IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 4TH DAY OF JANUARY 2021/14TH POUSHA, 1942
WP(C).No.27880 OF 2018(H)
PETITIONER:
PUSHPA LEELA, AGED 52 YEARS,
D/O.CHARLES, T.H BHAVAN, PALLITHANAM
NEDUNGAD, KARAMANA P.O.,
THIRUVANANTHAPURAM 695 002.
BY ADV. SRI.S.CHANDRASEKHARAN NAIR
RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY
ITS PRINCIPAL SECRATARY TO GOVT.,
TRANSPORT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM - 695 023.
3 THE DISTRICT COLLECTOR,
COLLECTORATE,KUDAPPANAKUNNU,
THIRUVANANTHAPURAM - 695 043.
4 DIRECTOR GENERAL OF POLICE,
POLICE HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM - 695 014.
ADDL. 5 AMAYIZHANCHANTHODU SAMRAKSHAN SAMITHI,
TC 25/607, THAMPANOOR, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY A.SURENDRAN
(ADDL.R5 IS IMPLEADED AS PER ORDER DATED
21.06.2019 IN IA NO.3/2019)
R1,R3&R4 BY GOVERNMENT PLEADER SMT.DEEPA
NARAYANAN
WP(C) No.27880/2018
:2 :
R2 BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD
TRANSPORT CORPN.
R5 BY ADV. G.HARIKUMAR (GOPINATHAN NAIR)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-01-2021 THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.27880/2018
:3 :
N. NAGARESH, J.
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W.P.(C) No.27880 of 2018
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Dated this the 4th day of January, 2021
JUDGMENT
~~~~~~~~~ The petitioner who is one among the 13 shop owners running petty retail shops in the Thambanoor Bus Terminal opposite to Central Railway Station, Thiruvananthapuram, has filed this writ petition seeking to direct the 2nd respondent to remove the condemned and scrapped buses parked in front of the petitioner's shop. The petitioner further seeks to direct respondents 3 and 4 to discharge their duty and prevent the 2 nd respondent from acting against Exts.P8 to P15 orders.
2. The Kerala State Road Transport Corporation (KSRTC) initiated acquisition proceedings in respect of 30 cents of land for the development of Trivandrum Central Bus Station. Shop owners located in the proposed area approached courts of law. Subsequently, the shop owners WP(C) No.27880/2018 :4 : agreed to vacate the said land if alternate land is provided to them by the KSRTC near the bus station for continuing their business. The Board of Directors of KSRTC accordingly decided to provide the shop owners with 32 cents of land on the western side of the acquired land at Thambanoor Bus Station at a market value of ₹10,000/- per cent as fixed by the District Collector, so as to enable the shop owners to vacate the existing sites. The Government of Kerala, as per Ext.P1 order dated 05.07.1988, accorded sanction to the proposal. The shop owners entered into agreement with the KSRTC to shift their shops.
3. By Ext.P2 order dated 08.11.1989, the Government of Kerala exempted the land from the zoning regulations of the sanctioned Detailed Town Planning Scheme of Thambanoor area, for the re-location of the existing shops near KSRTC Bus Station.
4. The petitioner would submit that land was given to the shop owners on western side of the KSRTC compound, beyond a canal. Culverts were constructed across the canal. WP(C) No.27880/2018 :5 : From 24.08.2017, the staff of the KSRTC with a malafide intention to gain pecuniary advantage from the shop owners running shops inside the Bus Terminal, conspired together and deliberately parked certain condemned KSRTC buses along the pathway in front of the shops allocated to the petitioner and others. Now, as a result, there is obstruction to customers coming to the shops.
5. One of the shop owners approached the Kerala State Human Rights Commission and the Commission passed Ext.P8 order dated 29.08.2017 directing the 2 nd respondent to ensure that vehicles of KSRTC parked on the side of the shops shall be parked without causing obstruction to the shop owners. The petitioner would contend that the Ext.P8 interim order of the State Human Rights Commission was not complied with.
6. The Mayor of the Trivandrum Municipal Corporation held a meeting on 23.09.2017. Shop owners as well as representatives of KSRTC were present in the meeting. In the meeting, as per Ext.P9, it was decided that the buses parked WP(C) No.27880/2018 :6 : causing inconvenience to the shop owners should be removed immediately. The said decision was also not honoured by the 2nd respondent.
7. Amayizhanchan Thodu Samrakshana Samithi filed a complaint before the Kerala Lok Ayukta in this regard. The Lok Ayukta, as per Ext.P10, restrained the KSRTC from putting up compound wall or any superstructure over the Thodu, in front of the shops in question.
