Chandran V.B. and Unnikrishnan @ Kannan v. The President, Panchayath Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WA.No.443 OF 2020** ## **AGAINST THE JUDGMENT IN WP(C) 34515/2019(L) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 6 & 7:** **1 CHANDRAN V.B, AGED 56 YEARS, S/O BHASKARAN, VAYALALIL HOUSE, MURAKKAL, KANNARA P.O., PRESIDENT, AUTO FRIENDS SWAYAM SHAYA SANGHAM, PEECHI ROAD, PATTIKKAD, REG.NO 151/12, PIN-680 652.** **2 UNNIKRISHNAN @ KANNAN, AGED 39 YEARS, S/O BALAN NAIR, RAYIRATH HOUSE, PANANCHERY, MANAMKODE P.O., THE SECRETARY, AUTO FRIENDS SWAYAM SHAYA SANGHAM, PEECHI ROAD, PATTIKKAD, REG NO. 151/12.** **BY ADVS. SRI.GEORGE SEBASTIAN SRI.ARUN LUCKOSE ABRAHAM** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 5:** **1 P.M.RAPHEL, AGED 63 YEARS, PROPRIETOR OF CHOCO YARD, S/O P.K.MATHEW, PERINCHERY HOUSE , R.C CHAPPEL ROAD, NELLIKUNNU P.O.THRISSUR, PIN-680 005. 2 AVARAN,AGED 56 YEARS, S/O MARKOSE, PERUMALIL HOUSE, PEECHI ROAD, PATTIKKAD, PIN-680 652.** **W.A.No.443 of 2020** **2** - **3 M.T. ANTO, AGED 57 YEARS, S/O THOMAS, PROPRIETOR OF MADHURIMA BAKERY, MECHERY HOUSE, NO 81, CITY GARDEN, PATTIKKAD, KANNARA P.O., PIN-680 652.** - **4 A.ARUN, AGED 28 YEARS, PROPRIETOR OF FRIENDS FLOWERS, VELUTHEDATH PARAMBIL HOUSE, KOOTTALA, PATTIKKAD, KANNARA P.O., PIN-680 652.** - **5 ANEESH K.A,AGED 36 YEARS, PROPRIETOR OF ORANGE FLEX HOUSE, S/O.ASOKAN K.A, KOLATHIL HOUSE, KANNARA P.O., MANDANCHIRA, KANNARA P.O., PIN-680 652.** - **6 BIJU V.M, AGED 42 YEARS, S/O MATHAI, VELLARINGAYIL HOUSE, PATTIKKAD, KANNARA P.O., PIN-680 652.** - **7 MATHAI P.M, AGED 65 YEARS, S/O MATHAI.P, PUTHANPARAMBIL HOUSE, PATTIKKAD, KANNARA P.O.PIN-680 652.** - **8 LAL M PHILIP,AGED 48 YEARS, S/O PHILIP, MOZHUMANNIL HOUSE, VELLANIKKARA, THRISSUR P.O., PIN-680 651.** - **9 THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE P.O., THRISSUR, PIN-680 003.** - **10 REGIONAL TRANSPORT OFFICER, CIVIL STATION, AYYANTHOLE P.O., THRISSUR, PIN-680 003.** - **11 STATION HOUSE OFFICER, PEECHI POLICE STATION, PEECHI P.O. THRISSUR, PIN-680 653.** - **12 PANCHERY GRAMA PANCHAYATH, PATTIKKAD, KANNARA P.O., THRISSUR DISTRICT, PIN-680 652.** **3** ## **W.A.No.443 of 2020** **13 THE NATIONAL HIGHWAY AUTHORITY, CHANDRANAGAR COLONY EXTENSION, PALAKKAD, PIN-678 014.** ## **OTHER PRESENT:** **SRI.S.RENJITH FOR R1 TO R8, SPL.GP SRI.P.SANTHOSH KUMAR FOR R9 TO R11, SMT.CHITRA.S.BABU REPRESENTING SRI.SANTHOSH P.PODUVAL. SC FOR R12, SRI.B.G.BIDAN CHANDRAN,SC FOR R13** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.443 of 2020** **4** ## **JUDGMENT** Dated this the 5[th] day of March, 2020 ## **S.Manikumar, C.J.** Challenge in this appeal is to the judgment in W.P.(C)No.34515 of 2019 dated 20.2.2020, by which, the writ court directed the President of the Panchery Grama Panchayath (respondent No.4 therein) to constitute a Traffic Regulatory Committee under Section 72 of the Kerala Police Act and the Convenor of the Traffic Regulatory Committee to take steps to allot parking space for the autorickshaws. Writ court further directed that all stakeholders referred to in Section 72 of the Kerala Police Act should be provided with an opportunity. 2. Short facts leading to the writ petition are that, writ petitioners (respondents 1 to 8 herein) are businessmen running business near to the National Highway, Peechi Junction, Pattikkad. Petitioners are aggrieved by the inaction of the respondents therein against the illegal parking of autorickshaws in front of the shops owned by the petitioners, which caused obstruction to free ingress and egress to their shops and building, from the National Highway. Petitioners have contended that the place where the autorickshaws are parking, is not a notified auto stand as per the Act and rules. The petitioners submitted representations and complaints before the respondents to remove the obstructions. Even **W.A.No.443 of 2020** **5** after Exts.P1 and P4 complaint and representation respectively, the respondents are not taking any effective steps to take action against unauthorised parking of the vehicles and to impose penalty. Hence writ petition has been filed. 