Kerala High Court Directs Removal Of Encroachment On Road Margins Near National Highway, Says Notice Not Required

Referring to Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, it reiterated that illegal encroachments on road margins can be removed even without notice unless they have been in occupation for a very long time.

Based also on Section 367(3) of the Kerala Municipality Act, 1994, the court observed that encroachment in question could be removed without providing any notice.

“…even summary eviction of encroachment from public streets or footpaths can be resorted to and notice itself is not necessary when the Secretary is satisfied that 'encroachment causes obstruction or hindrance or inconvenience to traffic and users of the street'. There is no reason to assume that encroachment on the foot- ways and the area in front of the petitioner hospital is not causing obstruction, hindrance or inconvenience to traffic, including for ambulances and other users of the street. Therefore, encroachments can be removed even without any such notice in the instant case,” the court said.

Referring to the National Highways Act, 1956, the court added that the area in front of the petitioner-hospital included a service road, which was part of the National Highway and no person could occupy it.

“The Act does not give any right of street vending on a National Highway nor can any person use any part of a National Highway for street vending.”

Notably, the petitioner-hospital had approached the court seeking removal of encroachers carrying illegal business through bunk shops and temporary sheds on NHA’s property adjacent to it.

Its grievance was that the encroachment was restricting free movement of patients, doctors, etc., blocking ambulances carrying emergency patients to the hospital and causing traffic congestion.

The petitioner apprised the court that complaints were given to Regional Transport Officer and NHA, but no effective action was taken. It averred that property of the National Highway was excluded from the ambit of Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014.

Additionally, the Corporation of Thiruvananthapuram urged that under the Kerala Street Vendors (Protection of Livelihood Regulation of Street Vending and Licensing) Scheme, 2019, 50-metre area from entrance of hospitals is declared as vending free zone.

Certain street vendors, arrayed as respondents, submitted that they were entitled for protection under the Street Vendors Act and prayed against eviction as the shops constituted their source of livelihood.

The Court noted that the street vendors arrayed as respondents did not have certificates of vending. Besides, it added, even licensed street vendors cannot set up bunk shops or occupy area within 50 metres of hospital premises.

Allowing the petition, Justice Bechu Kurian Thomas directed the respondents to ensure that appropriate measures were taken to prevent the encroachers from returning.

“The illegal occupation of road margins is even more evil when the occupation is in front of a hospital. The vice of such occupation has its tentacles rooted in several anti-social activities as well. Therefore, it is essential that the Corporation, the Police as well as the District Administration and even the National Highway Authorities act in unison to remove such encroachers and prevent a repetition of such offending acts.”

Counsel for the respondent: Government Pleader Devishri R, Standing Counsel Suman Chakravarthy, Advocates K.A.Salil Narayanan, Saju J Panicker and Kurian K Jose

Citation: 2023 LiveLaw (Ker) 650

Case title: Ananthapuri Hospitals & Research Institute v Corporation of Thiruvananthapuram

Case number: WP(C) NO. 8177 OF 2023

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