IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 WP(C).No. 16303 of 2011(K) ------------------------------------ PETITIONER : --------------------- MRS.SABOORA BEEVI @ NISHI, D/O.SULFATH BEEVI, AGED 24 YEARS, BUSHRA MANZIL, ALINMOODU, KANIYAMPURAM P.O., THIRUVANANTHAPURAM, PIN-695 301 BY ADV. SRI.SREEKANTH S.NAIR RESPONDENTS : ------------------------ 1. DIRECTOR OF PANCHAYATH THE O/O.THE DIRECTORATE OF PANCHAYAT, THIRUVANANTHAPURAM, PIN - 695 001 2. THE SUPERINTENDENT OF POLICE (RURAL) THRIUVANANTHAPURAM, PIN - 695 001 3. ANDOORKONAM PANCHAYAT, KANIYAPURAM P.O, THIRUVANANTHAPURAM, PIN - 695 301, REP.BY ITS SECRETARY 4. THE DEPUTY DUPERINTENDENT OF POLICE, ATTINGAL, PIN-695 101 5. D.PETER"KERALA SWATHANDRA MALSYA THOZHILALI FEDERATION, KANIYAPURAM P.O., PIN - 695 301 6. MARIYA PUSHPAM, MARIYANAD, ARTHUNNGAL PURADAM, KANIYAPURAM P.O., PIN - 695 301 7. ALEX MARY, SANTHIPURAM, KANIYAPURAM P.O., PIN - 695 301 R1, R2 & R4 BY SMT.RANI DIOTHIMA, GOVERNMENT PLEADER R3 BY ADVS. SRI.B.REGHUNATHAN, SRI.G.S.MOHANDAS SRI.R.SRINATH R5 TO R7 BY ADVS.SRI.K.C.ELDH, SRI.JIJO THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12 2011 ALONG WITH WPC.NO.18915/2011. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM -2- WP(C).No. 16303 of 2011(K) APPENDIX PETITIONER'S EXHIBITS : P1 : A PHOTOGRAPH OF PETITIONER'S PROPERTY AND BUILDING. P2 : THE PHOTOGRAPHS OF EVENING MARKET P3 : THE PHOTOGRAPHS OF PUBLIC MARKET P4 & P4(A) : COPY OF THE COMPLAINT DATED 14.06.2011. RESPONDENT'S EXHIBITS : R3(A) : COPY OF RESOLUTION NO.V(1) DATED 10.02.2011 OF THE GRAMA PANCHAYAT. R3(B) : COPY OF RESOLUTION I(9) DATED 09.06.2011 OF THE GRAMA PANCHAYAT /TRUE COPY/ PA TO JUDGE RKM C.K.ABDUL REHIM, J. ------------------------------------------------ W.P.(C) Nos.16303 & 18915 of 2011 ------------------------------------------------ Dated this the 22nd day of December, 2011 J U D G M E N T ---------------------- W.P(C).No.16303/2011 is filed by the owner of a building which is situated on the side of National Highway- 47, located at about 50 metres away from Kaniyapuram Bus Station, within the limits of Andoorkonam Grama Panchayat. Grievance of the petitioner is with respect to illegal conduct of 'fish vending' on the side of the National Highway, in front of her building, in a manner causing obstruction and nuisance to usage of the building and obstruction to the free ingress and egress to the property and the building. Contention of the petitioner is that the Grama Panchayat has provided a public market with all facilities and the illegal fish vending on the side of the public road is conducted without using the market of the Panchayat. The petitioner had submitted Ext.P4 complaint before the Director of Panchayat as well as Ext.P5 complaint before the District Superintendent of Police, W.P.(C).16303 & 18915 of 2011 -2- Thiruvananthapuram. Since no action has been taken to stop the illegal 'fish vending', this writ petition is filed. 2. In the counter affidavit filed on behalf of the 3rd respondent Panchayat it is stated that, there is a notified market at Alumood near Kaniyapuram and there are facilities of all kinds of trades within the said market. It is stated that a few 'fisher women' started illegal conduct of fish vending on the side of the National Highway during evening time, with respect to which a dispute arose before the police authorities. In a meeting convened at Mangalapuram Police Station on 1.6.2011, in which the President of the Grama Panchayat also participated, a decision was arrived to allow conduct of 'fish vending' from 5 p.m. to 8 p.m. on the side of the National Highway on a temporary basis, restricting such permission only for 14 'fisher women' who were doing such trade. But subsequently it was found that the permission granted is creating many problems to the public including traffic congestion. Therefore the Panchayat had taken a decision to shift the fish sales centre on the side of NH to the premises of the notified market, after providing necessary facilities W.P.