8. The petitioner would state that the petitioner filed OS No.1416/2017 in the Munsiff's Court, Thiruvananthapuram and the Munsiff's Court passed Ext.P11 interim injunction order against the KSRTC. In spite of these orders, the KSRTC is parking scrapped/condemned buses right in front of the shops owned by the petitioner and others. The 2 nd respondent is compellable by appropriate writs of this Court to remove the condemned and scrapped buses parked in front of the petitioner's shops.
9. The 2nd respondent resisted the writ petition. The 2nd respondent pointed out that the shop owners have already WP(C) No.27880/2018 :7 : approached civil court and the issue is pending before the competent civil court. A pathway is provided to the shop owners and shops including that of the petitioner are accessible to public. The petitioner wants access to the KSRTC compound which cannot be granted. Granting vehicular access through KSRTC garage will cause security hazards to the Corporation and travelling public.
10. The 2nd respondent further stated that the shop owners have separate access to their shops. Therefore, the 2nd respondent is entitled to construct compound wall to protect the garage and bus stand. In public interest, the KSRTC is bound to protect its compound by constructing compound wall since a large number of buses, spare parts, machines, etc. are kept in the garage. The writ petition is therefore without any merit and is liable to be dismissed, contended the 2nd respondent.
11. The additional 5th respondent stated that Ext.R5(g) Advocate Commission report would show that buses are parked on the culverts which will cause substantial damage to WP(C) No.27880/2018 :8 : the culverts and the canal, and therefore the KSRTC shall not be permitted to park condemned buses on the culverts over the canal.
12. I have heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the KSRTC, the learned Government Pleader appearing for respondents 1, 3 and 4 and the learned counsel appearing for additional 5 th respondent.
13. The KSRTC has given alternate land to shop owners, with the intention of developing the bus stand. Ext.P1 Government Order would show that alternate land was given to the petitioner and others on the western side of the acquired land for the purpose of continuing their business. It is seen from Ext.P9 that the shop owners have approached the Trivandrum Municipal Corporation, and in a meeting held on 23.09.2017, it was decided that the buses parked by the KSRTC causing inconvenience to the shop owners should be removed immediately. The Kerala State Human Rights Commission has also passed Ext.P8 order directing the WP(C) No.27880/2018 :9 : KSRTC to ensure that vehicles of KSRTC parked on the sides of the shops shall be parked without causing obstruction. The Kerala Lok Ayukta has also passed Ext.P10 order restraining the KSRTC from putting up compound wall.
14. But, from Ext.P11 produced by the petitioner, it is seen that the petitioner herself has filed OS No.1416/2017 before the Munsiff's Court, Thiruvananthapuram in which the petitioner has sought ad-interim injunction from the said court. In IA No.5906/2017, the Munsiff's Court, Thiruvananthapuram has passed Ext.P11 order which reads as follows:-
"Upon motion made in to this court by Adv. S. Chandrasekharan Nair, counsel for plaintiff/petitioners and upon reading the petition and affidavit of said petitioner and upon perusal and records produced and hearing the petitioner/ counsel for the petitioner, on 04.10.2017 an ad interim injunction is granted. The defendant and staffs are restrained from causing any obstruction to the use and enjoyment of the plaintiff over the plaint "B" Schedule pathway and are also restrained from putting up construction or doing anything which will affect the use of "B' Schedule by the plaintiff until further orders."
Similarly, other shop owners have filed OS No.36/2016 in the Ist Additional Munsiff's Court, Thiruvananthapuram. The I st WP(C) No.27880/2018 : 10 : Additional Munsiff has also passed Ext.P12 order granting interim mandatory injunction to remove the obstructions reported in Ext.C1 Commission Report within five days.
15. When the petitioner and other shop owners have approached the competent civil courts and obtained interim injunction orders, the petitioner cannot be permitted to agitate the same issue through writ proceedings. If the 2 nd respondent has violated Ext.P11 order of injunction, the petitioner has efficacious remedy under the Code of Civil Procedure.
The petitioner cannot be permitted to agitate the same issue before a civil court under the Code of Civil Procedure, 1908 and before this Court invoking Article 226 of the Constitution of India. For the said reason, this Court finds that the writ petition is not maintainable. The writ petition is accordingly dismissed.
Sd/-
N. NAGARESH, JUDGE aks/24.12.2020 WP(C) No.27880/2018 : 11 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT R2(a) TRUE COPY OF THE PLANT IN OS NO. 36 OF 2016 ON THE FILES OF MUNSIFF'S COURT, THIRUVANANTHAPURAM EXHIBIT R2(b) TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT IN O.S.NO.36/2016 ON THE FILE OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM EXHIBIT R2(c) TRUE COPY OF THE COMMUNICATION DATED 19.02.1986 ISSUED BY THE CHIEF ENGINEER OF KSRTC EXHIBIT R2(d) TRUE COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER WITH THE 2ND RESPONDENT ON 23.11.1988.
