Kerala High Court
Rasheed Parakkal vs The Secretary, Kottilangadi ... on 28 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
WP(C) NO. 21191 OF 2020
PETITIONER:
RASHEED PARAKKAL,
R
AGED 60 YEARS
S/O.ALAVI, PARAKKAL HOUSE,
PADINJATTUMURI, MALAPPURAM-676 506.
BY ADVS.
ALEX M SCARIA
SRI.A.J.RIYAS
SMT.SARITHA THOMAS
KUM.MINU THANKAPPAN
RESPONDENT/S:
1 THE SECRETARY, KOTTILANGADI GRAMA PANCHAYATH,
PADINJATTUMURI P.O., MALAPPURAM DISTRICT-676 506.
2 THE STATION HOUSE OFFICER,
MALAPPURAM POLICE STATION, FEROKH PALAKKAD HIGHWAY-NH-
213, ANNUNNIPARAMBU, UP HILL, MALAPPURAM, KERALA-676
505.
3 THE EXECUTIVE ENGINEER, P.W.D. (ROADS DIVISION),
MALAPPURAM, UP HILL, MALAPPURAM, KERALA-676 505.
4 THE REGIONAL TRANSPORT OFFICER,
MALAPPURAM, CIVIL STATION ROAD, UP HILL, MALAPPURAM,
KERALA-676 505.
5 THE AUTO RIKSHAW OPERATORS UNION (AFFILIATED TO INTUC),
PADINHATTUMURI JUNCTION, REPRESENTED BY ITS SECRETARY
SRI.MUJEEB.P.T., PULIKKATHODI HOUSE, PADINHATTUMURI
P.O., MALAPPURAM-676 506.
6 SRI.MUJEEB.P.T.
S/O.MOIDEEN.P.T., PULIKKATHODI HOUSE, PADINHATTUMURI
P.O., MALAPPURAM-676 506.
7 ADDL.R7.N.K.HUSSAIN
W.P.(C) No.21191/2020 2
(SOUGHT TO BE IMPLEADED)
8 ADDL.R8.MUHAMMED MUSTHAFA E.K
AGED 50, S/O.ABU E.K., PADINHATUMURI AMSOM,
PADINHATUMURI POST, KOOTILANGADI, MALAPPURAM - 676
506
9 ADDL.R9.FAISAL MEMANA
S/O.MOEEDU, PAITELLPARABA, PADINHATUMURI (PO),
KOOTILANGADI, MALAPPURAM - 676 506
10 ADDL.R10.ANOOJ.V
S/O.KARUNAKARAN, VAYALIVEETTIL (H), PADINHATUMURI
(PO), KOOTILANGADI, MALAPPURAM - 676 506
11 ADDL.R11.SURESH.P.K
S/O.VASU, POTTIKADAVATH (H).
12 ADDL.R12.NASAR.P.N
S/O.KUNJIMAYEEN, PALEAMPADIYAN HOUSE, PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
