IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 670 of 2010(S)
1. THE CHIEF SECRETARY TO GOVERNMENT,
... Petitioner
2. THE EXECUTIVE ENGINEER,
3. THE SUPERINTENDENT OF POLICE (RURAL)
Vs
1. KHALID MUNDAPPILLY, MUNDAPPILLY HOUSE,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.T.R.RAJAN
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :13/08/2010
O R D E R
C .N. RAMACHANDRAN NAIR, &
P.S. GOPINATHAN, JJ.
--------------------------------------------
R P. No. 670 of 2010
in
W. P. C. No. 19253 of 2010
--------------------------------------------
Dated this the 13th day of August, 2010
O R D E R
Ramachandran Nair, J.
This Review Petition is filed by the Chief Secretary to State
Government along with the Executive Engineer, PWD and
Superintendent of Police, Alwaye, the respondents in the WPC, for
reviewing the judgment of this Court rendered in a public interest
litigation filed by the first respondent as WPC No. 19253 of 2010.
Petitioner in the Public Interest Litigation is a resident in the Aluva
Municipality who produced photographs along with the Petition
showing the temporary stage constructed and the political meeting
being held on the public road blocking the traffic in front of the railway
station, the transport bus-stand being located on the other side of the
road opposite to the railway station. Petitioner’s case was that holding
of public meeting in the road in front of the railway station is a regular
feature and the same causes traffic block on a regular basis and so
RP 670/2010 2
much so prohibitory orders should be issued against PWD and police
authorities from granting permission to hold such meetings in front of
the railway station. This Court on seeing the photographs, the
genuineness of which is not doubted by the review petitioners, found
that stage is constructed partially occupying tarred road and the space
for audience is only the tarred road. It is seen that large number of
people are sitting on chairs arranged in the tarred portion of the road
substantially blocking the road and even preventing access of public to
the railway station. After hearing petitioner’s counsel we felt that
public grievance should be redressed, that too urgently. Since
photographs produced established blocking of road which is an illegal
act, we felt that there can be no objection from State authorities against
this Court passing orders to prevent the illegality. We ourselves have
noticed political meetings being held in many busy junctions in the
Kochi City substantially, if not fully, blocking traffic for long
duration. Besides the travelling public and vehicles being held up in
the road, even ambulances and vehicles carrying patients, pregnant
women, and even accident victims transported for emergency medical
aid to hospitals are stranded on the road on account of the traffic block
RP 670/2010 3
caused during public meetings held on road and road margins.
Invariably roadside meetings are organised by political parties and
trade unions and no official, whether police, PWD, revenue or
Municipal authority shows the courage to prevent holding of public
meetings on road side. Law enforcing agencies invariably turn out to
be spectators, if not victims of road blocks by themselves.
Considering the urgent need to protect public interest not only to
provide free passage to travelling public over the roads, but by taking
into account the ground realities about the conditions of the Kerala
roads and the need to protect the lives of sick and accident victims
being transported to hospitals and since holding of public meeting on
road and road margins was found to be illegal, we allowed the Writ
Petition prohibiting the State authorities from granting any permission
to hold meetings on public roads and road margins. While allowing the
Writ Petition, which was filed in public interest, we felt that not only
the residents of Aluva but also the people of the State as a whole
should get the benefit of our judgment because public meetings are
held not only in front of railway station at Aluva but also in every busy
junction in every town, and village in the State, blocking the road.
RP 670/2010 4
Since it was a public interest litigation, we felt it our duty to extend the
benefit of judgment, that is prohibition against holding of public
meetings on road and road margins, to the entire State so that the whole
people are benefitted. In fact, the Chief Secretary to Government was
impleaded only to ensure implementation of the judgment.
2. The judgment which was pronounced on 23.6.2010 was widely
published in the media and in fact media reports confirm that judgment
is rather implemented for the last over six weeks and several meetings
initially arranged on public roadside where even Ministers were to
participate were shifted and held in convenient places outside the road.
Even though judgment affects mostly political parties and to some
extent trade unions who hitherto were occasionally holding meetings
on road side, none of the political parties or trade unions has
approached this Court with any Petition to review the judgment.
Under this circumstance, we have to only infer that judgment finds
general acceptance with the leadership of political parties and trade
unions because otherwise they could raise their grievance by filing
Review Petitions before this Court. However, strangely the State has
filed this Review Petition raising mostly technical objections against
RP 670/2010 5
the judgment, such as violation of natural justice, granting relief
beyond the scope of the Writ Petition, etc. The additional 2nd
respondent impleaded in the R.P. referred to Regulation 253 of the
State Secretariat Manual under which only Advocate General or the
Government Pleaders are entitled to handle writ cases in the High
Court. According to him, the State is answerable as to why the
Director General of Prosecution is engaged in a Review Petition filed
against the judgment in a writ proceeding in violation of the above
Regulation. However, we do not think we should consider this issue
because we notice that this is only one of the peculiar features in the
filing and prosecution of this Petition by the State.
