Hitha Mathai v. Regional Transport Officer, Civil Station, Tripunithura & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939** **WP(C).No. 23787 of 2017 (W) ---------------------------** **PETITIONER:** - **-----------** **HITHA MATHAI, W/O GIJO JOSE MATHEW, NADAPARAPURATH HOUSE, PUTHUPALLIPURAM, EDAPPLLY, ERNAKULAM - 682 024.** **BY ADV. SRI.K.R.SUNIL** ## **RESPONDENT(S):** - **--------------** **1. THE REGIONAL TRANSPORT OFFICER, CIVIL STATION, THRIPUNITHURA - 682 302.** **2. THE VADAVUCODE-PUTHENCRUZ GRAMA PANCHAYATH,** - **PUTHENCRUZ - 682613. REP.BY ITS SECRETARY.** **3. THE SUB INSPECTOR OF POLICE, KARIMUGAL POLICE STATION, KARIMUGAL - 682030.** *** ADDITIONAL R4 TO R7 ADDED** **4. KOCHUMON MATHEW KANDATHMATTATHIL HOUSE, KUTTA, KANINAD - 682 310.** **5. KURIAKOSE P.M, PARPILLIKUZHIYIL HOUSE, KUTTA, KANINAD - 682 310.** **6. SUNDARAN A.I.,** - **AREEPPARA HOUSE, KUTTA, KANINAD - 682 310.** **7. BIJU A.B., ATHAPPADATH HOUSE, KANINAD - 682 310.** **R4-R7 BY ADV. SRI.SAJI SANKARAN NAIR** **R BY GOVERNMENT PLEADER** *** ADDITIONAL RESPONDENTS 4 TO 7 IMPLEADED AS PER ORDER DATED 19.09.2017 IN I.A. NO.14393/17.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 23787 of 2017 (W)** ## **----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**PETITIONER(S)'**|**EXHIBITS**| |---|---|---| |**-----------------------**||| |**EXHIBIT P1**|**:**|**TRUE COPY OF THE BUILDING PERMIT NO.**| |||**A3/3289/73/2017 DATED 28/6/2017**| |**EXHIBIT P2**|**:**|**TRUE PHOTOGRAPHS SHOWING THE AUTORIKSHAW**| |||**EXCLUSIVELY BLOCKING THE PETITIONER'S PROPERTY.**| |**EXHIBIT P3**|**:**|**TRUE PHOTOGRAPHS SHOWING THE AUTORIKSHAW**| |||**EXCLUSIVELY BLOCKING THE PETITIONER'S PROPERTY.**| |**EXHIBIT P4**|**:**|**TRUE COPY OF THE REQUEST SUBMITTED BY RESPONDENT**| |**EXHIBIT P5**|**:**|**TRUE COPY OF THE REQUEST SUBMITTED BY RESPONDENT**| |**EXHIBIT P6**|**:**|**TRUE COPY OF THE REQUEST SUBMITTED BY RESPONDENT.**| |**RESPONDENT(S)'**||**EXHIBITS**<br>**-**<br>**NIL**| |**------------------------**||| |||**//TRUE COPY//**| **P.A. TO JUDGE** ww ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C) No.23787 of 2017 ----------------------------------------------Dated this the 13[th] day of November, 2017** ## **J U D G M E N T** This writ petition is filed by the petitioner seeking direction to respondents 1 to 3 to consider Exts.P4, P5 and P6 requests of the petitioner and to re-locate the present autorickshaw stand to any other suitable place determined by the said respondents in accordance with section 117 of the Motor Vehicles Act and the provisions of Kerala Panchyat Raj (Landing Places, building places, cart stands and other suitable stands) Rules, 1995. In that view of the matter section 117 of the Motor Vehicles Act is to be appreciated, which read thus: “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 W.P.(C) No. 23787 of 2017 2 necessary for the taking up and setting down of passengers.” 2. Material facts for the disposal of the writ petition are as follows; petitioner is the owner of 24 cents of land in Sy.No.82/8/2 of Puthencruz Village, Kunnathunadu Taluk, Ernakulam District. The property is situated at Kaninadu junction and by the side of Puthencruz-Kaninadu-Karimugal Main Road. On 28.6.2017, 2[nd] respondent sanctioned and issued a building permit for construction of a building admeasuring 776.78M[2] having three floors. It is also submitted that, the building is constructed with the financial aid and assistance of bank. However, when the petitioner along with the Engineer visited the site for preliminary preparatory works, certain autorickshaw drivers parking in front of the property objected the petitioner and informed that, construction of the commercial building is possible only subject to the retention of the autorickshaw stand by the side of the property. It is the submission of the petitioner that, autorickshaw parked by the side of the W.P.