"(i) Issue a writ in the nature
of mandamus, order or direction directing
the 2nd and 3rd respondents to provide
adequate, necessary and sufficient
protection by removing the illegal parking
of Autorickshaws by the respondents 6 to 9
who are blocking access to the properties
of the petitioner; and
(ia) may be pleased to dispense
with filing of translation of vernacular
documents;
(ii)Pass such other orders as this
Hon'ble Court may deem fit and proper in
the circumstances of the case."
2. The brief facts necessary for disposal of
situated in Thammanam Junction. The building has
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frontages on the eastern side of Palarivattom Road
and on the northern side of Thammanam-Pullepady
road. Ground floor of the building consists of
various shop rooms which are let out to tenants who
are doing business therein. First floor portion is
let out to M/s.National Insurance Company Limited
and to M/s.Capitol Saloon. Initially few
Autorickshaws used to park on the eastern side of
the building without causing any obstruction to the
ingress and egress to the shop rooms on the eastern
side. While so on 15.9.2022 few Autorickshaw
drivers under the leadership of respondents 7 to 9
started to park Autorickshaws on the northern side
of the building completely blocking the entry and
exit to the shop rooms on the northern side of the
building. They are parking the Autorickshaws on the
tarred portion of the road. The staircase leading
to the first floor where the Branch of the National
Insurance Company is functioning is also blocked
because of the parking of the autorickshaws.
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Because of the parking of the autorickshaws as
stated above, vehicular access to the shop rooms is
completely lost. It is also submitted that before
parking as stated above, the respondents 7 to 9
marked "NO PARKING" on the tarred portion of the
road. Though the petitioner requested them not to
park autorickshaws on the northern side of the
building, they refused to do so. Ext.P3 photograph
shows the manner in which autorickshaws are parked
on the northern side of the building and also the
marking of "no parking" on the tarred portion of
the road. In view of the obstruction to the
ingress and egress created by the parking of the
autorickshaws, the petitioner has submitted Ext.P4
complaint. Further complaints are preferred as
Exts.P6,P7 and P8. Petitioner submits that no
parking space is notified under the Motor Vehicles
Act, Kerala Municipality Act or under the Kerala
Police Act, 2011 in front of the building of the
petitioner. Petitioner contend that the parking is
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completely illegal and caused serious prejudice to
the petitioner as well as the tenants of the
building.
3. A detailed counter affidavit has been filed
by respondents 6 to 9 contending that the above
writ petition has been field suppressing many of
the factual aspects. The respondents had never
blocked the ingress and egress of the building
owned by the petitioner. It is further contended
that the 7th respondent has no connection with the
issue involved and his only connection is that he
is the son of an auto driver. The respondents are
the owners/drivers of the autorikshaw and the
meager income received from driving the
autorickshaw is their only source of income. It is
contended that the tarred portion of the road shown
in Ext.P3 photograph is not owned by the petitioner
and it is owned by the Cochin Corporation. As there
was traffic block, the 10th respondent Corporation
decided to widen and develop the Thammanam
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Junction and an amount of Rs.2 Crore was sanctioned
by the Cochin Corporation. By utilizing that amount
the disputed portion of property was acquired by
the 10th respondent Municipal Corporation for
widening the road. This resulted in vacant place
at the Thammanam Junction and as the continuation
of the road is blocked due to the non acquirement
of the adjacent land, the said portion cannot be
used for free and continuous vehicular traffic and
the same has been used for parking. Respondents 6
to 9 have produced R8(a) series of photographs to
show the factual position available in the subject
property. The authorities have not taken any steps
to declare the property as a no parking area. The
attempt of the petitioner is to use the property of
the Cochin Corporation as his exclusive private
parking for which he has absolutely no right and
the petitioner as well as these respondents have
equal right to park the vehicles in the said area.
