Kerala HC seeks State Governments response on steps taken to prevent encroachment on footpaths and public roads by political parties for protests/demonstrations [READ ORDER]

The Kerala High on Tuesday (June 8, 2021) ordered the State Government to explain the steps taken by them to prevent any encroachment which deprives people of their right of way or pedestrian facilities on public roads. 

The order was passed in a writ petition filed by the Trivandrum Chamber of Commerce and Industry along with its President seeking a writ of mandamus against law enforcement agencies including the Police to remove assemblies staged around the Government Secretariat and Raj Bhavan, including the adjoining footpaths and to declare such assemblies as unconstitutional and illegal. 

The petition also sought a writ of mandamus against law enforcement agencies to formulate and issue guidelines to allocate public areas to hold mass assemblies and demonstrations.

The petition states that in the last few years several organizations have conducted strikes and protests in front of the Government Secretariat and Raj Bhavan. In connection with such protests and campaigns, structures such as sheds were constructed to provide shelter to the protesters/campaigners. These sheds which were initially constructed on a temporary basis gradually became permanent structures thereby causing traffic congestions and hindrance to the public using footpaths.

The petitioner submitted that the State holds the public streets and roads as a trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them as a matter of right. Therefore, the State as a trustee on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be required for protecting the rights of the public generally.

Citing the decision given by the Supreme Court in Sodan Singh v. New Delhi Municipal Committee [1989 (4) SCC 155], the petitioner submitted that the liberty of an individual comes to an end where the liberty of another commences. A member of the public is entitled to use the road, he should not, however, make excessive use of the road to the prejudice of others.

The petitioner also pointed out Para 4.2 and Para 4.5 of the Guidelines for Pedestrian Facilities formulated by the Indian Roads Congress and stated that the law enforcement authorities had failed to execute the guidelines. Para 4.2 states that efforts should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances and that motorists respect the position of pedestrians. Para 4.5 states that the mobility and safety of all pedestrians including those with disabilities and reduced mobility should be ensured to promote inclusive mobility and universal accessibility. 

The petitioners also pointed out the failure of the State to execute the Motor Vehicles (Driving) Regulations 2017 made by the Central Government which require the drivers and riders to take ensure the safety of the most vulnerable road users such as pedestrians, cyclists, children, elderly, and the differently-abled persons. 

In 2011, the Kerala Public Ways (Restriction of Assemblies and Processions) Act was formulated to deal with the regulation of the conduct of festivals, assemblies, meetings, etc. 

Petitioners pointed out that despite the enactment of this Act and the decision given by the Apex Court in Union of India v. the State of Gujarat wherein it directed The Government of Kerala shall not grant any permission for installation of any statue or construction any structure in public roads, pavements, sideways, and other public utility places., no steps were taken by the respondents to ensure their enforcement.

Reiterating the decision given by the Kerala High Court in Sivaprasad v. State of Kerala and Others [ 2020 (6) KHC 373] the petitioner stated that the State, being the principal protector of the rights of its citizens, keeping in view the doctrine of public trust, should not permit any encroachment on the footpaths or pavements. Nobody has got a right to erect any structures on roads and the State is no exception.

Paying no heed to the law laid down by the Supreme Court in various cases the political parties and various other organizations were allowed to set up structures on footpaths and even on the right of way of public roads. Because of such encroachments, pedestrians including those with disabilities and reduced mobility are being forced to walk through the right of way of public roads, in unsafe circumstances. 

Taking note of the nature of issues involved in this writ petition, the Bench of Justice Anil K Narendran and Justice Ziyad Rahman A. A directed the registry to carry out the necessary changes and include the Additional Chief Secretary of Home Department, the Additional Chief Secretary of Local Self Government Department, and the Transport Commissioner, Kerala, as additional respondents 5 to 7 in the case.

The Court further directed the Senior Government Pleader to file a counter affidavit within 4 weeks on behalf of the 1st Respondent. 

In the counter affidavit the 1st respondent shall explain the steps already taken to ensure strict enforcement of the orders of the Apex Court and the judgments of this Court referred to supra, the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads Congress [IRC:103-2012], to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public roads., the order read. 

[READ ORDER]