13 ADDL.R13.BABUKUTTAN.M.
MATHODI (H), PADINHATUMURI (PO), KOOTILANGADI,
MALAPPURAM - 676 506
14 ADDL.R14.MUHAMMED SHAFI.K.V
S/O.MUHAMMEDALI, VILANGAPURAM, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
15 ADDL.R15.ANOOJ.V
S/O.KARUNAKARAN V., VAYALIVEETTIL (H), PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
16 ADDL.R16.ABDUL LATHEEF.P
S/O.SOOPY, PUZHAKKATHODI (H), PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
17 ADDL.R17.ABDUL LATHEEF.P.P
S/O.HAMSA, PALENPADIYAN (H), PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
18 ADDL.R18.ABDUL MAJEED
S/O.ABOO, PULIYANTHODI, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
19 ADDL.19.USMAN.P
PARAMBAN (H), S/O.UMMER, PADINHATUMURI POST,
W.P.(C) No.21191/2020 3
KOOTILANGADI, MALAPPURAM - 676 506
20 ADDL.R20.SAIFULLAH.E
S/O.AHAMMED, EDAKKUDAMBAN HOUSE, PATTIYIL PARAMBA,
PADINHATUMURI POST, KOOTILANGADI, MALAPPURAM - 676
506
21 ADDL.R21.JAYAPRAKASH.P
S/O.PARAMESWARAN P., POONNAMVEETTIL HOUSE,
PADINHATUMURI POST, KOOTILANGADI, MALAPPURAM - 676
506
22 ADDL.R22.VIJITH.C
S/O.VIJAYAN, CHEMBRATT HOUSE, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
23 ADDL.R23.SABEERALI.C
S/O.ABDUL BASEER, CHEMBAN (H), PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
24 ADDL.R24.SHAMSUDHEEN.P
S/O.SOOPPY, PUZHAKKATHODI (H), PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
25 ADDL.R25.SURESH BABU.M
S/O.GOPALAN M., MANALIYIL (H), PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
26 ADDL.R26.RAVEENDRAN P.K
S/O.VASU P.K., POTTIKKADAVATH (H), PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
27 ADDL.R27.SUKUMARAN.M
MANALIYIL (H), PADINHATUMURI POST, KOOTILANGADI,
MALAPPURAM - 676 506
28 ADDL.R28.MOHAN KUMAR
POTTIKADAVATH HOUSE, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
29 ADDL.R29.ANOOP.M
MUTHUVEETTIL HOUSE, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
30 ADDL.R30.YOUSF.N.K
S/O.MUHAMMED, NADUVATHKUNDIL, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
W.P.(C) No.21191/2020 4
31 ADDL.R31.SHIJU.P.C
PANAMBATTA, PADINHATUMURI POST, KOOTILANGADI,
MALAPPURAM - 676 506
32 ADDL.R32.SHARAFUDHEEN.K.M
S/O.SAIDALAVI, KAKKAMOOLAKKAL, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
33 ADDL.R33.ABBAS.T.K
S/O.ABOOBECKER, THAIKATTKUNDIL (H), PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
34 ADDL.R34.RANJITH.P
S/O.KRISHNAN, PANJATHODI (HOUSE), PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
35 ADDL.R35.SHAJMON.K
S/O.NARAYANAN, KAVALAPPARA HOUSE, PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
36 ADDL.R36.MUHAMMED FAISAL.P.P
S/O.KUNI MOIDEEN, VELAGA PURAM, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
37 ADDL.R37.RATHEESH.K.K.
S/O.NEELAKKADAN, PILAKKADI PARAMBIL, PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
38 ADDL.R38.MOHAMMED AFLAH.P.P
S/O.MOHAMMED ABDU REHMAN P.P., PADIKKAPARAMBIL
HOUSE, PADINHATUMURI POST, KOOTILANGADI, MALAPPURAM
- 676 506
39 ADDL.R39.PEETHAMBARAN.P.P
S/O.P.K.RAGHAVAN NAIR, KIDAKKATTE PARANNA HOUSE,
PADINHATUMURI POST, KOOTILANGADI, MALAPPURAM - 676
506
40 ADDL.R40.ABDUL NAZAR.K.V
S/O.MUHAMMEDALI.K.V., KIRIMAN IL BILANG PURATH,
MANKADA PALLIPURAM, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
41 ADDL.R41.C.MUKUNDAN
CHEMPRAT HOUSE, PADINHATUMURI POST, KOOTILANGADI,
MALAPPURAM - 676 506
42 ADDL.R42.C.,MURALI
W.P.(C) No.21191/2020 5
CHEAPEST HOUSE, PADINHATUMURI POST, KOOTILANGADI,
MALAPPURAM - 676 506
43 ADDL.43.MUJIBRAHIMAN.M
S/O.KUNHIMUHAMMED, PATTIYILPARAMBA, PADINHATUMURI
POST, KOOTILANGADI, MALAPPURAM - 676 506
44 ADDL.R44.ABDUSAMAD.V.K
S/O.SAITHALAVI (LATE), VALAKKUNDI (HOUSE),
PANAMPATTA
45 ADDL.R45.VELAYUDHAN.P.C
PANAMPATTA, PADINHATUMURI POST, KOOTILANGADI,
MALAPPURAM - 676 506
46 ADDL.R46.PADMANABHAN
S/O.ARAMUGHAN, CHEMBRAT HOUSE, PADINHATUMURI POST,
KOOTILANGADI, MALAPPURAM - 676 506
47 ADDL.R47.SHOUKATHALI.M.P
S/O.AYANU, PADINHATUMURI POST, KOOTILANGADI,
MALAPPURAM - 676 506
(ADDL.R8 TO R48 ARE IMPLEADED AS PER ORDER DATED
22.03.2021 IN I.A.2/2021 IN WP(C)21191/2020.)
BY ADVS.