3. Reliance has been made to the decision of this court in **Noushad M. and Others v. State of Kerala and Others** reported in **2019 (2) KHC 562** . Reference has also been made to Section 227 of the Kerala Panchayat Raj Act, 1994 and Section 117 of the Motor Vehicles Act, 1988, to contend that vehicles should be parked only in the notified area. Writ court, vide judgment in W.P.(C)No.34515 of 2019 dated 20.2.2020, ordered thus: “The writ petitioners are the shop owners beside the National Highway, Peechi junction. They filed the writ petition alleging that more than fifty autorickshaws are illegally parking in front of their shop rooms, obstructing free ingress and egress to the shop rooms. 2. This Court passed an interim order on 17.12.2019. Alleging non-compliance, a contempt petition is also filed as Cont. Case No.295/2020. It appears that all the autorickshaws illegally parked in front of the shop rooms have been removed now. Learned counsel appearing for the autorickshaw drivers highlighted their concern and submitted that no obstruction is caused to any one of the shop rooms. 3. Admittedly, the area in front of the shop rooms is not identified or notified as a parking area. Local authority is **W.A.No.443 of 2020** **6** empowered to take a decision under Section 72 of the Kerala Police Act (hereinafter referred to as 'the KP Act') regarding the allocation of parking space to vehicles. If the local authority identifies any such area in front of the shop rooms as an area for parking, it shall not block or cause obstruction to the ingress and egress to the petitioners' shop rooms. National Highway Authority is also need to be consulted for the reason that no parking space can be allowed in any land belonged to the National Highway. The issue can be resolved only by the panchayat. Accordingly, President of the 4th respondent shall constitute a Traffic Regulatory Committee under Section 72 of the KP Act being Convenor of such Committee. The Convenor of the Traffic Regulatory Committee is directed to take necessary steps to allot parking space for the autorickshaws. This shall be done involving all stake holders as referred in Section 72 of the KP Act within a period six weeks from the date of receipt of a copy of this judgment, after notice to the petitioners and National Highway authorities. Before taking a decision, the Panchayat Traffic Regulatory Committee shall hear the views of the autorickshaw drivers as well. Interim order will continue till such time. The writ petition is disposed of, accordingly.” 4. Instant writ appeal is filed on the grounds inter alia that though the appellants have filed an application for vacating the interim order, writ court has not considered the same in a proper perspective. Though the prayer made in the writ petition was only to remove the unauthorised **W.A.No.443 of 2020** **7** parking of autorickshaws in front of the shop rooms, writ court has failed to consider the fact that the Regional Transport Authority has permitted parking of autorickshaws on Pattikkad Peechi Road Junction Panchayath area. Though writ petition has been filed only for removal of the unauthorised parking of autorickshaws opposite to the shops, writ court went beyond the scope and directed the Traffic Regulatory Committee to enquire into the matter. 5. Mr.S.Renjith, learned counsel for respondents 1 to 8/writ petitioners submitted that writ petition was filed to remove the unauthorised parking of autorickshaws in front of the shops. According to him, he has no objection for the vehicles being parked at the places mentioned in the permit. 6. Mr.P.Santhosh Kumar, learned Special Government Pleader submitted that the vehicles can be parked at the places mentioned in the permit. 