Johny Stany v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 24TH DAY OF JANUARY 2014/4TH MAGHA, 1935** ## **WP(C).No. 26252 of 2013 (F)** **----------------------------** ## **PETITIONER:-** **-------------------------** **JOHNY STANY, S/O.STANY SLAVOS, NELLIPUZHA HOUSE, KIDANGOOR VILLAGE, KOTTAYAM, PROPRIETOR, JEWEL PARK, KARUKACHAL.** **BY ADVS.SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN** ## **RESPONDENT(S) :-** **-----------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE REGIONAL TRANSPORT OFFICER, CHANGANACHERRY.PIN-686 101** **3. THE SECRETARY, KARUKACHAL GRAMA PANCHAYAT, KARUKACHAL,** **KOTTAYAM.PIN-686 001** **4. THE SUB INSPECTOR OF POLICE, KARUKACHAL, KOTTAYAM.PIN-686 001** - ***ADDL.R5 TO R8 IMPLEADED** - ***ADDL.R5: BHARTIYA MAZDOOR SANGH(BMS), NSS KARAYOGAM BUILDING, CENTRAL JUNCTION, KARUKACHAL, KOTTAYAM DISTRICT.** - ***ADDL.R6: CENTRE OF INDIAN TRADE UNIONS (CITU), BEHIND SHAH THEATER, KARUKACHAL, KOTTAYAM DISTRICT.** **2/-** **sts** **-2-** ## **WP(C)NO.26252/2013** ***ADDL.R7: INDIAN NATIONAL TRADE UNION CONGRESS(INTUC), OPP.POLICE STATION, KARUKACHAL, KOTTAYAM DISTRICT.** ***ADDL.R8: ALL INDIA UNION CONGRESS (AITUC), CHURCH BUILDING, CENTRAL JUNCTION, KARUKACHAL, KOTTAYAM DISTRICT.** ***ADDL.R5 TO R8 ARE IMPLEADED AS PER ORDER DATED 24/01/2014 IN IA.NO.15826/2013** **R1,R2 & R4 BY GOVERNMENT PLEADER SMT. R.REMA R3 BY ADV. SRI.C.S.MANILAL ADDL.R5 TO R7 BY ADV. SRI.SURIN GEORGE IPE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 26252 of 2013 (F)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **EXHIBIT P1. TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED IN FAVOUR OF THE PETITIONER BY COMMERCIAL TAX OFFICER, 2ND CIRCLE, CHANGANACHERRY.** - **EXHIBIT P2. PHOTOGRAPHS SHOWING THE PARKING OF AUTORICKSHAWS IN FRONT OF THE PETITIONER'S SHOP ROOM.** - **EXHIBIT P3. TRUE COPY OF THE REPRESENTATION DATED 03.07.2013 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS.** - **EXHIBIT P4. TRUE COPY OF THE DECISION REPORTED IN 1996 (2) KLT 490.** - **EXHIBIT P5. PHOTOGRAPH TAKEN ON 6/12/2013 SHOWING THAT THE PARKING OF AUTORICKSHAWS IN FRONT OF THE PETITIONER'S JEWELLERY.** - **EXHIBIT P6. TRUE COPY OF THE APPLICATION DATED 13/12/2013 UNDER RTI ACT SUBMITTED BY THE PETITIONER.** - **EXHIBIT P7. TRUE COPY OF THE REPLY DATED 3/1/2014 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** ## **RESPONDENT(S)' EXHIBITS** **----------------------------------------** ## **EXHIBIT R5(A) TRUE COPY OF THE RESOLUTION DATED 7/6/2002 OF THE 3RD RESPONDENT PANCHAYAT** - **EXHIBIT R5(B) PHOTOGRAPHS SHOWING THE PARKING OF AUTORICKSHAWS N THE BUS STAND PARKING STAND** **EXHIBIT R5(C) TRUE COPY OF THE CERTIFICATE ISSUED BY THE MEMBER OF THE PANCHAYAT DATED 30/11/2013** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **K.VINOD CHANDRAN, J.** ............................................................... WPC No.26252 of 2013 ............................................................... Dated this the 24th day of January 2014 ## Judgment The petitioner is aggrieved by the alleged illegal parking of auto-rickshaws in front of the jewellery shop of the petitioner, causing obstruction to the ingress and egress into the shop. The petitioner contends that there is no auto rickshaw stand prescribed by either the local authority or the Regional Transport Authority in the premises in front of the petitioner's shop and that the parking of auto- rickshaws is carried on by the members of the respondent union in gross violation of law and causing hindrance to the business of the petitioner. 2. The petitioner relies on the decisions of this Court **M.O.Joseph v. District Magistrate** (1996(2) KLT 490) and **Chandran v. District Collector** (2013(3) KHC 53). The petitioner also relies on the communication received by the petitioner from the Regional Transport Authority under the Right to Information Act, which is produced as Ext.P7 along with the reply affidavit. WPC No.26252 of 2013 2 3. The respondent Unions have filed a counter affidavit, wherein they rely on Ext.R5(a) which indicates the decision of the Grama Panchayat in 2002, deciding upon three auto rickshaw stands, one of which is said to be in front of the petitioner's shop. The respondents also rely on a photograph produced by them and contend that the auto rickshaws are parked, leaving sufficient space for the ingress and egress into the nearby establishments. 4. As noticed in **Chandran** (supra) under Section 117 of the Motor Vehicles Act 1988, the State Government is empowered to determine the places at which auto rickshaws and taxis can be parked in consultation with the local authority. Rule 344 of the Motor Vehicles Rules, 1989 empowers the Regional Transport Authority to exercise such functions in consultation with the local body and the Superintendent of Police. Ext.R5(a) can, at best, be recommendatory and cannot bind the Regional Transport Authority. It is also to be noticed that the decision produced as Ext.R5(a) is of 2002 and none has thought it fit to move the concerned RTA for any orders determining the parking stand for auto rickshaws. WPC No.26252 of 2013 3 ## 5. The learned Government Pleader has handed over the instructions of the Joint Regional Transport Officer, Changanacherry, which reads as under : “I may request your kind attention to the reference cited. The above WPC is filed against Auto Rickshaws unauthorisedly parked in front of petitioner's shop at Karukachal. In this regard, I may inform that at present there is no approved auto rickshaw stand in Karukachal Panchayat. Auto rickshaw stands are approved by the RTA board on recommendation of concerned local bodies. Karukachal has not made any proposal for auto rickshaw stands. Various complaints from Merchants Association Karukachal have been received alleging illegal parking. The matter has been taken up with Karukachal Panchayat Traffic Regulatory Committee and the stands are not yet finalised. However, frequent checking is being conducted at Karukachal. Directions have been already issued to auto rickshaw drivers as well as trade unions not to park auto rickshaws hindering pedestrians and merchants.” 6. In the circumstances of the specific stand of the Government that there is no approved auto rickshaw stand in Karukachal panchayat, respondents 5 to 8 cannot be allowed to park auto rickshaws causing hindrance to the business establishment in the commercial building on the road side. In such WPC No.26252 of 2013 4 circumstance, it is for the 4th respondent is duty bound to avert any such illegal activities, especially taking into consideration the fact that the same causes hindrance to the business and prevents the ingress and egress into such business establishments. However, it shall be open for the respondents 5 to 8 to approach the appropriate authorities for approving the auto-rickshaw stands in the Panchayat area. The writ petition is hence allowed with the above observations. No costs. **K.VINOD CHANDRAN, JUDGE** sta WPC No.26252 of 2013 5