A. J. Varghese v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** ## **WEDNESDAY, THE 19[TH] DAY OF JANUARY 2022 / 29TH POUSHA, 1943** ## **WP(C) NO. 28152 OF 2021** ## **PETITIONER:** **A.J.VARGHESE AGED 47 YEARS S/O JACOB, ARAKKAL HOUSE, PAVARATTY P O,THRISSUR, PRESIDENT MERCHANT WELFARE SOCIETY, PAVARATTY-680507.** **BY ADV. SRI.SREEHARI INDUKALADHARAN SRI. FRANCIS P.T.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.** - **2 DISTRICT COLLECTOR CIVIL STATION, CIVIL LINES ROAD, KALYAN NAGAR, AYYANTHOLE, THRISSUR-695001.** - **3 REGIONAL TRANSPORT OFFICER 9/128, MANJULA SHOPPING COMPLEX, EAST NADA, GURUVAYOOR, THRISSUR-680101.** - **4 PAVARATTY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, PAVARATTY PALUVAL RD, CHITTATTUKARA, THRISSUR DISTRICT, KERALA-680507.** - **5 SECRETARY PAVARATTY GRAMA PANCHAYATH, PAVARATTY PALUVAL RD, CHITTATTUKARA, THRISSUR DISTRICT, KERALA-680507.** - **6 PRESIDENT PAVARATTY GRAMA PANCHAYATH, PAVARATTY PALUVAL RD, CHITTATTUKARA, THRISSUR DISTRICT, KERALA-680507.** - **THE TRAFFIC REGULATORY COMMITTEE** - **7 REPRESENTED BY ITS CHAIRMAN, PAVARATTY GRAMA PANCHAYATH, PAVARATTY PALUVAL RD, CHITTATTUKARA,** WP(C) NO. 28152 OF 2021 2 **THRISSUR DISTRICT, KERALA-680507.** - **8 STATION HOUSE OFFICER PAVARATTY POLICE STATION, PAVARATTY, THRISSUR-680507.** - **9 MUJEEB RAHMAN AGED 35 YEARS S/O MUHAMMED, NALAKATHELANTHARA HOUSE, BLANGAD P O, CHAVAKAD TALUK, THRISSUR DISTRICT, PIN-680506.** **R1-R3 & R8 BY ADV.SRI.PREMCHAND R NAIR, GOVERNMENT PLEADER R4-R7 BY ADV.SRI. RAJIT, STANDING COUNSEL FOR PANCHAYATH R9 BY ADV. SRI. ABRAHAM MATHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 28152 OF 2021 3 ## **JUDGMENT** ## **Dated this the 19[th] day of January, 2022** The petitioner, representing the Merchants doing business along the Enamavu-Chavakkad road in Pavaratty town had earlier approached this Court voicing their grievance against indiscriminate parking of autorickshaws on the road margin outside the shops. The writ petition was disposed of by Ext.P9 judgment. In that writ petition, an interim order was passed directing the Regional Transport Officer, the Secretary of the Pavaratty Grama Panchayath and the Sub Inspector of Police, Pavaratty to ensure that the ingress and egress to the petitioner's shops are not obstructed by indiscriminate and unauthorized parking of autorickshaws. Thereafter, the writ petition itself was disposed of by Ext.P9 judgment, based on the submission made on behalf of the petitioner that, pursuant to the interim order, obstruction to the ingress and egress of the commercial establishments in Pavaratty Town stands abated and the submission that a consensus had been arrived at between the auto drivers and the WP(C) NO. 28152 OF 2021 4 local authority, based on which a suitable place was identified for parking of autorickshaws for the time being, without causing hindrance to the functioning of the commercial establishments. It was directed that the interim order should be maintained and the party respondents/ autorickshaw drivers were permitted to park their vehicles at the area identified by the local authorities till orders are passed with respect to the authorized parking area. The petitioners have filed contempt petitions pointing out violation of the direction in the judgment. In the meanwhile, the 9[th] respondent filed W.P(C)No.19521 of 2021 seeking a direction to the respondents therein to consider his representation seeking permission to park two autorickshaws of his Union on the Enamavu-Chavakkad road, on rotation basis. That writ petition was disposed of by Ext.P11 judgment, directing the Chairman of the Traffic Regulatory Committee to consider and pass appropriate orders on the representation, after affording an opportunity of hearing to the petitioners and the other autorickshaw Unions. In purported compliance of the direction, the Traffic Regulatory WP(C) NO. 28152 OF 2021 5 Committee passed Ext.P12 order, permitting two autorickshaws to be parked on the EnamavuChavakkad road, on rotation basis. The writ petition is filed aggrieved by the said decision. 2. According to the learned Counsel for the petitioner, there is a concerted effort to circumvent the earlier direction of this Court by permitting parking of two autorickshaws on the road margin. It is submitted that under the cover of Ext.P11 judgment, the respondents have passed Ext.P12, contrary to the direction in Ext.P9, that too without hearing the petitioner. The further contention is that the impugned order is not in accordance with the provisions of The Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and other Vehicle Stands) Rules, 1995. 