The respondents also contended that the building of
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the petitioner is an unauthorised construction and
they have not provided the requisite set back as
per the provisions of the Kerala Municipality
Building Rules. On the strength of the interim
order the petitioner is using the property as his
exclusive parking area of his shopping complex and
the petitioner as well as the official respondents
are threatening the party respondents from parking
autorickshaws. It is further submitted that the
respondents or their colleagues are not parking
their vehicles in that space from 4th November
onwards. The respondents are finding it difficult
as they could not park their auotorickshaws on the
basis of the interim order passed by this Court.
Petitioner on the basis of Ext.R8(b) photographs
submits that other vehicles are being parked in the
road portion. The 7th respondent Corporation is
having a duty to provide adequate parking space for
the autorickshaws also. The respondents are trying
to park only five authorickshaws horizontally in
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the said space. Even after parking five
autorickshaws there is sufficient space left for
the ingress and egress of the petitioner. The
learned counsel appearing for respondents 6 to 9
further submits that necessary request has been
submitted before the Corporation of Cochin and
Regional Transport Authority on 14.11.2022 so as to
declare the said area as a parking space. In the
light of the above said averment the respondents 6
to 9 sought for dismissal of the writ petition.
4. The learned counsel appearing for the
respondent Corporation upon instructions submitted
that the road in question no longer belongs to the
Corporation and the road is taken over by the
Government for the further development of the said
road.
5. The learned Government Pleader submits
that as per the instructions received from the
Regional Transport Authority, no notification has
been issued declaring the said area as a parking
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area. The learned Government Pleader would further
submit that no request in this regard has been
received from the local authority or by
respondents 6 to 9 as contended by the learned
counsel appearing for respondents 6 to 9.
6. I have heard the rival contention on both
sides.
7. The specific case of the petitioner is
that a perusal of Ext.P3 would reveal that a no
parking sign has been put by respondents 6 to 9 in
the road portion itself which they have absolutely
no authority to do. Further the road is clearly
abutting the property of the petitioner. Section
472 of the Kerala Municipality Act is extracted
below:
472. Provision of public cart stands
etc._(1) A Municipality may, subject to such
[guidelines] as the Government may issue in
this behalf, construct or provide public
landing places, halting places and cart
stands and may levy fees for the use of the
same.
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(2) The Municipality may-
(a) place the collection of any such fees
under the management of such person as may
appear to it to be proper;or
(b) farm out the collection of any such fees
for any period not exceeding three years at a
time and on such terms and conditions as it may
think fit.
(3) A statement in English and the language of
the locality, showing the fees fixed by the
Municipality for the use of such place, shall
be put up in a conspicuous part thereof.
Explanation._ A cart stand shall, for the
purposes of this Act, include a [bus stand,
taxi stand, autorickshaw stand, lorry stand and
stand for other vehicles arid for animals]
Going by the said Section the Municipality may
construct or provide public landing places,
halting places and cart stands and may levy fees
for the use of the same. So Section 472 deals with
the duty or right of the Municipality to construct
or provide a public landing spaces or halting
places and cart stands and they have authority to
levy fee for the use of the same. Section 117 of
the Motor Vehicles Act deals with parking places
and halting stations, which is extracted below:
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"117. Parking places and halting stations._
The State Government or any authority
authorised in this behalf by the State
Government may, in consultation with the
local authority having jurisdiction in the
area concerned, determine places at which
motor vehicles may stand either indefinitely
or for a specified period of time, and may
determine the places at which public service
vehicles may stop for a longer time than is
necessary for the taking up and setting down
of passengers.
[Provided that the State Government
or the authorised authority shall, give
primacy to the safety of road users and the
free flow of traffic in determining such
places:
Provided further that for the purpose
of this section the National Highways
Authority of India, constituted under the
National Highways Authority of India Act,
1988(68 of 1988) or any other agency
authorised by the Central Government, may
also determine such places.]"