SRI.K.T.SIDHIQ
SRI.E.C.AHAMED FAZIL
OTHER PRESENT:
SR.GP REKHA C.NAIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.03.2021, THE COURT ON 28/6/2021 DELIVERED THE FOLLOWING:
W.P.(C) No.21191/2020 6
JUDGMENT
The petitioner is the owner in possession of 10 cents of land comprised
in Sy.No.16/2A of Kootilangadi village, covered by Exts.P1 and P2 registered
sale deeds of the year 2007. He had constructed a commercial building in the
above property located in Ward. No.3 of of Kootinalngadi Grama Panchayat
and was allotted Building Nos.320A to F. The above building faces the
Kootilangadi Valikappatta PWD Road. Exts.P3 to P3 (e) are the ownership
certificates in relation to the above building which was constructed by him for
the purpose of starting a super bazar. Since Ext.P3 building was proposed to
be used for running a super market, he constructed the building leaving
sufficient space in front of the shop room, in addition to the space required to
be left as per the building Rules. Trade licence obtained by him was
produced as Ext.P4 and GST Regisration Certificate as Ext.P5. The purpose
of the above building is shown as starting of super market.
2. The building is located in busy junction facing main road and a bye
lane on its side. According to the petitioner, he is entitled to have ingress and
egress from every point of the main road to his property. However, about 100
autorickshaws belonging to different persons are parked in front of Ext.P1
building without leaving any point of access to the building premises. Thus,
the ingress and egress to the petitioner's property and building is completely
blocked . Respondent Nos 5 & 6 are the persons leading the above illegal
parking. Respondents 8 to 47 are the autorickshaw drivers who are parking
their vehicles in front of the commercial building. The photographs evidencing
the parking of the autorickshaws in front of the building was produced as
Ext.P6.
3. Accordingly, he submitted Ext.P10 representation dated
23/6/2020 to the first respondent, who is the secretary of Kottilangadi Grama
Panchayat. Ext.P11 complaint was submitted to the second respondent, the
station house officer, on 16/8/2020. Ext.P11 is the representation submitted to
the first respondent and Ext.P12 is the same representation given to the 2 nd
respondent SHO. Ext.P14 was a representation given to the first respondent
which was replied by Ext.P15. Ext.P16 was the complaint given by him to the
4th respondent who is the regional transport officer, Malappuram. The
grievance of the petitioner is that in spite of Exts.P1 to P16 complaints given to
various authorities ,his grievances have not been looked into and
redressed.The prayer sought in the writ petition was to issue writ of mandamus
or direction to respondents 1 to 4 to remove the illegal parking of autorickshws
in front of Ext.P1 land and Ext.P3 building in a permanent way and by
ensuring that the access to Ext.P1 land from Kootilangadi Valikapatta PWD
Road is not blocked due to such autoricksaw parking.
4. Notices were served on all the respondents. Separate counter
affidavits were filed on behalf of the some of the respondents. Heard both
sides and examined the records.