7. Adv.Chitra S.Babu representing Mr.Santhosh P.Poduval, learned standing counsel for Panchery Grama Panchayath submitted that as per the directions of this court in W.P.(C)No.34515 of 2019, Traffic Regulatory Committee has considered the rival submissions of both the appellants, as well as private respondents, but there was no representation from the Regional Transport Officer, Ayyanthole, Thrissur and that the matter is **W.A.No.443 of 2020** **8** pending. 8. Rule 156 of the Kerala Motor Vehicles Rules reads thus: “ **156. Contract carriages to be stationed at the place specified in the permit** .- It shall be a condition of the permit of every contract carriage that the vehicle shall normally be stationed at the place specified in the permit by the Transport Authority granting the permit.” 9. Ext.R6(a) permit dated 27.8.2016 issued to Mr.R.Unnikrishnan shows that the parking place is at Peechi Road at Pattikkad (Panchayath Area). Perusal of Anneuxre-C permit dated 22.4.2016 issued by the Regional Transport Officer, Thrissur to the permit holder, Sini, shows that the parking place is at Pattikkad Peechi Road Junction Panchayath area. It is the submission of the learned counsel for the appellants that in all the permits, parking area is specifically mentioned and because of the continuance of the interim order, appellants are not able to park the vehicles even at the place mentioned in the permits. At this juncture, it is relevant to consider the interim order passed by the writ court on 17.12.2019 pending the writ petition, which reads thus: ## “ **ORDER** Urgent notice to respondents 4, 6 and 7 by speed post. Government Pleader takes notice for R1 to R3, standing counsel takes notice for R5. **W.A.No.443 of 2020** **9** There shall be a direction to the third respondent to remove unauthorised parking of autorickshaws in Peechi Junction, Pattikkad, if the area is not an authorised area notified under the statutory provisions. Post on 13.1.2020.” 10. As rightly contended by the appellants, though an application has been filed to vacate the interim order, there is no proper consideration to the contents of the same by the writ court. As per the interim order, the Station House Officer, Peechi Police Station, Thrissur (respondent No.3 therein) has been directed to remove unauthorised parking of autorickshaws in Peechi Junction, Pattikkad, if the area is not an authorised area notified under the statutory provisions. One of the permit conditions is that the stage carriages mentioned therein should park only at the places mentioned in the permit. 11. Rule 156 of the Kerala Motor Vehicles Rules, 1989 enables the contract carriages to be stationed at the place specified in the permit. Though Kerala Panchayat Raj Act, 1994 and Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and Other Vehicle Stands) Rules, 1995 state that the area should be notified, in the case on hand, no materials have been placed before this court as to whether Peechi Road or Peechi Road Junction, as the case may be, has been notified **W.A.No.443 of 2020** **10** under the Kerala Panchayat Raj Act and the Rules made thereunder. Further, reading of the statutory provisions, Section 227 of the Kerala Panchayat Raj Act, 1994 makes it obligatory on the part of the Panchayat to notify. Section 227 of the Kerala Panchayat Raj Act, 1994 is reproduced hereunder: - “227. Public landing places and cart-stands, etc. - Subjects to such rules as may be prescribed, the Village Panchayat may – - (a) provide public landing places, halting places and cart-stands (including stands for animals and vehicles of any description) and levy fees for their use; and (b) Where any such place or stand has been provided, prohibit the use for the same purpose by any person, within such distance, thereof, any public place or the side of any public road as the Panchayat may, subject to the control of the Regional Transport Authority, specify: Provided that the previous sanction of the Regional transport Authority shall be obtained before any stand or halting place for motor vehicles is opened.” 