IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 WP(C).No. 30577 of 2010(V) --------------------------------------- PETITIONER(S): ----------------------- 1. ABDUL MUNEER,S/O.KUNHAVA HAJI, OLIVE MAHAL,PARAPPANANGADI, MALAPPURAM DISTRICT. 2. FIROZ,S/O.E.T.MOHAMMED BASHEER, "KALATHIL AVENUE",2/1788A,FLORICAN ROAD, MANAPARAMBU,CALICUT BY ADVS. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR,KOZHIKODE. PIN- 673 001 2. CORPORATION OF KOZHIKODE,REP.BY ITS SECRETARY,KOZHIKODE,PIN 673 001. R1 BY GOVERNMENT PLEADER SRI.DILEEP MOHAN R2 BY ADV. SRI.P.V.SURENDRANATH,SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.30577/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LAND TAX RECEIPT DATED 27/07/2010. P2 COPY OF THE POSSESSION CERTIFICATE DATED 29/07/2010. P3 COPY OF THE AGREEMENT DATED 09/12/2009. P4 COPY OF THE RELEVANT PAGES OF THE APPLICATION DATED 05/03/2010 ALONG WITH COPY OF THE RECEIPT DATED 06/03/2010. P5 COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 28/09/2010. P6 COPY OF THE NEWS ITEM PUBLISHED IN MATRUBHOOMI DAILY DATED 11/10/2010. P7 COPY OF THE NEWS ITEM PUBLISHED DESHABHIMANI DAILY DATED 28/09/2010. P8 COPY OF THE ROUGH CHART SHOWING THE NUMBER OF ACCIDENT OCCURRED IN RAMANATTUKARA-MALAPARAMBA BY PASS ROUTE DURING THE LAST 3 YEARS. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE ACCIDENT PRONE LOCATION AS IDENTIFIED BY THE ROAD SAFETY COUNCIL IN ITS 1ST PHASE. R1(B) COPY OF THE LETTER ADDRESSED BY THE TRANSPORT COMMISSIONER TO THE 1ST RESPONDENT. R2(A) COPY OF THE COMMUNICATION FROM THE ASSISTAT COMMISSIONER OF POLICE, CITY TRAFFIC, KOZHIKODE DATED 16/9/2010. /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 30577 of 2010 V ``````````````````````````````````````````````````````` Dated this the 11th day of January, 2011 J U D G M E N T First petitioner is running an advertisement agency and the second petitioner is the owner of 22.75 cents of land on the side of the national highway 212 at Thondayad Bye- pass Junction, Calicut. It is stated that the first petitioner entered into Ext.P3 agreement with the second petitioner, whereby, the first petitioner was allowed to construct platforms, erect structure and put advertisements, flex boards in the property belonging to the second petitioner, subject to the terms and conditions agreed between the parties. 2. According to the first petitioner, based on the agreement, he submitted Ext.P4 application to the second respondent for the issuance of a permit as contemplated under the Kerala Municipalities Act. However, no order was passed by the Municipality, as a result of which, according to W.P.(C) No.30577/2010 : 2 : him, a deemed permit has enured to his benefit. It is stated that, on that basis, he set up a hoarding in the property of the second petitioner. It is stated that on 27-09-2010, the first respondent made an attempt to remove the hoardings in the area and the first petitioner was also directed to remove the aforesaid hoarding. As there was threat of physical removal of the hoarding in question, this writ petition was filed, praying to direct the first respondent to refrain from forcibly removing the structure belonging to the first petitioner and placed in the property of the second petitioner. 3. A detailed counter affidavit has been filed on behalf of the first respondent. According to the first respondent, on 15-09-2010, a major accident occurred in the traffic junction where the first petitioner's hoarding has been installed. It is stated that in the said accident, four persons died. The first respondent states that Thondayad is a major traffic junction where, from January to September, 2010, 21 persons died and 97 injured in 107 accidents. It is stated that, in view of W.P.(C) No.30577/2010 : 3 : the repeated accidents, an urgent meeting of the Safety Council and Traffic Advisory Committee with experts from NATPAC and various other Non Government Organisations, Local Authorities, other Department heads and the representatives of the various Trade Unions was held on 20- 09-2010. It is stated that in that meeting, it was decided to levy fine on all vehicles not using Speed Governors from November, 2010, and to enforce restrictions of installation of boards so that the boards do not distract the drivers. It is stated that, it was also decided to identify and remove hoardings and advertisement boards within 100 metres surroundings of the identified 14 accident prone locations in the district by November. Accordingly, a sub committee was formed to monitor and oversee the implementation of the decision. The counter affidavit further states that wide publicity was given in the newspapers as well as in electronic media to the decision regarding the removal of hoardings and other measures. It is stated that, the first petitioner had W.P.(C) No.30577/2010 : 4 : voluntarily agreed to remove the hoarding in question and it was therefore that no notice was issued to him. It is stated that the advertisers were given sufficient time to remove the hoardings without causing any damage so that they may re- use the same. According to the first respondent, most of the advertisers have removed the hoardings at Thondayad Byepass, voluntarily in view of the aforesaid decision and to avoid subsequent accidents and to ensure safety of the general public. A reading of the affidavit shows that the powers exercised by the first respondent were those available under the Kerala Road Safety Authority Act, 2007. 