As per the said provision the State Government or
any authority authorised in this behalf by the
State Government may, in consultation with the
local authority having jurisdiction in the area
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concerned, determine places at which motor
vehicles may stand either indefinitely or for a
specified period of time, and may determine the
places at which public service vehicles may stop
for a longer time than is necessary for the taking
up and setting down of passengers. Rule 344 of the
Kerala Motor Vehicles Rules, 1989 dealing with Bus
stand and parking places is extracted below:
"344. Bus stand and parking places._ (1)
Authority to determine location of._ The
Regional Transport Authority shall, in
consultation with the concerned authorities
of any Corporation, Municipality or
Panchayat, the Executive Engineer and the
Superintendent of Police of the District,
determine the location of _
(a) bus stands, where from stage
carriages start or terminate service; and
(b) parking places wherein motor
vehicles in general or of specified
description may stand either indefinitely or
for a specified period of time:
Provided that in the case of vehicles
of the Kerala State Road Transport
Corporation, the District Transport Officer
or the Assistant Transport Officer may, in
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consultation with the local authority
concerned, fix up stands at the starting
points and at the termini of the bus routes
and also bus stands and stopping places in
the course of the route subject to the
following conditions:_
(i) The District Transport Officer or
the Assistant Transport Officer, as the case
may be, shall consult the local authority
concerned before determining the starting
points, termini and the bus stops and bus
stands within the limits of the local
authority;
(ii) In case of any difference of
opinion between the local authority and the
concerned officer of the Corporation the
matter shall be referred to the District
Collector concerned;
(iii) The District Collector, after
giving an opportunity of being heard to the
officers of the Corporation and the local
authority concerned, shall determine the
issue and the decision of the District
Collector shall be final.
(2) Construction of._ Government or
subject to the previous approval of
Government, any Corporation, Municipality or
Panchayat may construct_
(a) waiting sheds at bus stands for
protection of stage carriages from weather
during the period when they are at the bus
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stand before the commencement of any journey
and for the convenience of the passengers,
including public comfort stations, and
(b) parking places wherein provisions
may be made for the accommodation of motor
vehicle generally or of a specified class
with or without protection from weather.
(3) Maintenance of._Government or other
authority constructing waiting sheds at bus
stands, or parking places shall arrange for
their maintenance and also for the regulation
and safe custody of vehicles garaged therein.
(4) Rules regarding._ Government may lay
down regulations regarding any or all matters
including the levy of waiting charges on
motor vehicles using the bus stands or
parking places".
The Regional Transport Authority shall, in
consultation with the concerned authorities of any
Corporation, Municipality or Panchayat, the
Executive Engineer and the Superintendent of
Police of the District, determine the location of
bus stands or parking spaces. Therefore, it is the
Regional Transport Authority, who is the authority
to determine the location of a parking space.
8. The learned counsel appearing for the
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petitioner would contend that the property of the
petitioner is adjoining a road owned by the State
and therefore, he has right of access to the road
from any point. The learned counsel for the
petitioner relying on the judgment in M.V.Joseph
v. District Magistrate 1996 KHC 346, which is a
writ petition filed aggrieved by the parking of
taxi cars in front of the petitioner's workshop on
the side of the national highway causing
obstruction to his business. The court after
considering the authoritative principles laid down
by the Indian and English Courts held in
paragraphs 9 and 10 as follows:
"9. It is evident from the above
mentioned authoritative principles laid down
by Indian and English Courts, a person who is
having business on the side of the national
highway has got a right of access at every
point. Just as the taxi owners have access
at all points in the highway for passage in
exercise of their occupation, trade or
business, petitioner has got equally the same
right for using the highway at all points in
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exercise of his avocation, trade or business.
