IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 14698 OF 2021
PETITIONER:
D.PRABHAKARAN,
AGED 60 YEARS
S/O.DINAKARAN, PANIKOTTIL,
CHERUNTHANA, HARIPPAD, PIN-690 517.
BY ADV B.RENJITHKUMAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT NORTH BLOCK,
THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR,
1ST FLOOR, COLLECTORATE, CIVIL STATION,
ALAPPUZHA, PIN-688 001.
3 HARIPPAD MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, HARIPPAD P.O.,
ALAPPUZHA DISTRICT, PIN-690 514.
4 STATION HOUSE OFFICER,
HARIPPAD POLICE STATION,
HARIPPAD P.O., ALAPPUZHA, PIN-690 514.
5 THE TRAFFIC REGULATORY COMMITTEE-
HARIPPAD MUNICIPALITY,
REPRESENTED BY ITS CHAIRMAN, HARIPPAD P.O.,
ALAPPUZHA, PIN-690 514.
6 ABDUL NAZEER,
AGED 51 YEARS, S/O.ABBAS KUNJU,
PUTNENPARAMBIL, VEEYAPURAM,
KARTHIKAPPALLY, ALAPPUZHA, PIN-690 514.
W.P.(C) Nos.14698/2021 & 21508/2022
:2:
BY ADVS.
M.R.ARUNKUMAR
P.A.MOHAMMED SHAH
C.R.SYAMKUMAR
ASWIN KUMAR M J
HELEN P.A.
ARUN ROY
SHAHIR SHOWKATH ALI
SRI.SYAMANTHAK BS, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.07.2022, ALONG WITH WP(C).21508/2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.14698/2021 & 21508/2022
:3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 21508 OF 2022
PETITIONER:
WEDLAND WEDDINGS
FIRDOUS B, TRA -34(B), VADAKKUMBHAGOM,
KAZHAKUTTOM P.O, TRIVANDRUM - 695582,
REPRESENTED BY ITS MANAGING PARTNER,
SRI. NISSAR K.
BY ADVS.
P.A.MOHAMMED SHAH
RENOY VINCENT
HELEN P.A.
ARUN ROY
SHAHIR SHOWKATH ALI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695001.
2 DISTRICT COLLECTOR
COLLECTORATE, CIVIL STATION,
ALAPPUZHA - 688001.
3 HARIPAD MUNICIPALITY,
HARIPAD P.O, ALAPPUZHA - 690514,
REPRESENTED BY ITS SECRETARY.
4 SECRETARY
HARIPAD MUNICIPALITY, HARIPAD P.O,
ALAPPUZHA - 690514,
5 TRAFFIC REGULATORY COMMITTEE HARIPAD,
HARIPAD MUNICIPALITY, HARIPAD P.O,
ALAPPUZHA - 690514,
REPRESENTED BY ITS CHAIRPERSON.
W.P.(C) Nos.14698/2021 & 21508/2022
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6 STATION HOUSE OFFICER,
HARIPAD POLICE STATION, HARIPAD,
ALAPPUZHA - 690514.
7 PRADEEP
SECRETARY, AUTO THOZHILALI UNION (BMS),
MANAPPALLI HOUSE, VETTUVENI P.O,
HARIPAD, ALAPPUZHA - 690514.
8 UTHAMAN
SECRETARY, AUTO THOZHILALI UNION (CITU),
PANNIKANDATHIL HOUSE, PADEETTETHIL,
POTHAPILLI NORTH, KUMARAPURAM P.O,
HARIPAD, ALAPPUZHA - 690548.
9 ASHOKAN U
SECRETARY, AUTO THOZHILALI UNION (INTUC),
CONGRESS BHAVAN, NEAR REVENUE TOWER,
HARIPAD, ALAPPUZHA - 690514.
BY ADVS.
