M/S Sumo Taxi Stand And Anr vs State Of Jk And Ors
2021 Latest Caselaw 207 j&K/2

                                                                     Serial No. 430

                                                                       After notice


            IN THE HIGH COURT OF JAMMU AND KASHMIR
                          AT SRINAGAR

                                                       CM No. 5994/2019 in
                                                         WP(C) No. 2821/2019
                                                          CM No. 5594/2019


M/S Sumo Taxi Stand and Anr.
                                                                       ..... Petitioner(s)
                                   Through: -
                            Mr. Moomin Khan, Advocate

                                               V/s
State of JK and Ors.
                                                                     ..... Respondent(s)

Through: -

Mr. B. A. Dar, Sr. AAG

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge (ORDER) 24.02.2021

01. In the instant petition, petitioners have prayed for the following

reliefs:-

" I. Mandamus commanding the respondents to allow the petitioner to use and occupy the land falling under Survey No. 1104 situated at Khanabal Anantnag for the running of the Sumo Stand without any interruption.

II. Mandamus commanding the respondents to allow the petitioners to run the Sumo Stand and provide Sumo service to the people through M/s Sumo Taxi Stand Dak Banglow Khanabal, Anantnag without any hindrance.

III. Mandamus commanding the respondents not to pressurize the petitioners Sumo Stand to surrender the land falling under Survey No. 1104 situated at Khanabal, Anantnag.

Iv. Mandamus commanding the respondents to issue the no objection certificates in favour of the petitioners so that the registration of the Sumo stand of the petitioners is renewed for further period.

V. Mandamus commanding the respondents to renew the notification No. 31-MVD of 2018 dated 06.02.2018, for the next financial year.

VI. Prohibition prohibiting the respondents from dispossessing the petitioners Sumo Stand from the land under Survey No. 1104 situated at Khanabal Anantnag, or converting the said land into any other purpose or enclosing the said land with the residence of Deputy Commissioner, Anantnag.

Brief facts as detailed out in the petition are summarised as under:-

02. The Sumo Taxi Stand, Dak Banglow, Khanabal stands established and

constructed way back in the year 1988 and is the oldest Taxi Stand in

erstwhile Anantnag District. It is to be noted here that in light of the

representations of Taxi Drivers at Khanabal the issue was discussed with the

then Hon'ble Revenue Minister and the then Hon'ble Minister of State for

Housing and Estates at Jammu and the said Ministers approved the transfer

of part land of public Works Department at Khanabal for the construction of

Taxi Stand subject to the condition that Taxi Drivers shall not park their

taxies on the bank of National Highway and only one entry and one exist

shall be in the Taxi Stand.

03. The site plan was prepared by the competent authority for the

construction of Taxi Stand and same was forwarded to higher authorities.

Later on the Superintending Engineer R&B District, Anantnag vide his letter

No. 15659, dated 29.01.1988 forwarded the site plan to the Executive

Engineer R&B Division, Anantnag, for doing the needful. It is stated that

while taking further step with respect to the conversion of partly constructed

staff quarter at Khanabal into Taxi Stand, the Executive Engineer

PWD(R&B) Division Khanabal, Anantnag vide his letter No. 1005-08 dated

17.05.1989 addressed a communication to the Assistant Executive Engineer

PWD (R&B) Sub Division Anantnag, wherein it has been observed that the

construction work of Taxi Stand was allotted to Abdul Ahad Katoo

contractor.

04. Earlier to year 1988 the Executive Engineer R&B Division, Anantnag,

vide his letter No. 12750-52 dated 20.02.1987 submitted proposal for an

amount of Rs. 1.361 lacs for construction of Taxi Stand on Public Works Department land at Khanabal for favour of further necessary action. It is

stated that prior to the issuance of communication, the Superintending

Engineer PWD District Anantnag vide his letter No. 14296-98 dated

31.12.1987 directed the Executive Engineer concerned to see the possibility

of making a piece of land available for Taxi Stand along with the alignment

of existing lavatory block in the premises of Housing quarter building under

construction on National Highway at Khanabal.

