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2023 DIGILAW 970 (KAR)

B. R. Gururaj v. State of Karnataka

2023-08-08

R.DEVDAS

body2023
JUDGMENT 1. These batch of writ petitions are concerning modernization of Gandhibazar main road, one of the popular commercial roads in Bengaluru city. Since the grievances of the petitioners are common and is directed against the respondent-Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as 'the BBMP', for short), these matters were clubbed, heard together and are disposed of by this common order. 2. The writ petitioners being residents/shop owners/ association of shop owners have raised various grievances and grounds to contend that the proposed plan to restructure the Gandhibazar main road, and the footpath should not be permitted. The grounds inter alia are that the width of the carriageway cannot be reduced, contrary to the provisions of the Indian Road Congress; that the proposed plan to widen the footpath and reduce the carriageway is not only contrary to the provisions of the Indian Road Congress but also unscientific, not eco-friendly, uneconomical, unviable and unnecessary; the proposed plan affects the livelihood of the petitioners and whereas gives a premium to the street vendors, who have been squatting on the footpaths; the proposed plan of widening and redoing of the footpaths would affect the ingress and egress of the residences and shop establishments of the petitioners to the main road, etc. 3. In order to substantiate the contentions of the petitioners, the learned Counsels for the petitioners have argued that the entire plan was done without proper consultation and disregarding the objections raised at the hands of the petitioners and other occupants of the shops and establishments of Gandhibazar main road. Several documents have been furnished to show that even earlier there was a proposal made by the BBMP to evict the street vendors, more particularly, the flower and vegetable vendors who were occupying a portion of the footpath in a limited area. However, when several objections were raised in the matter of providing permanent structures for the benefit of street vendors, the objections were sustained and the plan to widen the footpath and making provision for the street vendors was withdrawn. 4. The learned Counsels have brought on record various aspects regarding the width of the road, the size of the footpaths, etc., and have submitted that since Gandhibazar main road is a two-way road where local buses travel, the width of the road cannot be reduced. 4. The learned Counsels have brought on record various aspects regarding the width of the road, the size of the footpaths, etc., and have submitted that since Gandhibazar main road is a two-way road where local buses travel, the width of the road cannot be reduced. It is submitted that at least at four points, on either side of the road, there are bus shelters and the study conducted by Governmental Agencies have revealed that the road cannot be converted into 'one- way' and on the other hand, the government should consider increasing the width of the carriageway. Studies reveal that there is high density vehicular movement on the Gandhibazar main road which connects Chamarajapet and Basavanagudi, two of the densely populated areas in Bengaluru. It is contended that in terms of the Geometric Design Standards for Urban roads and streets, Indian Road Congress, 2018, the recommended carriageway width for a two-lane with raised kerbs is 7 meters. It is contended that any reduction in the width of the carriageway will not only be unscientific, but also make way for serious traffic congestion and gridlocks. 5. Learned Counsels would contend that the State Government has notified the Karnataka Street Vendors (Protection of livelihoods, regulation of street vending and licensing) Scheme, 2020, on 15/6/2020, ignoring the provisions contained in the Street Vendors (Protection of livelihood and regulations of street vending) Act, 2014, and the provisions of the Karnataka Municipal Corporations Act, and the new Bruhat Bengaluru Mahanagara Palike Act, 2020. It is contended that all the above mentioned enactments prohibit all and any constructions on streets and footpaths. However, provision is sought to be made in the proposed plan to put up permanent structures enabling the street vendors to occupy the same and do business on the footpaths. It is vehemently contended that such a proposal for erecting permanent structures on the footpaths of Gandhibazar main road violates not only the provisions of the statutes but also violates the fundamental rights to livelihood conferred on the petitioners by the Constitution of India. 6. During the course of these proceedings, the BBMP was called upon to furnish the proposed plan for modernization taken up by the BBMP and further details were also sought regarding the studies conducted by the BBMP, the engineering designs approved for modernization of the Gandhibazar main road. 6. During the course of these proceedings, the BBMP was called upon to furnish the proposed plan for modernization taken up by the BBMP and further details were also sought regarding the studies conducted by the BBMP, the engineering designs approved for modernization of the Gandhibazar main road. Learned Counsel for the respondent-BBMP has placed all such information, including the designs and artistic impression of the proposed plan, before this Court. 