SHRI.ARUNKUMAR M.R., SC, HARIPAD MUNICIPALITY
B.RENJITHKUMAR
SRI.SYAMANTHAK B S, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.07.2022, ALONG WITH WP(C).14698/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.14698/2021 & 21508/2022
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CR
N. NAGARESH, J.
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W.P.(C) Nos.14698 of 2021 and 21508 of 2022
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Dated this the 27th day of July, 2022
JUDGMENT
~~~~~~~~~ Both these writ petitions relate to regulating an Autorickshaw Stand near the KSRTC Bus Stand, Haripad, adjacent to NH-66. Hence, the writ petitions are heard together and being disposed of by a common judgment.
2. The petitioner in W.P.(C) No.14698 of 2021 is an autorickshaw driver and President of Autorickshaw Thozhilali Samrakshana Samithy. Autorickshaws are parked at the northern end of KSRTC Bus Stand at Haripad, which place is used as Autorickshaw Stand. About 70 autorickshaws are normally parked in the said Stand, states the petitioner. The W.P.(C) Nos.14698/2021 & 21508/2022 :6: 6th respondent, who owns 3.66 Ares land on the western side of the Autorickshaw Stand, constructed a commercial building there, without providing sufficient parking area.
3. The 6th respondent filed W.P.(C) No.26868 of 2019 to remove autorickshaws parked in the Stand and this Court directed the 3rd respondent to convene a meeting of the Traffic Regulatory Committee and identify places for parking. A meeting convened by the Traffic Regulatory Committee decided as per Ext.P2 that parking of the Autorickshaws should be without obstructing entrance to shops.
4. The petitioner submits that the decision taken as per Ext.P2 is impractical. Space for parking two autorickshaws is sufficient to enter into the Building Complex of the 6th respondent. The Building of the 6th respondent is not provided with sufficient Parking Area. The building does not have enough setbacks as per the Building Rules. The 6 th respondent seeks to remove the Autorickshaw Stand only to facilitate parking of the vehicles of his customers. The W.P.(C) Nos.14698/2021 & 21508/2022 :7: petitioner therefore seeks to quash Ext.P2 decision of the 5 th respondent-Traffic Regulatory Committee.
5. The petitioner in W.P.(C) No.21508 of 2022 is a Partnership Firm intending to run a showroom in 'SAS Tower' at Haripad. Respondents 7 to 9, who are autorickshaw drivers, are parking their autorickshaws in front of the showroom causing obstruction to ingress and egress to the showroom. In spite of requests, the autorickshaws are not removed. The area is not a notified Autorickshaw Stand, contends the petitioner. The complaints filed by the petitioner before various authorities were of no avail.
6. The petitioner argues that this Court has held in the judgment in Naushad M. and others v. State of Kerala and others [2019 (2) KHC 562 (DB)] that permitting parking of autorickshaws permanently in front of shoprooms on the side of Highway is an appropriation of the private right of owners of shops and houses, to have free access to Highways. The ratio laid down in the said judgment is applicable to respondents 7 to 9. It is the duty of the W.P.(C) Nos.14698/2021 & 21508/2022 :8: Government / Municipal authorities to provide suitable parking areas to autorickshaws. But, parking cannot be permitted, offending the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution of India.
7. The 4th respondent-Secretary to Municipality filed a counter affidavit. According to the 4 th respondent, autorickshaws have been parking in that area for the last about 25 years. It is useful to the general public to travel from KSRTC Bus Stand to Taluk Hospital and to Haripad Railway Station. On 05.07.2022, a meeting of the Traffic Regulatory Committee (TRC for short) was held. The TRC heard all affected parties. The site was inspected. The auto drivers agreed to exclude six metre area from parking, to facilitate ingress and egress to the building in question.
8. The building possessed by the petitioner in W.P. (C) No.21508 of 2022 is situated above the National Highway Line and there is no obstruction to the visibility of textile items displayed in the building. The petitioner in W.P.(C) No.21508 of 2022, however, made Ext.R5(b) complaint requesting to W.P.(C) Nos.14698/2021 & 21508/2022 :9: remove all autorickshaws being parked in front of the building.
9. A meeting of the TRC was convened again on 13.07.2022. The petitioners in both the writ petitions were present in the meeting. The TRC suggested that the existing 6 metre access be enhanced to 8 metres, for ingress and egress to the building and the autorickshaws be parked in the remaining area. The decision of the TRC was not acceptable to both the writ petitioners.