05. The total measurement of Survey No. 1104 situated at Khanabal

Anantnag is 44 Kanals 08 Marlas out of which 02 Kanals 12 Marlas were

provided to the petitioners Sumo Taxi Stand. It is stated that the petitioners

are continuously paying the fixed rent charges of the said land. It is stated

that vide notification No. 11-MVD of 2015 dated 10.07.2015, the

registration of the Sumo Stand of the petitioners has been extended.

06. The Deputy Commissioner, Anantnag as well as Assistant

Commissioner, Revenue Anantnag are hell bent to convert the public interest

into their official interest and want to enclose the land of the petitioners

Sumo Stand with the residence of Deputy Commissioner, Anantnag, which

will be affecting the rights of the petitioners and will affect the livelihood of

the petitioners association, its members, their families and public in general.

The conversion of the Sumo stand into the residence of the Deputy

Commissioner, Anantnag, or for any other purpose around the Sumo Taxi

stand will jeopardize the fundamental rights of the petitioners and will cause

irreparable loss to the public interest.

07. On notice respondents have filed objections, wherein it is stated that

the Anantnag town has undergone massive expansion and at present

Khanabal is located in a highly congested part of the town crisscrossed by

National Highway and favour Khanabal Phalgam road. In fact, Khanabal is located on Jammu-Srinagar old National Highway, giving lonely access to

Anantnag town and there is enormous flow of traffic on this road junction.

Given the huge increase in vehicular population and day-to-day movement

of general public including employees, traders, businessman, patients,

students etc., the said Sumo Stand has emerged as a big impediment in the

road communication. The Sumo Stand is located in highly secured area,

where Headquarter of Section-I Rashtria Rifles, Dak Banglow Khanabal,

Boys Degree College, District Police Lines and High Security residential

quarters of senior officials including District Magistrate, Anantnag, DIG,

SKR, SSP Anantnag, ADM's etc., and protected political Leaders are

situated. Due to the operation of the said Sumo Stand, the vehicles

associated with the Stand have to cross over old National Highway, which

leads to traffic Jams and long vehicular snarls causing huge inconvenience.

It is stated that the Sumo Stand operators also park their vehicles on

roadside, chocking the road for hours on daily basis. The Sumo Stand has

presently become a persistent bottleneck and an eye-sore for the surrounding

areas. It has deleterious effects on the smooth and hassle free flow of traffic

in Anantnag Town and on KP Road especially during Amar Nath Yatra.

08. Heard learned counsel for the parties, perused the records and

considered the matter.

09. Mr. Moomin Khan, learned appearing counsel for the petitioner

association, submits that the petitioners on the ground of inaction by

respondents 3 and 4 i.e., Transport Commissioner, Jammu and Kashmir and

Additional Transport Commissioner, Jammu and Kashmir, regarding

renewal of Sumo Taxi Stand, pending decision as reflected in

communication No. TC/JK/MV/Sumo Stand/12/2019/2186 dated

15.03.2019, and on completion of all the formalities and clearances has given a cause for filing the instant writ petition, as the respondents are under

statutory obligation, to take decision. He further submits that failure of the

respondents to renew the running of Sumo Taxi Stand, Dak Banglow,

Anantnag, has violated the rights of the petitioners association, guaranteed

under Article 21 of the Constitution of India, as it effects the livelihood of

the petitioners' association and their families, therefore, violation of

fundamental right becomes sine-qua-non for maintaining the writ petition for

the relief claimed.

10. Mr. Moomin Khan, learned counsel appearing for the petitioner

association while reiterating the grounds taken in the writ petition, has made

reference to Section 117 of the Motor Vehicles Act, 1998, which deals with

parking and halting stations of the vehicles. The provision being relevant is

taken note of:-

117. Parking places and halting stations. The state government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers: [Provided that the State Government or the authorised authority shall, give primacy to the safety of road users and the free flow of traffic in determining such places:

Provided further that for the purpose of this Section the National Highways Authority of India, constituted under the National Highway Authority of India Act 1988 (68 of 1988) or any other agency authorized by the Central Government may also determine such places."

