IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 WP(C).No. 35196 of 2010(Y) ---------------------------------------- PETITIONER(S): ------------------------ YESODHARAN, AGED 53 YEARS, S/O.RAGHAVAN, PRADEEP BHAVANAM, EVOOR THEKKU MURI, KEERIKADU P.O., ALAPPUZHA. BY ADVS. SRI.R.SUNIL KUMAR, SMT.A.SALINI LAL. RESPONDENT(S): --------------------------- 1. SUPERINTENDENT OF POLICE, ALAPPUZHA - 688 001. 2. SUB INSPECTOR OF POLICE, KAREELAKULANGARA, ALAPPUZHA - 688 002. 3. CIRCLE INSPECTOR OF POLICE, KAYAMKULAM - 690 502. *ADDL.R4 IMPLEADED: R4. UNNIKRISHNAN, PULIYIL THEKKATHIL, MAHADEVIKADU, KARTHIKAPPALLY PO, ALAPPUZHA. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 8/12/2010 IN I.A.NO.17100/2010) **ADDL.R5 IMPLEADED: R5. THE EXECUTIVE ENGINEER, PWD (NATIONAL HIGHWAY), ALAPPUZHA. (**ADDL.R5 IS IMPLEADED AS SUO-MOTU AS PER ORDER DTD. 14/12/2010) R1 TO R3 & R5 BY GOVERNMENT PLEADER SRI. T.K.VIPINDAS ADDL.R4 BY ADV. SRI.K.N.PADMAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35196/2010 Y APPENDIX PETITIONER'S EXHIBITS: N I L RESPONDENT'S EXHIBITS: R4(A): COPY OF THE COMPLAINT SENT BY THE ASSISTANT DEVASWOM COMMISSIONER TO THE CIRCLE INSPECTOR OF POLICE DTD. 28/04/2010. R4(B): COPY OF THE COMPLAINT SENT BY THE ASSISTANT DEVASWOM COMMISSIONER TO THE SUB INSPECTOR OF POLICE DTD. 28/04/2010. R4(C): COPY OF THE COMPLAINT SENT BY THE ASSISTANT DEVASWOM COMMISSIONER TO THE REVENUE DIVISIONAL OFFICER DTD.28/04/2010. R4(D): COPY OF THE COMPLAINT SENT BY THE ASSISTANT DEVASWOM COMMISSIONER TO THE EXECUTIVE ENGINEER, PWD DTD. 28/04/2010. R4(E): COPY OF THE REPRESENTATION SUBMITTED BY THE RESPONDENT TO THE DISTRICT COLLECTOR DTD. 07/05/2010. R4(F): COPY OF THE COMMUNICATION SENT BY THE TAHSILDAR TO THE EXECUTIVE ENGINEER, P.W.D. DTD. 17/05/2010. R4(G): COPY OF THE JUDGMENT DTD. 22/07/2010 IN WP(C) NO.17749/2010 OF THIS HON'BLE COURT. R4(H):COPY OF THE ORDER DTD. 06/05/2005 IN WP(C) NO.13746/2005 OF THIS HON'BLE COURT. /TRUE COPY/ P.A.TO JUDGE Kss R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.35196 of 2010 ***************************** Dated this the 28th day of February, 2011 JUDGMENT BASANT, J. This petition is filed by the petitioner complaining about police harassment and for issue of directions under Article 226 of the Constitution of India to ensure that the petitioner is permitted to vend pooja articles in a mobile rolling cart of his own in supersession of the oral directions issued by the 2nd and 3rd respondents. 2. Respondents 1 to 3 are police officials. Respondent No.4 is a person, who has bid the right to sell pooja articles within the premises of Kanjoor Devi Temple, Kanjoor, Alappuzha. He had obtained such right on payment of consideration to the Travancore Devaswom Board. The 5th respondent is the Executive Engineer, P.W.D, National Highway, Alappuzha. 3. According to the petitioner, he has a fundamental right protected under Article 19(g) of the Constitution to vend articles on the public road. On three sides of the Kanjoor Devi Temple are admittedly public roads. On the western side, it is admittedly N.H 47. On the southern side is a kavu of the temple. W.P(C) No.35196 of 2010 2 On the eastern and northern sides, it is said that panchayat public roads abut the Devi temple. The petitioner has been directed by respondents 2 and 3 orally not to carry on his income earning activity of sale of pooja articles in a mobile rolling cart within a distance of 300 metres from the Kanjoor Devi Temple. This had obliged him to come to the Court with this petition under Article 226 of the Constitution of India. According to him, this direction issued to him by respondents 2 and 3 amounts to unjustified police harassment. 4. Respondent No.4 was subsequently impleaded. Respondent No.4 took the stand that he had obtained the right to vend pooja articles within the premises of the temple in an auction held on payment of consideration from the Travancore Devaswom Board. He had obtained that right after being successful in a competition with the petitioner herein. The petitioner herein was vending articles on the public road and thereby defeating his rights. This had obliged the 4th respondent to submit Ext.R4(a), R4(b), R4(c) and R4(d) applications to the Circle Inspector of Police, Sub Inspector of Police, Revenue Divisional Officer and the Executive Engineer of the National Highway authority. As no prompt action was forthcoming, he W.P(C) No.35196 of 2010 3 was obliged to file Ext.R4(e) complaint before the District Collector, Alappuzha, who had forwarded the same to the local Tahsildar for enquiry and necessary action. Tahsildar, Karthikappilly, had submitted Ext.R4(f) complaint to the additional 5th respondent, ie. Executive Officer, PWD (National Highway). As no action was taken in spite of all these, the 4th respondent was obliged to come before this Court with a Writ Petition and by Ext.R4(g) order, this Court had directed the 3rd respondent in this Writ Petition to consider the applications and take necessary action within a stipulated period. He had obtained a similar direction as in Ext.R4(g) earlier as Ext.R4(h) order also. According to the 4th respondent, the petitioner has no right to insist that he must be permitted to carry on the activity of trading any pooja articles on the National Highway on the west of the temple or on the public roads on the north and east. 5. The learned Government Pleader has entered appearance on behalf of respondents 1 to 