3. Even though judgments rendered under Art. 226 of the
Constitution can be reviewed by the High Court by virtue of the powers
available under the very same Article, existence of grounds for review
of the judgment are always looked into by referring to Section 114
read with Order XLVII, Rule 1 of CPC. It is a settled position that only
persons aggrieved by the judgment are permitted to file Review
Petition for reviewing the judgment. When we asked a specific
question to the Director General of Prosecutions as to whether the
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Government of Kerala or it’s officers have ever held any meeting in the
public road or road margin or whether they propose to hold in future
any meeting in public road or road margin to feel aggrieved by the
judgment, the answer is in the negative thereby confirming that State
has no genuine grievance in the matter. On our question as to whose
interest the State is trying to protect by reviewing our judgment, the
DGP does not have any definite answer except to say that political
parties, cultural and religious organisations are all aggrieved. When we
asked the DGP that even after wide publicity and wide debate of the
judgment in visual and print media no political party, cultural or
religious organisation so far has approached this Court with any
review petition stating any grievance for them, he does not have any
answer.
4. A similar public interest litigation reached the Supreme Court
from Madras, wherein relief sought for was for a prohibition against
holding of meeting at K.K. Rod at Villupuram in Tamil Nadu, which
was causing inconvenience to the public. Even though public interest
litigation was rejected by the Madras High Court, on appeal, the
Supreme Court issued orders to the State of Tamil Nadu to show cause
RP 670/2010 7
why orders should not be passed not to block any main street or road.
Pursuant to this direction issued by the Supreme Court, the matter was
referred to Council of Ministers in Tamil Nadu, which accepted the
position that permission cannot be granted for holding meeting in the
K.K. Road, Villupuram. In fact, based on the decision of Council of
Ministers filed before the Supreme Court, the statement filed was
recorded and the Supreme Court dropped the proposal to issue
prohibitory orders against State authorities from granting permission to
hold meeting, erect stage, etc. blocking the road vide judgment reported
in K.K. ROAD MERCHANTS E.A.R.W.A.,TN V. DISTRICT
COLLECTOR, T.N.,(2004) 13 SCC 61. Considering the importance
of the matter, we asked the DGP whether the matter was referred to
Council of Ministers, and whether review is filed based on their
decision. However, there was no no such decision by Council of
Ministers and the file produced before us shows that the issue is
handled in a routine manner wherein the Law Department has given
advice about the grounds that could be raised for filing a Review
Petition, because according to them there was violation of natural
justice and that blanket prohibition cannot be issued by the High Court
RP 670/2010 8
extending the relief prayed for in the Writ Petition to the whole of the
State.
5. Even though one of the grounds urged on behalf of the State is
that order is unenforceable inasmuch as if the order is enforced there is
likelihood of law and order problem, the Director General of Police or
the Superintendent of Police, the latter being one of the review
petitioners, has not come forward with any practical difficulty in
implementing the direction contained in the judgment. We have
already noticed above that the judgment is followed and even
implemented in the State by the police for the last one and a half
months and Director General of Police has not come forward with any
difficulty in implementing the judgment. When there is general
acceptance of the judgment by the people, and when the Government
does not have any grievance against the judgment, we do not know
what prompted the Govt. to file this Review Petition. In this context, it
would not be out of place to mention about the contempt case pending
in this Court against an Ex-MLA of the political party which is leading
the coalition Government. One of the additional respondents
impleaded representing a non-Governmental organisation has, along
RP 670/2010 9
with his counter affidavit dated 26.7.2010, produced Annexure A1
newspaper cutting which led to the contempt proceedings against the
said ex-MLA. What is stated in Annexure A1 series is that ex-MLA
allegedly held a meeting on the road side in violation of the judgment,
and incited the public to disobey the judgment and he described the
judges who wrote the judgment as “fools”. Probably the Government
is dragged to the Court with the Review Petition to promote and protect
the vested interest of some people.
6. In the normal course, we would have dismissed the Review
Petition for the sole reason that review petitioner has no grievance.
However, since WPC was disposed of without granting the time
requested for by the Government Pleader for the review petitioners to
file their objections, we feel Review Petition needs to be decided on
merits, i.e., after hearing the objections of the State. Advocate Sri. T.
R. Rajan appearing for the first respondent brought to the notice of this
Court provisions of various statutes pertaining to construction and
maintenance of public roads and contended that the assumption of this
Court while issuing the judgment that it is illegal to hold meetings on
public roads or road margins is correct and there is no provision in law
RP 670/2010 10
authorising holding of meeting on public road or road margin blocking
the road, partially or fully. The publicity that the judgment got in the
media attracted a lot of parties to this Court and several persons got
impleaded in the Review Petition as additional respondents to support
the judgment. The addl. respondents impleaded through I.A.Nos. 356,
358,360,363 of 2010 supported the judgment. The additional second
respondent impleaded through I.A. No. 356 of 2010 is Sri. Basil
Attipetty, an advocate of this Court. Arguing for himself, he referred
specifically to the conditions of Vypeen area where only one narrow
road passes through in the coastal area in the south-north direction
always busy with heavy traffic and according to him the judgment is a
great relief to the people of the area. He vehemently opposed the
Review Petition and prayed for dismissal of the same with costs.
Addl. third respondent impleaded through I.A. No. 358 of 2010 is Sri.