5. In the counter affidavit filed by the first respondent -Secretary of
the Grama Panchayat, it was admitted that Ext.P1 property with the building
situated therein belonged to the petitioner. According to Panchayath,
autorickshaws stand in dispute has been functioning there for more than 25
years. The area in which autorickshaws were parking on the road side of PWD
road had enough width to accommodate them. However, there is no other
suitable or convenient place in Padinjattumuri town where the road margin has
enough width to park authorickshaws. However, the request made by the
petitioner was placed before the Traffic Regulaory Committee headed by the
President of the Panchayat for consideration. Though the President tried to
settle the issue locally, it could not be settled. Due to the pandemic,
subsequent meeting of Traffic Committee could not be held. Thereafter, on
the request of the Panchayat, Traffic Advisory Committee met on
23/10/2020 . In that meeting it was decided to invite autorickshaw drivers and
the petitioner. However, due to stand taken by the petitioner that he can only
permit two vehicles and the remaining five autorickshaws should vacate the
parking place so as to get ingress and egress to the building was not accepted
settlement could not be arrived at. It was stated by autorickshaw drivers that if
the parking was shifted, they would loose their daily income considerably
which would affect their livelihood. There are no public or private landing
places or car stands functioning in the panchayat as provided under Sections
277 and 228 of Kerala Panchayat Raj Act. Since no suitable place is available
in the Panchayath, the functioning of such a stand is not possible in the near
future.
6. The first respondent Grama Panchayat through its Secretary has
filed a counter affidavit stating that the autorickshaw stand in dispute has been
functioning there for more than 25 years. The area in which the
autorickshaws are parking on the side of the PWD road have enough width to
accommodate them. There is no other suitable or convenience place to
Padinjattumuri town where the road margin has enough width to park
autorickshaws. However, the request made by the petitioner to Advisory
committee headed by the President of the Panchayat for consideration.
Though an attempt was made by the President to settle the issue locally it did
not attain finality. Because of the pandemic subsequent meeting of the Traffic
Advisory Committee has been delayed. Subsequently, meetings of the Traffic
Advisory Committee were held. However, no decision could be arrived at in
that meeting. The contention of the autorickshaw drivers was that shifting of
parking of autorickshaws will be equivalent to changing the auto stand itself
from the front side of the building. It was contended by them that if the
parking is shifted,they will loose their daily income considerably which will lead
to further difficulties to eke out their daily bread. It was further contended that
no decision could be arrived at in that meeting though the petitioner had
obtained licence for running the shop, it has not yet opened. The petitioner
purchased the property in 2012 and the building was constructed later. At the
time of construction itself, the petitioner was aware that the autorickshaws
parking are there more than 30 years. There are no other public or private
landing places or cart stands functioning in the Panchayat a sprovided under
section 227 and 228 of the Kerala Panchayat Raj Act. Since no suitable place
is available in the Panchayat, functioning of such a stand is not possible in the
near future.
7. The President of the Grama Panchayat who was also the
Chairman of the Traffic Regulatory committee and the supplemental 7th
respondent filed a separate counter affidavit. According to him, autorickshaw
stand in dispute had been functioning there for more than 25 years. The area
in which the autorickshaws are parking on the side of the road have enough
width to accommodate them. There is no suitable or convenient place in the
town where the road margin has enough width to park autorickshaws. The
Traffic Regulatory Committee had convened a meeting on 21/10/2020. It was
produced as Ext.R7(a). No decision was taken on that day. Subsequent
meeting was held on 23.10.2021 but no final decision could be taken. The
stand taken by the 7th Additional respondent was that the petitioner purchased
the property in 2007 and the building was constructed thereafter. At the time of
construction of the building, the petitioner was well aware that the above said
autorickshaws parking had been there for more than 25 years. There was no
hindrance for the construction of the building though the autorickshaws were
parked there during the days of construction. There are no private or public
landing places or cart stands functioning in the Panchayat, as provided under
section 227 and 228 of the Kerala Panchayat Raj Act. Since no suitable place
is available in the Panchayat,the functioning of such a stand is not possible.
