Priyesh B Kartha vs The Deputy Superintendent Of ...
2023 Latest Caselaw 3800 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                  WP(C) NO. 7181 OF 2023
PETITIONERS:

    1    PRIYESH B KARTHA, AGED 44 YEARS
         S/O. BALAKRISHNAN KARTHA, THAMARASSERY HOUSE,
         WEST VENGOLA P.O, PERUMBAVOOR., PIN - 683556
    2    ANEESH P A, AGED 53 YEARS
         PUTHANPEEDIKAYIL, PARAPPURAM, PERUMBAVOOR P.O,
         PERUMBAVOOR, ERNAKULAM, KERALA, PIN - 683542
    3    SANOOP DHRUVAN, AGED 35 YEARS
         PARAPPATTU HOUSE, BOC CANAL ROAD, PERUMBAVOOR,
         ERNAKULAM, KERALA, PIN - 683542
    4    MOHAMED KUNJU T M, AGED 65 YEARS
         THAZHASERY HOUSE, PERUMBAVOOR P.O.,
         ERNAKULAM, PIN - 683542
    5    ABDUL RAHMAN ANSARI, AGED 53 YEARS
         KARAKKAL, THANDEKKAD, PONJASSERY, VENGOLA,
         ERNAKULAM - 683547
    6    GEORGE C J, AGED 62 YEARS
         CHAKKIATH, AZHAKAM P.O., MOOKKANNOOR,
         ERNAKULAM, PIN - 683577
    7    AJEESH P A , AGED 37 YEARS
         PUTHEECKAPARAMBIL HOUSE, ERAMALLOOR,
         ERNAKULAM, KERALA, PIN - 686691
    8    SREEKUMAR, AGED 55 YEARS
         LAKSHMIPURAM, BROADWAY, PERUMBAVOOR,
         ERNAKULAM, KERALA, PIN - 683542

         BY ADVS.
         A.BALAGOPALAN
         PRABHU MURALI KRISHNAN
         M.S.IMTHIYAZ AHAMMED
         P.SEENA
         M.N.MANMADAN
         A.RAJAGOPALAN
 WP(C) No.7181 of 2023

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RESPONDENTS:

     1      THE DEPUTY SUPERINTENDENT OF POLICE
            OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE,
            KUZHIPPALLIKKAVU ROAD, PERUMBAVOOR - 683542
     2      THE CIRCLE INSPECTOR OF POLICE
            PERUMBAVOOR POLICE STATION, PERUMBAVOOR P.O.
            ERNAKULAM, PIN - 683542
     3      THE PERUMBAVOOR MUNICIPALITY
            MUNICIPALITY OFFICE,
            PERUMBAVOOR P.O, ERNAKULAM, PIN - 683542
            REPRESENTED BY ITS SECRETARY.

            BY ADVS.
            SRI.K T THOMAS
            SRI.MATHEW B KURIAN(K/381/1991)
            SRI.E.C. BINEESH, GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 30.03.2023, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.7181 of 2023

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                                                           CR


                            JUDGMENT

Dated this the 30th day of March, 2023

The petitioners, who are licensees of Shop Rooms in

Yathri Nivas Shopping Complex owned by the Perumbavoor

Municipality, have approached this Court seeking to direct

respondents 1 and 2 to afford adequate and effective police

protection to the petitioners by preventing convening of public

meetings, Dharnas and other functions in the parking space of

the Yathri Nivas Shopping Complex. The petitioners have also

sought for a direction to the 3rd respondent-Municipality to

prohibit parking of autorickshaws in the parking space.

2. The petitioners state that there is a vacant space

lying between the Yathri Nivas Shopping Complex and Aluva-

Munnar Road, owned by the 3rd respondent-Municipality. The

space is provided for parking of vehicles of the licensees of WP(C) No.7181 of 2023

Shops and their customers. There is no other parking space

for the building.

3. According to the petitioners, various political

parties, associations and religious sects have started to use

the aforementioned parking space for holding public meetings,

Dharnas, etc. Such meetings are sometimes without any

permission from any authorities. Conduct of meetings has

become a routine affair now and it adversely affects the

business establishments in the building.

4. A suit O.S. No.37 of 2021 in the Munisiff's Court,

Perumbavoor was filed seeking for a decree of permanent

prohibitory injunction, restraining the respondents from

granting sanction or permission or otherwise allowing any

person to hold public meetings, conventions, Dharnas, etc., in

the parking space. A Decree has already been passed. In

spite of that, the open area is being used for conducting

Dharnas and meetings and autorickshaws are also parked

illegally in that area resulting in grave inconvenience to the WP(C) No.7181 of 2023

petitioners and their customers.

5. Standing Counsel entered appearance on behalf of

the 3rd respondent-Municipality filing a Statement. The

3rd respondent submitted that a Municipal Bus Terminal is

situated in front of the Shopping Complex. The vehicles of the

licensees and customers are parked in the area in front of the

Shopping Complex. The Municipality has not granted

permission for conducting any meeting in the parking area.

Meetings are permitted only near Subhash Maidan Open

Stadium on payment of rent. The 3rd respondent further

submitted that there is no authorised/notified autorickshaw

stand near the Shopping Complex. The Engineering Wing of

the Municipality has initiated action on Ext.P8 representation,

contended the Standing Counsel for the 3rd respondent.

6. Government Pleader entered appearance on behalf

of respondents 1 and 2 and submitted that persons who have

conducted the meetings have not been made respondents in

the writ petition. Therefore, there is non-joinder of necessary WP(C) No.7181 of 2023

parties.