10. The 4th respondent argued that it is the duty of the TRC to provide proper parking place for autorickshaws without causing hindrance to the smooth conduct of business of the petitioner in W.P.(C) No.21508 of 2022. Ext.R5(c) decision of the TRC is in exercise of the powers under Section 72 of the Kerala Police Act. Ext.R5(c) is perfectly legal, contended the 4th respondent.
11. The counsel for the petitioner in W.P.(C) No.14698 of 2021 argued that the landlord of the building is not a party to these proceedings and that he is a necessary W.P.(C) Nos.14698/2021 & 21508/2022 : 10 : party. The landlord has not provided enough setback to the building. The landlord is behind the petitioner in W.P.(C) No.21508 of 2022. The intention of the petitioner in W.P.(C) No.21508 of 2022 is to appropriate the space now occupied by the autorickshaws as parking space for their customers. The autorickshaws have been issued permit showing Stand "near the KSRTC Bus Stand, Haripad". Hence, they have a right to park in front of the Building. The petitioner in W.P.(C) No.21508 of 2022 nor their landlord has obtained Access Permission under Section 28 of the Control of National Highways (Land and Traffic) Act, 2002.
12. I have heard the learned counsel for the petitioners in both the writ petitions, the learned Standing Counsel for the Municipality, the learned counsel for the 6 th respondent in W.P.(C) No.14698 of 2021, the learned counsel for the 9th respondent in W.P.(C) No.21508 of 2022 and the learned Government Pleader.
13. As regards the arguments of the petitioner in W.P. (C) No.14698 of 2021 regarding non-joinder of landlord of W.P.(C) Nos.14698/2021 & 21508/2022 : 11 : the buildings, this Court is of the view that a tenant can maintain a writ petition on the issue since it is the tenant who is aggrieved party in the matter. The issue of not providing setback to the building also is not germane to the issue involved in the writ petition, though it is a matter which can be looked into by the Local Self Government Institution in the context of Building Rules violations, if any. The fact that the Sub RTO Office has issued autorickshaw permits indicating "near KSRTC Bus Stand" will not give a right to the autorickshaw drivers to park their rickshaws at any place not designated as Autorickshaw Stand, by the competent authority. The issue of Access Permission is also one to be considered by the National Highway Authority, if warranted.
14. The autorickshaws have been using the place near KSRTC Bus Stand, Haripad adjacent to NH-66, as parking place. The petitioner in W.P.(C) No.21508 of 2022 is starting a business in a building there. The existing autorickshaw parking is in front of the building and causes obstruction to the ingress and egress to the building and to W.P.(C) Nos.14698/2021 & 21508/2022 : 12 : the visibility of the Showroom.
15. The TRC considered the issue in its meeting held on 05.03.2020, as is evident from Ext.P2 in W.P.(C) No.14698 of 2021. Ext.P2 would show that there is no approved Autorickshaw Parking Stand near the building. However, those autorickshaws, whose permits are attached to "near KSRTC bus stand" by the Sub RTO, were being parked there. The Chairperson was of the view that the Autorickshaw Stands should be shifted. The meeting decided to inspect and ensure that the autorickshaws are parked without obstructing customers coming to the shops. The petitioner in W.P.(C) No.14698 of 2021 seeks to quash Ext.P2.
16. The TRC met again on 05.07.2022 to discuss the issue. It appears that the representatives of Autorickshaw drivers/owners and of the petitioner in W.P.(C) No.21508 of 2022 were also invited to the meeting. The autorickshaw drivers stated that they are willing to leave 6 metre space including the way to parking on the northern end. The TRC W.P.(C) Nos.14698/2021 & 21508/2022 : 13 : found that auto parking is not affecting the visibility of displays in the Building.
17. The TRC decided to require the Autorickshaw Union representatives to leave a six metre entry including the ramp on the northern side, to the building. At the same time, the TRC gave time up to 12.07.2022 to express assent or dissent on the decision. The TRC again met on 13.07.2022 and held discussions with the rival claimants. As no consensus could be arrived at, the TRC decided to inform the parties to leave 8 metre space for entry to the building and permit parking in the remaining 17 metre area in front of the building, as per Ext.R5(c).
