Kerala High Court
D.Prabhakaran vs State Of Kerala on 27 July, 2022
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
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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
:4:
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