Dejo Kappam, the Managing Trustee of Centre for Consumer
Education, Pala, for whom Sri. Johnson Manayani appeared and
supported the judgment. Addl. 4th respondent impleaded through
I.A.No. 360 of 2010 is Dr. Thankam Jacob, who is stated to be a
committed social worker and a councilor, for whom advocate Sri.
RP 670/2010 11
Pinku H Thaliath appeared. She also supported the judgment. Addl.
5th respondent impleaded through I.A.No. 363 of 2010 is Sri. Sherry J
Thomas, who is a practicing lawyer in this Court, for whom advocate
Sri. Dinesh P.T., appeared and argued in support of the judgment.
Petitioner in I.A. No. 393 of 2010, who is impleaded as additional 7th
respondent, not only supported the judgment but wanted this Court to
extend the benefit of the judgment to the National Highways passing
through Kerala. Advocate Sri. George Mecheril appeared and argued
the matter. Addl. 8th respondent impleaded through I.A. No. 407 of
2010, is Leela Menon, a social worker and a journalist by profession
for whom Advocate Sri. Sivan Madathil argued the matter supporting
the judgment and contended that judgment is of great relief to the
public. However, we have not excluded Highways from the scope of
directions contained in the judgment and so much so we do not think
any separate orders are required in this matter. However, counsel
appearing for the addl. 6th respondent impleaded in I.A.No. 370 of
2010 contended that judgment requires atleast partial modification in
review proceedings. We do not think respondent impleaded in the RP
filed by the State should be permitted to challenge the judgment.
RP 670/2010 12
Whoever wanted to challenge the judgment filed Review Petition. So
much so, we do not propose to go into the contents of the contention
raised by the petitioner in I.A.No. 370 of 2010.
7. The main contention raised by the Director General of
Prosecution in support of the Review Petition is that the judgment was
rendered in violation of natural justice inasmuch as review petitioners
were not heard. Even though WPC was disposed of without waiting for
Government Pleader to get instruction from the review petitioners, it is
pertinent to note that even now the instruction received by the review
petitioners from the Sub Inspector of Police, Aluva Police Station, on
the date on which the judgment was pronounced is not produced by the
DGP appearing for the State. However, counsel appearing for the first
respondent under the Right to Information Act obtained a copy of the
instruction furnished by the Sub Inspector of Police for presentation
before this Court, which is as follows:
Meetings organized by various political parties and others
by making temporary stages in front of Railway Station
(Railway Square Aluva) usually creating traffic
obstructions.
The Asst. Executive Engineer, PWD Roads Division,
Aluva is the authority to give sanction for making the stage
at Railway Square.
Sometimes, while making stages for spublic meeting
RP 670/2010 13
some parties closed the way to Railway Station also. It
causes obstruction to Railway passengers and others. The
meeting at the railway square causes long time traffic bloks.
Police have to get much more time to remove the traffic
blocks.
Therefore sanction for making stages and public
meetings at Railway Square, Aluva is not desirable.
The Police Officer, who has first hand information about meetings and
the traffic blocks taking place in the road in front of the Railway
Station has stated that it is undesirable to grant permission to hold
meetings because such meetings cause long time traffic block and even
entry to the Railway Station is blocked and according to him police
take long time to clear traffic blocks. We are of the view that if review
petitioners were heard, and they honestly produced the instruction
received from the police officer, our conclusion in the judgment would
not have been different, but would have been supported by materials
furnished by the Sub Inspector of Police also. In other words, the
instruction from the Sub Inspector of Police which is not produced by
the DGP even at this stage, goes against the case of the review
petitioners for reviewing the judgment.
8. In any case we proceed to consider the objections raised by
the DGP serially, first one being violation of natural justice. “No one
RP 670/2010 14
should be condemned unheard”, is the essence of principle of natural
justice which is alleged to have been violated in this case. When
mentioned to the DGP that we have not passed any orders against the
State, and all what the Chief Secretary and Government officials are
required to do was to prevent an illegality, that is holding of meetings
on public road and road margins, the contention of the DGP is that
State is bound to protect the fundamental rights of the people
particularly political parties, religious and cultural organisations which
are stated to be holding meetings on public roads and road margins.
Processions may be taken out through road by religious and cultural
organisations during festival season. However, they do not hold any
meeting on public road. Therefore really the grievance against the
judgment is only for the political parties and trade unions and we have
no hesitation to hold that Government is trying to protect the interest of
political parties and trade unions who do not directly want to approach
this Court with any Petition. The court certainly will not be justified
in denying natural justice, by assuming that the granting of opportunity
will not serve any useful purpose.
9. In this regard counsel for the petitioner, Director General of
RP 670/2010 15
Prosecution as well as counsel appearing in the connected R.Ps.
referred to judgment of the Supreme Court in VOLGA TELLIS AND
OTHERS V. DELHI MUNICIPAL CORPORATION (AIR 1986 SC
180) and contended that even if no purpose will be served by giving
notice to the opposite side, the same will not be ground for denying
natural justice. However, in this case the denial of natural justice did
not lead to any adverse orders against the State. Further what was
directed was prevention of holding of meeting on public roads and road
margins which was considered to be illegal by this Court. We gave a
detailed hearing to the DGP to substantiate that our assumption of
holding of meetings on public road and road margins as illegal which is
the fundamental basis on which judgment was rendered is incorrect.