18. In the judgment in Gopalan v. Vellangallur Grama Panchayat [2021 (2) KLT 539], this Court considered the issue of Autorickshaw Parking areas and held that on a harmonious reading of Section 72 of the Kerala Police Act, 2011 and Section 112 of the Motor Vehicles Act, 1988, it is the Traffic Regulatory Committees chaired by the heads of Local Self Government Institutions constituted under Section W.P.(C) Nos.14698/2021 & 21508/2022 : 14 : 72 of the Kerala Police Act, 2011 who are competent to decide, locate and demarcate autorickshaw stands.
19. When a Traffic Regulatory Committee takes a decision in exercise of their powers, the decision should be one to further the objectives and the provisions of the Police Act and the Motor Vehicles Act. A reading of Exts.P2, R5(a) and R5(c) decisions of the TRC would indicate that the TRC has been acting as if the Committee is a mediator in a private dispute between the petitioners in the two writ petitions. Even after taking a decision as contained in Ext.R5(a), the TRC invited suggestions from parties over their decision.
20. After taking Ext.R5(c) decision, the TRC in their Minutes recorded that the parties were not ready to accept the decision "and hence the proceedings of the meeting were concluded at 04.15". It is obvious that the TRC was acting as a mediator in the dispute and not as a statutory committee obliged to take decision on the basis of statutory provisions and in public interest.
W.P.(C) Nos.14698/2021 & 21508/2022 : 15 :
21. While deciding, locating and designating parking lots, the prime considerations of the TRC should be ensuring smooth traffic, vehicular and pedestrian, and the public interest. The autorickshaw unions and building/shop owners alone are not the stakeholders in such decisions. The primary concern should be safe and smooth traffic flow. When an Autorickshaw Stand is to be located near a busy public place like a KSRTC Stand, the question whether the Auto Stand will affect vehicular traffic flow or pedestrian movement due to crowding of commuters in the Auto Stand, is a matter of concern.
22. Apart from bus commuters and autorickshaw commuters, pedestrians are equally important stakeholders. Locating an Autorickshaw Stand on a paved footpath or a roadside path being used by pedestrians, thereby considerably reducing pedestrians' space, would only invite traffic/motor vehicle accidents. The authorities are bound to consider the convenience of the pedestrians also while designating a Taxi/Auto Stand.
W.P.(C) Nos.14698/2021 & 21508/2022 : 16 :
23. In many places in Kerala, it is found that Autorickshaw Stands are located over covered Municipal/Public drainages, obstructing drainage cleaning works of the Municipality. If there are public utilities like Electricity cables, Transformers, water pipelines and other cable lines in the intended Autorickshaw Stand area, those authorities are also stakeholders in the matter. A decision in this regard cannot be taken considering the convenience of Autorickshaw/Taxi commuters alone.
24. Exts.P2, R5(a) and R5(c) decisions of the TRC do indicate that the TRC was trying to arrive at a solution on the dispute between the autorickshaw unions and the petitioner in W.P.(C) No.21508 of 2022. A decision on the issue could not have been taken by the TRC treating those parties alone as stakeholders. Exts.P2, R5(a) and R5(c) decisions are therefore unsustainable.
25. The petitioner in W.P.(C) No.21508 of 2022 submitted that they intend to inaugurate their business in the premises in a grand manner on 31.07.2022 and unless the W.P.(C) Nos.14698/2021 & 21508/2022 : 17 : autorickshaws in front of the building are not cleared on the day, the inaugural ceremony will be spoiled. The petitioner in W.P.(C) No.14698 of 2021, who is the President of Autorickshaw Thozilali Samrakshana Samithy, submitted that they have no intention to obstruct or spoil the inauguration ceremony and will cooperate with the petitioner in W.P.(C) No.21508/2022 for smooth conduct of the inauguration.
