Ashraf vs State Of Kerala
2021 Latest Caselaw 13694 Ker

W.P.(C) No. 33611/2019                   :1:


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

           FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943

                           WP(C) NO. 33611 OF 2019

PETITIONER:

              ASHRAF, AGED 56 YEARS
              S/O. MAMMU, CHINGLY HOUSE, SULTHAN BATHERY VILLAGE AND
              TALUK, SULTHAN BATHERY P.O., WAYANAD -673 592 MANAING
              PARTNER, M/S. YEM YEM HARDWARE, NEAR MUNICIPALITY OFFICE,
              KALPETTA, WAYAND-673 121

              BY ADV NIRMAL V NAIR

RESPONDENTS:

     1        STATE OF KERALA,
              REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF
              MOTOR VEHICLES, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

     2        THE DISTRICT COLLECTOR,
              COLLECTORATE, NORTH KALPETTA P.O., WAYANAD-673 122

     3        THE DEPUTY SUPERINTENDENT OF POLICE,
              KALPETTA, NORTH KALPETTA P.O., WAYANAD-673 122

     4        THE STATION HOUSE OFFICER, KALPETTA POLICE STATION,

              NORTH KALPETTA NORTH P.O., WAYANAD-673 122

     5        KALPETTA MUNICIPALITY,
              KALPETTA P.O., WAYANAD-673 121, REPRESENTED BY ITS SECRETARY

     6        THE REGIONAL TRASNPORT AUTHORITY, CIVIL STATION,

              KAIRALI NAGAR, KALPETTA NORTH P.O., WAYANAD-673 122

     7        THE TRAFFIC REGULATORY COMMITTEE,
              KALPETTA MUNICIPALITY, KALPETTA P.O., WAYANAD -673 121,
              REPRESENTED BY ITS SECRETARY

              R1 TO 4 & R6 - SRI.SURIN GEORGE IPE, SENIOR GP

       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

      02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 33611/2019                 :2:




                    Dated this the 2nd day of July, 2021

                               JUDGMENT

This writ petition is filed by the petitioner basically seeking a

direction to the Kalpetta Municipality represented by its Secretary,

Wayanad District, the Regional Transport Authority, Wayanad and the

Traffic Regulatory Committee, Kalpetta Municipality, Wayanad District,

who are respondents 5 to 7 respectively, to take appropriate action in

accordance with law on Exts.P4 and P5 representations and to

determine the exact length of the parking space as well as the number

of vehicles that can be accommodated therein ensuring the ingress

and egress to the business concern of the petitioner, without causing

any obstruction to his business concern.

2. The basic issue raised by the petitioner is that consequent to the

vehicles parked in front of the shop of the petitioner, he is unable to

carry on the business and is facing a lot of difficulties in the matter of

loading and unloading of goods. It is also pointed out that the vehicles

are parked indiscriminately so as to affect the ingress and egress to

the business concern. Therefore, he sought for the above and the

other related reliefs.

3. In fact, an interim order was passed by this Court, when the

matter was admitted to the files by a learned single Judge of this Court

on 10.12.2019, which is in force even now. The said interim order

reads thus:

"The learned Standing Counsel for respondents 5 and 7 and the learned Government Pleader for respondents 1 to 4 and 6 will obtain instructions in this matter.

List this case on 14.01.2020.

Until which time, the 4th respondent and the Secretary of the 5th respondent Municipality will ensure that vehicles parked in front of the petitioner's building are so allowed only in a manner as not to distruct the ingress and egress to his business premises."

4. Today, when the matter was taken up, I am informed by the

learned counsel for the petitioner, Sri. Nirmal V. Nair, that pursuant to

the interim order passed by this Court, the Municipality has put up a

board in the place in question and thereafter, no vehicles were parked

there. In fact, it is a well settled legal position that the owners of the

properties are entitled to get access either from a highway and any

other roads to enter into their premises as of right, which could not be

stopped by anyone even by parking vehicles. It is also an admitted

fact that the petitioner is carrying on business in the area in question

where the vehicles are parked and it was taking into account the case

put forth by the petitioner, the learned single Judge has passed the

order which continues to be in force.

5. A statement is filed for and on behalf of the Traffic Regulatory

Committee basically contending that the area in question is a

convenient parking space and due to the narrow road running from the

Kalpetta town, the authorities are unable to allot a convenient parking

area in any other parts of the town.

6. Learned Government PLeader Sri. Surin George Ipe, also

submitted that instructions are imparted by the Regional Transport

authority, the 6th respondent.

7. I have heard the learned counsel for the petitioner Sri. Nirmal

V. Nair and the learned Senior Government Pleader Sri. Surin George

Ipe, and perused the pleadings and documents on record.

8. In view of the settled legal position in favour of the petitioner

as is discussed above, I am of the considered opinion that the interim

order granted by this Court which is continuing in force and

implemented by the Kalpetta Municipality, can be made absolute and

issue appropriate directions accordingly. Anyhow, by now it is well

settled and trite that the local body cannot make the road a cartstand

and that too by obstructing the access of a property owner.

9. Therefore, the interim order granted by this Court on

10.12.2019 is made absolute, however, leaving open the liberty of any

personto approach the Traffic Regulatory Committee, the 7th

respondent herein, which will take appropriate decision in accordance

with law, after providing an opportunity of hearing to all the parties.

Needless to say, the parties will be guided by such orders passed

by the Traffic Regulatory Committee as is observed and directed

above, and in accordance with law.

This writ petition is disposed of as above.

Rv                                   sd/- SHAJI P. CHALY, JUDGE.





                         APPENDIX OF WP(C) 33611/2019

PETITIONER'S EXHIBITS:

EXHIBIT P1                A TRUE COPY OF ACKNOWLEDGMENT RECEIPT OF
                          PETITION DATED 15.6.2015 ISSUED BY THE 4TH
                          RESPONDENT

EXHIBIT P2                A TRUE COPY OF THE PETITION DATED 31.10.2017
                          SUBMITTED BEFORE THE 3RD RESPONDENT

EXHIBIT P3                TRUE COPY OF THE PHOTOGRAPHS SHOWING THE

PARKING IN FRONT OF THE PETITIONER'S BUSINESS CONCERN

EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION DATED 25.10.2019 ALONG WITH THE RECEIPT ISSUED BY THE 5TH RESPONDENT

EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 3.12.2019 SUBMITTED BEFORE THE 6TH RESPONDENT

EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 16.10.2019 IN WPC 17943/2019 ON THE FILES OF THIS HONOURABLE COURT

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS To Judge.

rv