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2015 Supreme(Ker) 903
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN, A.M. SHAFFIQUE, JJ.
T.P. CHERIAN PHILIP - APPELLANT
Vs.
THE NATIONAL HIGHWAYS AUTHORITY OF INDIA - RESPONDENT
WA.NO. 1665 OF 2015 IN WP(C).16455/2015
Decided on : 10-08-2015
Advocate Appeared:
SMT. T.B. MINI
SHRI THOMAS ANTONY, SRI. BABU KARUKAPADATH, SC, COCHIN CORPORATION
Headnote:
Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 - Sections 2(1)(c), 2(1)(k), 2( 1)(l), 2( 1)(m),2( 1)(n), 3, 21, 22 and 33 - National Highways Authority of India Act,1988 - Section 3 - Control of National Highways (Land and Traffic) Act, 2002 - Sections 24 and 26 - National Highways Act 1956 - street vendor - Appeal against judgment by which judgment the Writ Petition filed by petitioner-appellant seeking a direction to National Highways Authority of India not to evict petitioner from place where he is conducting night food shop has been disposed of - Appeal contended that petitioner has right to carry on business on National Highways he being street vendor within meaning of Act, 2014 - Held, The 2014 Act does not contemplate any such street vending on the National Highway. National Highways are being used for passing of vehicles from one place to other including long distance - Present is case where petitioner claim carrying on business with permission of Kochi Corporation - Place where petitioner carries business being part of National Highways, no permission can be granted by Kochi Corporation to petitioner to carry on business in National Highways - Provisions relating to National Highways and that of the 2014 Act operate in different fields and there is no inconsistency, hence Section 33 of the 2014 Act has no application. Thus it is held that the provisions of the 2014 Act do not override the provisions of 1956 Act, 1988 Act and 2002 Act.
Ashok Bhushan, J.
This Writ Appeal has been filed against the judgment dated 06.07.2015 in W.P(C) No.16455 of 2015 by which judgment the Writ Petition filed by the petitioner-appellant seeking a direction to the National Highways Authority of India not to evict the petitioner from the place where he is conducting night food shop has been disposed of.
2. Brief facts giving rise to the Writ Petition are: Petitioner is running a night food shop (Thattukada) on the National Highway-47. Petitioner claims that for carrying out night food shop he was granted licence by the Kochi Corporation. Petitioner also claims registration certificate under the Food Safety and Standards Authority Act, 2006. Petitioner claims that he is carrying on business in a place where there is no traffic and in a place where the vehicles are parked. Officials of National Highways Authority directed the petitioner to remove his shop. Notice was issued to the petitioner on 11.02.2015 (Ext.R1(b). Petitioner filed an application before the Kochi Corporation for relocating the bunk shop where the petitioner was carrying out the night food business. Corporation acknowledged the request of the petitioner for relocating the shop by letter dated 26.05.2015 and directed him to see the Departmental Head in the event reply is not received within 30 days. Petitioner submitted Exhibit P6, application on 26.05.2015 to the Kochi Corporation informing that the bunk shop allotted to the petitioner was at the property of the National Highway Authority which Authority has informed the petitioner to relocate the bunk shop to any other place. Petitioner requested the Kochi Corporation to allow another place for relocating the bunk shop. Petitioner thereafter filed the Writ Petition praying for the following reliefs.
"i) To issue a writ of mandamus, order or direction directing the 1st respondent not to evict the petitioner from the place where he is conducting business as sanctioned by the Corporation of Kochi without permission from the Street Vending Committee.
ii) To issue a writ of mandamus, order or direction directing the 3rd respondent to allot the petitioner any other place to conduct the business by making necessary entries in the licence and sketch.
iii) To issue such other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
3. A statement was filed by the National Highways Authority in the Writ Petition. It is pleaded that petitioner is conducting the shop in the Highway area used as parking area. Vyttila is an important junction and is having heavy traffic. As per the Notification of the Government of India dated 11.11.2003 issued under the National Highways Authority of India Act, 1988, Central Government had entrusted the stretches from 349.000 km to 358.750 km (Vyttila-Aroor Section) of NH-47 to National Highways Authority of India. The land forming part of the Highways is vested in the Central Government. As per Section 24 of the Control of National Highways (Land and Traffic) Act, 2002 no person shall occupy any highway land without obtaining prior permission in writing of the Highway Administration. It is stated that notice was issued to the petitioner to remove the encroachment on 11.02.2015. Petitioner had removed the encroachment by himself but after a few days he again put up the bunk shop in the same place and is continuing the business.
4. The learned Single Judge by judgment dated 06.07.2015 held that petitioner has no right to carry on the bunk shop in the property of the National Highways Authority. Learned Single Judge further observed that if the petitioner seeks for a rehabilitation before the Corporation, the Corporation should consider the prayer. Licence issued by the Corporation for the bunk shop can be only in the property of the Corporation and not in the property of the National Highways Authority. With the above observations, learned Single Judge disposed of the Writ Petition