7. Learned Counsel for the respondent-BBMP submitted that the problem of street vendors occupying a major part of the footpaths and road was persisting for several decades and therefore, the BBMP had to take a firm decision in the matter of evicting the street vendors and at the same time providing for their livelihood, having regard to the provisions contained in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, (for short, hereinafter referred to as 'the Street Vendors Act'). It was submitted that the BBMP has only taken up the work of modernization of Gandhibazar main road, which will not harm the interests of the residents, owners, occupants of the shops and establishments abutting the road and on the other hand, the modernization of the road will further enhance the business and therefore there was no reason for the petitioners to be aggrieved or agitated. 8. Learned Counsel for the respondent-BBMP submitted that although, on paper it appears that the present carriageway on the road is more than 7 meters, nevertheless, the existence of huge rain trees on either side of the road has practically reduced the carriageway to about 7 meters. It is therefore submitted that the contentions of the petitioners regarding reduction of the carriageway is factually incorrect. The learned Counsel would submit in the same vein that the requirement as per the Indian Road Congress, as was pointed out by the learned Counsels for the petitioners, that a minimum of 7 meters carriageway should be provided, is fulfilled, even with the proposed plan. 9. Learned Counsel for the respondent-BBMP submits that having regard to the fact that the carriageway shall be maintained at 7 meters, the footpath is sought to be redesigned. The footpath would now be redesigned in such a manner that ample parking space is provided for and in all other places the size of the footpath would be increased, while maintaining the carriageway of 7 meters. The footpath would now be redesigned in such a manner that ample parking space is provided for and in all other places the size of the footpath would be increased, while maintaining the carriageway of 7 meters. It may therefore seem from the proposed design that the footpaths are widened. Although, it may be true that the width of the footpaths are increased, but, the increase of the footpaths will only be in certain portions of the road and not throughout. At any rate, the size of the carriageway will be maintained at a minimum of 7 meters, which would meet the requirements of law. 10. Learned Counsel for the respondent-BBMP would further submit that the proposed plan for modernization of Gandhibazar main road is made having regard to the provisions contained in the Street Vendors Act, more particularly, the definition of the term "vending zone". It is submitted that the Street Vendors Act which seeks to protect the livelihood and at the same time regulate street vending, mandates that the local authority shall designate for the specific use by street vendors, specific zones for street vending on 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. It is therefore submitted that the petitioners herein cannot claim exclusive rights of doing business, to the detriment of the street vendors. Having this in mind, the proposed plan is designed in such a manner that an exclusive side-walk, measuring a minimum of 2 meters is provided for. In the proposed side-walk, which commences immediately after the building line, no obstructions will be caused on the side-walk and therefore, there will be clear access by the pedestrians to the shops and establishments. Learned Counsel submits that although provision is made as per the said definition of "vending zone" in the Street Vendors Act to provide for "vending zone" even on side-walks, however, in the present design, it is ensured that no obstructions is caused on the side-walks and no "vending zone" is provided on the side-walks. Provision is made on the area beyond the side-walks, for "vending zone". 11. Provision is made on the area beyond the side-walks, for "vending zone". 11. Learned counsel for the respondent- BBMP submits that there is no substance in the contention of the petitioners that in the process of re-designing the footpaths, the access which were earlier available to some of the shops and residences are sought to be closed. Learned counsel submits that there was no direct access to any of the shops and establishments or residences on Gandhibazar Main Road even before the re-designing work was taken up. In this regard, the learned counsels for the petitioners were called upon to furnish photographs taken prior to the commencement of the work at the hands of the BBMP to prove their point that there was access available to the individual shops/residences. Photographs were placed on record, both at the hands of the petitioners as well as BBMP, which show that there was no direct access available to any of the shops/residences, from the main road. 12. During the course of the proceedings, the learned counsels for the petitioners placed certain photographs before this Court to substantiate their contentions that contrary to the provisions contained in the BBMP Act and Street Vendors Act, permanent structures in the form of RCC columns were being erected on the footpaths, making provision for the street vendors. However, learned counsel for the respondent - BBMP submitted that the two feet columns were being constructed to form the base to put up temporary shelters/umbrellas to protect the street vendors and their wares. This, according to the learned counsel, does not in any way contravene the provisions contained in the BBMP Act or Street Vendors Act. 13. Heard the learned counsels