Jomol Mathew; Abraham Philipose; Thomas Philip v. District Police Chief, The Sub Inspector of Police, The Secretary, Kottayam Municipality, Saji Abraham Thakidiiyil House

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 10TH DAY OF APRIL, 2019/20TH CHAITHRA, 1941** ## **WP(C).No. 9041 of 2019** ## **PETITIONERS:** - **1 JOMOL MATHEW, AGED 57 YEARS PUTHANPARMBIL HOUSE, CHINGAVANAM P.O, KOTTAYAM.** - **2 ABRAHAM PHILIPOSE, PUTHANPARAMBIL HOUSE, CHINGAVANAM P.O, KOTTAYAM.** - **3 THOMAS PHILIP, VALLIKKAPARAMBIL HOUSE, CHINGAVANAM P.O, KOTTAYAM.** **BY ADVS.** **SRI.MATHEW JOHN (K) SRI.ABY J AUGUSTINE SRI.MATHEW DEVASSI** ## **RESPONDENTS:** - **1 THE DISTRICT POLICE CHIEF, COLLECTORATE P.O, KOTTAYAM.** - **2 THE SUB INSPECTOR OF POLICE, CHINGAVANAM- 686 001.** - **3 THE SECRETARY KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM- 686 001.** - **4 SAJI ABRAHAM THAKIDIYIL HOUSE, MOOLANKULAM, CHINGAVANAM P.O,** WP(C) NO.9041 OF 2019 :-2-: ## **KOTTAYAM- 686 001.** **BY ADVS. R4 BY SRI.LIJI.J.VADAKEDOM R3 BY SRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY** ## **OTHER PRESENT:** **R1 AND R2 BY SR.GP SRI.P.N.SANTHOSH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 10.04.2019, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** WP(C) NO.9041 OF 2019 :-3-: ## **WP(C).NO.9041 OF 2019** ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** The petitioners have filed this writ petition seeking the following reliefs:- - “i. Issue a writ in the nature of Mandamus or any other order or direction commanding respondents 1 to 3 to take immediate steps to remove the unauthorizedly parked autorickshaws in front of the shops of the petitioners, preventing the entry from the shops to the M.C.road on the east. - ii. Issue a writ in the nature of Mandamus or any other order commanding respondents 1 to 3 to take immediate action on Exts.P2 to P5 representations and remove the unauthorized parking of autorickshaws in front of the shops of the petitioners, preventing the ingress and egress from the shops to the M.C.Road on the east.” 2. Heard the learned counsel for the petitioner, Sri.P.N.Santhosh, the learned Senior Government Pleader appearing for respondents 1 and 2, Sri.Siby Chenappady, the learned Standing Counsel for R3 and Sri.Liji.J.Vadakkedom learned counsel for the fourth respondent. 3. The first petitioner is a licencee of M/s.Beauty Centre mainly engaged in the business of gift items as well as fancy items. The first WP(C) NO.9041 OF 2019 :-4-: petitioner has been running the said business in the present premises on the eastern side of the M.C.Road abutting the public road. Second petitioner is a glass merchant and he has been conducting a shop under the name and style 'Anurag Glass House' in the room adjoining the shop run by the first petitioner. The third petitioner has been running a footwear shop under the name and style 'Tossy Footwear' in the shop adjacent to the shop belonging to petitioners 1 and 2. The first petitioner's residential house is situated on the rear side of the aforementioned shops. According to the first petitioner, only way to gain access to the house is through the opening from the M.C.Road to the residential compound, which could be evident from Ext.P1 rough sketch submitted along with the writ petition. It is alleged that regular parking of autorickshaws in front of the shop rooms are causing obstruction to the free ingress and egress to their shops and houses from the road. Hence, the petitioners filed Ext.P3 complaint before the first respondent for the removal of parking of autorickshaws by the party respondents in front of the petitioner's shoprooms and houses virtually blocking free ingress and egress to the petitioner's shoproom and houses. The first petitioner approached the third respondent- WP(C) NO.9041 OF 2019 :-5-: Municipality and on a querry made before the third respondent under the Right to Information Act. the third respondent issued Ext.P2 information stating that no authorised stand is permitted in front of the petitioner's shop rooms. Feeling aggrieved by the unauthorised parking of autorickshaws in front of the shops and houses of the petitioners, virtually blocking their free ingress and egress, the petitioners submitted Exts.P4 and P5 complaints before the respondent 2 and 3 to render adequate police protection for not blocking their free ingress and egress to the shops and houses respectively. 