EXHIBIT R2(e) TRUE COPY OF THE COMMISSION REPORT DATED 28.09.2017 IN OS NO.36/16 EXHIBIT R2(f) TRUE COPY OF THE PLAINT IN OS NO.1416 OF 2017 FILED BY THE PETITIONER AGAINST THE 2ND RESPONDENT BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM EXHIBIT R2(g) TRUE COPY OF THE ORDER DATED 26.06.2018 IN OPC NO.661 OF 2018 OF THIS HON'BLE COURT.
EXHIBIT R2(h) TRUE COPY OF THE PATTA, ISSUED BY THE GOVERNMENT DATED 28.09.2008.
EXHIBIT R2(i) TRUE COPIES OF THE LAND TAX RECEIPTS ISSUED BY THE THYCAUD VILLAGE OFFICER DATED 05.06.2018 TO MANAGING DIRECTOR EXHIBIT R2(j) TRUE COPY OF THE PLAN SHOWING THE PROPERTY OF THE KSRTC AT THAMPANOOR BUS STAND WP(C) No.27880/2018 : 12 : EXHIBIT P10 THE ORDER PASSED BY HONOURABLE LOK AYUKTHA DATED 28/9/2017 IN I.A.NO.1584/2017 IN COMPLAINT NO.1046/2017.
EXHIBIT P11 THE COPY OF ORDER IN INJUNCTION IN I.A.NO.5906/2017 IN O.S.NO.1416/2017 ISSUED BY THE TRIVANDRUM MUNSIFF'S COURT DATED 05/10/2017.
EXHIBIT P12 THE COPY OF ORDER IN I.A.NO.5321/2017 IN O.S.NO.36/2016 ISSUED BY ADDL. MUNSIFF'S COURT, TRIVANDRUM DATED 14/11/2017.
EXHIBIT P13 TRUE COPY OF THE ORDER IN CMA NO.67/2017
DATED 14/12/2017 PASSED BY THE
ADDL.DISTRICT JUDGE, THIRUVANANTHAPURAM. EXHIBIT P14 THE COPY OF ORDER PASSED BY THE SUB COLLECTOR THIRUVANANTHAPURAM DATED 29/11/2017.
EXHIBIT P15 TRUE COPY OF THE COPY OF THE ORDER
PASSED BY THE SUB COLLECTOR,
THIRUVANANTHAPURAM DATED 27/11/2017. EXHIBIT P16 TRUE COPY OF THE RTI REPLY STATING THE SAID FACT DATED 04/11/2017 ISSUED BY THE KSRTC.
EXHIBIT P17 THE PHOTOGRAPHS DEPICTING DUMPED BUSES PARKING FRONT OF PETITIONER'S SHOP AND THEREBY BLOCKING THE FRONT VIEW OF THE PETITIONER'S SHOP FROM THE CUSTOMERS. EXHIBIT P18 TRUE COPY OF THE BASIC TAX REGISTER FOR THYCAUD VILLAGE OF BLOCK NO.112 OF THIRUVANANTHAPURAM THALUK, THYCAUD VILLAGE IS PRODUCED ALONG WITH THE BLOCK MAP OF WARD NO.25, BLOCK NO.112 OF THYCAUD VILLAGE.
EXHIBIT P19 TRUE COPY OF REPRESENTATION DATED 26/6/2018 SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE 2ND RESPONDENT. WP(C) No.27880/2018 : 13 : EXHIBIT P20 PHOTOGRAPHS SHOWING THE ILLEGAL ACTIVITY OF THE 2ND RESPONDENT.
EXHIBIT P20(a) PHOTOGRAPHS SHOWING THE ILLEGAL ACTIVITY OF THE 2ND RESPONDENT.
EXHIBIT P21 PHOTOCOPY OF THE RELEVANT PORTION OF THE NEWS PAPER REPORT IN MALAYALA MANORAMA DAILY DATED 26.7.2020.
RESPONDENT'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF G.O.NO.(MS) 36/88/PW &T DATED 05/07/1988 ISSUED BY THE PUBLIC WORKS AND TRANSPORT (L) DEPARTMENT. EXHIBIT P1(a) TRUE COPY OF THE AGREEMENT DATED 23/11/1988 BETWEEN THE CHAIRMAN, KSRTC AND SRI.S.STEPHEN WHO IS THE PRIOR OWNER FROM WHOM THE PETITIONER INHERITED PROPERTY.