The Director General of Prosecution by referring to Article 19(1)(a)
and (b) contended that the right to hold meetings on public road and
road margins emanate from the constitutional right of freedom of
speech and expression and to assemble peacefully without arms.
Counsel for the first respondent and counsel appearing for the
additional respondents vehemently opposed this by stating that the
fundamental rights under Article 19(1) are subject to reasonable
RP 670/2010 16
restriction provided by law made by the State through any legislation
under Article 19(2) of the Constitution. A very important argument
raised by the counsel for the respondent is that the fundamental rights
of the political parties and the trade unions to assemble and hold
meeting on road or road margin should be synchronised with the
fundamental right guaranteed to citizens under Article 19(1)(d) to move
throughout the territory of India which can be through vehicular traffic
through the Highways in the State. Even though several decisions are
cited by both sides, we do not think we should refer to all such
decisions. However, it is worthwhile to refer to atleast some of the
decisions.
10. The Honourable Supreme Court in the case of MUNICIPAL
BOARD, MANGALORE V. MAHADEOJI MAHARAJ, (AIR 1965
SC 1147) held that the side lines of Highways are ordinarily included
in the road for the maintenance of proper road. The court held that
even the structure constructed on road side for installation of statue of
Mahatma Gandhi is impermissible. In the decision in RAILWAY
BOARD VS. NIRANJAN SINGH (AIR 1969 SC 966), the Supreme
Court held that “there is no fundamental right for anyone to hold
RP 670/2010 17
meetings in Government premises. The fact that those who work in a
public office can go there does not confer on them a right of holding a
meeting at that office even if it be the most convenient place to do so.
The fact that citizens of a country have a freedom of speech, freedom to
assemble peacefully and freedom to form associations or unions does
not mean that they can exercise those freedoms in whatever place they
please. The exercise of those freedoms will come to an end as soon as
the right of someone else intervenes”. The Honourable Supreme Court
in VOLGA TELLIS & OTHERS VS. DELHI MUNICIPAL
CORPORATION (AIR 1986 SC 180) held that “foot paths or
pavements are public properties which are intended to serve the
convenience of general public. They are not laid for private use and
indeed their use for a private purpose frustrates the very object for
which they are carved out from portions of public streets”. In the
decision in HIMAT LAL SHA VS. POLICE COMMISSIONER,
AHMEDABAD (AIR 1973 SC 87) also the Supreme Court held that
the right to assemble under Article 19(1)(b) does not mean that the
right can be exercised at any and every place. The question, therefore,
to be considered is whether the roads constructed with margins is for
RP 670/2010 18
the public to hold meetings thereon.
11. The Director General of Prosecution does not deny the fact
that the roads are not designed leaving any space for holding public
meetings. On the other hand, roads are undoubtedly designed to cater
to the needs of vehicles and the traveling public. If the holding of a
meeting on public road or road margin is treated as a fundamental right
of the persons doing it, then the same directly stands in conflict with
the fundamental rights of the traveling public who are blocked and
stranded on the roads. Therefore, in our view, no one has a
fundamental right to assemble or hold meeting on public road or road
margin which are meant only for vehicular traffic and for the traveling
public.
12. The next question to be considered is whether the assumption
by this court while issuing the judgment that the holding of meeting on
public road or road margin as illegal, is correct or not. In this context
counsel for the respondents referred to various provisions of the Indian
Penal Code, particularly Sections 431 and 339. Under Section 431,
whoever commits mischief by doing any act which renders or which he
knows to be likely to render any public road, bridge, navigable river or
RP 670/2010 19
navigable channel, natural or artificial, impassable or less safe for
traveling, is punishable upto five years. Similarly under Section 339,
whoever voluntarily obstructs any person so as to prevent that person
from proceeding in any direction in which that person has a right to
proceed is said wrongfully to restrain that person which is an offence
punishable under Section 341 of the Act. In other words, under these
provisions the obstruction of a public road by holding meeting on or
side of it leading to blocking of road and passengers who have a right
to go in a particular direction amounts to offences both under Section
431 and Section 339 of the I.P.C.
13. We called upon the DGP to refer to the statutory provisions,
if any, which authorise the State authorities to grant permission to hold
meetings on public roads. The Kerala Highway Protection Act, 1999 is
rather a recent legislation of the State. Section 3 of this Act provides
for declaration by Government of any road, way or land appurtenant
thereto to be a highway and classify it as a State highway or a hill
highway or a major district road or any other category of road. State
highways are under the control of the Highway Authority constituted
under Section 4 of the Act, under which the Executive Engineer, PWD
RP 670/2010 20
of the area is designated as Highway authority. Section 2(f) defines
“encroachment” as occupation of a highway or part thereof for
purposes other than traffic and any act which causes damage to the
highway. Occupation of highway which falls under the description of
encroachment takes in erection of tents, pandals, arches, platforms,
rostrums, hoardings, etc. Section 13 of the Act prohibits any person
from occupying or continuing to occupy any highway or part of a
highway for purposes other than traffic. Section 15 provides for
removal of any encroachment on the roads covered by the Act. Penalty
is also provided for encroachment of roads under Section 16 of the Act.
