Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 2697 OF 2022 PETITIONER: SOONTAN PAL, AGED 35 YEARS, SON OF GANAPATHY, RESIDING AT C/O.S.A.TOMY, SRAMBICKAL HOUSE, MUPPATHADAM (PO), ALUVA, ERNAKULAM DISTRICT, PIN - 683 110. BY ADVS.SHAJI CHIRAYATH JIJI M. VARKEY SAVITHA GANAPATHIYATAN M.M.SHAJAHAN BHOOMIKA SAJAN ASWATHI S. KUMAR RESPONDENTS: 1 ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, OFFICE OF THE ASSISTANT ENGINEER, PWD ROADS SECTION OFFICE, KALAMASERY, ERNAKULAM DISTRICT, PIN - 682 033. 2 KADUGALLUR GRAMA PANCHAYATH, OFFICE OF KADUGALLUR GRAMA PANCHAYATH, ALUVA - EDAYAR ROAD, MUPPATHADAM (PO), ERNAKULAM DISTRICT, PIN - 683 110, REPRESENTED BY ITS SECRETARY. SMT. K.AMMINIKUTTY - SR.GP SRI.DINESH MATHEW J.MURIKAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, ALONG WITH WP(C).2736/2022, 2768/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 2736 OF 2022 PETITIONER: A.S. SUDHI MON, AGED 35 YEARS, SON OF SASI, MANGALASSERY HOUSE, MUPPATHADAM P.O., ALUVA, ERNAKULAM DISTRICT, PIN - 683 110. BY ADVS.SHAJI CHIRAYATH JIJI M. VARKEY G.SAVITHA M.M.SHAJAHAN BHOOMIKA SAJAN RESPONDENTS: 1 ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, OFFICE OF THE ASSISTANT ENGINEER, PWD ROADS SECTION OFFICE, KALAMASERY, ERNAKULAM DISTRICT, PIN - 682 033. 2 KADUGALLUR GRAMA PANCHAYATH, OFFICE OF KADUGALLUR GRAMA PANCHAYATH, ALUVA-EDAYAR ROAD, MUPPATHADAM P.O., ERNAKULAM DISTRICT, PIN - 683 110, REPRESENTED BY ITS SECRETARY. SMT. K.AMMINIKUTTY - SR.GP SRI.DINESH MATHEW J.MURIKAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, ALONG WITH WP(C).2697/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 2768 OF 2022 PETITIONER: SUNITHA MUHAMMEDALI,AGED 47 YEARS, D/O. ABDUL REHIMAN, CHEMMAKUZHI HOUSE, IRAMAM, MUPPATHADAM P.O., ERNAKULAM DISTRICT-683110. BY ADVS.SHAJI CHIRAYATH JIJI M. VARKEY G.SAVITHA M.M.SHAJAHAN BHOOMIKA SAJAN RESPONDENTS: 1 ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, OFFICE OF THE ASSISTENT ENGINEER, PWD ROADS SECTION OFFICE, KALAMASSERY, ERNAKULAM DISTRICT-682 033. 2 KADUGALLUR GRAMA PANCHAYAT, OFFICE OF THE KADUGALLUR GRAMA PANCHAYATH, ALUVA-EDAYAR ROAD, MUPPATHADAM P.O., ERNAKULAM DISTRICT-683110, REPRESENTED BY ITS SECRETARY. SMT. K.AMMINIKUTTY - SR.GP SRI.DINESH MATHEW J.MURIKAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, ALONG WITH WP(C).2697/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 2772 OF 2022 PETITIONER: C.PONNUVEL, AGED 43 YEARS, S/O. CHELLAPPAN, CHELLAPPA NIVAS, PONNOARATH, MUPPATHADAM P.O., ERNAKULAM DISTRICT-683110. BY ADVS.SHAJI CHIRAYATH JIJI M. VARKEY G.SAVITHA M.M.SHAJAHAN BHOOMIKA SAJAN RESPONDENTS: 1 ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, OFFICE OF THE ASSISTANT ENGINEER, PWD ROADS SECTION OFFICE, KALAMASSERY, ERNAKULAM DISTRICT-682 033. 2 KADUGALLUR GRAMA PANCHAYAT, OFFICE OF KADUGALLUR GRAMA PANCHAYATH, ALUVA-EDAYAR ROAD, MUPPATHADAM P.O., ERNAKULAM DISTRICT-683110, REPRESENTED BY ITS SECRETARY. SMT.K.AMMINIKUTTY - SR.GP SRI.DINESH MATHEW J.MURIKAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, ALONG WITH WP(C).2697/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -5-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 2779 OF 2022 PETITIONER: ABOOBAKER, AGED 65 YEARS, S/O. MIDINPILLA, KIZHAKKEDATHU HOUSE, MUPPATHADAM P.O., ERNAKULAM DISTRICT-683101. BY ADVS.SHAJI CHIRAYATH JIJI M. VARKEY SAVITHA GANAPATHIYATAN M.M.SHAJAHAN BHOOMIKA SAJAN RESPONDENTS: 1 ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, OFFICE OF THE ASSISTANT ENGINEER, PWD ROADS SECTION OFFICE, KALAMASERY, ERNAKULAM DISTRICT PIN - 682 033. 