EXHIBIT P2 TRUE COPY OF THE ORDER G.O.(RT) 3723/89/LAD DATED 8/11/1989 ISSUED BY THE LOCAL ADMINISTRATION (G) DEPARTMENT. EXHIBIT P3 TRUE COPY OF THE PLAN PREFERRED BY THE 2ND RESPONDENT CLEARLY SHOWING THE ACCESS BRIDGES CONSTRUCTED FOR THE SHOPS SITUATED ON THE WESTERN SIDE OF THE AMAYIZHANCHAN THODU.
EXHIBIT P4 TRUE COPY OF THE PLAN APPROVED BY THE
THIRUVANANTHAPURAM DEVELOPMENT
AUTHORITY.
EXHIBIT P5 TRUE COPY OF THE SAID REVISED PLAN OF
THE PROPERTY.
EXHIBIT P6 TRUE COPY OF THE MINUTES IN MEETING WAS
CHAIRED BY THE MAYOR OF THE CORPORATION AS WELL AS WITH THE REPRESENTATIVES OF THE 2ND RESPONDENT.
WP(C) No.27880/2018 : 14 : EXHIBIT P7 TRUE COPIES OF LICENSE FEE RECEIPTS ISSUED TO THE PETITIONER OR CARRYING OUT BUSINESS FROM THE THIRUVANANTHAPURAM CORPORATION.
EXHIBIT P8 COPY OF ORDER PASSED BY THE HON'BLE HUMAN RIGHTS COMMISSION.
EXHIBIT P9 COPY OF MINUTES OF MEETING DATED 23/09/2017 HELD AT TRIVANDRUM MAYOR'S OFFICE BY THE PETITIONER AND OTHER SHOP OWNERS.
EXHIBIT P10 THE ORDER PASSED BY HONOURABLE LOK
AYUKTHA DATED 28/9/2017 IN
I.A.NO.1584/2017 IN COMPLAINT
NO.1046/2017.
EXHIBIT P11 THE COPY OF ORDER IN INJUNCTION IN
I.A.NO.5906/2017 IN O.S.NO.1416/2017 ISSUED BY THE TRIVANDRUM MUNSIFF'S COURT DATED 05/10/2017.
EXHIBIT P12 THE COPY OF ORDER IN I.A.NO.5321/2017 IN O.S.NO.36/2016 ISSUED BY ADDL. MUNSIFF'S COURT, TRIVANDRUM DATED 14/11/2017.
EXHIBIT P13 TRUE COPY OF THE ORDER IN CMA NO.67/2017
DATED 14/12/2017 PASSED BY THE
ADDL.DISTRICT JUDGE, THIRUVANANTHAPURAM. EXHIBIT P14 THE COPY OF ORDER PASSED BY THE SUB COLLECTOR THIRUVANANTHAPURAM DATED 29/11/2017.
EXHIBIT P15 TRUE COPY OF THE COPY OF THE ORDER
PASSED BY THE SUB COLLECTOR,
THIRUVANANTHAPURAM DATED 27/11/2017. EXHIBIT P16 TRUE COPY OF THE RTI REPLY STATING THE SAID FACT DATED 04/11/2017 ISSUED BY THE KSRTC.
WP(C) No.27880/2018 : 15 : EXHIBIT P17 THE PHOTOGRAPHS DEPICTING DUMPED BUSES PARKING FRONT OF PETITIONER'S SHOP AND THEREBY BLOCKING THE FRONT VIEW OF THE PETITIONER'S SHOP FROM THE CUSTOMERS. EXHIBIT P18 TRUE COPY OF THE BASIC TAX REGISTER FOR THYCAUD VILLAGE OF BLOCK NO.112 OF THIRUVANANTHAPURAM THALUK, THYCAUD VILLAGE IS PRODUCED ALONG WITH THE BLOCK MAP OF WARD NO.25, BLOCK NO.112 OF THYCAUD VILLAGE.
EXHIBIT P19 TRUE COPY OF REPRESENTATION DATED 26/6/2018 SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE 2ND RESPONDENT. EXHIBIT P20 PHOTOGRAPHS SHOWING THE ILLEGAL ACTIVITY OF THE 2ND RESPONDENT.
EXHIBIT P20(a) PHOTOGRAPHS SHOWING THE ILLEGAL ACTIVITY OF THE 2ND RESPONDENT.
EXHIBIT P21 PHOTOCOPY OF THE RELEVANT PORTION OF THE NEWS PAPER REPORT IN MALAYALA MANORAMA DAILY DATED 26.7.2020.