10. But more than that, the owner on the
side of the national highway has a private
right of access as well, subject to the
public right of passage which is a higher
right to be enjoyed by public including the
person like the petitioner. In other words,
a private right of access to the highway may
co-exist with a public right of way though it
does not necessarily merge with the public
right. Public right of passage is subject to
private right of landowners' right to access
to the highway. Where a foot-path intervenes
between a highway and adjoining premises, the
owner of the premises is entitled to access
across the foot-path to the highway for any
kind of traffic which is necessary for the
reasonable enjoyment of his premises. The
interest of the public in a highway consists
solely in the right of passage. Such right
would include stopping perhaps for
refreshments, enjoying the view, etc. But no
highway user may use the highway for parking
their vehicles permanently for their business
so as to invade the private right of entry of
a owner of adjoining land to the highway.
For traffic regulation and for public purpose
and for the safety of pedestrians it is open
to the authorities to plant barriers
separating the foot path and the highway,
which may invade the private right of a
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person owning land abutting the highway. It
may also possible for a statutory authority
to erect obstruction in the highway such as
electric posts, telephone posts, but shelter,
etc., which may invade the private right land
owners abutting the highway. The same is for
public interest. But allowing taxi cars to
park on the side of the highway obstructing
the private right of landowners abutting the
highway is not for a public purpose, but for
the private interest of taxi operators in
exercise of their business.
11. Allowing taxi operators who are engaged
in their business to park their their
vehicles permanently in front of petitioner's
workshop on the side of the national highway
is an invasion of the private right of
petitioner to have access to the national
highway. It is not as if taxi cars are
parked for sometime to board or alight
passengers, but parked there for their
business. Parking of taxi cars round the
clock in front of the petitioner's shop as
part of their business cannot be said to be
legal."
9. This Court has categorically held in MV
Joseph's case cited supra, that the petitioner
therein has got the right to use the highway at
all points in the highway for passage in exercise
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of their occupation, trade or business. The Court
distinguished public purpose as well as the
private purpose in the said judgment and held that
for traffic regulation and for public purpose and
for the safety of pedestrians it is open to the
authorities to plant barriers separating the foot
path and the highway, which may invade the private
right of a person owning land abutting the
highway. It is further held that it is possible
for a statutory authority to erect obstruction in
the highway such as electric posts, telephone
posts, bus shelter, etc., which may invade the
private right of the land owners abutting the
highway, but the same is in public interest, but
allowing taxi cars to park on the side of the
highway obstructing the private right of
landowners abutting the highway is not for a
public purpose, but for the private interest of
taxi operators in exercise of their business and
held that parking of vehicles permanently in front
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of petitioner's workshop on the side of the
national highway is an invasion of the private
right of petitioner to have access to the national
highway. This Court in Chandran C.E v. District
Collector, Kozhikode and Others 2013 (3) KHC 53
was considering a similar case alleging
unauthorised parking of autorickshaws/taxis on the
side of public roads impeding vehicular and
pedestrian traffic and held in paragraph 3 as
follows:
"3. A minimum of 1.5 metres beyond the tarred
margin of the road is to be left for
pedestrian traffic throughout the State.
This finds support from Rule 6 of the Kerala
Panchayat Road (Landing places, halting
place, cart stands and other vehicle stands)
Rule, 1995 also. The specification of 1.5
metres beyond the tarred margin has to be
maintained whether it be a Panchayat area or
any urban area as the State is replete with
motor accidents. Unauthorised erection of
sign boards as authorickshaw stands and taxi
stands by the unions should not detract the
police from plucking it out and facilitate
pedestrian traffic for the public."
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This Court in Chandran C.Es' case sited supra, has
found that unauthorised erection of sign boards as
authorickshaw stands and taxi stands by the unions
should not detract the police from plucking it out
and facilitate pedestrian traffic for the public.
Going by the judgment in M.V.Joseph's case cited
supra, the right of a person owning land adjoining
a highway to have access to the highway at any
point was uphold. It was also held that allowing
taxi cars to park on the side of the highway
obstructing the private right of land owners
abutting the highway is not a public purpose but
for the private interest of the taxi operators in
exercise of their business and held that allowing
taxi operators who are engaged in their business
to park their vehicles permanently in front of
petitioner's workshop on the side of the national
highway is an invasion of the private right of
petitioner to have access to the national highway.
