B. Vijayan Pillai and others v. State Police Chief, The District Police Chief, Kollam Rural, The District Collector, Kollam, Inspector of Police, Kundara, The Station House Officer, Kundara Police Station, The Regional Transport Officer, Kollam, Kottamkara Grama Panchayath, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941 WP(C).No. 5063 of 2019** |**WP(C).No. 5063 of 2019**|**WP(C).No. 5063 of 2019**| |---|---| |**PETITIONER/S**<br>**:**|| |**1**|**B.VIJAYAN PILLAI, AGED 52 YEARS, S/O.BHASKARA**| ||**PILLAI, PROPRIETOR, WOOD MECH AGENCY (MILL STORE),**| ||**CHANDANATHOPPE, KOLLAM - 691 014, RESIDING AT**| ||**LEELA SADAN, VADAKKEKARA, ASTAMUDI P.O., KOLLAM -**| ||**691 602.**| |**2**|**SARASWATHI.L., W/O.KRISHNAN PILLAI, MANOJ BHAVAN,**| ||**ARUNOOTTIMANGALAM, MANGAD P.O., KOLLAM.**| |**3**|**DR.A.MUHAMMAD HANEEFA,S/O.ABOOBAKAR, DR.HANEEFAS**| ||**HOMEO MEDICALS, CHANDANATHOPPE P.O., KOLLAM - 691**| ||**014, RESIDING AT JUBAIRIYA MANZIL, MEKONE,**| ||**CHANDANATHOPPE P.O., KOLLAM - 691 014.**| |**4**|**SHAHALUDEEN.S,**<br>**S/O.SAINULABDEEN,**<br>**AL-MAS,**| ||**CHANDANATHOPPE P.O., KOLLAM - 691 014, RESIDING AT**| ||**AL-MAS,**<br>**KANDACHIRAMUKKU,**<br>**PALLICHIRA**<br>**P.O.,**| ||**KOTTIYAM, KOLLAM.**| |**5**|**NAISHER.S., S/O.LATE SAINLABUDEEN, LAILA MANZIL,**| ||**CHANDANATHOPPE P.O., KOLLAM - 691 014.**| ||**BY ADV. SRI.B.MOHANLAL**| |**RESPONDENT/S**<br>**:**|**RESPONDENT/S**<br>**:**| |---|---| |**1**|**STATE POLICE CHIEF, POLICE HEAD QUARTERS,**| ||**VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014.**| |**2**|**THE DISTRICT POLICE CHIEF, KOLLAM RURAL,**| ||**KOTTARAKKARA P.O., KOLLAM - 691 506.**| |**3**|**THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL**| ||**STATION P.O., KOLLAM - 691 013.**| |**4**|**THE INSPECTOR OF POLICE, KUNDARA, KUNDARA P.O.,**| ||**KOLLAM - 691 001.**| |**5**|**THE STATION HOUSE OFFICER, KUNDARA POLICE STATION,**| ||**KUNDARA P.O., KOLLAM - 691 001.**| |**6**|**THE REGIONAL TRANSPORT OFFICER, COLLECTORATE,**| ||**CIVIL STATION P.O., KOLLAM - 691 013.**| WP(C).No. 5063 of 2019 -2- |**7**|**THE KOTTAMKARA GRAMA PANCHAYATH**| |---|---| ||**PANCHAYATH, REPRESENTED BY ITS SECRETARY,**| ||**KUTTICHIRA, T.K.M.C.O.P., KOLLAM - 691 005.**| |**8**|**SHAMSUDEEN, S/O.MUHAMMAD KUNJU, KALLUKUZHI, MYTHRI**| ||**NAGAR, CHANDANATHOPPE P.O., KOLLAM - 691 014.**| ||**(VEHICLE NO.KL-02-AK-1833).**| |**9**|**SUDEENDRAN.B.,**<br>**S/O.BAHULEYAN,**<br>**GOKULAM,**| ||**NATTUVATHUKKAL, VELLIMON P.O., KOLLAM - 691 511.**| ||**(VEHICLE NO.KL-02-AH-7879).**| |**10**|**AJITH KUMAR, S/O.HARIDASAN, KARTHIKA BHAVANAM,**| ||**MELOT KIZHAKKATHIL, PEROOR, T.K.M.C.P.O., KOLLAM -**| ||**691 005. (VEHICLE NO.KL-05-B-121).**| |**11**|**NASEER,**<br>**S/O.ABDU**<br>**LATHEEF,**<br>**THACHANTAZHIKAM,**| ||**CHANDANATHOPPE P.O., KOLLAM - 691 014. (VEHICLE**| ||**NO.KL-02-BD-7040)**| |**12**|**KAMRUDEEN,**<br>**S/O.EBRAHIMKUTTY,**<br>**KOCHUVILA,**| ||**CHATHINAMKULAM, CHANDANATHOPPE P.O., KOLLAM.**| |**13**|**THAJUDEEN, S/O.MUHAMMAD KUNJU, SAFEER MANZIL,**| ||**KOTTAMKARA, CHANDANATHOPPE P.O., KOLLAM - 691 014.**| ||**(VEHICLE NO.KL-33-F-1784).**| |**14**|**SHAJUL HAMEED, S/O.MUHAMMAD HANEEFA, SAJEENA**| ||**MANZIL,**<br>**NEAR**<br>**VAYALIL**<br>**VEEDU,**<br>**MEKONE,**| ||**CHANDANATHOPPE, KOLLAM - 691 014. (VEHICLE NO.KL-**| ||**02-AP-9071).**| |**15**|**VIJAYAN, C/O.SHUKKOOR, DRIVER, VILAYIL PUTHEN**| ||**VEEDU, CHANDANATHOPPE P.O., KOLLAM - 691 014.**| ||**(VEHICLE NO.KL-23-9432).**| |**16**|**SHEFEEK, S/O.ALIYARUKUNJU, KUZHITHADATHIL VEEDU,**| ||**ASIAN NAGAR, CHIRAYIL, CHANDANATHOPPE P.O., KOLLAM**| ||**- 691 014. (VEHICLE NO.KL-20-F-6435).**| |**17**|**ANZER, S/O.KASIM, ALTHAF MANZIL, EDAVATTOOM,**| ||**VELLIMON P.O., KOLLAM - 691 511. (VEHICLE NO.KL-**| ||**61-A-3409).**| |**18**|**SAJEER SHA, SAJEESHA MANZIL, PEROOR, THATTARKONAM**| ||**P.O., VIA KARICODU, KOLLAM - 691 005. (VEHICLE**| ||**NO.KL-92-BA-1559).