IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 28TH DAY OF FEBRUARY 2011 / 9TH PHALGHUNA 1932 WP(C) NO. 30607 OF 2010 PETITIONERS: 1 P.SASIDHARAN, AGED 61 YEARS, S/O.LATE SUBRAMANIAN, RESIDING AT PILASSERY HOUSE,THONDAYAD, P.O.KUTHIRAVATTOM,KOZHIKODE-673 016. 2 BABU, S/O.LATE SUBRAMANIAN, AGED 57 YEARS, RESIDING AT PILASSERY HOUSE,THONDAYAD, P.O.KUTHIRAVATTOM, KOZHIKODE-673 016. BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-, 695 033. 2 THE DISTRICT COLLECTOR,COLLECTORATE P.O. CIVIL STATION,, KOZHIKODE-673 020. 3 KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE,KOZHIKODE-673 001. 4 THE SECRETARY, KOZHIKODE CORPORATION, CORPORATION OFFICE, KOZHIKODE-673 001. 5 QUEENS HABITATS PVT.LTD.11/128, PRAMOD BUILDINGS, CHEROOTY ROAD, KOZHIKODE - 673 001, REPRESENTED BY ITS MANAGING DIRECTOR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30607/2010 2 JUDGMENT The petitioners who are the owners of the property having an extent of 12.35 cents comprised in Survey No.11/6 (Re-survey No. 16/8- A of Nellikode Village in Kozhikode Taluk filed this writ petition on being aggrieved by the directions issued by the second respondent requiring them to demolish or remove the hoardings constructed or put up by them in their property. The contention is that the 2nd respondent is not competent to issue such directions even if erection of the hoardings poses threat to the public at large and that in such circumstances, issuing an order of such a nature falls within the powers of the 4 th respondent in terms of Section 11(1) of the Kerala Municipality Act, 1994. According to them, they are engaged in the trade of displaying advertisements on their hoardings and it is their livelihood. Therefore, the petitioners assail the action on the part of the 2nd respondent as violative of Articles 14, 19(1)(g) of the Constitution of India. The writ petition carries the following prayer:- “Issue a writ of Mandamus or any other appropriate writ, order or direction directing the 2nd respondent or anyone acting through him to forebear from interfering with the hoarding erected by the petitioners in their landed property admeasuring 12.35 cents comprised in Survey No.11/6 (Re-survey No.16/8-A of the Nellikode Village in Kozhikode Taluk.” WP(C).No.30607/2010 3 2. Heard the learned counsel for the petitioners, the learned Standing Counsel appearing for respondents 3 and 4 and also the learned Government Pleader. 3. The contention of the petitioners is that hoardings were erected in their property and not in the property vested with the Government or other third parties and that they will not cause hitch or hindrance to the traffic or will not pose any threat to the public. According to the petitioners on 29.9.2010 the 2nd respondent orally demanded to remove the hoarding on the ground that it is dangerous to the passers-by and further that in case of failure to do so within a week the same would be removed at the risk and cost of the petitioners. It is the said act on the part of the 2nd respondent that compelled the petitioners to move this Court. It is also the contention of the petitioners that advertisement tax was duly paid by the 5th respondent whose billboard was displayed on the hoarding as is evident from Ext.P8. Non- issuance of notice in the matter is violative of the principle of natural justice and having collected the advertisement tax from the 5th respondent the 3rd respondent could not contend that the hoarding was constructed without obtaining approval from the 4th respondent as it would go against the doctrine of estoppel, it is further contended. The petitioners rely on various decisions of the Hon’ble Apex Court to contend that every citizen has a right to carry on any activity which is WP(C).No.30607/2010 4 not forbidden by law and a blanket order imposing prohibition without considering objection of the aggrieved party would violate not only the principle of natural justice but also violate Articles 14, 19(1)(g) and 21 of the Constitution of India. 4. Counter Affidavits were filed separately by the 2nd and 4th respondents. In the counter affidavit filed on behalf of the 2nd respondent it is stated that the Kerala Road Safety Authority Act, 2007 enacted for the constitution of a road safety authority and in Revenue Districts ‘District Road Safety Council’ was constituted with 6 members and the District Collector concerned would be the ex-officio Chairman of the Council. The intention behind the enactment is to co-ordinate and implement urgent measures to ensure road safety at the State and District levels. It is the duty and responsibility of the District Road Safety Council to take appropriate steps to tackle the increasing trend of accidents and to ensure safety of general public, it is stated therein. On 2.7.2010 a meeting of the Council was convened and it directed the parties concerned to remove hoardings from 14 identified locations, including the hoardings of the petitioners, it is stated in the counter affidavit. PWD, Police and Motor Vehicle Department and Corporation of Kozhikode were directed to enforce the decisions taken in the said meeting. The said decision was published in various newspapers. Going by the counter affidavit, the hoardings in question situate at Thondayad WP(C).No.30607/2010 5 junction and I may hasten to state that obviously, Ext.P6 series would go to show that the hoardings situate in a junction. It is also stated in the said counter affidavit that the hoarding erected by the petitioners, having a size of 7 meters height and 12 meters width situate just 5 meters from the public road. Halogen lights are provided during nights to the hoardings, it is stated therein. As per the counter affidavit the Council had taken a decision that no structures could be erected within 100 meters from the said the identified accident prone locations. In paragraph 9 of the said counter affidavit it is stated thus:- “It is further submitted that advertising agencies have voluntarily agreed to remove their advertisement and several persons have already done the same. Since the petitioners also orally agreed to remove hoardings, no individual notice was served on them.” It is also stated in the counter affidavit that on 15.9.2010 a major accident had occurred at Thondayad junction in which four persons had lost their lives and in the Kozhikode Byepass road alone, whereon Thondayad is the major traffic junction, from January to September, 2010 in 107 motor accidents 21 persons died and 97 persons sustained injuries. 