3 and 5. The learned Government Pleader submits that the 3rd respondent was obliged as per order in Ext.R4(g) judgment to take necessary action on the complaint of the 4th respondent. It was hence that the 3rd W.P(C) No.35196 of 2010 4 respondent was obliged to take action. According to respondents 1 to 3, there is absolutely no element of harassment or vexation in the direction issued by the 3rd respondent. The roads abutting the temple are crowded and busy places. There, roadside vending in mobile open carts cannot be permitted. If permitted, that would put the traffic into jeopardy and would also endanger the life of users of the road. In these circumstances, the learned Government Pleader on behalf of respondents 1 to 3 contends that the grievance of harassment by the police is without any basis. The learned Government Pleader further submits that under law, selling of articles in the National Highway is not permitted and the 5th respondent also insists that without the requisite permission, the petitioner or no other should be permitted to vend articles on the National Highway. 6. The 4th respondent relies on the provisions of the Kerala Highway Protection Act, 1999 as also the provisions of the Control of National Highways (Land and Traffic) Act, 2002, to contend that, at any rate, the petitioner cannot be clothed with any authority by issue of directions under Article 226 to carry on trading in mobile open carts on the National Highway and on the public roads abutting the temple. The learned counsel for W.P(C) No.35196 of 2010 5 the 4th respondent also relies on Section 225 of the Kerala Panchayat Raj Act to contend that carrying on of sale of articles on the public road is impermissible without requisite permission from the authorities. 7. The learned counsel for the petitioner meets these contentions with the help of the decisions of the Supreme Court in Sodan Singh v. New Delhi Municipal Committee [(1989) 4 SCC 155] and Gainda Ram v. Municipal Corporation of Delhi [(2010) 10 SCC 715]. The learned counsel for the petitioner advances an argument that the petitioner's constitutional right under Article 19(1)(g) to carry on any occupation, trade or business cannot be subjected to any blanket prohibition. The counsel hence argues that the direction issued by respondents 2 and 3 prohibiting him from carrying on sale of pooja articles in his mobile open cart is not justified. 8. The fundamental rights conferred under Article 19(1) (g) are, of course, subject to the reasonable restrictions permissible under Article 19(6). There cannot possibly be a contention that there is an unfettered right to carry on sale of articles in a mobile cart on public roads. The decisions relied on do not, at any rate, declare that laws restricting such rights W.P(C) No.35196 of 2010 6 would be unconstitutional. 9. We now come to the Kerala Highway Protection Act, 1999. There can be no doubt that Section 13 of the Kerala Highway Protection Act, 1999 read with Section 2(f) of the said Act prohibits exhibiting articles for sale on a highway. Such act would answer the definition of encroachment in Section 2(f)(ii) of the said Act. We extract Section 2(f) and 13 of the Kerala High Way Protection Act below: Section (2)(f):”encroachment” means occupation of a highway or part thereof for purposes other than traffic and any act which causes damage to the highway and includes:- (i)................... (ii) occupation of highway, for stacking building materials or goods of any other description, for parking automobiles for maintenance and repair, for exhibiting articles for sale, for erecting poles, awnings, tents, pandals, arches, platforms, rostrums, hoardings, display boards, statutes, monuments of all kinds, steps, ramps and other similar structures or stabling domestic animals and poultry and cultivation of any kind including horticulture or for any other purpose. Section 13 : Prevention of unauthorised occupation highway:- No person shall occupy or continue to occupy any highway or part of a highway for purposes other than traffic or do any act W.P(C) No.35196 of 2010 7 which involves any of the activities mentioned in clause (f) of section 2.” We find it absolutely safe to conclude that exhibition of articles for sale on a highway without requisite permission from anyone is impermissible in the light of the statutory prohibition under Section 13. This cannot, at any rate, be held to be offending the fundamental rights. 10. It is contended that the National Highway is distinct and different from a Highway defined under the Highway Protection Act and Section 13 may not in terms apply to exhibition of articles for sale on a National Highway. To us it appears that it would be puerile to hold that such exhibition of articles can take place on a National Highway, but not on a highway covered by the Kerala Highway Protection Act. The learned Government Pleader alertly points out the provisions in Section 24(2)(iii) and Section 26(7) of the Control of National Highways (Land and Traffic) Act, 2002, to contend that exposing goods or articles for sale either in open area or through temporary stall, shop etc. without permission is impermissible. We find merit in this contention. We extract the relevant statutory provisions below: W.P(C) No.35196 of 2010 8 “Section 24: Prevention of occupation of highway land:- (1) No person shall occupy any highway land or discharge any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any