8. An impleading petition was filed by the autorickshaw drivers of the
locality by filing I.A.No.2/2021. The application was allowed and they were
impleaded as additional respondents 8 to 48. They filed a separate counter
affidavit reiterating the contentions raised by the other respondents. The
stand of the autorickshaw drivers was that the essential trade unions have not
been made a party though the 5th respondent was served with a notice. He is
not representing the 5th respondent union. It was contended by the additional
respondents that the above auto stand had been functioning for more than 30
years and the autorickshaws have been parking there and many drivers are
eking out their livelihood from the same. It was also contended that there is no
other suitable place for the auto stand. The said area was a small area with
some shops and institutions on either side of the road. There is no other
alternative space available. It was contended that the area is a small mini
urban area and only few vehicles pass through the main road. The said area
was the only space available for the auto stand. No autorickshaws are parked
in the front of the building of the petitioner and obstruction is not caused at
any other point of access. Ingress and egress is not blocked. This could be
evidenced by the photographs produced by the respondents as additional
Ext.R6(a). Ext.R6 photographs of the petitioner was taken from an angle. It
was contended that, pedestrian's egress and ingress was not blocked in any
manner as is evident from Ext.R6A.
9. Relying on authorities, the learned counsel for the petitioner
contended that the petitioner being the owner of a land has an absolute right to
enter his property from every point of his property abutting the main road,,
which cannot be interfered with by any other person. It was contended that no
right is vested with the autorickshaw driver, who are earning their livelihood
and the parking of the vehicles in front of his property was not a collective right
of the society, but only an individual right of each individual autorickshaw
owner. It was contended that the right of an owner of the property to enter his
property from all points abutting the main road is absolue and settled by a
catena of decisions and hence liable to be protected as against the individual
rights of the autorickshaw owners. It was also contended that it has been held
by a series of decisions of this court that in such cases, the court is competent
to direct the local authorities to find out an alternative space, as mandated by
the various statutes, and to provide a parking area for the autorickshaws. The
learned counsel for the petitioner relied on the statutory provisions contained
in the Panchayat Raj(Landing Places, Halting Places, Cart stand and other
vehicles stand) Rules, Panchayat Raj (landing places, halting places, cart
stands and other vehicle stands Rules. 1995 ( Kerala Rules 3,4.5.6.7 & 8),
Section 72 (1) & 2, 3 (a)& (f) of the Kerala Police Act, Section 117 of the Motor
Vehicles Act and Rule 344(1)B of the Motor Vehicles Rules, and Sections 227
and 228 of the Kerala Panchhayat Raj Act to support his contentions. The
learned counsel also relied on the decisions reported in Noushad M. v.State
of Kerala (2019 (2) KHC 562) which was reiterated in Navabudeen v State of
Police Chief (W.P.(C) No.590/2021 Kerala High Court), Chalakudy
Merchant's Association v. State of Kerala (W.P.(C) 19187/2014), Ummer
Ferook v. SHO (2014 (1) KHC 317), M.V.Joseph v. District Magistrate
(1996 (2) KLT 490) & Tanur Panchayat v. Kunjima Kutty (1978 KLT 813) to
support his contention that the owner of the land has access to his property
from every point abutting the main road and also to contend that no other
person is entitled to block his right of ingress and egress, if they do so, the
statutory authorities are bound to remove the obstructions.
10. Per contra, the learned counsel for the respondents contended that
the auto stand had been there for more than 25 years and autorickshaws were
being parked there uninterruptedly. It was also contended that the
autorickshaw owners are catering the public interest and though the owner
of the land has a right to ingress and egress, once he construct a building and
throws open user of the building for public, public at large are entitled to
enter the plot through every point and the drivers of the vehicles run for the
benefit of public can park vehicles in front of the building. It was also
contended that the autorickshaw drivers are not catering to their personal
interest, but catering to the interest of the public, who have right to access to
the building which is kept open for the public and thereby their public right has
to be treated as pre dominant over the personal right of the owner of the land.
It was further contended that in a city wherein lot of shops and commercial
establishments are there, if each of the building owner takes up such a
contention, the public will be deprived of their right to access their building
and thereby their fundamental right of freedom of movement would be
restricted. It was also further contended that, in the absence of any other
suitable parking place available in the locality, the owners of the autoricksaw
who are catering to the interest of the public should remain predominant and
individual right of a private person should be subservient to such a right. It
was also contended that sufficient parking space was available in front of the
building which was not obstructed in any manner.