**| **BY ADVS. SRI.BINU GEORGE SRI.PRATHEESH P., SC, KOTTAMKARA GRAMA PANCHAYAT SMT.HEMALATHA** - **OTHER PRESENT:** **SRI P.P THAJUDHEEN SR GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** ## V.G.ARUN, J. Petitioners 1 to 4 are conducting business in the building belonging to the fifth petitioner, which is situated at Chandanathoppe Junction in Kollam District, by the side of the Kollam-Shenkotta State Highway. Respondents 8 to 18 are drivers/owners of Mini Lorries, who, it is alleged, park their vehicles in front of the rooms in which petitioners 1 to 4 are conducting business, thereby obstructing the free ingress and egress to the rooms. The petitioners allege that due to the deliberate parking of their Mini Lorries in front of the fifth petitioner's building, respondents 8 to 18 are not only causing hindrance to the conduct of business by petitioners 1 to 4, but is also causing nuisance to the public at large. It is alleged that the space where respondents 8 to 18 park their vehicles is not a parking space identified and allotted to them and that, in fact, the parking area for Mini Lorries has been allotted elsewhere. This writ petition is WP(C).No. 5063 of 2019 -4- filed alleging that in spite of the nuisance caused due to the unauthorised parking of Mini Lorries being brought to the notice of respondents 1 to 7, no action to curb the nuisance was taken. Therefore, the petitioners pray for the issue of a writ of mandamus commanding respondents 1 to 7 to afford adequate and effective police protection to the petitioners and their customers and not to permit parking of Mini Lorries by the party respondents and others in front of the shop rooms of the petitioners bearing door Nos.XVIII/282, XVIII/283, XVIII/284 and XVIII/281 of Kottamkara Grama Panchayath, causing obstruction to the shop rooms of the petitioners and the customers to the shops situated at Chandanathoppe Junction in Kollam and to ensure the free ingress and egress of the customers and the petitioners to the shop rooms and the right of the petitioners to have access to the public road. WP(C).No. 5063 of 2019 -5- 2. In the counter affidavit filed on behalf of respondents 8 to 18, it is contended that the space between the tarred portion of the road and the building in which the petitioners are conducting business is having a width of 20 metres and several trees are standing in that portion. It is the case of respondents 8 to 18 that they are parking their vehicles under the shade of those trees and such parking does not cause any hindrance to the conduct of business by the petitioners or nuisance to the pedestrians. It is contended that vehicles are being parked outside the building of the fifth petitioner for more than 35 years and that if respondents 8 to 18 are restrained from parking their vehicles at the present space, that would adversely affect their livelihood. It is further submitted that respondents 8 to 18 have approached the authorities for allotting parking area for their vehicles and that they may be permitted to WP(C).No. 5063 of 2019 -6- park their vehicles at the present space till a decision is taken on their representation for allotment of parking area. 3. The learned Senior Government Pleader, on instructions, submits that the unauthorised parking of the vehicles is, in fact, a nuisance to the conduct of business in the fifth petitioner's building, as also to the pedestrians. 4. An identical issue was considered by a Division Bench of this Court in **Noushad M. and others v. State of Kerala and others [2019(2) KHC 562]** . The question that was considered by the Division Bench in Noushad's case was as to whether the owners in possession of the shop rooms and houses adjoining the Chavara-Sasthamcotta Public Road have a right to go upon the road from any point from their shop rooms, houses, especially, when there is a public road; and if that right is obstructed by anyone, the owners in possession of the shop rooms or houses are entitled to WP(C).No. 5063 of 2019 -7- maintain an action for the injury, no matter whether the obstruction does or does not constitute a public offence. After an elaborate survey of the precedents, including the Division Bench's decision in **Jayaprasad v. State of Kerala [2018 (2) KHC 812]** , to which one of us (Vinod Chandran, J.) was a party and after considering the relevant provisions, viz; Section 227 of the Kerala Panchayat Raj Act, 1994, Rules 3, 4 and 5 of the Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and other Vehicle Stands) Rules, 