officer authorised by such Administration in this behalf. (2) The Highway Administration or the officer authorised under sub-section (1) may, on an application made by a person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person--- (i) ........................... (ii) ........................... (iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or” Section 26(7) of the Control of National Highways (Land and Traffic) Act, 2002: Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation is in the natue of-- a) exposing any goods or article-- (i) in open air; or (ii) through temporary stall, kiosk, booth or any other shop of temporary nature, (b) construction or creation, whether temporary permanent, or (c) trespass or other unauthorised occupation which can be removed easily W.P(C) No.35196 of 2010 9 without use of any machine or other device, and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such occupation by use of the reasonable force necessary for such removal.” 11. The petitioner admittedly has not secured any permission from the National Highway authority to carry on exhibition/exposition of goods and articles for sale on the National Highway. We are, in these circumstances, unable to agree that the oral direction of the 3rd respondent, issued by him to the petitioner consequent to the mandate issued to him by this Court under Ext.R4(g) not to carry on business on the National Highway amounts to any unjustified harassment which requires to be prevented by issue of directions under Article 226. 12. Undaunted, the learned counsel for the petitioner submits that these submissions would cover only the attempt to expose/exhibit articles for sale on the National Highway or Highways. Public roads on the north and east of the temple would not fall within the definition of National Highway or Highway, submits the learned counsel for the petitioner. 13. The learned counsel for the respondents counter this contention with the help of Section 225 of the Kerala Panchayat W.P(C) No.35196 of 2010 10 Raj Act, which we extract below: “Section 225:Prohibition against sale in public roads:-- The Village Panchayat shall by public notice prohibit the sale or exposure for sale of any animals or articles in or upon any public road or place or part thereof.” 14. The counsel also places reliance on the Kerala Panchayat Raj (Removal of Encroachment and Imposition & Recovery of Penalty for Unauthorised Occupation) Rules, 1996. The learned counsel for the 4th respondent, in particular, places reliance on Rule 3(1) which we extract below: Rule 3. Prohibition of and penalty for unauthorised occupation of lands vested in or belonging to Panchayat:--(1) No person shall occupy and land belonging to or vested in a Panchayat without the permission of the Panchayat or not in accordance with the Act or the rules made thereunder or except in accordance with the terms and conditions of the licence issued by the Panchayat.” 15. The counsel contends that these rules have been framed in exercise of the powers conferred under clause XXIX of Section 254(2) of the Panchayat Raj Act and the public road must also be reckoned as a land belonging to or vested in a W.P(C) No.35196 of 2010 11 panchayat. Permission of the panchayat has admittedly not been obtained. The learned counsel for the 4th respondent, in these circumstances, points out that the panchayat has significantly not been arrayed as a party in this Writ Petition. In the light of Section 225 of the Kerala Panchayat Raj Act, it has to be assumed in the absence of specific assertion that the panchayat had prohibited sale of articles in or upon any public road. The prohibition in Rule 3 further supports that embargo under Section 225, points out the counsel. 16. We find merit in this contention. The panchayat, for obscure reasons, has not been made a party. There is absolute prohibition under Section 225 of the Kerala Panchayat Raj Act though it is couched in language which obliges the panchayat to issue a public notice. Rule 3 further incorporates and reiterates the prohibition contemplated under Section 225. 17. Moreover, we must alertly note that we are called upon to invoke and exercise the extraordinary constitutional jurisdiction under Article 226. We are not persuaded to agree that in the Kerala context, in the absence of specific permission/licence, any alleged right of the petitioner to carry on trade on a mobile open cart on a public road can, need or W.P(C) No.35196 of 2010 12 deserves to be protected. Safety on the road is a burning concern of the Kerala polity and we are not, at any rate, persuaded to invoke the jurisdiction under Article 226 of the Constitution to enable the petitioner to carry on his activity of exhibiting/exposing articles for sale in a mobile open cart on the public roads adjacent to the temple. 18. The above discussions lead us to the conclusion that the petitioner is not, at any rate, entitled to issue of directions under Article 226 of the Constitution of India in his favour. The challenge raised in this Writ Petition against the alleged so called police harassment must, in these circumstances, fail. 19. This Writ Petition is, in these circumstances, dismissed. 20. Needless to say, the petitioner's right to approach the authorities for the requisite permission shall remain unfettered by the dismissal of this Writ Petition. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/