Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 26TH DAY OF JUNE 2023 / 5TH ASHADHA, 1945 WP(C) NO.20599 OF 2023 PETITIONER:
PRADEEP C AGED 62 YEARS S/O.R.CHANDRASEKHAR, RESIDING AT MANNARUPARAMPIL, KANJIPADOM, ALAPUZHA DISTRICT, PIN - 688005
BY ADVS.
S.SREEKUMAR (KOLLAM) NAMITHA RAJESH K.VIJAYAN
RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE SECRETARY TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR P.O, THIRUVANANTHAPURAM, PIN - 695003 3 TRAVANCORE DEVASWOM BOARD DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR P.O, THIRUVANANTHAPURAM 695003, REPRESENTED BY ITS SECRETARY 4 THE DISTRICT COLLECTOR COLLECTORATE, PATHAMTHITTA, PIN - 689647 5 THE REVENUE DIVISIONAL OFFICER ADOOR, PATHNAMTHITTA, PIN - 691523
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6 THE VILLAGE OFFICER ARANMULA VILLAGE, ARANMULA .P.O, PATHANAMTHITTA, PIN - 689532 7 THE ASST.EXECUTIVE ENGINEER PWD,PATHANAMTHITTA, PIN - 689645
SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI G.SANTHOSH KUMAR - STANDING COUNSEL, TRAVANCORE DEVASWOM BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T Anil K.Narendran, J.
The petitioner, who is a kuthaka holder in Sree Parthasaradhi Temple, Aranmula, for selling pooja items, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P4 notice dated nil of the 7th respondent Assistant Executive Engineer, PWD (Roads Division), Pathanamthitta, whereby the bunk/stall erected in the approach road leading to east nada of the said temple, was directed to be removed within 24 hours from the date of receipt of that notice. The petitioner has also sought for a writ of mandamus commanding the 3rd respondent Travancore Devaswom Board to consider and pass orders on Ext.P5 representation dated 16.06.2023 for allotting another stall in the premises of Sree Parthasaradhi Temple, Aranmula for conducting the pooja stall.
2.
On 26.06.2023, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board and also the learned Senior Government Pleader sought time to get instructions.
3.
Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1, 4, 5, 6 and 7 and also the learned Standing Counsel for Travancore Devaswom Board for
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respondents 2 and 3.
4.
Ext.P4 notice is one issued by the 7th respondent, Assistant Executive Engineer, PWD Roads division, invoking the provisions under Section 15(2) of the Kerala Highway Protection Act, 1999. As per the said notice, the pooja stall in the east nada of Sree Parthasaradhi Temple, Aranmula is erected encroaching the highway.
Section 15 of the said Act deals with removal of encroachment. As per sub-section (2) of Section 15 of the Act whenever an encroachment is made for the purpose of exposing articles for sale for opening temporary booth for vending or publicity or for other like purposes, the Highway authority shall with the help of Police, if necessary, have such encroachment summarily removed.
5.
In Suneesh K.S. v. Travancore Devaswom Board and others [ILR 2022 (1) Kerala 1091], this Court held that once roads are constructed as per the required standards, it has to be maintained as such without any encroachment on the right of way or on the pedestrian facilities provided as per such standards. Footpaths are not intended for putting up stalls, shops, etc., or for stocking articles for trade or for display of goods by traders, in front of their shops or establishments, by causing obstructions to free movement of pedestrians. No person can be permitted to encroach footpath or right of way of public roads, in connection with any such activities by
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erecting any temporary stalls, structures, etc. on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. The State holds public roads as a trustee on behalf of the public. By permitting encroachments on public roads by way of temporary structures on the right of way or on the pavements or on the pedestrian facilities provided on such roads, on political considerations or otherwise, the State Government or the concerned Local Self Government Institution is committing breach of trust.
Therefore, no Local Self Government Institution shall grant licence to a trader to erect stall on the right of way of public roads or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances.
Stern action shall be taken against the traders who erect stalls on the right of way of public roads or on the pedestrian facilities.
6.
In Suneesh K.S. [ILR 2022 (1) Kerala 1091] this Court relied on the principle laid down in the decision of a Division Bench of the Madras High Court in C.S.S. Motor Service v. Madras State [AIR 1953 Madras 279], which was approved by a Constitution Bench of the Apex Court in Saghir Ahmad v. State of U.P. [AIR 1954 SC 728].
7.
The document marked as Ext.P2 is a photograph of the
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pooja stall in the east nada of Sree Parthasaradhi Temple, Aranmula.
Since the said pooja stall is an encroachment which squarely falls within the purview of sub-section (2) of Section 15 of the Kerala Highway Protection Act, 1999, the additional 7th respondent Assistant Executive Engineer cannot be found fault with, in issuing Ext.P4 notice.
Therefore, the said notice warrants no interference in this writ petition, in exercise of the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.
8.
Another relief sought for in this writ petition is consideration of Ext.P5 representation dated 16.06.2023 made by the petitioner, which is now pending consideration before the 3rd respondent Travancore Devaswom Board. The request made by the petitioner in Ext.P5 representation is that he may be allotted another stall in the temple premises, for conducting pooja stall, as he is the kuthaka holder for the period 2023-24 or an amount of Rs.25,40,775/- plus GST. The document marked as Ext.P3 is a receipt for payment of Rs.12,70,388/- towards 50% of the auction amount on 07.04.2023, along with a sum of Rs.4,57,340/- towards GST. The averments in the writ petition would not show whether the petitioner has defaulted payment of the balance bid amount. The due date for payment of Rs.12,70,388/- towards balance bid amount is not disclosed in the writ petition. During the course of arguments, it is
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submitted by the learned counsel for the petitioner that the pooja stall in question has already been removed based on Ext.P4 notice.
9.
In the above circumstances, though interference is declined on Ext.P4 notice, this writ petition is disposed of by directing the 3rd respondent Travancore Devaswom Board to consider Ext.P5 representation made by the petitioner and pass appropriate orders thereon, strictly in accordance with law, as expeditiously as possible.
10. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.
Therefore, the direction contained in this judgment is one directing the 3rd respondent Travancore Devaswom Board to take an appropriate decision on Ext.P5 representation made by the petitioner, strictly in accordance with law, since no mandamus can be issued directing an authority to do something which is contrary to law.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/- P.G. AJITHKUMAR, JUDGE PV