4. The fourth respondent filed counter affidavit contending that there exists a tiled footpath in between the tarred road portion of the MC Road and the business establishment of the petitioner. In the said circumstances, it is stated that the entry from the properties of the petitioners is to the footpath which is not obstructed in any manner as it is alleged in the writ petition. Ext.R4(a) photographs are produced to show the location of the shops owned by the petitioners and the footpath passing in front of the said shoprooms. Hence, it is stated that no autorickshaws or other vehicles being parked in the zebra line. It is further stated WP(C) NO.9041 OF 2019 :-6-: that entry to the residential building at the first petitioner from the M.C.Road is a walk way which is evident from Ext.R4(b) photograph. It is further stated that the fourth respondent and other autorickshaw drivers are driving the autorickshaws for their livelihood. 5. The question arising for consideration in this case is as to whether the owners in possession of the shoprooms and houses adjoining the MC road have a right to go upon the road from any point from their shoprooms, houses especially when there is a public road; and if that right is obstructed by anyone, the owners in possession of the shoproom and houses are entitled to maintain an action for the injury, no matter whether the obstruction does or does not constitute a public nuisance. 6. Learned counsel for the party respondents contended that the particular road on which the parking complained of has been constructed as a public road and there exists a tiled foot path in between the tarred potion of the MC road and the business establishment of the petitioner, and hence, no person has exclusive right to claim right over a footpath under any circumstance. According to the party respondents, the petitioners have no right to object to the parking of autorickshaws WP(C) NO.9041 OF 2019 ## :-7-: without causing obstruction to the ingress and egress to the shoprooms or to the residential building of the petitioners. 7. The contention set forth above raises important questions of law and fact and it is necessary to examine various judgments of the Apex Court and this Court in detail. 8. In **Municipal Committee** v. **Mohammad Ibrahim** [AIR 1935 Lah 196], **Sheonarayan** v. **Dindayal** [AIR 1931 Nag 189], **Mandakinee Debee** v. **Basantakumaree Debee** [AIR 1933 Cal.884] **Patna City Municipality** v. **Dwarka Prasad Singh and Others** [AIR 1939 Pat 683], **Damodara Naidu and Others** v. **Thirupurasundari Ammal and Others** [AIR 1972 Madras 386], **Tanoor Panchayat** v. **Kunhiamutty** [1978 KLT 813], **Joseph** v. **District Magistrate** [1996 (2) KLT 490], **Ummer Farookh** v. **Station House Officer and others** [2014(1) KHC 317] (DB) , **Jayaprasad** v. **State of Kerala** [2018(2) KLT SN 47 (C. No.56) (DB) and **Noushad.M. And others** v. **the State of Kerala and others** [the judgment dated 22.2.2019 in WP(C) No.382 of 2019], while considering the right of the owner of the land adjoining the public road,it was held by various High Courts and Supreme Court that when there is a public pathway, the owners of the land adjoining highway have a right to go WP(C) NO.9041 OF 2019 :-8-: upon the highway from any point on their land and if that right is obstructed by anyone, the owner of the land abutting the highway is entitled to maintain an action for the injury whether the obstruction does or does not constitute a public nuisance. 9. Going by the above legal precedents, it is clear that permitting the private respondents to park autorickshaws unauthorisedly in front of the shoprooms and house 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 of the petitioners' house and shoprooms on the side of the highway is an appropriation of their private right to have free access to the highway. 10. One of the contentions advanced by the learned counsel for the petitioners is that the statutory authorities have failed to discharge their duty by establishing authorised parking area without causing difficulty to the general public. In this connection, we deem fit and proper to consider the various provisions relating to rules for prescribing stands for taxis and other vehicles. 