(C).16303 & 18915 of 2011 -3- for usage of such premises. The 3rd respondent had produced Ext.R3(a) resolution adopted on 10.2.2011, wherein a decision was taken to shift the illegal fish vending business to the notified market on an urgent basis. From Ext.R3(b) it is evident that a further resolution was adopted on 9.6.2011, in which it is noticed that the illegal conduct of fish vending on the side of National Highway had caused severe nuisance and traffic congestion and it had affected safety of the public including school going children. It is stated therein that taking note of the accidental deaths occurred, a decision was taken to prohibit the illegal fish vending, which is conducted even on ignoring the Board exhibited on 23.5.2011 prohibiting such sales from 3 p.m. to 10 p.m. Exhibit 3rd respondent (b) indicates that inspite of physical presence of the President and Members of the Panchayat such persons conducted the activity in a forceful manner challenging the decision of the Panchayat, evidently with the help of the some political leaders. It is stated in the said resolution that inspite of repeated requests made by the Panchayat to various police authorities including respondent No.4, no effective action was taken to prevent W.P.(C).16303 & 18915 of 2011 -4- such illegal activity. The resolution states that the decision permitting sale of fish on the side of the National Highway was taken only on a temporary basis at the instance of the police authorities. Considering all such aspects the committee permitted the person who had bid in auction the right to collect market fee, to collect fee from all the persons conducting business, and the committee also declared that the Panchayat cannot not be held responsible if any accident occurs due to such illegal conduct of business. 3. The petitioner in W.P(C).18915/2011 is the contractor who was granted with the right to collect ' market fee' in the public market situated near Alumood junction. He is complaining about the illegal conduct of fish vending on the side of NH-47 and also about the inaction on the part of the police authorities as well as the Grama Panchayat in taking effective steps to prevent such illegal activities. Direction is sought for against the Grama Panchayat to take effective steps to implement decision and to prohibit the unauthorised market on the side of the NH-47. W.P.(C).16303 & 18915 of 2011 -5- 4. The persons who are allegedly conducting fish vending business on the side of the National Highway are impleaded as respondents 7 to 9 in W.P(C).18915/11 and as respondents 5 to 7 in W.P(C). 16303/2011. In the counter affidavit filed by respondents 7 to 9 in W.P(C).18915/11 it is contended that those persons are only individual street vendors and they are conducting the fish vending by sitting in an area without causing any disturbance to the public or to the people of the locality. According to them these vendors have no financial capacity to have a stall in the market. According to them the street vendors have got a right to life guaranteed under the Constitution of India and a right to get equally protected as that of other citizens. 5. Learned counsel appearing for the above said contesting respondents had pointed out a decision of the Hon'ble Supreme Court in Sodan Singh Vs. New Delhi Municipal Committee and Another (AIR 1989 SC 1988). According to him, the dictum laid therein will squarely apply on the fact situation prevailing in the case at hand. According to them, the fish vendors are eking out their livelihood by selling fish on the side of the National W.P.(C).16303 & 18915 of 2011 -6- Highway. Hence the petitioners or authorities of the State cannot be permitted to infringe the fundamental rights of those persons, because the provisions in the Panchayat Raj Act cannot supersede the fundamental rights guaranteed under the Constitution of India. It is contended that the petitioners have no locus standi to seek direction against the Governmental authorities to act in any manner infringing fundamental rights of those respondents guaranteed under the Constitution. But learned counsel for the petitioners had drawn my attention to the observations contained in the said decision itself to the extent as follows; “Street trading being a fundamental right has to be made available to the citizens subject to Article 19(6) of the Constitution. It is within the domain of the State to make any law imposing reasonable restrictions in the interest of general public. This can be done by an enactment on the same lines as in England or by any other law permissible under Article 19(6) of the Constitution. In spite of repeated suggestions by this Court nothing has been done in this respect. Since a citizen has no right to choose a particular place in any street for trading, it is for the State to W.P.