State Human Rights Commission Vested With Jurisdiction To Order Compensation For Human Rights Violations: Kerala High Court

The Kerala High Court recently held that the State Human Rights Commission has jurisdiction to direct payment of compensation for human right violations

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman passed the order in a case where a street vendor had been evicted by the Kottayam Municipality in a discriminatory manner, and without issuance of notice. 

"The right of the 3rd respondent to carry on vending on street guaranteed by the Constitution is subject to the restrictions imposed by the Kerala Municipality Act, 1994. However, we find that the power of removal of encroachers vested in the Secretary under the Municipality Act is not exercised judicially and reasonably. The 3rd respondent's right to livelihood has been deprived otherwise than in accordance with a just and fair procedure established by law. Consequently, it follows that the Municipality has infringed the fundamental rights of the 3rd respondent under Article 21 of the Constitution", the Court observed. 

It went on to add that, 

"...the action of the Municipality and its officers in evicting the 3rd respondent has infringed his rights relating to life and equality guaranteed by the Constitution. Violation of rights relating to life and equality guaranteed by the Constitution amounts to violation of human rights". 

Brief Facts

As per the factual matrix, a street vendor (3rd respondent) had approached the Human Rights Commission, alleging that a sanitation worker from the Municipality had asked him to remove a waste kit placed near his vending place and when the former told that him that he had not kept the same at the place, the worker had verbally abused him. It was further alleged that when he had left the vending place to buy medicine, about 15 employees of the Municipality came in a garbage collection vehicle and took away all the clothes kept by him for sale. He contended before the SHRC that this had affected his source of livelihood, and that he was not in a position to repay the loans, and that he had also sustained a loss of Rs.2,34,000/-. 

The Municipality subsequently filed a report before the SHRC stating that the 3rd respondent was summarily evicted pursuant to an order issued by it and in exercise of its powers under Section 367 (3) of the Kerala Municipality Act, 1994 since there were reports regarding obstruction to vehicular and pedestrian traffic due to the street vending, and that the 3rd respondent had occupied 3/4th of the pavement and was littering the area causing blockage of the drain.

Thereafter, the SHRC visited the premises of the Municipality and recorded that only one box and a few items could be seen and no details of the items seized were recorded in the mazhar. It further noted that although there were several street vendors on the road, only the 3rd respondent had been evicted, and that the same was done at the behest of the owner of the hotel near the place where he was vending. The SHRC thus found the said act of the Municipality to be discriminatory, and his eviction from the place where he had been doing business for a quarter century as inhuman and in violation of his human rights and right to life and the directions of the Supreme Court and the Government Policies. It therefore directed the Municipality to pay an amount of Rs.50,000/- as compensation to him and further directed to provide facility to him to re-allocate, once such place was available. 

It is the said order that the petitioners had challenged. 

Arguments Raised

It was contended by the petitioners that there had been no violation of Human Rights in this case, and that the SHRC lacked the jurisdiction to entertain the complaint of the 3rd respondent. It was submitted that the Municipality could summarily evict the encroachers under Sections 367 (3) and 372 of the Kerala Municipality Act, 1994, and that the order that had been issued was thus lawful. It was further argued that the SHRC could not order payment of compensation, but only make a recommendation to the Authority under Section 18 of the Protection of Human Rights Act, 1993. 

The 3rd respondent on his part, contended that he was entitled for protection from eviction under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and for re-allocation under the statute. It was further contended that, having subjected to the jurisdiction of SHRC and not having raised the issue of maintainability of the complaint before it at the first instance, the petitioners were estopped from raising any objection as to the maintainability of the complaint as well as the jurisdiction of the SHRC in awarding compensation. 

Findings of the Court

The Court in this case perused Sections 367 which provides for removal of encroachments, and 372 which provides for instances where the Secretary may remove encroachments without notice. It ascertained that as per Section 367(3), the power vested in the Secretary to summarily evict encroachments is discretionary and shall be exercised judicially and reasonably.

"The power of summary eviction shall be exercised by the Secretary in cases of urgency which brooks no delay. In other cases, the Secretary may, by notice, require removal of encroachment. In the light of the fact the 3rd respondent had been engaged in vending at the place for long, notice should have been issued to the 3rd respondent before eviction, so that he could have offered his explanation or could have taken away the articles kept for sale", it observed. 

The Court further noted that the 3rd respondent alone had been evicted amongst the persons doing street vending at the same place. 

"The Municipality cannot follow pick and choose policy and there cannot be any discrimination in the matter of eviction of street vendors. The action of the Municipality has infringed the fundamental right to equality guaranteed to the 3rd respondent under Article 14 of the Constitution of India", it observed. 

The Court thus concluded that the human rights of the 3rd respondent had been violated by the Municipality in this case. 

As regards the contention of the petitioners that the SHRC could not order payment of compensation, but only make a recommendation to the authority under Section 18 of the Protection of Human Rights Act, 1993, it noted that in State of Kerala & Anr. v. Human Rights Commission & Ors. (2015), a Division Bench of the Kerala High Court had observed that when the Human Rights Commission recommends to the concerned Government or Authority to make payment of compensation or damages, it is with the intend to make payment by the said authority. The Court had in the said case, rejected the argument that the Commission lacked the jurisdiction to direct payment of compensation. 

"In the light of the said decision, we hold that the Human Rights Commission has jurisdiction to direct payment of compensation to the 3rd respondent for violation of his human rights. We do not find any illegality or irregularity or lack of jurisdiction in Ext. P7 order passed by the Human Rights Commission", the Court observed while dismissing the writ petition. 

The petitioners were granted two months' time from the date of the order to make payment of the amount ordered by the SHRC.

The petitioners were represented by the Standing Counsels for the Kottayam Municipality Advocates S. Ranjit, Ajit Joy, and Siby Chenappady, as well as Advocate N. Raghuraj. Senior Government Pleader Thushara James, Senior Advocate K. Anand, and Advocates M.S. Amal Dharshan, Kaleeswaram Raj, and A. Aruna appeared on behalf of the respondents. 

Case Title: Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors. 

Citation: 2023 LiveLaw (Ker) 89

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