The official respondents has also stated that the
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place where the autorickshaws were parked by the
respondents has not been declared as notified
parking area by the authority concerned. Though
the party respondents have a contention that they
have approached the authority concerned with a
request to declare that the area where they are
parking the autorickshaws to be declared as a
parking area and has filed necessary request
before the Regional Transport Authority on
14.11.2022, the said fact was refuted by the
learned Government Pleader, who upon instruction
submitted that no such application is received
from the local authority or by any of the party
respondents. Whatever that be, that is not a
subject matter of issue in this writ petition and
if the party respondents have filed any such
application in this regard, it is for them to
prosecute the matter further in appropriate
proceedings. In the counter affidavit filed by
respondents 6 to 9, they have also admitted that
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after the interim order was passed they are not
parking the vehicles in the said space from 4th
November, 2022 onwards.
10. Taking into consideration the fact that
the area where the party respondents were parking
their autorickshaws is part of the road itself, I
am of the opinion that since the area is not being
notified as a parking area by the competent
authority, respondents 6 to 9 have no right to
park the vehicles so as to violate the right of
the petitioner to have access to the road from any
point of his property as held by this Court in
M.V.Joseph's case cited supra.
11. Therefore, the writ petition is
allowed. It is ordered that respondents 6 to 9
have no manner of right to park their vehicles on
the northern side of the building of the
petitioner facing Thammanam-Pullepady Road until
the said area is declared as a parking area by the
competent authority. There will be a direction to
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respondents 2 and 3 to provide necessary and
sufficient police protection to the petitioner by
removing the illegal parking of autorickshaws of
respondents 6 to 9, blocking the access to the
property of the petitioner.
With the above said observations and
directions, the writ petition is disposed of.
sd/-
VIJU ABRAHAM,JUDGE
pm
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APPENDIX OF WP(C) 34969/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPTS DATED
14-7-2022 ISSUED BY VILLAGE OFFICER,
POONITHURA VILLAGE
Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPTS DATED
14-7-2022 ISSUED BY VILLAGE OFFICER,
POONITHURA VILLAGE
Exhibit P3 PHOTOGRAPHS SHOWING THE MANNER IN WHICH
AUTORICKSHAWS ARE PARKED ON THE NORTHERN
SIDE OF THE BUILDING OF THE PETITIONER
Exhibit P4 TRUE COPY OF THE COMPLAINT DATED 21-9-
2022 SUBMITTED BY THE PETITIONER TO THE
3RD RESPONDENT
Exhibit P5 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED
BY THE 3RD RESPONDENT
Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 8-10-
2022 SUBMITTED BY THE PETITIONER TO THE
2ND RESPONDENT
Exhibit P7 TRUE COPY OF THE COMPLAINT DATED 8-10-
2022 SUBMITTED BY THE PETITIONER TO THE
4TH RESPONDENT
Exhibit P8 TRUE COPY OF THE COMPLAINT DATED 8-10-
2022 SUBMITTED BY THE PETITIONER TO THE
5TH RESPONDENT
Exhibit P9 TRUE COPY OF POSTAL RECEIPTS WITH
RESPECT TO EXHIBITS P6 TO P8
RESPONDENTS' EXHIBITS
Exhibit R8(A) PHOTOGRAPH SHOWING THE ENTIRE LENGTH OF
THE BUILDING IN THE NORTHERN SIDE OF THE
PROPERTY OF THE PETITIONER, OWNED BY
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10TH RESPONDENT
Exhibit R8(B) PHOTOGRAPHS SHOWING THE PARKING OF OTHER
VEHICLES IN THE TARRED PORTION OWNED BY
THE COCHIN CORPORATION