1995, Section 117 of the Motor Vehicles Act, 1988, Rule 344 of the Kerala Motor Vehicles Rules, 1989 and Section 72 (1) of the Kerala Police Act, the Division Bench held as follows: “Going by the above legal precedents, it is clear that permitting the private respondents to park autorickshaws unauthorisedly in front of the shop rooms and houses owned by the petitioners, obstructing their private right abutting the highway is not at all justified. No doubt, permitting the party respondents to park their autorickshaws permanently in front WP(C).No. 5063 of 2019 -8- of the petitioners' shop rooms on the side of the highway is an appropriation of his private right to have free access to the highway.” We are in complete agreement with the dictum laid down in Noushad's case. Respondents 8 to 18 have no right to park their vehicles in front of the fifth petitioner's building preventing/restricting free ingress and egress to the rooms in the building. Petitioners right to access the public road from their rooms cannot be curtailed by unauthorised parking of vehicles. Such parking, being illegal and unauthorised, respondents 4 and 5 are bound to take action to curb the nuisance. As far as the contention of respondents 8 to 18 that they have already submitted representation before the statutory authorities for allotting a parking area for their vehicles, it is for respondents 6 and 7 to take appropriate action in that regard, strictly in accordance with the statutory provisions. WP(C).No. 5063 of 2019 -9- In the result, the writ petition is allowed. Respondents 4 and 5 are directed to ensure that respondents 8 to 18 do not park their Mini Lorries in front of the shop rooms of the fifth petitioner's building, wherein petitioners 1 to 4 are conducting business, blocking the entrance to the rooms and obstructing free ingress and egress. Parties are left to suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** Scl/28.5 WP(C).No. 5063 of 2019 -10- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE LICENSE NO.AT/8060/18(2) DATED 21/03/2018 ISSUED BY THE 7TH RESPONDENT TO THE 1ST PETITIONER.** **EXHIBIT P2 THE TRUE COPY OF THE IDENTITY CARD ISSUED BY THE DIRECTOR, KERALA STATE LOTTERY TO THE 2ND PETITIONER.** - **EXHIBIT P3 THE TRUE COPY OF THE REGISTRATION DATED 4/12/2018 ISSUED BY THE 7TH RESPONDENT TO THE 3RD PETITIONER.** - **EXHIBIT P4 THE TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 3RD PETITIONER.** - **EXHIBIT P5 THE TRUE COPY OF THE TAX RECEIPT DATED 05/04/2018 ISSUED BY THE VILLAGE OFFICER, KOTTAMKARA VILLAGE TO THE 5TH PETITIONER.** **EXHIBIT P6 THE TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE BUILDING BEARING DOOR NO.XVIII/281 REMITTED BY THE 5TH PETITIONER TO THE 7TH RESPONDENT FOR THE YEAR 2018-2019.** **EXHIBIT P6 A THE TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE BUILDING BEARING DOOR NO.XVIII/282, REMITTED BY THE 5TH** WP(C).No. 5063 of 2019 -11- **PETITIONER TO THE 7TH RESPONDENT FOR THE YEAR 2018-2019.** - **EXHIBIT P6 B THE TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE BUILDING BEARING DOOR NO.XVIII/283, REMITTED BY THE 5TH PETITIONER TO THE 7TH RESPONDENT FOR THE YEAR 2018-2019.** - **EXHIBIT P6 C THE TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE BUILDING BERING DOOR NO.XVIII/284 REMITTED BY THE 5TH PETITIONER TO THE 7TH RESPONDENT FOR THE YEAR 2018-2019.** - **EXHIBIT P7 THE TRUE PHOTOGRAPHS OF THE OBSTRUCTION CAUSED BY THE RESPONDENTS 8 TO 18 AND THEIR HENCHMEN BY PARKING MINI LORRIES IN FRONT OF THE SHOP ROOMS OF THE PETITIONERS.** - **EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 11/12/2018 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P9 THE TRUE COPY OF THE REPRESENTATION DATED 07/01/2019 SUBMITTED BY THE PETITIONERS BEFORE THE 6TH RESPONDENT.** - **EXHIBIT P10 THE TRUE COPY OF THE REPRESENTATION DATED 09/01/2019 SUBMITTED BY THE 5TH PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P11 THE TRUE COPY OF THE REPRESENTATION DATED 17/01/2019 SUBMITTED BY THE PETITIONERS BEFORE THE 7TH RESPONDENT.** - **EXHIBIT P12** - **THE TRUE COPY OF THE REPLY NO.A561555/18 DATED 26/9/2018 GIVEN BY THE 7TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT TO HE 5TH PETITIONER.**