Kerala High Court
Noushad K.M vs State Of Kerala on 2 August, 2024
WP(C) NO.29578 OF 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
WP(C) NO. 29578 OF 2021
PETITIONERS:
1 NOUSHAD K.M
AGED 58 YEARS, S/O. V.M. MUHAMMED SHAFI,
KARAKKAD VALIYAVEETHIL HOUSE, NADACKAL POST,
ERATTUPETTA KOTTAYAM DISTRICT 686 121.
2 JOSHY SEBATIAN,
AGED 47 YEARS, S/O. SEBASTIN,
PERUNILATH HOUSE, KONDOOR POST, KONDOOR,
KOTTAYAM DISTRICT 686 121.
3 JOMON JACOB CHERYAN,
AGED 51 YEARS, S/O. JACOB CHERIYAN,
ALUMOOTTIL HOUSE, MEENDOM POST,
KOTTAYAM DISTRICT 686 516.
4 SHAJI A.V.,
S/O. VISWANATHAN, ALACKAL HOUSE , PLASSANAL POST,
KOTTAYAM DISTRICT 686 579.
5 ANSAR K.N.,
AGED 39 YEARS, S/O. NASSAR K.S.,
KALLOLIYIL HOUSE, NADACKAL POST, ERATTUPETTA,
KOTTAYAM DISTRICT 686 121.
BY ADVS.
SRI. V.VINAY
SRI. K.K.DHEERENDRAKRISHNAN
SRI. S.RAJEEV
SRI. NISSAM NAZZAR
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RESPONDENTS:
1 STATE OF KERALA
REP. BY SECRETARY, HOME DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE STATE POLICE CHIEF,
OFFICE OF THE STATE POLICE CHIEF,
POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 695 001.
3 DISTRICT POLICE CHIEF,
OFFICE OF THE DISTRICT POLICE CHIEF,
KOTTAYAM 686 002.
4 INSPECTOR OF POLICE,
ERATTUPETTA POLICE STATION, KOTTAYAM 686 121.
OTHER PRESENT:
SRI. RIYAL DEVASSY - GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
(Dated this the 2nd day of August, 2024)
The petitioners are conducting commercial
establishments in the Central Junction, Erattupetta. The 1 st
petitioner is running an Electrical shop, the 2 nd petitioner
has a Home Appliances shop 3rd & 4th petitioners are
conducting Optical shop and Printing shop and the 5 th
petitioner has a tea shop.
2. The case of the petitioners is that they are unable
to conduct commercial activities in their respective shops
because of the processions and meetings held by various
political parties by encroaching footpaths and roads. In a
week, at least 3 to 4 meetings are held in front of the
petitioner's shops. Therefore, they are forced to close their
shops. The petitioners therefore filed a complaint dated
08.12.2021 before the 3rd respondent and another
complaint to the 4th respondent. In spite of that,
respondents 3 & 4 are not taking any stringent action
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against the persons or associations under the Kerala Public
Ways (Restriction of Assemblies and Processions) Act, 2011
(hereinafter referred to as "the Act" for short). Therefore,
the petitioners approached this Court with the following
reliefs;-
"i) Issue a writ of mandamus or any other writ,
order or direction, directing the respondents'
No. 2 to 4 to grant cogent & adequate
protection to the property and business of the
petitioners from all encroachments to the
public road and footpath and thereby any
hindrance to the business activities of the
petitioner.
ii) Issue a writ of mandamus or any other writ,
order or direction, directing the respondents'
No. 3 and 4 to register FIR under the Kerala
Public Ways (Restriction of Assemblies and
Processions) Act, 2011 and conduct
investigation on all such violations.
Iii) To issue writ of mandamus directing the
respondents 3 and 4 not to grant permission
to conduct public meeting or conventions at
Central Junction Erattupetta without following
the provisions of the Kerala Public Ways
(Restriction of Assemblies and Processions)
Act, 2011 and obtaining an affidavit from the
responsible person of the party or association
concerned.
iv) Issue other writ or direction which this Hon'ble
court may deem fit on the facts of the case".
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3. On 20.12.2021, respondents 3 & 4 were directed
to ensure that there is no violation under the said Act and
were directed to file a statement. Subsequent to which a
memo has been filed by the learned Government Pleader,
producing the Action Taken Report, pursuant to the
direction issued by the SHO, Erattupetta Police station. It is
stated in the Report that strict action has been taken on the
basis of the interim order dated 20.12.2021 of this Court.
On 30.12.2021 the Welfare Party members conducted a
procession and when they reached Erattupetta Central
Junction, they were removed and a case is registered as
Crime No.1668/21 under Section 143, 149, 283 IPC 5, 4(2)
(e), 4(2)(j) KEDA & Section 6 of the Act. Another case is
also registered on 10.01.2022 against SFI and DYFI Party
members for violating the Order.
4. Counsel for the petitioners has relied on the
judgment of this Court in Suo Motu v. Travancore
Devaswom Board reported in [2021 KHC 900],
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whereby this Court has in para 24 and 25 held as follows:-
"24. 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
1st 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.
25. 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
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
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the pedestrian facilities, forcing pedestrians
including those with disabilities and reduced
mobility to walk in unsafe circumstances".
Therefore, in the light of the decision of the Division
Bench of this Court, I deem it appropriate to direct the
respondents strictly follow the directions issued by this
Court in Suo Motu supra.
Sd/-
BASANT BALAJI,
JUDGE
S.M.K.
WP(C) NO.29578 OF 2021
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APPENDIX OF WP(C) 29578/2021
PETITIONERS' EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT DATED
08.12.2021 SUBMITTED BY THE PETITIONERS
AND OTHERS TO THE 3RD RESPONDENT ALONG
WITH RECEIPT.
Exhibit P2 TRUE COPY OF THE COMPLAINT DATED
08.12.2021 SUBMITTED BY THE PETITIONERS
AND OTHERS TO THE 4TH RESPONDENT ALONG
WITH RECEIPT.
Exhibit P3 THE TRUE COPY OF THE ORDER OF THIS
HONBLE COURT DATED 08.06.2021 IN WP NO.
11886/2021.
Exhibit P4 THE TRUE COPY OF THE PHOTOGRAPHS
SHOWING THE MEETING HELD IN THE
FOOTPATH AND ROADSIDE BEFORE THE SHOPS
OF THE PETITIONERS.
Exhibit P5 THE TRUE COPY OF THE REPRESENTATION
DATED 17.12.2021 SUBMITTED BEFORE THE
RESPONDENTS 2 TO 4 THROUGH EMAIL.
