Kerala High Court

Pushpa Leela vs The State Of Kerala Represented By on 4 January, 2021

          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.

           `````````````````````````````````````````````````````````````
                      W.P.(C) No.27880 of 2018
           `````````````````````````````````````````````````````````````
                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

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

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

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

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

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

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

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

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

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

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

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.