Kerala High Court: While addressing the issue of encroachments of footpaths for the purpose of holding assemblies and protests, the Division Bench of Anil K. Narendran and Ziyad Rahman A.A., JJ., stated that,
“Footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads…forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances.”
The instant petition had been filed by the Trivandrum Chamber of Commerce and Industry seeking a writ of mandamus commanding the respondents as well as law enforcement agencies including Police to formulate and issue guidelines for earmarking certain public areas in State of Kerala for the purpose of holding mass assemblies, including protests, campaigns, demonstrations, etc. The petitioners had contended that holding assemblies staged around Government Secretariat and Raj Bhavan, including the adjoining footpaths is illegal and unconstitutional.
Noticeably, various organisations and political parties were staging protests, demonstrations, etc., in public places, including footpaths/ pavements, causing serious inconvenience to general public and also commercial and other establishments set up at such places. The campaigns or protests on footpaths, which initially started on a temporary basis, had attained the nature of permanence along with sheds and others which provide shelter to the campaigners/ protesters and cause hindrance to the general public using footpath for the purpose for which it was constructed.
In C.S.S. Motor Service v. Madras State, 1952 SCC OnLine Mad 142 a Division Bench of the Madras High Court had held that all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. In Sodan Singh v. Delhi Municipal Committee, (1989) 4 SCC 155, a Constitution Bench of the Supreme Court held that the primary object of building roads is undoubtedly to facilitate people to travel from one point to another.
The Bench opined that to what would constitute a public nuisance and what could be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. Noticeably, the Indian Roads Congress had formulated Guidelines for Pedestrian Facilities, as per Para. 4.2 of the said guideline, 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. The Guidelines for Pedestrian Facilities had the approval of the Ministry of Road Transport and Highways (MoRTH). Hence, every local authority in the State is bound to provide pedestrian facilities on public roads in conformity with these guidelines.
In Sivaprasad v. State of Kerala and others 2020 (6) KHC 373, this Court held that, The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The Court had further held that,
“Nobody has got a right to erect any structures on roads. The State is not an exception. The National Highways and State Highways constructed by acquiring private property and by using public funds, can be used only for the travelling needs of public. It cannot be converted for other collateral purposes like erection of statues and memorials.”
Section 4 of Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 deals with prohibition of obstruction on public ways and as per sub-section (1) of Section 4, no person shall cause any obstruction by conducting any business or meeting or assembly or procession or demonstration on any public way or part thereof. As per sub-section (2) of Section 4, no meeting or assembly shall be conducted so as to obstruct any portion of the carriage way or footpath. As per subsection (3) of Section 4, no demonstration or procession shall be conducted in such a manner that the entire carriage way or free flow of traffic is fully obstructed.
Hence, the Bench held that the footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. Accordingly, the state was directed to explain the steps taken to ensure strict enforcement of the orders of the Supreme Court and the relevant statutory provisions, including the Guidelines for Pedestrian Facilities formulated by the Indian Roads Congress in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public roads. [Trivandrum Chamber of Commerce and Industry V. State of Kerala, W.P.(C) No.11886 of 2021, Order dated 08-06-2021]
Kamini Sharma, Editorial Assistant has reported this brief.