Under Sections 44 and 45 the police and even Village authorities are
bound to prevent encroachment of State highways and roads notified
under the Act. There is no provision in the Kerala Highway Protection
Act authorising any authority to grant permission to hold meeting on
any road in the State covered by the statute. In fact, very strict
provisions are provided for prevention and removal of encroachment of
highways which includes even temporary erection of platforms or
pandals for holding meetings.
14. When we asked the DGP as to whether the design of the
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roads in the State provides any space or buffer zone for holding public
meeting on roads and road margins, the DGP has no answer to this
question and he could not point out any space left anywhere in any
road side forming part of the road or road margins providing sufficient
space to hold a public meeting. In other words, the State Highway
Protection Act does not visualise any meeting on road or road margins
under the control of the State Highway authority. Therefore our
assumption, while disposing of the Writ Petition, that it is illegal to
permit holding of meeting on public road, or road margin is right in
respect of all the highways under the control of the State Govt. which
constitute the main road network in the State.
15. Protection and maintenance of remaining roads in the State
are covered by Kerala Munipalities Act, and Kerala Panchayatraj Act.
So far as the provisions of the Municipalities Act are concerned,
Section 364 of the Act prohibits obstruction by any person over streets
by way of construction of wall, fence, and the like. Section 367 (3)
requires the Secretary to remove encroachments. It states that where
the Secretary is satisfied that any road or public street including
footpath, if any, thereof belonging to the Municipality or vested in it or
RP 670/2010 22
otherwise is encroached upon by any person in any form, either
temporarily or permanently so as to cause obstruction or hindrance or
inconvenience to traffic and users of the street, the Secretary may
summarily evict such encroachments and may seize and dispose of any
belonging or article that may be found on such road or street and no
person shall be entitled to claim compensation for any action taken by
the Secretary. What is clear from the above provision is that road is
essentially meant for travelling public and therefore no meeting
whatsoever affecting the smooth traffic could be permitted.
16. Even though the DGP referred to Section 368(2) of the Act
which authorises the Municipality to grant licence for temporary
erection of pandals and other structures in a public street vested in the
Municipality or in any other public place the control of which is vested
in the Municipality, Section 368(4) states that no licence under sub-
section (1) or a lease under sub-section (3) shall be granted if the
construction or occupation is likely to be injurious to health or cause
public inconvenience or otherwise materially interfere with the use of
the road as such. This provision read with Section 367(3) makes it
clear that if permission granted will materially interfere with use of
RP 670/2010 23
the road, which is traffic, then no such permission can be granted. In
fact the Sub Inspector’s report which was the instruction in the WPC is
against the review petitioner, and according to the Sub Inspector of
Police, Alwaye Police Station, meetings led to not only traffic block,
but also obstruction for entry to Railway Station, which is one of the
important railway stations in the State. Therefore going by the
instruction, which is suppressed by the review petitioners in the
Review Petition, but produced by the first respondent after obtaining a
copy of it from the review petitioners under the Right to Information
Act, there is no justification to permit holding of meetings on public
road or road margins in front of the railway station which is in Aluva
Municipality. The resultant position is that provisions of the
Municipalities Act do not entitle the Municipality to grant any
permission to hold meetings on public roads and road margins under
it’s control because if granted, the same will obstruct free flow of
traffic.
17. So far as the provisions of the Panchayathraj Act are
concerned, Section 2(xxxv) defines “public road” as meaning any
street, road, square, court, alley, passage, cart-tract, footpath or riding
RP 670/2010 24
path, over which the public have right of way, whether a thoroughfare
or not. Section 220 prohibits construction in or over public roads
including any encroachment whatsoever, whether permanent or
temporary, in or over any public road. Section 252 of the Act casts a
duty on the police officers to assist the Panchayath Secretary to
discharge his duties, which includes removal of obstruction on the
public road. Even though the provisions of the National Highways
Act, 1956 are referred to, we have not been shown any provision
authorising permission being granted for holding public meeting on the
National highway or road margin. In fact, as against normal width of
the National Highway under the norms of the National Highway
Authority, which is 45 metres, what is sought for in Kerala is for
reduction of the width to 30 metres because of lack of space in Kerala
for widening the existing Highways. Even though we do not wish to
enter into this controversy as to whether the State authorities have to
follow the norms in regard to width of the National Highways, we are
constrained to observe that hundreds of cases pending and reaching this
Court on a routine basis relate to demolition of shops on the highway
side for widening of the road which establish beyond any doubt the
RP 670/2010 25
deplorable condition of the narrow roads in the State. Though we asked
a specific question to the DGP as to whether the State can show any
space left on any roadside in Kerala to hold a public meeting, his case
is there may be space available in some areas. However, it is common
knowledge that wherever vacant space was there on the roadside, the
same is occupied by encroachers for residence as well as for business
purposes and their encroachments later get regularised. From the
above discussion we are unable to conclude that the judgment suffers
from any mistake about our assumption that meetings on public roads
and road margins is impermissible in law.