for the petitioners, the respondent -BBMP, learned Additional Government Advocate for the State and perused the petition papers. At the threshold, it should be stated that this not being a Public Interest Litigation, the scope of the petitions would become substantially narrow, only to consider the individual and personal grievances of the petitioners. It should be therefore made clear that the general contentions of the petitioners regarding the width of the carriageway, the size of the footpaths, the anticipated inconvenience which may be caused to the general public and vehicular movements, gridlocks etc., cannot be considered as legitimate grounds that could be voiced by the petitioners, in these writ petitions. It should be therefore made clear that the general contentions of the petitioners regarding the width of the carriageway, the size of the footpaths, the anticipated inconvenience which may be caused to the general public and vehicular movements, gridlocks etc., cannot be considered as legitimate grounds that could be voiced by the petitioners, in these writ petitions. What is required to be considered in these writ petitions is only the individual and personal grievances arising out of the proposed works taken up at the hands of the BBMP. 14. In this backdrop, what may merit consideration is whether the access to the shops/establishments/residences of the writ petitioners is sought to be closed down while re- designing the street and the footpaths. In this regard, as rightly contended by the learned counsel for the respondent - BBMP, the petitioners have failed to prove that there existed access, separately, to the shops/establishments/residences of the writ petitioners. This Court has also taken judicial notice of the fact that no such separate access was available to any of the shops/establishments/residences in Gandhibazar Main Road. As an alternative, it was pleaded that provision was made earlier for movement of two wheelers on the footpath so that the shop owners and residential owners/occupants could access their shops/establishments/residences. In this regard, learned counsel for the respondent BBMP has assured this Court that similar access as was available earlier will be provided, while re-designing the street and footpaths. In fact, as per the directions issued by this Court, the respondent BBMP furnished a modified design/plan showing access proposed to be provided at regular intervals, on the footpaths. This court is satisfied regarding the access in the proposed modified plan. 15. The only other contention that may merit consideration in these writ petitions is provision of permanent structures on the street/footpath, which may cause hindrance to the business carried on by the petitioners. No doubt, there are provisions contained in the Karnataka Municipal Corporations Act, 1976, which was earlier governing the respondent - BBMP, the new BBMP Act, 2020 and the Street Vendors Act, 2014, which prohibit construction/erection of permanent structures on streets and footpaths. No doubt, there are provisions contained in the Karnataka Municipal Corporations Act, 1976, which was earlier governing the respondent - BBMP, the new BBMP Act, 2020 and the Street Vendors Act, 2014, which prohibit construction/erection of permanent structures on streets and footpaths. However, having regard to the statutory right now vested in the street vendors, more particularly after the enactment of the Street Vendors Act, which is a central enactment, providing for protection of livelihood, livelihood rights as well as social security of the street vendors, further mandates for providing vending zones to be designated by the local authority. As rightly pointed out by the learned counsel for the respondent BBMP, in terms of the definition of the term "Vending Zone" contained in the Act, the local authority is required to identify and designate such vending zones on footpaths, side-walks, pavements, embankments, portions of a street, waiting area for public or any such place considered suitable for vending activities and providing services to the general public. Therefore, if the modernization and re-designing of Gandhibazar Main Road seeks to provide for such vending zone on the footpaths, side-walks, pavements or portions of the street, it cannot be held as contravention of the provisions of law. However, what is prohibited is construction/erection of permanent structures on the footpaths and streets. In that regard, if RCC columns rising to a certain level is sought to be constructed so as to form a base for holding temporary shelters/umbrellas, it cannot be considered as a structure put up in contravention of the provisions of law. It is common knowledge that even while constructing/erecting bus shelters on streets and footpaths, structures are put up to provide shelter to the passengers. If such structures are acceptable, then the proposed shelters should also be accepted. 16. However, it is made clear that in the guise of providing temporary shelters to the street vendors, the respondent-BBMP shall not put up permanent structures which may cause obstructions to the business of the petitioners and/or prohibited by law. 17. In view of the discussions made hereinabove, this Court is satisfied that the proposed work of modernization/re- designing of Gandhibazar Main Road is not in contravention of any provision of law. The proposed works do not infringe upon any individual or personal rights of the writ petitioners. 18. Consequently, the writ petitions stand dismissed. Pending I.As if any, stand disposed of.