.11886 of 2021 :-7-:

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.

9. In exercise of the powers under Section 118 of the

Motor Vehicles Act, 1988 and in supersession of the Rules of

Road Regulations, 1989, the Central Government made the

Motor Vehicles (Driving) Regulations, 2017, vide G.S.R.634(E)

dated 23.06.2017. Regulation 5 of the Motor Vehicles (Driving)

Regulations, 2017 deals with duties of drivers and riders. As per

clause (4) of Regulation 5, the driver and the riders shall take

special care and precautions to ensure the safety of the most

vulnerable road users such as pedestrians, cyclists, children,

elderly and the differently-abled persons. Regulation 22 deals

with stopping and parking. As per sub-clause (c) of clause (2) of

Regulation 22, a vehicle shall not be parked on footpath, cycle

path and pedestrian crossing. Regulation 39 deals with

pedestrian crossing, footpath and cycle track. As per sub-clause W.P.(C)No.11886 of 2021 :-8-:

(3) of Regulation 39, when a road is provided with a footpath or

cycle track, no vehicle shall drive on such footpath or track,

except on the directions of a Police Officer in uniform or where

traffic signs permitting some movements have been displayed.

10. In Sivaprasad v. State of Kerala and others

[2020 (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 and

guidelines.

11. In Sivaprasad this Court held that, 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 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 W.P.(C)No.11886 of 2021 :-9-:

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. 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.

12. In Sivaprasad 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 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.

13. In Dr.Mary Anita v. Corporation of Kochi and

others [2020 (6) KHC 298], a Division Bench of this Court

was dealing with a public interest litigation in which the W.P.(C)No.11886 of 2021 :-10-:

petitioner pointed out the hardships, inconvenience, dangers

and threats to the life frequently faced and confronted by

differently abled children, men and women, due to lack of safe

and proper footpaths and allied facilities within the area of Kochi

Municipal Corporation. The Division Bench held that Kochi

Municipal Corporation as well as the Public Works Department

are duty bound under law to make necessary arrangements in

the footpaths and roads so as to enable the differently abled

persons to access the roads and footpaths to their convenience.

The Division Bench disposed of that writ petition directing

Kochi Municipal Corporation, its Nodal Agencies and also the

Public Works Department to maintain and repair and make

arrangements for the roads and footpaths under their respective

control so as to enable the differently abled persons to access

them appropriately.

14. Clause (a) of sub-section (1) of Section 2 of the

Kerala Public Ways (Restriction of Assemblies and Processions)

Act, 2011 defines 'footpath' to mean any area comprised in a

public way earmarked for movement of pedestrian having a

width of not less than one meter but not exceeding three meters

on either side of the public way, after leaving sufficient space for W.P.(C)No.11886 of 2021 :-11-:

the movement of vehicles. As per clause (d) of sub-section (1)

of Section 2, 'public way' includes any highway, bridge,

causeway, road, lane, footpath, square, courtyard, garden-path,

channel or passage, accessible to the public, which is not owned

by a private person.

15. As per Section 3 of the said Act, which deals with

rights of the public for movement on public ways, on all public

ways the public shall have, subject to the laws governing the

control of traffic and safety of public, the right to unobstructed

movement by vehicles along carriage ways and on foot along

footpaths. Section 4 of the Act deals with prohibition of

obstruction on public ways. As per sub-section (1) of Section 4,

no person shall cause any obstruction by conducting any

business or meeting or assembly or procession or demonstration

on any public way or part thereof. As per sub-section (2) of

Section 4, no meeting or assembly shall be conducted so as to

obstruct any portion of the carriage way or footpath. As per sub-

section (3) of Section 4, no demonstration or procession shall be

conducted in such a manner that the entire carriage way or free

flow of traffic is fully obstructed.

W.P.(C)No.11886 of 2021 :-12-:

16. 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 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 sub-

section (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.

17. 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 roads, pavements, sideways and other public utility W.P.(C)No.11886 of 2021 :-13-:

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 Secretary/Administrator is directed to ensure

compliance of that 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;

"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.

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

4. 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 late Shri N. Sundaran Nadar has been permitted to be sanctioned. We further direct that henceforth, State W.P.(C)No.11886 of 2021 :-14-:

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.

5. 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)

18. The order of the Apex Court dated 18.01.2013 in

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.

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

of 2006, the Apex Court directed the States and Union

Territories to state on affidavit the position with regard to

unauthorised structures including unauthorised religious

structures on public roads, pavements, sideways and other W.P.(C)No.11886 of 2021 :-15-:

public utility places as existing on 30.06.2013 in their respective

States and the steps taken up to 30.06.203 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 freshaffidavits indicating the

position as on 30.06.2013.

20. 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 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 W.P.(C)No.11886 of 2021 :-16-:

the orders passed by the Apex Court.

21. 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 1 st respondent

State and the law enforcement machinery have not taken

necessary steps to 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.

22. 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 are not intended for

stocking articles for trade or for display of goods by traders, in W.P.(C)No.11886 of 2021 :-17-:

front of their shops or establishments. Similarly, footpaths are

not intended for the purpose of holding campaigns,

demonstrations, etc., by political parties and other

organisations, by causing any obstruction whatsoever 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.

23. 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 of 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 public roads, in unsafe circumstances.

W.P.(C)No.11886 of 2021 :-18-:

24. Considering the nature of issues involved in this writ

petition, this Court deem it appropriate to suo motu implead the

Additional Chief Secretary, Home Department, Government

Secretariat, Thiruvananthapuram-695 001; the Additional Chief

Secretary, Local Self Government Department, Government

Secretariat, Thiruvananthapuram-695 001; and also the

Transport Commissioner, Kerala, 2nd Floor, Trans Towers,

Vazhuthacaud, Thycaud, Thiruvananthapuram-695014 as

additional respondents 5 to 7. Registry to carry out necessary

corrections in the cause title.

25. Admit.

26. The learned Senior Government Pleader takes notice

for the respondents 1 to 4 and also for additional respondents 5

to 7. The learned counsel for the petitioner to provide additional

copies of the writ petition to the learned Senior Government

Pleader, within two days.

27. The learned Senior Government Pleader shall ensure

that the counter affidavit of the 1st respondent is placed on

record within a period of four weeks. In the counter affidavit the

1st respondent shall explain the steps already taken to ensure

strict enforcement of the orders of the Apex Court and the W.P.(C)No.11886 of 2021 :-19-:

judgments of this Court referred to supra, 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 roads.

List on 09.07.2021.

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

ZIYAD RAHMAN A.A.

JUDGE bpr