18. As already pointed out no legislation pertaining to
construction and maintenance of roads in the State permits holding of
meeting on public road or road margins. We do not think fundamental
right to freedom of speech and expression or to assemble guaranteed
under Art. 19(1)(a) and (b) entitles anyone to hold meeting on public
roads or road margins which are meant for vehicular traffic and for
pedestrians. In fact, State itself concedes that public meetings are held
only in busy junctions on roadside and justification for the same stated
in the Review Petition is as follows:
RP 670/2010 26
With the limited resources and time at the avail of the
common man in the country in his hectic life, this will be
possible only by organizing speeches, discussions etc. at
the places and spots where people usually gather and are
likely to assemble. Roads, road sides and road margins are
invariably such places where the common man in the
country, the villager, the farmer, the peasant, etc. asseble
and flock to.
What is clear from the above is that political parties hold meetings in
busy junctions on roadside because they can make the people available
there who wait for buses, trains and those who come for shopping, etc.,
as audience and force speeches on them. Therefore the purpose of
going to the public road junctions for holding meeting is not because
there is no other convenient place other than the road to hold meeting
but for audience or to make up for the shortage of people for the
meeting. To our specific question about fundamental rights of the
people conferred under Art. 19(1)(d) who are on travel or who have
come for peaceful shopping without being disturbed by speeches
forced on them by political parties holding meeting, the DGP has no
answer. In other words, the case of the State is that wherever people
gather on roadside for their purposes political leaders have right to
make them audience and force their speeches on them. The freedom of
RP 670/2010 27
speech of somebody should not interfere with the freedom of peaceful
living or movement of others. When sombody’s freedom of speech and
assembly are considered, we see no reason why fundamental rights of
people assembled in every junction should not be protected by this
Court because those who do not want to listen speeches in meeting
should be spared from it and speeches should not be forced on them
disturbing their peaceful living. The position is the same in so far as
shop owners, officials in charge of railway stations, bus-stand, etc. are
concerned, because not only they are disturbed in their work but even
announcements made in the railway stations and bus-stand will not be
heard by the passengers on account of the disturbance and sounds
produced in meetings held by the side of the railway stations and bus-
stands as in the Alwaye case which was considered in the WPC by us.
We are of the view that holding of public meeting and the forceful
inclusion of public assembled for their purposes at junctions as
audience is not only a violation of law and human rights but is a public
nuisance which the Executive Magistrate is bound to remove under
Section 133 of the Cr.P.C. Lastly we have to consider the most
important fundamental right, i.e., right to life guaranteed under Art. 21
RP 670/2010 28
of the Constitution of India of the sick, injured and the pregnant
women, who while under transport are held up in traffic blocks leading
to delay in getting medical aid and consequent death. A Full Bench of
this Court in the decision reported in BHARATH KUMAR V. STATE
OF KERALA, (1997) 2 K.L.T. 287 (FB) held that processions taken
out on public roads should not lead to blocking of road. In the appeal
against the said judgment, the Supreme Court in COMMUNIST
PARTY OF INDIA V. BHARATH KUMAR, (1997) 2 K.L.T. 1007
(SC) held that “there cannot be any doubt that the fundamental rights of
the people as a whole cannot be subservient to the claims of
fundamental right of an individual or only a section of the people”.
Therefore the fundamental rights claimed by review petitioners and
their beneficiaries should yield to this more important right, i.e., right
to life under Art. 21 and right of travel and free movement under Art.
19(1)(d) of the citizens of this country.
19. We have in our judgment suggested that public meetings
should be held in Stadiums, Maidans, or in Auditoriums. It was our
view that since Kerala has over 12000 schools and every School has a
playground and since most of the schools are non-residential which
RP 670/2010 29
remain closed on holidays, meetings by political parties or cultural or
religious orgnisations could be held in the school grounds on holidays.
The contention of the DGP is that auditoriums are expensive and in
many cases organisers do not have the fund to pay rent. We do not
think this is a justification to violate law and hold meeting on public
road or road margins. It is a well known fact that Kerala has 990
Panchayaths and large number of Panchayaths and Municipalities have
community halls. Besides playgrounds of over 12000 schools, large
number of public community halls and privately owned auditoriums are
available for holding meetings. We feel what is required is a change in
the mind set of leaders of political parties and trade unions and if they
are willing to recognise the present condition of traffic in Kerala roads
we are sure they will discontinue the practice of holding meeting on
roadside hitherto followed.
20. The next ground raised by the DGP is that this Court has
travelled beyond the scope of Writ Petition inasmuch as the prayer
sought for by the petitioner was to prohibit meetings on the roadside in
front of the Aluva Railway Station, and this Court suo motu extended
the benefit to the whole State of Kerala by issuing prohibitory orders
RP 670/2010 30
against holding of meeting on any road in the State. Counsel has
relied on the decisions of the Supreme Court in SSTATE OF
KARNATAKA V. REGISTRAR GENERAL, KARNATAKA HIGH
COURT, A.I.R. 2000 S.C. 2626 and DIVISIONAL MANAGER,
ARAVALI GOLF CLUB V. CHANDER HASS, (2008) 1 SCC 683.