5. In the counter affidavit filed by the 4th respondent it is specifically stated that no permit was given to the petitioners to erect advertisement board. It is also stated that an application for grant of WP(C).No.30607/2010 6 licence to erect hoardings was received from the petitioners and since granting the same would violate Rules 3, 4(2) a,b,c, of the Kerala Municipalities (Erection of Arches and setting up of advertisement boards in Public places Rules, 1999) it was not considered. Though the petitioners themselves agreed to remove the structures within 4 days they did not remove them, it is stated. The advertisement board installed by the petitioners was obstructing the views of the drivers entering the junction and therefore, the traffic police authorities requested the Corporation to demolish the said structures as per Ext.R4(a). As relates Ext.P8, it is submitted that the amount mentioned therein was collected by an agency, which is the licensee of the Corporation for collecting advertisement tax and they ought to have verified whether permission was granted. It is further stated therein that the mere payment of tax will not give any right to the petitioners to erect hoardings. 6. The case of the petitioners would reveal that they virtually claim only deemed licence because according to them no decision was taken on their application for erection of hoardings in the property over which they claim title, ownership and possession by virtue of Exts.P1 and P2. As noticed hereinbefore, they claimed to have taken up the trade of displaying advertisements and that is why they assail the action on the part of the respondents as one violating articles 14, 19(1)(g) and 21 of the Constitution of India. In the context of the contention it is to be WP(C).No.30607/2010 7 noted that Article 19(6) enables the State to make any law to put reasonable restriction on the exercise of the right conferred by Article 19(1)(g). Obviously, the Kerala Road Safety Authority Act, 2007 was enacted for the constitution of a road safety authority and in Revenue Districts ‘District Road Safety Council’ was constituted with 6 members. Going by the same, the District Collector concerned would be the ex- officio Chairman of the Council. The avowed intention behind the enactment is to co-ordinate and implement urgent measures to ensure road safety at the State and District levels and it is the duty and responsibility of the District Road Safety Council to take appropriate steps to tackle the increasing trend of accidents and to ensure safety of general public. There is no challenge against any of the provisions under the Kerala Road Safety Authority Act, 2007. Thus, the District Road Safety Council constituted under the Act, under the chairmanship of the District Collector, while discharging its duty and responsibilities took a decision to ensure safety of the public that can be interfered with only in exceptional cases where such interference is extremely essential. The counter affidavits filed by both the 2nd and 4th respondents would reveal the compelling reason that constrained the Council to take impugned decision. On 15.9.2010 a major accident had occurred at Thondayad junction in which four persons had lost their lives. In the Kozhikode Bypass road alone, whereon Thondayad is the major traffic junction, WP(C).No.30607/2010 8 from January to September, 2010 in 107 motor accidents 21 persons died and 97 persons sustained injuries. When these aspects were assigned as the reason for directing to remove hoardings from 14 identified locations, including the location where hoardings of the petitioners locate, taking note of its proximity with the public road to ensure public safety it warrants no interference. The case projected by the petitioners is not one falling within purview of exceptional cases warranting an interference. But, at the same time, taking note of the case of the petitioners that they took up the trade of displaying advertisements on their hoardings and it is their livelihood I am of the view that they shall be given liberty to make appropriate application, if they so desire, to install hoarding in a permissible manner in the property in question in case they got title, ownership and possession over the same. The writ petition stands disposed of, as above. Sd/- C.T.RAVIKUMAR Judge TKS WP(C).No.30607/2010 9 APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE PHOTOSTAT OF THE KANAM ASSIGNMENT DEED NO.168 OF 1959 OF THE SRO, CHEVAYOOR. EXT.P2: TRUE PHOTOSTAT OF THE SETTLEMENT DEED NO.2367 OF 1976 OF THE SRO, CHEVAYOOR. EXT.P3: TRUE PHOTOSTAT OF THE JENM ASSIGNMENT DEED NO.5003 OF 2004 OF THE SRO, CHEVAYOOR. EXT.P4: TRUE PHOTOSTAT OF THE RECEIPT NO.10904104984 DT. 12.5.2009 ISSUED BY THE 3RD RESPONDENT TOWARDS THE FEE FOR CONSTRUCTION. EXT.P5: TRUE PHOTOSTAT OF THE SITE PLAN OF THE PETITIONERS' PROPERTY SUBMITTED TO THE 3RD RESPONDENT. EXT.P6: TRUE PHOTOSTAT COPIES OF THE PHOTOGRAPHS OF THE HOARDING. EXT.P7: TRUE PHOTOSTAT COPY OF THE DEMAND NOTICE NO.138 DT.23.05.2009 ISSUED BY THE 3RD RESPONDENT. EXT.P8: TRUE PHOTOSTAT COPY OF THE BILL NO.2274 DT. NIL ISSUED BY THE 3RD RESPONDENT. TKS