2 KADUGALLUR GRAMA PANCHAYAT, OFFICE OF KADUGALLUR GRAMA PANCHAYATH, ALUVA-EDAYAR ROAD, MUPPATHADAM (PO), ERNAKULAM DISTRICT, PIN - 683 110, REPRESENTED BY ITS SECRETARY SMT. K.AMMINIKUTTY - SR.GP SRI.DINESH MATHEW J.MURIKAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, ALONG WITH WP(C).2697/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -6-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 2786 OF 2022 PETITIONER: 1 FATHIMA, AGED 55 YEARS, D/O. KHADER, AMBHATHIL HOUSE, THANDIRICKAL, MUPPATHADAM P.O., ERNAKULAM DISTRICT-683110. BY ADVS.SHAJI CHIRAYATH JIJI M. VARKEY G.SAVITHA M.M.SHAJAHAN BHOOMIKA SAJAN ASWATHI S. KUMAR RESPONDENTS: 1 THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, OFFICE OF THE ASSISTANT ENGINEER, PWD ROADS SECTION OFFICE, KALAMASERY, ERNAKULAM DISTRICT, PIN - 682 033. 2 KADUGALLUR GRAMA PANCHAYAT, OFFICE OF KADUGALLUR GRAMA PANCHAYATH, ALUVA-EDAYAR ROAD, MUPPATHADAM (PO), ERNAKULAM DISTRICT, PIN - 683 110, REPRESENTED BY ITS SECRETARY. SMT. K.AMMINIKUTTY - SR.GP, SRI. DINESH MATHEW J MURICKEN - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, ALONG WITH WP(C).2697/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -7-
JUDGMENT
[WP(C) Nos.2697/2022, 2736/2022, 2768/2022, 2772/2022, These Writ Petitions have been taken up and are being disposed of together, because it impels analogous factual circumstances and have sought similar, if not identical, reliefs.
2. The petitioners in these cases are stated
to be ‘Street Vendors’, enjoying the protection of Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (hereinafter referred to as ‘the Street Vendors Act’ for short). They say that, however, even before the National Policy of Urban Street Vendors had been implemented by the Grama Panchayat, the Assistant Engineer/Assistant Executive Engineer of the Public Works Department (PWD) (Roads Division), has issued notices to them, namely Ext.P2 in all these cases, purportedly under the -8- provisions of the Kerala Highway Protection Act, 1999 (hereinafter referred to as ‘the Highway Protection Act’ for short) asking to evict themselves from the area where they are presently occupying for their business. They say that Ext.P2 is egregiously improper and contrary to law and therefore, they have preferred Ext.P3 representation before the issuing Authority and pray that all further action pursuant to the said notices be interdicted.
3. I have heard Sri.Aswathy S. Kumar -
learned counsel for the petitioners in all these cases; Sri.Ahmed Salim - learned counsel representing Sri.Dinesh Mathew Muricken - learned Standing Counsel for the Kadungalloor Panchayat and Smt.K.Amminikutty - learned Government Pleader appearing on behalf of the official respondents.
4. Smt.K.Amminikutty - learned Senior
Government Pleader, vehemently opposed these Writ -9- Petitions saying that there is nothing on record even to whisperingly indicate that petitioners are Street Vendors as defined under the provisions of the ‘Street Vendors Act’. She submitted that this a matter which is to be decided by the Panchayat appropriately; and added that however, eviction from the areas on which the petitioners are holding possession, is imperative from the standpoint of the safety of the PWD Road in question. She, therefore, prayed that these Writ Petitions be dismissed, particularly because the petitioners have already preferred Ext.P3 objections before the competent Authority.