11. Admittedly autoricksaws are parked on the road side abutting the
property fo the petitioner. The crucial question is whether such a parking
obstructs the entry to property of petitioner. Though divergent contentions were
taken up by both sides, photographs produced by both sides itself indicate
that autorickshaws are parked in front of the building on the road margin,
bumber to bumber and thereby right to ingress and egress directly from the
road to each point of the entry is blocked. Entry to the parking area of the
building seems to be open only from the by lane on one side of the property.
Major portion of building has main road frontage facing the PWD Road. In
other words, it is almost clear that the main road is completely blocked and that
autorickshaws are parked on the pedestrian area blocking both the entry to the
building from the main road as well as the pedestrian way .
12.Though the respondents claim that autorickshaw stand was there for
more than 25 to 30 years, which is reiterated by them in their affidavit, I am not
inclined to accept it, in the absence of any legal right to the respondents 8 to
48. Even if the existence of the auto stand for more than 25 years is accepted
and that the petitioner herein became the owner of the land only in 2007 and
that he constructed the building only much later that cannot be treated as
reason to deny the right of entry of the petitioner from every point. In
Municipal Board Mangalore v Mahadevji Maharaj (1965 KHC 613), the
three Judges Bench of the Supreme Court had occasion to consider the
interest of the municipality over the road vested in it. In the above decision,
the Supreme Court was called upon to balance the interest of the Municipality
to maintain the public road and the right of the private person to have access
to its land. It was ultimately held that the Municipality cannot put up any
structures on the public way which are not necessary for the maintenance and
user of its way. It was also held that, if the acts are unauthorized, the plaintiff
who is the owner of the soil would be entitled to ask for an injunction to
restrain the municipality from acting in excess of his right. In Tanur
Panchayat v. Kunjiama kutty (supra) it was held by the single Bench of this
court that the owner of the land adjoining the highway is entitled as a matter of
right to private right to access such highway at any point of his land which
actually touches it. Highway is not confined to metaled of tarred road, but it
will include side lane which is necessary for its maintenance also. This view
was reiterated by this Court in M.V.Joseph v. District Magistrate(supra) and
Ummer Farook v. SHO, which were followed recently in Chalakudy
Merchants' Association v. State of Kerala W.P.(C) No.19187/2014.
13. In Navabuddin v. State Police Chief (supra) this court after
referring to various statutory provisions reiterated the position that in case
there is an unauthorized parking of autorickshaws or vehicles in front of the
petitioner's building, despite the "no parking" board displayed by the public
works department, the authorities are bound to take steps to ensure that
unauthorized parking of vehicles in front of the petitioner's building causing
obstructions to ingress and egress to that building is stopped.
14. All the decisions referred to above consistently lay down the
proposition that the owner of a land is entitled to access from every point of
his boundary to the National Highway and no person is entitled to obstruct it.
The statutory authorities are bound to remove obstruction in case of any. On
the otherhand, the statutory provisions referred to above cast a duty on the
statutory authorities to provide parking place for public transport vehicle also.
15. The contentions set up by the Traffic Regulatory Committee that
no other alternative parking area could be identified cannot be accepted. The
minutes of the Traffic Regulatory Committee discloses that, the attitude of the
statutory Panchayat was to persuade the petitioner to have a compromise on
the above issue. It is vaguly stated that no other alternate area is available.
The specific areas which were considered by the committee is not discernible
from the minutes. Evidently, it seems that no alternate space was considered
and no attempt was made by the statutory authority to find out any appropriate
locality except reiterating that this was the only area which was available for
parking autorickshaws. I cannot appreciate this attitude since the authorities
are statutorily bound to provide alternate arrangements. Hence, I am inclined
to direct the statutory authority, which is the Grama Panachayat to identify a
suitable place for locating the autorickshaw parking, within a period of three
months from the date of receipt of this judgment.