4. The second respondent has filed a statement. In the statement, the stand taken by the second respondent is that the hoarding in question was installed without obtaining any permit or licence from the second respondent. On this basis, it is contended that the hoarding in question is an unauthorised structure. The second respondent also endorses the stand of the first respondent that the hoarding in W.P.(C) No.30577/2010 : 5 : question distracts the drivers and, therefore, to avoid accident, it is essential to remove the same. 5. When the matter was came up for hearing, the argument raised by the learned counsel for the petitioners was mainly that since the contention of the first respondent is that steps for removal of the hoarding in question was initiated under the provisions of the Kerala Road Safety Authority Act, 2007, the first respondent should have complied with the provisions under the said Act. It was contended that if that be the case, power of removal of causes of accident can be exercised only under Section 14 of the Act. It was contended that even if it is assumed that the respondents have power, the Road Safety Commissioner is bound to pass orders directing the person concerned either by a general or special order, to remove the structure or building, which is likely to cause accident. It is stated that in the absence of the first respondent having exercised the power complying with the provisions contained in the Road Safety Authority Act, 2007, W.P.(C) No.30577/2010 : 6 : steps taken by the first respondent for removal of the hoarding are illegal. 6. The answer of the learned Government Pleader to this contention was that since the petitioner himself had voluntarily agreed to remove the structure, there was no necessity to have issued any notice or passed any order as contemplated under Section 14 of the Act. However, in the reply affidavit filed, the petitioner has denied the claim of the first respondent that the petitioner had agreed to remove the hoarding voluntarily. In such a situation and for the reason that the first respondent has not produced any material to substantiate its contention that the petitioner had voluntarily agreed to remove the hoarding, necessarily, the first respondent should have complied with the procedure laid down in Section 14 of the Act. 7. Section 14 of the Act reads as under:- “14. Power to order removal of causes of accidents - (1) Notwithstanding anything contained in any other law for the W.P.(C) No.30577/2010 : 7 : time being in force, where the Authority is satisfied on complaint, report by any person or otherwise that, - (i) the act of any person or persons on a public road, or (ii) the placement or positioning of any vehicle, animal, object built without the approval of any recognised administrative authority, structure, or materials including arches, banners, display boards, hoardings, awnings, tents, pandals, poles, platforms, rostrums, statues, monuments and other similar structures, on a public road; or (iii) the movement of animals or vehicles on a public road; or (iv) the condition of any tree, structure or building situated in the vicinity of a public road; or (v) the entry or exit of any building or premise in the vicinity of a public road; is likely to cause accidents or causes obstruction to the free flow of traffic or distract the attention or obstruct the vision of W.P.(C) No.30577/2010 : 8 : the driver of any vehicle, the Road Safety Commissioner may, after recording reasons thereof, direct the person concerned, either by a general or special order, take such measures within two months as it considers necessary and such person shall be bound to comply with the direction within such time, as may be specified by the Authority. 2. Notwithstanding anything contained in sub-section (1), in case of urgency, the Road Safety Commissioner may take such action as may be necessary to prevent accident or obstruction, as the case may be, and recover the cost thereof from the person responsible, in such manner as may be prescribed.” 8. A reading of Section 14 shows that if the condition of the structure in question, which is situated in the vicinity of the public road, is one which is likely to cause accident, it is well within the power of the Road Safety Commissioner to pass an order for its removal. But, any such order is to be passed with notice to the parties concerned and after W.P.(C) No.30577/2010 : 9 : affording an opportunity of hearing to the persons affected. In this case, admittedly, no notice has been issued nor has the Commissioner passed any order requiring the first petitioner to remove the hoarding in question. In the absence of having complied with the requirement of Section 14, this Court cannot uphold the action of the first respondent in ordering removal of the hoarding. Therefore, the only option available to the respondents is to comply with the provisions of Section 14, issue notice to the first petitioner, pass an order in terms of Section 14(1) and require the first petitioner to remove the hoarding in question. 9. Therefore, writ petition is disposed of, leaving it open to the respondents to comply with the provisions of Section 14(1) of the Kerala Road Safety Authority Act, 2007 in so far as the hoarding installed by the first petitioner is concerned. It is also clarified that, if according to the second respondent, the structure in question is an unauthorised one, it will be open to the second respondent to initiate W.P.(C) No.30577/2010 : 10 : proceedings in accordance with the Kerala Municipalities Act against the petitioners. Sd/- (ANTONY DOMINIC, JUDGE) aks // True Copy // P.A. To Judge