3. Learned Counsel for the respondent Panchayath submitted that pursuant to the judgment of this Court, a place had been identified for the parking of autorickshaws and erected prohibitory parking on the road outside the shops. It is submitted that in compliance of the direction in Ext.P11, meeting of the Traffic Regulatory Committee WP(C) NO. 28152 OF 2021 6 was convened. Ext.P12 order was passed after hearing all parties and finding substance in the grievance of the autorickshaw drivers that, the place set apart for parking is congested and their livelihood will be affected unless, at least two auto rickshaws are allowed to park on the road without causing obstruction to the ingress and egress to the shop rooms. 4. Learned Counsel for the 9[th] respondent referred to the decision in **Gopalan and others v. Vellangallur Gramapanchayath, Thrissur and others [2021 (2) KHC 367]** to contend that, the Traffic Regulatory Committee having passed Ext.P12 order, the petitioner cannot rely on Ext.P9 judgment to contend that the order is bad. Moreover, the relief in W.P(C)No.23226 of 2017 was limited to the obstruction against the ingress and egress to the shops. By Ext.P12 order, parking of only two autorickshaws is permitted, without obstructing the ingress and egress to the sops. The further contention is that The Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and other Vehicle Stands) Rules, 1995, is applicable to the proceedings WP(C) NO. 28152 OF 2021 7 of the Traffic Regulatory Committee. 5. Indisputably, Ext.P12 order is passed without taking into account Ext.P9 judgment. The Secretary of the Panchayath and the Sub Inspector being parties to Ext.P9 and the contempt of court cases, were bound to bring the judgment to the notice of the Traffic Regulatory Committee. I also find substance in the contention that, being an affected party who had approached this Court and obtained Ext.P9 judgment, the petitioner should have also been heard before passing Ext.P12. The Committee having taken its decision without reference to the earlier judgment, wherein the Panchayath had specifically stated that parking area for autorickshaws have been identified and having filed affidavit in the contempt proceedings stating that the autorickshaws have been restrained from parking outside the shops Ext.P12 order passed without reference to the earlier proceedings, cannot be sustained In the result, the writ petition is allowed. Ext.P12 decision is set aside. The Traffic Regulatory Committee shall reconsider the request made by the WP(C) NO. 28152 OF 2021 8 9[th] respondent with notice to the petitioner and pass a reasoned order thereon. The parties are at liberty to raise all contentions before the Traffic Regulatory Committee. In case of violation, the 8[th] respondent shall intervene and take appropriate action. If the Traffic Regulatory Committee is of opinion that other affected parties should also be heard, the Committee is at liberty to issue notice and hear them. Till a decision is taken by the Traffic Regulatory Committee, parking of autorickshaws shall be in accordance with the direction in Ext.P9 judgment. **Sd/-** **V.G.ARUN** **JUDGE** NB/19-1-22 WP(C) NO. 28152 OF 2021 9 ## **APPENDIX OF WP(C) 28152/2021** ## **PETITIONER’S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 10.12.2014. EXHIBIT P2 TRUE COPY OF THE REQUEST DATED 08.06.2017. EXHIBIT P3 TRUE COPY OF THE REPLY DATED 30.06.2017. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 16.03.2015 ISSUED BY THE PANCHAYATH TO ASSISTANT COMMISSIONER OF POLICE. EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 087.06.2017 PREFERRED BEFORE THE 6TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED 21.06.2017 PREFERRED BEFORE THE 8TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 27.06.2017 PREFERRED BEFORE THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DATED 13.07.2017 IN WP(C)NO.23226/2017. EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WPC NO.23226/2017 DATED 19.06.2019. EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT ALONG WITH THE MEMO DATED 17.12.2020. EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WP(C)19521 OF 2021 DATED 29.09.2021. EXHIBIT P12 TRUE COPY OF THE MINUTES OF MEETING DATED 27.11.2021. EXHIBIT P13 TRUE COPY OF THE NEWS PAPER DATED 02.12.2021 OF MALAYALA MANORAMA. EXHIBIT P14 TRUE COPY OF THE COMPLAINT DATED 02.12.2021. EXHIBIT P14(A) TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 02.12.2021. EXHIBIT P15 TRUE COPY OF THE PHOTOGRAPHS.** ## **RESPONDENT EXHIBITS:** **EXHIBIT R9(A) TRUE COPY OF PHOTOGRAPHS. EXHIBIT R9(B) TRUE COPY OF PHOTOGRAPHS. EXHIBIT R4(A) A TRUE COPY OF THE JUDGMENT DATED 10.03.2021 IN W.P.C.NO.33405/2019 OF THE HON’BLE HIGH COURT OF KERALA.** ## **//TRUE COPY//** **PA TO JUDGE**