However, we find that these decisions are rendered in inter-party
litigation whereas the case disposed of by us is a public interest
litigation. The Supreme Court has in the decision in BANDHUA
MUKTI MOREHA V. UNION OF INDIA, A.I.R. 1984 S.C. 802 held
as follows:
When the Court entertains public interest litigation, it does
not do so in a cavilling spirit or in a confrontational mood
or with a view to tilting at executive authority or seeking to
usurp it, but its attempt is only to ensure observance of
social and economic rescue programmes, legislative as well
as executive, framed for the benefit of the have-nots and the
handicapped and to protect them against violation of their
basic human rights, which is also the constitutional
obligation of the executive. The Court is thus merely
assisting in the realisation of the constitutional objectives.
The second round direction issued by the Supreme Court in the famous
Delhi Traffic Management case to control pollution in M.C. MEHTA
V. UNION OF INDIA, (1998) 1 SCC 676 is as follows:
We direct the civic authorities to take necessary steps to
RP 670/2010 31
remove immediately all encroachments – temporary or
permanent – on roads and pavements, which affect the
smooth flow of traffic or obstruct the way of pedestrians.
Stray cattle and other similar obstructions would also have
to be similarly dealt with.
The wide powers of the higher Courts in PIL cases is well recognised
and it is therefore the duty of this Court to protect the right of the
people of the State as a whole. So far as the subject matter of WPC is
concerned, we have already referred to the report of the Sub Inspector
of Police, which was not considered by us while disposing of the Writ
Petition, and which completely supports the case of the writ petitioner
that there is heavy obstruction to vehicular traffic during meetings and
even police take long time to control the situation. If the Government’s
stand that this Court should have limited the prohibitory order against
holding of meetings only for the road in front of the Aluva Railway
Station, then a person who leaves Aluva without any obstruction can be
blocked on the road at Kalamassery in another meeting. Therefore if
prohibition of holding of meeting in Aluva cannot be objected to by the
State in view of the report of the Sub Inspector of Police produced by
the first respondent after obtaining it on application under Right to
Information Act, State has no right to object against the judgment being
RP 670/2010 32
extended to the whole people of the State that is covering all roads in
the State. We therefore reject this contention as well.
21. One other ground raised for the State is that High Court has
no authority to issue total prohibitory orders and what could be done is
only regulation which the statutory authorities are exercising while
granting permission. In this context the additional respondents
impleaded have referred to the Division Bench decision of this Court in
SANKARANARAYANAN V. STATE, A.I.R. 1986 Ker. 82 wherein
this Court held that the right guaranteed to assemble peacefully and
without arms does not authorise anyone to insist that he has a
fundamental right to conduct a procession or a demonostration on
populous urban roads without any control or regulation. In fact on
behalf of the State, the Advocate General at that time stated that it will
be desirable to have a legislation regulating the use of public road for
various purposes. The State has not made any legislation for the last 25
years for regulation on use of roads other than for traffic. In the
judgment we have taken note of the conditions of the Kerala roads and
the heavy traffic. Even though data has been furnished on various
matters, State has not controverted the observations in the judgment
RP 670/2010 33
that State has only two lane roads for traffic and after providing space
for vehicles to pass through in opposite directions, there is no space for
the people to hold meeting on public road and road margins. Therefore
probably the Legislature and the Govt. feel that there was no space in
the road or road margin other than for use by vehicles and by
padestrians for grant of permission to hold meetings or for any other
purpose. Therefore the contention of the State that meetings could be
permitted with restrictions has no basis.
22. The Director General of Prosecutions has heavily relied on
Section 19 of the Kerala Police Act, 1960 whereunder permission can
be granted subject to certain conditions for holding public assemblies
and processions and meetings in streets. However, counsel for the first
respondent has referred to Section 29 of the said Act which makes it
the duty of the police officers to prevent any accident or danger to the
public. Clause (m) specifically authorises the police to regulate and
control the traffic in the streets to prevent obstruction therein and to the
best of his ability prevent the infraction of any rule or order made under
this Act or under any other law for the time being in force for
observance by the public in or near the streets.
RP 670/2010 34
23. Counsel for the review petitioners also relied on the decision
of the Supreme Court in HIMAT LAL SHA’s case reported in AIR
1973 SC 87. Based on the said decision, the contention of the State is
that Court cannot take away the right of the people by prohibiting
holding of meetings on public streets. However, we find that in the
judgment the issue raised and decided was constitutional validity of the
provisions of the Bombay Police Act, which authorises prior
permission from the Commissioner of Police for holding meetings on
public places and public streets. The Court while upholding the
validity of the provision held that regulatory measures are permissible.
It may be noted that the decision was rendered 37 years back that too in
the context of wide roads with low density of vehicles, and still it was
within the powers of the Police Commissioner to decline permission
for public meetings on streets, which provision was upheld by the
Supreme Court. It is pertinent to note that Supreme Court specifically
held that right to assemble under article 19(1)(b) of the Constitution
does not mean that the right can be exercised at any and every place.
There used to be a time when children were safely playing foot ball on
the road. However, now even for short distance people send their
RP 670/2010 35
children to Schools in school buses, basically to ensure safety of
children from dangerous traffic on road. We are of the view that
Section 19 of the Police Act which is fifty year old now stands in
conflict with the provisions of Kerala Highways Protection Act and the
provisions of Municipalities Act and Panchayathraj Act which are
fairly new legislations which do not confer power on any authority to
grant permission to hold meetings on road and road margins which are
essentially meant for vehicular traffic and for use by pedestrians. The
State does not have a case that holding of meeting will not affect the
traffic at least partially, which means that while holding meeting at
least one side traffic will be held up and the alternate passage of
vehicles will lead to inordinate delay for passengers to reach their
destination, especially women office-goers and students who will reach
home very late if not in the night on account of their being held up in
traffic blocks. In fact, any such block on the road, even temporary, in
our view is wrongful restraint within the meaning of Section 341 of
the IPC and therefore any permission granted for holding meetings on
roads and road margins leading to partial obstruction of traffic amounts
to commission of an offence punishable under the IPC. As already
RP 670/2010 36
stated by us time has changed and vehicle numbers have multiplied
beyond the carrying capacity of the road system and roads are not
expanded. Therefore under the current situation, Section 19 of the
Kerala Police Act should be treated as having become redundant or at
least inoperative.
24. At our request, the DGP as well as one of the respondents
furnished statistics with regard to roads in the State, the number of
vehicles and the accidents taking place. The figures furnished show
that in1975 the State had only 1.19 lakh vehicles whereas in 2005 the
State had 31.22 lakhs of vehicles. However by 2010 it has reached
nearly 54 lakhs (exactly 53.976 lakhs). Even though total length of the
road is stated to be 2 lakhs KMs. the State has no claim that anywhere
on any roadside, space is available for holding public meeting without
traffic being blocked at least partially. The average number of
accidents in the State is 10 per day and the average per day deaths in
accident is above 10. Besides death of around 3700 to 3900 people on
an average every year, around 25,000 people are seriously injured
every year in the accidents and another 16,000-odd suffer minor
injuries. Going by the statistics we are of the view that the humble
RP 670/2010 37
advice given by the Sub Inspector of Police, Alwaye that it is
undesirable to permit meeting on the road should be the law in the
whole State.
25. One of the additional respondents impleaded filed I.A. No.
388 of 2010 producing a newspaper cutting and details about accident
that happened years back in Bharanganam in which 13 people were run
over and killed and 50 injured by a vehicle ploughing into procession.
He has also stated that similar accident had happened in Pothanikkad
also killing several people. It is strange that inspite of all these
tragedies and deplorable condition of the roads, and the heavy traffic,
the State insists on permitting meetings on roads and road margins
blocking the roads and exposing to risk the life of people assembled
on the roadside to dangerous traffic. The additional respondent
impleaded has also furnished details of increase in number of vehicles
on an average in the Ernakulam District alone which registered 65,000
vehicles last year. Reports show the tremendous increase in vehicle
number and Kerala is one of the largest consumers of automobiles.
Traffic snag and traffic grid blocks are regular phenomenon in the
Ernakulam City and the people going to Airports and Railway Stations
RP 670/2010 38
are also held up and cases of their missing flights and trains are not
infrequent. We have already discussed about the sick people, pregnant
women, and injured in accidents being taken to hospitals and on
account of road blocks and delay in getting medical aid some may die.
We therefore feel it will be unjust not to extend the benefit granted
under the judgment to the whole people of the State. We therefore do
not find any merit in the Review Petition. In the normal course, we
would have ordered heavy costs to the State for filing this Review
Petition which in our view is anti-people. However, we are of the view
that granting costs against the State itself is against public interest
because it is the public money that is utilised for paying the costs in
litigation. If at all costs is to be ordered, we have to identify the person
responsible and make him liable to pay costs individually. Since we
find that this is not a litigation in the interest of people or for the State,
and is a case of misuse of Government machinery, we do not propose
to venture to identify the people behind it.
The Review Petition is therefore dismissed.
(C.N.RAMACHANDRAN NAIR)
Judge
RP 670/2010 39
GOPINATHAN, J.
I fully endorse the reasonings given above by learned brother for
dismissing the Review Petition. I may add that we are very much
aware that well-merited criticism, expression of opinion, formulation of
public opinion, public discussions, interactions with various groups,
demonstrations, especially relating to wrong policies of those who are
in power, practice of corruption, nepotism, etc., are very essential for
the healthy survival of democractic set up and for that purpose,
meetings could not be avoid. We have due regard for those who are
arranging meetings and dedicated to the public cause. But while
arranging meetings, we have to see that at no cost, it shall violate the
fundamental rights of others, especially the freedom of movement. If
we accept the argument of the learned Director General of
Prosecutions, absolute freedom shall be given for conducting meeting
on road and road margins. The learned DGP has no case that, in our
State any meeting on road or road margin can be held without
obstructing traffic or movement of pedestrians. He has no case that in
any part of the State, any such road or it’s margin is set apart for
RP 670/2010 40
holding meetings. Therefore, it is to be held that no road or road
margin is available in our State to conduct public meeting without
curtailing the freedom of movement of passengers and pedestrians. We
do not find any reason to curtail the freedom of movement of
passengers and pedestrians and then to allow some organised groups to
conduct meetings on public road or road margin. Right to conduct
meeting is nothing superior than freedom of movement. The judgment
sought to be reviewed does not require any change because it is in no
way vitiated by any error apparent on the face of the record.
(P.S. GOPINATHAN)
Judge.
kk RP 670/2010 41