(C).16303 & 18915 of 2011 -7- designate the streets and earmark the places from where street trading can be done.” 6. Going by provisions contained in the Kerala Panchayat Raj Act and the Rules made thereunder, it is evident that the Village/Panchayat is empowered to provide places for use as public markets within its limits, and to control and manage such markets established. The Panchayat is also empowered to issue licences for establishment of private markets within the limits of the Panchayat. By virtue of Sections 224 and 225, express prohibition is imposed to the effect of prohibiting sale of any articles in or upon any public road or place or part thereof. Specific rules have been formulated under the Kerala Panchayat Raj Act with enabling provisions for establishment of public and private markets for facilitating public trade and merchandise within the limits of the Panchayat. Further, the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 imposes prohibition with respect to usage of any public way or part thereof for putting up any shed or structure either temporary or permanent or for using such public way or part thereof for W.P.(C).16303 & 18915 of 2011 -8- any business, meeting, assembly, procession or demonstration, etc. On interpreting Section 4 of the Public Ways Act this court in the decision in Antony Vs. Superintendent of Police (2011 (3) KLT 361) held that, the prohibition contemplated under Section 4 of the Act with respect to “public way or part thereof” will takes in both “foot path” and “road margin”. Hence it is evident that the fish vending conducted on the side of the National Highway in a public place is restricted and prohibited through various enactments. Even while considering contentions of the party respondents regarding infringement of the fundamental rights, based on the decision of the Hon'ble Supreme Court, it is pertinent to note that the state through its machinery has already provided adequate facilities for ensuring that those persons can continue their avocation because the Panchayat had already provided facility for such trade in the declared market. It is also evident that the Panchayat had taken specific decision to rehabilitate those persons, vending fish on the objectionable site, at the declared market situated within the limits of the said Panchayat at a nearby place. W.P.(C).16303 & 18915 of 2011 -9- Learned counsel for the contesting respondents had raised a further contention that even though such facility is provided, they could not afford to pay the “gate fee” (market fee) for conduct of such trade within the premises of the market. I am of the considered opinion that merely on a plea of inability to pay “market fee” the contesting respondents or anybody else cannot be permitted to have illegal fish vending on the side of the National Highway, in flagrant violation of the provisions contained in the above statutes and in a manner causing nuisance and danger to the public as well as danger to the ongoing traffic. Therefore it is necessary in the interest of justice to issue directions to the authorities concerned to take effective steps for stoppage of such illegal activities forthwith. 7. In the result these writ petitions are disposed of directing the Superintendent of Police (Rural), Thiruvananthapuram (the 2nd respondent in W.P(C). 16303/2011) and all subordinate officers under him having jurisdiction in the area concerned to take effective steps to prevent any illegal activity of fish vending anywhere on the side of the National Highway-47 or any public road situated nearby, including the areas which can be described as W.P.(C).16303 & 18915 of 2011 -10- footpath or road margin, with immediate effect. 8. Andoorkonam Grama Panchayat (the 3rd respondent in W.P(C).16303/11 and 6th respondent in W.P(C).18915/11) will take all necessary steps to provide and facilitate to those persons who were temporarily permitted to conduct fish vending on the side of the National Highway, to continue their trade within the Market of the Grama Panchayat situated at Alumood, in view of the decision taken by the Grama Panchayat on 10.2.2011. 9. It is left open to the fish vendors so rehabilitated to approach the Grama Panchayat seeking waiver or reduction in payment of market fee to the possible extent raising their financial constrains. In case if such an approach is made, it is for the Grama Panchayat to take appropriate decision on such request. Sd/- C.K. ABDUL REHIM, JUDGE. okb True copy P.A to Judge