7. I have heard the learned counsel for the petitioners,

the learned Government Pleader representing respondents 1

and 2 and the learned Standing Counsel representing the

3rd respondent.

8. The grievance of the petitioners is that the area in

front of the Shopping Complex, where the petitioners are

conducting business on the basis of valid lease/licence

agreement, is being consistently misused for holding public

Dharnas, meetings, etc., causing grave inconvenience to the

petitioners, their customers and the general public.

Unauthorised autorickshaw stand is also functioning in the

area, contend the petitioners.

9. The vacant area lying in between the Yathri Nivas

Shopping Complex and the Aluva-Munnar Road is one vested

with the 3rd respondent-Municipality. The area being in front of

a Shopping Complex owned by a Local Self Government

Institution, it is a public area where general public have WP(C) No.7181 of 2023

access. In that limited sense, it is a pubic space. Public areas

are generally used to shape community ties in

neighbourhoods. Public spaces contribute to a flourishing

society promoting social interaction and social discourse.

They promote inclusiveness of diversity among the people.

They create a social space for everyone in the society.

10. Exercise of many of the fundamental rights by

citizens like freedom of expression, right to assemble, right to

travel, etc., depend on the availability of physical public space.

Absence of public space may hinder exercise of many human

rights. Human Rights activists across the world often argue in

favour of Right to Public Space. Constitution of India also

recognised the importance of public spaces. Article 15 states

that persons who are citizens of India must have equal access

to public places like Shops, public restaurants, hotels and

places of public entertainment.

11. The issue involved in this writ petition would then

revolve around the question whether an open space in front of WP(C) No.7181 of 2023

a Shopping Complex, in this case owned by the Municipality,

would be a public place or public space. The Statement filed

by the 3rd respondent-Municipality would clearly indicate that

the open space is intended for parking the vehicles of the

licensees and customers. Though every citizen has a right to

access to the Shops in the building, the open space is

intended for parking of the vehicles of the customers only.

Therefore, such spaces can have a status of semi-public

space only. No organisation or group of citizens can claim a

right to organise Dharna or public meeting in such places,

without the permission of the Municipality.

12. There is yet another issue in using the open space

in front of the Shopping Complex. Under Rule 5(6)(1)(b) of the

Kerala Municipal Building Rules, 2019, the District Town

Planner or the Chief Town Planner, while approving usage of

plot or lay out of building, has to consider whether parking

arrangements are adequately provided. Rule 17 of the Rules,

2019 makes it the duty and responsibility of the WP(C) No.7181 of 2023

owner/developer to furnish details of parking spaces and area

earmarked. After construction of a building, the parking area

earmarked for the building cannot be used for any other

purpose unauthorisedly. Such parking spaces cannot be

converted as autorickshaw stand or taxi stand either.

13. Admittedly, the building and the parking space

belong to the 3rd respondent-Municipality. The Municipality

has taken a specific stand that no organisation has been

granted permission for conducting any meeting in the parking

area. There is no authorised autorickshaw parking in the said

area, submits the 3rd respondent.

14. In view of the facts as stated above, I am of the

opinion that in a parking area earmarked for a commercial

building, Dharnas, meetings, etc., cannot be conducted

without the consent or permit of the owner of the building.

Unauthorised autorickshaw parking also cannot be permitted

in such parking areas.

WP(C) No.7181 of 2023

Therefore, the writ petition is disposed of directing

respondents 1 and 2 to ensure that no meetings, Dharnas,

etc., are taken place in the parking place in front of the

building rented out to the petitioners, without due sanction or

permit of the 3rd respondent-Municipality. No unauthorised

autorickshaw parking shall also be permitted in the parking

area of the Shopping Complex.

Sd/-

N.NAGARESH JUDGE spk WP(C) No.7181 of 2023

APPENDIX OF WP(C) 7181/2023

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE LICENSE AGREEMENT DATED 15.09.2022 EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE RECEIPT BEARING NO.

01-122020108885 DATED 15.11.2022 Exhibit P3 THE TRUE COPY OF THE JUDGMENT PASSED BY THE MUNSIFF'S COURT PERUMBAVOOR IN O.S. NO. 37 OF 2001 DATED 24.07.2003 Exhibit P4 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER ALONG WITH ANOTHER LICENSEE DATED 17.11.2022 Exhibit P5 THE TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE LST RESPONDENT DATED 17.11.2022 NUMBERING EXHIBIT P4 COMPLAINT AS PETITION NO. 173596/2022 Exhibit P6 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE ASSOCIATION OF LICENSEES OF YATHRI NIVAS SHOPPING COMPLEX TO THE 1ST RESPONDENT DATED 07.12.2022.

Exhibit P7        THE TRUE COPY OF THE RECEIPT ISSUED BY
                  THE OFFICE OF THE 1ST RESPONDENT DATED
                  07.12.2022    NUMBERING    EXHIBIT    P6
                  COMPLAINT AS PETITION NO.182925/2022
Exhibit P8        THE   TRUE   COPY   OF   THE   COMPLAINT
                  SUBMITTED   BY    THE   ASSOCIATION   OF
                  LICENSEES OF YATHRI NIVAS SHOPPING
                  COMPLEX TO THE 3RD RESPONDENT
Exhibit P9        THE TRUE COPY OF THE RECEIPT ISSUED BY
                  THE OFFICE OF THE 3RD RESPONDENT DATED
                  07.12.2022

RESPONDENT'S/S EXHIBITS : NIL