(C) No. 23787 of 2017 3 property of the petitioner is creating absolute obstruction. It is also contended that, various other areas are available to park the autorickshaws. Therefore, according to the petitioner, due to the parking of autorickshaws by the side of the petitioner's property continuously, petitioner is unable to utilize the property in a profitable manner in accordance with Ext.P1 building permit dated 28.6.2017, which has got a validity period of three years. Petitioner has produced Exts.P2 and P3 photographs for ready reference in order to establish the alleged obstruction created by parking of autorickshaws. Even though petitioner has submitted Ext.P4 before the 1[st] respondent, Ext.P5 before the 2[nd] respondent and Ext.P6 before the 3[rd] respondent, no results could be attained and thereupon that, petitioner has filed this writ petition. 3. A counter affidavit is filed by respondents 4 to 7, who are operating autorickshaws, in which the main contention advanced is that, respondents 4 to 7 are earning their W.P.(C) No. 23787 of 2017 4 livelihood from the income received from plying the autorickshaws and the entire family of the said respondents are dependent on them for the livelihood. That apart it is stated that, no manner of obstruction is created for the petitioner from carrying out any construction activities in his property and therefore, the said respondents seek dismissal of the writ petition. 4. I have heard learned counsel for petitioner,learned Senior Government Pleader, learned counsel appearing for the 2[nd] respondent, counsel appearing for respondents 4 to 7 and perused the pleadings and documents on record. 5. The sole question to be considered is whether petitioner is entitled to get any relief as is sought for. There is no dispute for any of the respondents that, petitioner is the owner of the property specified in the writ petition and the petitioner has secured Ext.P1 permit from the 2[nd] respondent Panchayat for construction of a three storied building, having a plinth area of 776.78 M[2] . Since the W.P.(C) No. 23787 of 2017 5 petitioner is the owner of the property, it is an undisputed aspect in law that, petitioner is entitled to get access to his property from every point of a road. The said issue was considered by a learned Single Judge of this court in **Joseph v. District Magistrate** [1996 (2) KLT 490] and held that, the taxi operators, who are engaged in their business cannot be permitted to park the taxi in front of the workshop of the petitioner therein and further that, petitioner has a right to secure entry to the National Highway from all points. Learned counsel for petitioners invited my attention to the judgments of this court in **Abdurahiman v. Vengara Grama Panchayat** [2001(2)KLT SN 85(C.No.107) and **Abdurahman v. Tribunal for Local Self Government Institutions** [2006(3)KLT SN 47(C.No.66) to canvass the proposition that, opening of bus stand is impermissible except after the previous sanction of the RTA is obtained and further that, sanction of authority should be sought on the proposal mooted by Panchayat before construction is started. W.P.(C) No. 23787 of 2017 6 That apart the judgment in **Rajesh v. Bharananganam Grama Panchayat** [2013(1)KLT 426] is pressed into service to substantiate the point that, though Panchayat has power to establish autorickshaw stands, such power does not include the power to restrict entry and parking of autorickshaws from residents outside Panchayat area. 6. Having regard to the facts and circumstances of the case, I think it is only appropriate that, 1[st] and 2[nd] respondents are directed to take a decision in Ext.P4 representation submitted by the petitioner, after convening a joint meeting in the office of the 1[st] respondent and providing an opportunity of hearing to the petitioner as well as respondents 4 to 7. Accordingly I do so. I make it clear that, from the proposition of law laid down by this court in the judgements specified supra, it is evident that, the autorickshaws cannot be parked by blocking entry into the property of the petitioner. This shall be born in mind while considering the directives W.P.(C) No. 23787 of 2017 7 contained above. A finality shall be attained to the issue within six weeks from the date of receipt of a copy of this judgement. I also make it clear that, if there is sufficient space, in accordance with the Rules, on the opposite side of the petitioner's property or anywhere else, respondents 1 and 2 will be at liberty to permit the autorickshaws to be parked there. Any how the decision shall be taken only in accordance with law. Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 13.11.2017