26. In view of the reasons stated hereinabove, Exts.P2, R5(a) and R5(c) decisions of the Traffic Regulatory Committee are set aside. The Committee is directed to reconsider the issue of locating the Autorickshaw Stand in question, taking into consideration the rights and convenience of all the stakeholders in the matter, within a period of two months.
27. Till a decision afresh is taken in the matter, the petitioner in W.P.(C) No.21508 of 2022 should get the benefit of 12 metre access/opening to the building and Autorickshaw Parking should be confined to 13 metres. Respondents 4 to 6 may demarcate the 13 metres appropriately. It is made W.P.(C) Nos.14698/2021 & 21508/2022 : 18 : clear that allocation of 12 metres and 13 metres made as above is only by way of an interim measure and is not intended to affect the final decision of the Traffic Regulatory Committee in any manner whatsoever.
The writ petitions are disposed of as above.
Sd/-
N. NAGARESH, JUDGE aks/29.07.2022 W.P.(C) Nos.14698/2021 & 21508/2022 : 19 : APPENDIX OF WP(C) 14698/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 16.10.2019 IN WP(C) NO.26868/2019 OF THIS HON'BLE COURT.
Exhibit P2 TRUE COPY OF THE DECISION DATED
05.03.2020 TAKEN BY THE 5TH
RESPONDENT.
Exhibit P3 TRUE COPY OF THE REQUEST DATED
01.07.2021 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.
W.P.(C) Nos.14698/2021 & 21508/2022 : 20 : APPENDIX OF WP(C) 21508/2022 PETITIONER'S EXHIBITS Exhibit P1 THE TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE REGISTRAR OF FIRMS, DEPARTMENT OF REGISTRATION, GOVERNMENT OF KERALA DATED 05.10.2019 Exhibit P2(a) THE TRUE COPY OF THE BUILDING TAX RECEIPT FOR DOOR NO. 8/737 ISSUED BY THE RESPONDENT NO.3 DATED 24.03.2022.
Exhibit P2(b) THE TRUE COPY OF THE BUILDING TAX RECEIPT FOR DOOR NO. 8/738 ISSUED BY THE RESPONDENT NO.3 DATED 24.03.2022 Exhibit P2(c) THE TRUE COPY OF THE BUILDING TAX RECEIPT FOR DOOR NO. 8/739 ISSUED BY THE RESPONDENT NO.3 DATED 24.03.2022 Exhibit P2(d) THE TRUE COPY OF THE BUILDING TAX RECEIPT FOR DOOR NO. 8/740 ISSUED BY THE RESPONDENT NO.3 DATED 24.03.2022 Exhibit P2(e) THE TRUE COPY OF THE BUILDING TAX RECEIPT FOR DOOR NO. 8/741 ISSUED BY THE RESPONDENT NO.3 DATED 24.03.2022 Exhibit P3 THE TRUE COPY OF THE LEASE DEED DATED 21.03.2022 Exhibit P4 THE TRUE COPY OF THE GST REGISTRATION CERTIFICATE ISSUED TO THE PETITIONER DATED 18.03.2022 Exhibit P5 THE TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S SHOWROOM Exhibit P6 THE TRUE COPY OF THE COMPLAINT FILED BY THE MANAGING PARTNER OF THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 24.06.2022 Exhibit P7 THE TRUE COPY OF THE COMPLAINT FILED BY THE MANAGING PARTNER OF THE PETITIONER BEFORE THE 6TH RESPONDENT DATED 24.06.2022 W.P.(C) Nos.14698/2021 & 21508/2022 : 21 : RESPONDENT'S EXTS R5(A) COPY OF THE MINUTES AND DECISION OF THE TRAFFIC REGULATORY COMMITTEE HELD AT THE CHAMBER OF THE 5TH RESPONDENT DTD 5.7.2022.
R5(B) COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT DTD 11.7.2022 R5(C) COPY OF THE MINUTES OF THE 5TH RESPONDENT TRAFFIC REGULATORY COMMITTEE HELD ON 13.7.2022. R9 COPY OF THE PERMIT ISSUED TO ONE RAJAKUMAR ON 7.8.2019 IN RESPECT OF AUTORICKSHAW BEARING REGISTRATION NO.KL-29A-5644.