11. Mr. B. A. Dar, learned Sr. AAG, submits that there are reasons with

the respondents to re-locate the Sumo Stand at a distance of 200 Meters

from the present place, therefore, the renewal of registration shall be

considered for re-located place. He further submits that the re-location of the

Sumo Stand, has reference to the security reasons as explained in the reply,

which further explains the place 'not feasible', as it has potential of security

threat, not only to the general public but also to the visitors who visit the Amarnath Yatra during the Yatra period. He further submits that the security

of the place cannot be compromised, therefore, the petitioners association

have to shift to the identified place on Anantnag-Srinagar road about 200

meters away from the present location, which is being developed and

readied to rehabilitate the Sumo drivers. It is submitted that the District

Development commissioner, has sanctioned funds to the tune of Rs. 6.00

lacs for taking up works for developing the alternative stand, therefore, the

respondents have already balanced the interest of the security and the

interest of the livelihood of the petitioners association.

12. The relief claimed in the writ petition is solely based on the decision

of the respondents, qua registration of the Sumo Stand, providing space and

for running of Sumo Stand from Dak Banglow, Khanabal, Anantnag. The

respondents are on record, submitting that the present location of Sumo

Stand is not convenient, besides policy on account of security reasons. The

specific stand taken by the respondents that the existence of the Sumo Stand

at the present location is constant threat to Security establishments by

militants and the location could be used by anti-national elements to disrupt

Yatra and create law and order disturbances. The re-location of the location

is also supported by the communication of SSP, Anantnag, vide his

communication No. CS/13/2019/31222 dated 29.08.2019. The respondents

are also submitted that the re-location does not violate the rights of the

petitioners for running the Sumo Stand, as the alternate site has been already

identified and provided to the petitioners, which is only convenient to the

commuters as also for the operators of the Sumos and other private vehicles.

The respondents have also provided the details of location allotted to the

petitioners, which as stated in no way caused inconvenience to the general

public and to the commuters.

13. Mr. B. A. Dar, learned Sr. AAG, submits that the policy of

location/re-location of the Sumo Stand is domain of respondents. In this

regard, he has referred to and relief upon the Judgments of the Hon'ble

Supreme Court delivered in the case of 'Federation of Railway Officers

Association & Others vs. Union of India', reported in 'AIR 2003 SC 1344',

the Apex Court of the country observed that the wholesome rule in regard to

judicial interference in an administrative decision is that if the Government

takes into consideration all the relevant factors, eschews from considering

irrelevant factors and acts reasonably within the parameters of the law,

Courts would keep off the same, and in the case of 'BALCO Employees

Union (Regd.) vs. Union of India & Ors.', reported in

'MANU/SC/0779/2001', wherein the Supreme Court held that it is evident

that it is neither within the domain of the Court nor the scope of the judicial

review to embark upon an enquiry as to whether a particular public policy is

wise or whether better public policy can be evolved. Nor are our Courts

inclined to strike down a policy at the behest of a petitioner merely because

it has been urged that a different policy would have been fairer or wise or

more scientific or more logical.

14. Admittedly, the matter has remained pending with the respondents 3

and 4, for grant or otherwise of the renewal, because of the interim order of

stay.

15. The Court has to place the cause of justice by ensuring that the rights

of the parties does not got defeated, but in the present case, the respondents

while taking care of the Security of the Union Territory of J&K, and law and

order problem have also to ensure re-location and rehabilitation of the petitioners association, therefore, there is no issue of defeating the cause of

justice and rights of petitioners association.

16. In view of above, the Court feels it appropriate to dispose of the writ

petition, by providing as under:-

I Respondents shall consider renewal of the registration of the Sumo

Stand in tune with the mandate of the law, rules and policy of the

Government, but while doing so, the respondents shall ensure

rehabilitation of the petitioners' association at identified place as per

their stand taken in the affidavit.

II. Respondents shall ensure that the petitioners association because of

re-location does not suffer their business, therefore, shall ensure

plying of the vehicles from the Sumo Stand as identified by the

respondents.

17. Disposed of along with connected CM(s).

(Ali Mohammad Magrey) Judge

SRINAGAR 24.02.2021 "Mohammad Yasin Dar"

                                i.   Whether the Order is reportable?           YES/NO
                               ii.   Whether the Order is speaking?             YES/NO




MOHAMMAD YASIN DAR
2021.02.25 11:35
I attest to the accuracy and
integrity of this document