5. However, to a pointed question from this
Court, Smt.K.Amminikutty conceded that Ext.P2 has been issued either by the Assistant Engineer or the Assistant Executive Engineer and that it can only be construed to be an intimation to the petitioners to voluntarily evict themselves from -10- the areas in question. She submitted that the statutory competent Authority to issue notices for eviction is the Executive Engineer under Section 4 of the ‘Highway Protection Act’ and that said Authority will act accordingly if the petitioners do not evict themselves voluntarily, as has been sought through Ext.P2. She submitted that, therefore, liberty may be reserved to the Executive Engineer - who is the competent Authority under the ‘Highway Protection Act’ - to issue appropriate notices to the petitioners, so that they can be evicted as per law.
6. Sri.Ahamed Salim affirmed that his client
- the Panchayat - has not yet verified if the petitioners are Street Vendors, enjoying protection under the ‘Street Vendors Act’. He submitted that merely because a person asserts to be a Street Vendor, he/she cannot be construed to obtain that character, unless the specific -11- criteria as is required under the afore said Act is demonstrated and satisfied. He submitted that petitioners have not yet approached the Panchayat seeking any such relief and therefore, prayed that this Writ Petition be dismissed.
7. When I evaluate the afore submissions, it
is without doubt that Ext.P2 notice, which is impugned in these cases, has been issued by an Authority who is not the competent one under Section 4 of the ‘Highway Protection Act’. Obviously, therefore, they can only be construed - as correctly stated by the learned Senior Government Pleader - to be a notice to the petitioners to evict themselves from the property voluntarily, if they are so interested. If they choose not to do so, then certainly, the Executive Engineer will obtain competence to issue appropriate Statutory notices under Section 4 of the ‘Highway Protection Act’, which will then lead -12- to consequent action, subject to the statutory remedies and rights of the petitioners.
8. As matters now stand, the petitioners are
only facing Ext.P2 notice, which, as I have already said above, is not Statutory ones under Section 4 of the ‘Highway Protection Act’; and obviously, therefore, I cannot find any cause for concern for them at this stage. Resultantly, I close these Writ Petitions, recording the submissions of the learned Senior Government Pleader as afore; but leaving liberty to the competent Authority under the ‘Highway Protection Act’ to issue appropriate notices to the petitioners, if it becomes so warranted; however, reserving full liberty to them to contest the same as per law, for which purpose, all their contentions are left open. It is also made clear that the question whether petitioners are Street Vendors or -13- otherwise has not been spoken about in this judgment; and that it is left to be decided by the appropriate Panchayat, as and when it becomes necessary, consequent to any application or reference being made to them by the petitioners or any other competent Authority. Sd/- DEVAN RAMACHANDRAN JUDGE akv -14- APPENDIX OF WP(C) 2736/2022 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE GAZETTE NOTIFICATION OF THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT, 2014 ACT. EXHIBIT P2 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT POSSESSION. EXHIBIT P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE -15- APPENDIX OF WP(C) 2768/2022 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE GAZETTE NOTIFICATION OF THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT, 2014 ACT. EXHIBIT P2 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT POSSESSION. EXHIBIT P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE -16- APPENDIX OF WP(C) 2772/2022 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE GAZETTE NOTIFICATION OF THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT, 2014 ACT. EXHIBIT P2 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT POSSESSION. EXHIBIT P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE -17- APPENDIX OF WP(C) 2779/2022 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE GAZETTE NOTIFICATION OF THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT, 2014 ACT. EXHIBIT P2 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT POSSESSION. EXHIBIT P3 COPY OF THE ABOVE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE -18- APPENDIX OF WP(C) 2786/2022 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE GAZETTE NOTIFICATION OF THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT, 2014 ACT. EXHIBIT P2 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT POSSESSION. EXHIBIT P3 COPY OF THE ABOVE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE -19- APPENDIX OF WP(C) 2697/2022 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE GAZETTE NOTIFICATION OF THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT, 2014 ACT. EXHIBIT P2 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ASKING THE PETITIONER TO HANDOVER VACANT POSSESSION. EXHIBIT P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE