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2018 DIGILAW 859 (KER)

A. Sreekumari v. State of Kerala

2018-10-26

ALEXANDER THOMAS

body2018
JUDGMENT : The petitioners claim that they are vendors trading in materials like white sheets, bed sheets, towels etc at the Government Medical College Hospital, Thiruvananthapruam for more than 25 years and that they were accorded permission to conduct their vending activities by the earlier incumbent in the post of the 2nd respondent Superintendent of Government Medical College, Thiruvananthapuram, for some previous years, as per Ext.P2 issued to the 1st petitioner etc. That, later the present incumbent in the post of the 2nd respondent Superintendent of the Government Medical College Hospital has refused to permit the petitioners to conduct their vending activity and trade inside the premises of the hospital. The petitioners would further claim that their right to vend such articles are protected by the Constitution of India as well as the provisions contained in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and that this places absolute fetters on the respondents in forcibly preventing the petitioners from conducting street vending activity inside the Government Medical College Hospital premises. The petitioners would further allege that in the Government Medical College Hospital, most of patients have by-standers, who required materials which are sold by the petitioners like bed sheets, clothing materials, towels etc., and that the petitioners' services are essential for such persons, who are the beneficiaries of the hospital system. It is in the light of these factual averments the petitioners have filed the instant writ petition with the following prayers: “i. Direct the 2nd respondent by way of a Writ of Mandamus to renew Exhibit P2 and like permits issued to the petitioners to ply their trade within the Hospital premises. ii. Direct the return of the seized stock in trade of the petitioner forthwith. iii. Award costs.” 2. Heard Smt. Resmi Nandanan, the learned counsel appearing for the petitioners, Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for respondents 1 and 2 and Sri. N.N. Nanadakumara Menon, the learned Senior counsel instructed by Sri. P.K. Manoj Kumar, the learned Standing Counsel appearing for respondents 3 and 4. 3. The 2nd respondent (Superintendent, Government Medical College Hospital, Thiruvananthapuram) has filed a detailed counter affidavit dated 27.11.2017 in this case. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for respondents 1 and 2 and Sri. N.N. Nanadakumara Menon, the learned Senior counsel instructed by Sri. P.K. Manoj Kumar, the learned Standing Counsel appearing for respondents 3 and 4. 3. The 2nd respondent (Superintendent, Government Medical College Hospital, Thiruvananthapuram) has filed a detailed counter affidavit dated 27.11.2017 in this case. It is clearly stated therein that the previous incumbent in the post of Superintendent of the Hospital had illegally granted permission to the petitioners to sell clothing items like bed sheets, towels etc. inside the hospital premises, but only during visitors' time in the hospital i.e., between 4.30 p.m. and 6 p.m. and that this was so done by the said official without taking into account the fact that he could not have lawfully granted the permission and further that the Medical College Hospital, Thiruvananthapuram is a referral Medical College Hospital, which gives practical training to medical students undergoing different courses such as MBBS, Post-graduate courses, Post-graduate Super specialty courses, Paramedical courses, Nursing courses etc. and that even the present space and infrastructural facility in the hospital are extremely limited and with huge volumes patients, by-standers, visitors etc., the premise does not have sufficient facility to cope up with the extreme demand and the continuance of the petitioners to conduct vending activities inside the Medical College premises, more particularly, inside the hospital premises has caused huge disturbance and obstruction not only to the patients and their by-standers but also to the doctors, teaching staff, students, paramedical staff and nursing staff etc. Further, it is also stated that all the roads insides the Medical College campus and near to the hospital are extremely crowded with ambulance vehicles and other emergency vehicles plying frequently and even the road and other facilities available to the public is extremely limited and cannot cope up with the demand and that in such a situation, the question of permitting vending activities by persons like the petitioners that too inside the hospital premises is totally out of the question etc. It is further reiterated in the said affidavit that the petitioners are given only temporary permission by the previous incumbent in the post of Superintendent of the Hospital without understanding the grave consequences and difficulties that will be so caused in that regard and that no sanction or permission from the Government was ever obtained by the said incumbent in the post of Superintendent before he had considered the plea of the petitioners and that therefore, the so called permission granted by the previous incumbent has no legal validity in the eye of law etc. Further it is asserted that, in no way Medical College Campus and the hospital premises especially the hospital rooms for housing the patients etc., will ever come within the purview of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and the Rules framed thereunder and that there is no question of any of the petitioners claiming any right whatsoever from that Act and the Rules framed thereunder. That obviously the rights, if any, under that Act would be claimed only for the activity of street vending, which is to be conducted in the notified vending zones by the competent authority like the Town Vending Committee under the Act and that in the instant case, the petitioners do not have any case that the campus of the Medical College Hospital and inner premises are “vending zones” as notified in terms of the provisions contained in the above said Act. 4. This case was admitted on 27.10.2017. Later, this Court had passed an interim order dated 31.10.2017 ordering that the petitioners will be temporarily permitted to sell the wares as permitted in Exs.P2 and P3 for a period of one month therefrom. Later, the said interim order dated 31.10.2017 was modified by this Court and it was by order dated 14.2.2018, wherein it was ordered that the said interim order dated 31.10.2017 will stand modified and the petitioners will be prohibited from using the verandas and corridors of the Government Medical College Hospital, Thiruvananthapuram and that in the meanwhile, the 2nd respondent Superintendent was directed to consider whether any space in the Medical College Hospital premises could be allocated to the petitioners and further that the petitioners shall not use any other space without written order from the 2nd respondent Superintendent etc. Pursuant to the said directions issued by this Court on 14.2.2018, the 2nd respondent Superintendent of the Medical College Hospital has again filed an additional statement dated 15.2.2018, which reads as follows: “1. As per order dated 14.02.2018 this Hon'ble Court directed the respondent to consider whether any space in Medical College premises can be allocated to the petitioners. 2. It is respectfully submitted that, this respondent discussed the matter with the Principal of Government Medical College, Thiruvananthapuram, who is the Estate Officer of the Medical College and Institutional Head of the Government Medical College and it is unanimously decided that vendors of any kind including the petitioners cannot be permitted either inside the Medical College Hospital or in the campus of the Medical College, as it can adversely affect the smooth functioning of the hospital. Moreover, it will adversely affect the right of the public and patients to get quality treatment in time. Hence this respondent is not in a position to allow any space to the petitioners in this regard inside the Medical College premises and hospital. 3. Moreover, street vending cannot be permitted for a moment within the Medical College premises because it will grossly and adversely affect peaceful ambience and hygienic atmosphere required in a Health Care Centre with academic importance. The Counter Affidavit filed by the 2nd respondent on behalf of the 1st respondent on November, 2017 may be treated as part of this statement. Petitioner is not entitled to get any relief sought for. The Writ Petition is devoid of any merit and therefore liable to be dismissed at the threshold.” 5. Respondent No.4 has filed a statement dated 22.10.2018. It is stated in the said statement of R4 that no relief whatsoever has been sought for by the petitioners as against the Thiruvananthapuram Municipal Corporation in the above proceedings and that on enquires made by the Health Inspector of the Municipal Corporation and the report so filed by him, it is revealed that the petitioners have supplied cloths, bucket, soap, paste etc. inside the Medical College Hospital building and also near the ICU (Intensive Care Unit). Further that recently the security staff of the hospital were constrained to prevent the petitioners from carrying on their activities inside the premises of the Medical College Hospital and that the articles brought by them have been seized by the security staff. inside the Medical College Hospital building and also near the ICU (Intensive Care Unit). Further that recently the security staff of the hospital were constrained to prevent the petitioners from carrying on their activities inside the premises of the Medical College Hospital and that the articles brought by them have been seized by the security staff. Further it is asserted that the petitioners are not “Street Vendors” and are not entitled for any other benefits flowing from the provisions contained in the street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. Further that the Thiruvananthapuram Municipal Corporation has not granted any permission or licence whatsoever to the petitioners to carry on any trade inside the Medical College Hospital building. That the petitioners have no legal rights whatsoever to continue the their trade inside the Medical College Hospital building and it is for the hospital authorities concerned to take appropriate action against the petitioners and that the authorities of respondents 4 and 5 have nothing to do in such decisions that may be rendered by respondents 1 and 2. 6. Smt. Resmi Nandanan, the learned counsel appearing for the petitioners would submit that the above said contentions of respondents 1 and 2 and respondents 3 and 4 are untenable and that the petitioners are entitled to get the benefits of the Street Vendors Act. It is argued by the petitioners that even the very definition of “Street Vendor” contained in Section 2 (l) of the Act, concedes of their activity in 'any other public place' and that the premises of the Government Medical College Hospital is also a public place to which any member of the public as of right to have access and further that therefore, a vendor who conducts vending activity inside the premises of the Government Medical College Hospital should also be treated as a “Street Vendor” as understood in Section 2(l) of the Act. Further it is urged that it is indisputable, the petitioners were granted Exts.P2 and P3 by the Superintendent of the hospital and that therefore, they have the statutory right under Section 3(3) of the above said Act not to be evicted or relocated till the process of survey under Section 3(1) and issuance of certificate of vending under Section 4 are completed etc. Section 2(l) and (n) leading to the definitions of “street vendor” and “vending zone” provide as follows: “2(l) “street vendor” means a person engaged in vending of articles, goods, wares, food items or merchandise or everyday use or offering services to the general public, in a street, lane, side walk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific, and the words “street vending” with their grammatical variations and cognate expressions, shall be construed accordingly; 2(n) “vending zone” means an area or a place or a location designated as such by the local authority, on the recommendations of the Town Vending Committee, for the specific use by street vendors for street vending and includes footpath, side walk, pavement, embankment, portions of a street, waiting area for public or any such place considered suitable for vending activities and providing services to the general public.” Section 3 & 4 of the Act provide as follows: “3. Survey of street vendors and protection from eviction or relocation.- (1) The Town Vending Committee shall, within such period and in such manner as may be specified in the scheme, conduct a survey of all existing street vendors, within the area under its jurisdiction, and subsequent survey shall be carried out at least once in every fiver years. (2) The Town Vending Committee shall ensure that all existing street vendors, identified in the survey, are accommodated in the vending zones subject to a norm conforming to two and half per cent of the population of the ward or zone or town or city, as the case may be, in accordance with the plan for street vending and the holding capacity of the vending zones. (3) No street vendor shall be evicted or, as the case may be, relocated till the survey specified under sub section (1) has been completed and the certificate of vending is issued to all street vendors.” 4. (3) No street vendor shall be evicted or, as the case may be, relocated till the survey specified under sub section (1) has been completed and the certificate of vending is issued to all street vendors.” 4. Issue of Certificate of vending.-(1) Every street vendor, identified under the survey carried out under sub-section (1) of section 3, who has completed the age of fourteen years or such age as may be prescribed by the appropriate Government, shall be issued a certificate of vending by the Town Vending Committee, subject to such terms and conditions and within the period specified in the scheme including the restrictions specified in the plan for street vending: Provided that a person, whether or not included under the survey under sub-section (1) of section 3, who has been issued a certificate of vending before the commencement of this Act, whether known as licence or any other form of permission (whether as a stationary vendor or a mobile vendor or under any other category) shall be deemed to be a street vendor for that category for the period for which he has been issue such certificate of vending. (2) Where, in the intervening period between two surveys, any person seeks to vend, the Town Vending Committee may grant a certificate of vending to such person, subject to the scheme, the plan for street vending and the holding capacity of the vending zones. (3) Where the number of street vendors identified under sub-section (1) or the number of persons seeking to vend under sub-section (2) are more than the holding capacity of the vending zone and exceeds the number of persons to be accommodated in that vending zone, the Town Vending Committee shall carry out a draw of lots for issuing the certificate of vending for that vending zone and the remaining persons shall be accommodated in any adjoining vending zone to avoid relocation.” The above said contentions of the petitioners are absolutely untenable and unsustainable for reasons more than one. Sub Section (2) of Section 3 envisages that Town Vending Committee shall ensure that all existing street vendors, identified in the survey, are accommodated in the vending zones, subject to the stipulations therein. It is only for such existing street vendors, who come within the vending zone as envisaged in Section 3(2), will the protection of the provision of Section 3(3) arise. It is only for such existing street vendors, who come within the vending zone as envisaged in Section 3(2), will the protection of the provision of Section 3(3) arise. So, essentially for the petitioners to claim temporary right under Section 3(3), they have to establish that they are functioning as an existing street vendor in a “vending zone” as understood in Section 2(n). The petitioners have no case whatsoever that the campus and premises of the Government Medical College, Thiruvananthapuram has been notified by the local authority as per the recommendations of the competent Town Vending Committee attached to the 3rd and 4th respondents Thiruvananthapuram Municipal Corporation as a vending zone as understood in Section 2(n) of the Act. Since that is the indisputable factual position, there is no question of persons like the petitioners claiming any temporary right under Section 3(3), as the same could be claimed only by existing street vendors, who are functioning in vending zones as recognized in terms of Section 2(n) of the Act. That apart, by no stretch of imagination could it be held that a premise like the Government Medical College Hospital could be treated as a public place, where street vending activity could be permitted and envisaged so as to bring persons like the petitioners come within the meaning of “street Vendor” understood in Section 2(l). If the said interpretation voiced by the petitioners’ counsel is that any person, who, as a matter of fact, conducts vending activity in any public place irrespective as to whether it is legally permissible or not, is accepted, then there would be chaotic and other consequences which would follow, whereby street vending activity should be permitted in any public place like Government Hospital, Government School or any other such institutions. Therefore, the said contention made by the petitioners is absolutely without any substance or merit and is only to be rejected and it is so accordingly ordered. 7. This Court is really surprised as to how the previous incumbent in the post of Superintendent, Government Medical College Hospital, Thiruvananthapuram could issue permission, though temporary as in the nature of Exts.P2 and P3, to permit the persons like the petitioners to conduct vending activity of sale of articles like bed sheets, buckets, towels etc. 7. This Court is really surprised as to how the previous incumbent in the post of Superintendent, Government Medical College Hospital, Thiruvananthapuram could issue permission, though temporary as in the nature of Exts.P2 and P3, to permit the persons like the petitioners to conduct vending activity of sale of articles like bed sheets, buckets, towels etc. and that to conduct such vending activity inside the hospital premises like the rooms wherein the patients are admitted or even near to the Intensive Care Unit. Therefore, the 2nd respondent is fully right in contending that the said permission granted by the previous incumbent in the post of Superintendent was illegal and ultra vires and beyond his competence and powers. So the petitioners cannot claim any right whatsoever on the basis of such illegal permission granted by the previous officials as per Exts.P2 and P3 etc. This Court has already issued a modified order on 14.2.2018 whereby the petitioners were prohibited from conducting vending activities in verandas and corridors of the Medical College Hospital, Thiruvananthapuram. The request made by the petitioners for allotment of other space in the Medical College premises has also been duly rejected by the 2nd respondent as it can be seen from the averments in their additional statement dated 15.2.2018 quoted hereinabove. For all these reasons, the prayers of the petitioners are liable to be rejected. Interim orders issued by this Court to the extent it gives any implicit permission to the petitioners to conduct vending activities anywhere within the premises of the Government Medical College campus and hospitals will stand vacated. 8. This Court, as per order dated 31.10.2017 had directed that the 2nd respondent should examine the contentions of the petitioners that some of their articles were confiscated by the 2nd respondent etc. That aspect of the matter is not dealt with in the counter affidavit or the additional statement of the 2nd respondent. So, the 2nd respondent will take immediate measures and examine whether any of the articles of the petitioners were seized or confiscated either by the staff or by the security staff and if so, the same should be returned back to the petitioners, after obtaining receipt from them. Steps in that regard may be duly completed without much delay preferably within a period of two weeks from the date of receipt of a certified copy of this judgment. 9. Steps in that regard may be duly completed without much delay preferably within a period of two weeks from the date of receipt of a certified copy of this judgment. 9. The learned counsel for the petitioners would submit that this Court may direct at least respondents 3 and 4 to consider the grant of permission to the petitioners to conduct street vending outside the Medical College premises and in other suitable public places and that the petitioners will not cause any obstruction to free flow of traffic or pedestrians in that regard etc. It is for the petitioners to approach the competent authority among respondents 3 and 4 with such request and it is made clear that nothing in this judgment by itself, will in any manner prejudice any of the rights that the petitioners may otherwise have in that regard to make any such claims before respondents 3 and 4, which may have to be considered in accordance with law. With these observations and directions, the above Writ Petition (civil) will stand dismissed.