12. Rules 3, 4, 5 and 6 of the Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and Other Vehicle Stands) Rules, 1995 speak, as to how an area has to be notified. Rules 3, 4, 5 and 6 read thus: “3. Panchayat to invite objections before providing public landing places, halting places, cart stands or other vehicle stands. — (1) A **W.A.No.443 of 2020** **11** Village Panchayat shall, if it intends to provide any public landing place, halting place, cart stand or other vehicle stand, publish a notice in the notice board of the Village Panchayat and in any prominent place in each of its constituencies requiring the public to raise objections regarding the same, if any, in writing within thirty days and publish the fact of such publication of notice in any two local daily newspapers in the regional language having wide circulation in that Village Panchayat. (2) The notice shall contain the survey number and the extent of the land in which it is intended to provide the landing place, halting place, cart stand, or other vehicle stand. 4. Village Panchayat to consider the objections. — The Village Panchayat shall, in cases where the approval of Regional Transport Authority is not required, consider the objections received from the public within the fixed day and dispose them within fifteen days. 5. Village Panchayat to obtain previous sanction of the Regional Transport Authority.— The Village Panchayat shall obtain previous sanction of the Regional Transport Authority before opening any public stand of halting place to motor vehicles. 6. Places which shall not be declared as halting places or cart stands. — A road or land abutting the road shall not ordinarily be declared as public halting place or cart stand: Provided that in particular cases, if it is of opinion that there is sufficient space for road, a halting place or cart stand may be provided in consultation with the authority with whom the road is vested.” 13. Rule 344 of the Kerala Motor Vehicles Rules, 1989 is also **W.A.No.443 of 2020** **12** ## relevant and the same is extracted: “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 of 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 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 in 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 **W.A.No.443 of 2020** **13** 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 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.” 14. From the permits enclosed in the paper book it could be seen that unless and until the Panchayat Authorities are consulted, the Regional Transport Officer would not mention the place of parking. Rule 156 of the Kerala Motor Vehicles Rules permits parking of the vehicles at the place mentioned in the permit. Holders of permit should be allowed to park vehicles however without causing any inconvenience to the public **W.A.No.443 of 2020** **14** or obstructing the shop owners. 15. It is made clear that the appellants, permit holders, can park the contract carriage vehicles at the place mentioned in the permit without causing hindrance to the public or obstructing the shop owners as the case may be. Traffic Regulatory Authority is directed to take appropriate steps as expeditiously as possible. With the above modification, writ appeal is allowed in part. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **15** ## **W.A.No.443 of 2020** ||**APPENDIX**|| |---|---|---| |**ANNEXURE A:**|**TRUE COPY OF THE INTERIM ORDER DATED**|| ||**17.12.2019 IN WPC 34515/2019.**|| |**ANNEXURE B:**|**TRUE PHOTOGRAPHS SHOWING**|**THE NATURE AND**| ||**LIE OF THE SHOP BUILDING.**|| |**ANNEXURE C:**|**TRUE COPY OF THE CONTRACT**|**CARRIAGE**| ||**PERMIT ISSUED TO THE AUTO**|**RICKSHAW**| ||**BEARING NO.KL-08-AU-4205.**|| |||**/TRUE COPY/**| |||**P.A. TO JUDGE**|