Having considered the grievance of the petitioner, which I am
satisfied is substantiated, I am inclined to dispose of the writ petition with a
direction to the respondent Ns. 1 to 4 that they shall forthwith remove the
entire parking of the autorickshaws from the area covering the boundary of
Ext.P1 building. Since I have already granted three months time to the first
respondent to identify the suitable place for parking autorickshaws, three
vehicles at any given time shall be permitted to be parked at the one end of
the boundary of Ext.P1 property abutting the Highway for a period of three
months from today. Respondents 2,3 and 4 shall ensure that at any point of
time more than three vehicles are not parked in front of the shop building of the
petitioner. If any vehicle is parked, exceeding three or obstructing the
remaining portion of the are , the above shall be removed by the first and
respondents 1 to 3 and register appropriate case against them. By the end of
three months, if a parking space is identified, all the autorickshaws shall
thereafter be shifted to parking lot If no space is identified within the above
three months time, the respondents 1 to 4 shall ensure that all the
autorickshaws are cleared off from the frontage of Ext.P1 building after the
expiry of three months from today. If any vehicle is found parked, appropriate
action shall be taken against such driver/owner . The respondents 8 to 48 will
be bound to comply with the above directions. The writ petition is disposed of
above.
Sd/-
SUNIL THOMAS,Judge
dpk
APPENDIX OF WP(C) 21191/2020
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF SALE DEED DATED 29.03.2007
BEARING NO.947/2007 OF MAKKARAPPARAMBU
SRO.
EXHIBIT P2 TRUE COPY OF SALE DEED DATED 23.06.2007
BEARING NO.2071/2007 OF MAKKARAPPARAMBU
SRO.
EXHIBIT P3 TO P3C TRUE COPY OF OWNERSHIP CERTIFICATES DATED
21.08.2020 IN RESPECT OF THE BUILDING OF
THE PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE TRADE LICENCE DATED
07.07.2020 BEARING NO.259/2020-2021/A-
7/2434/20 OBTAINED FROM THE 1ST RESPONDENT
TO THE PETITIONER.
EXHIBIT P5 A TRUE COPY OF THE GST REGISTRATION
CERTIFICATE BEARING REGISTRATION
NO.32BOFPR4350J1ZW OBTAINED BY THE
PETITIONER FROM GOVERNMENT OF INDIA.
EXHIBIT P6 TRUE PHOTOGRAPHS OF THE BUILDING WITH THE
PRESENCE OF THE AUTO RICKSHAWS ILLEGALLY
PARKED IN FRONT OF THE EXHIBIT P3
BUILDING.
EXHIBIT P7 TRUE COPY OF THE REPORTED JUDGMENT IN
MUNICIPAL BOARD V. MAHADEOJI (AIR 1965 SC
1147) PASSED BY THE HONOURABLE APEX COURT.
EXHIBIT P8 TRUE COPY OF THE REPORTED JUDGMENT IN
TANOOR PANCHAYAT V. KUNHAIMUTTY (1978 KLT
813).
EXHIBIT P9 TRUE COPY OF THE REPORTED JUDGMENT DATED
23.07.2019 IN P.D.MATHEW V. STATE OF
KERALA.
EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION DATED
23.06.2020 SUBMITTED BEFORE THE 1ST
RESPONDENT BY THE PETITIONER.
EXHIBIT P11 TRUE COPY OF THE RECEIPT BEARING NO.2236
OF 2020 DATED 23.06.2020 ISSUED TO THE
PETITIONER BY THE 1ST RESPONDENT.
EXHIBIT P12 A TRUE COPY OF THE REPRESENTATION DATED
14.08.2020 MADE BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE POSTAL RECEIPT BEARING
NO.RL9002888601N ISSUED TO THE PETITIONER
BY THE POSTAL DEPARTMENT.
EXHIBIT P14 A TRUE COPY OF THE REPRESENTATION DATED
14.08.2020 MADE BY THE PETITIONER BEFORE
THE 3RD RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE RESPONSE TO EXHIBIT P14
LETTER DATED 19.08.2020 BEARING
NO.G1/3357/2020 ISSUED BY 3RD RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED
21.08.2020 SUBMITTED BEFORE THE 4TH
RESPONDENT.
EXHIBIT P17 TRUE COPY OF THE POSTAL RECEIPT BEARING
NO.RL873287425IN ISSUED TO THE PETITIONER
BY THE POSTAL DEPARTMENT.
EXHIBIT R6 A TRUE COPY OF PHTOGRAPHS OF THE PROPERTY OR
WRIT PETITIONER.