11. We will briefly refer to the statutory WP(C) NO.9041 OF 2019 :-9-: provisions governing the context. As per Section 117 of the Motor Vehicles Act,1988, 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 vehicle may stand either indefinitely or for a specified period of time and determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers. Going by Section 117 of the Motor Vehicles Act and Rule 344 of the Kerala Motor Vehicles Rules, 1989, it is within the realm of the third respondent to determine the location of a parking place for autorickshaws/taxis in consultation with the statutory authorities. Section 72 (1) of the Kerala Police Act mandates Traffic Regulatory Committees in every Grama Panchayat, Municipality and Corporation for regulating matters in respect of traffic. Section 72 (2) of the Kerala Police Act provides that the concerned head of the Local Government Institution shall be the Chairman of the Traffic Regulatory Committee and the nominees of the District Magistrate, the District Police Chief, the Regional Transport Officer and the Executive Engineer of the WP(C) NO.9041 OF 2019 :-10-: Public Works Department shall be the members of the said committee. Section 72(3) provides that the Traffic Regulatory committee shall issue orders, not inconsistent with the provisions of the Motor Vehicles Act,1988 and the Kerala Road Safety Act,2007 and the rules made thereunder, for preventing danger, obstruction and inconvenience caused to the general public in respect of traffic in the matters provided under sub-sections (3) (a) to (3)(g) of Section 72. 12. Judged by the above standards, we are of the considered view that the petitioners are entitled to have access to M.C. road abutting their shoprooms and houses free of any obstruction. In view of the discussion made hereinabove, the writ petition is disposed of as indicated hereinbelow:- - 1) There will be a direction to the second respondent to give adequate and effective police for carrying out business in the petitioners' shop rooms and the house referred to above by stopping the illegal parking of the autorickshaws and others in front of the petitioner's shop room and houses on the side of the MC road. - 2)The 3[rd] respondent is directed to constitute a Traffic Regulatory Committee in accordance with S72 of the Kerala Police Act within two weeks form the date of receipt of a WP(C) NO.9041 OF 2019 ## :-11-: ## copy of this judgment. - 3) The 3[rd] respondent is directed to determine the location of parking place for autorickshaws in consultation with District Police Chief and Regional Transport Authority within four months from the date of receipt of a copy of this judgment. 4) Until a decision is taken by the competent authority, two autorickshaws at a time shall be permitted to park in the existing parking place, for the time being, to assist the general public subject to any other decision taken by the Regional Transport Authority in consultation with the local authority. It is made clear that the area where the autorickshaws are parked, only two autorickshaws can be parked. We also make it clear that this temporary arrangement of parking of two autorickshaws at a time shall not give them any right to claim parking as of right, in the said area. The writ petition is disposed of as indicated herein above. Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- ## **N.ANIL KUMAR** , MBS/ JUDGE WP(C) NO.9041 OF 2019 :-12-: ## **APPENDIX** **PETITIONERS' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE SKETCH EXHIBIT P2 TRUE COPY OF THE INFORMATION NO.NPWI5324/18 DATED 12.11.2018 ISSUED BY THE PUBLIC INFORMATION OFFICER EXHIBIT P2 - TRUE COPY OF THE ENGLISH TRANSLATION OF THE INFORMATION NO. NPW1-5324/18 DATED 12.11.2018 ISSUED BY THE PUBLIC INFORMATION OFFICER** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 7.2.2019 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXHIBIT P3. TRUE COPY OF THE ENGLISH TRANSLATION OF REPRESENTATION DATED 7.2.2019 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 7.2.2019 SUBMITTED BY THE 2ND PETITIONER BEFORE THE IST RESPONDENT EXHIBIT P4:TRUE COPY OF THE ENGLISH TRANSLATION OF REPRESENTATION DATED 7.2.2019 SUBMITTED BY THE 2ND PETITIONER BEFORE THE IST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 7.2.2019 SUBMITTED BY THE 3RD PETITIONER BEFORE THE IST RESPONDENT EXHIBIT P5: TRUE COPY OF THE ENGLISH TRANSLATION OF REPRESENTATION DATED 7.2.2019 SUBMITTED BY THE 3RD PETITIONER BEFORE THE IST RESPONDENT** EXHIBIT P6: PHOTOGRAPH SHOWING THE PARKED VEHICLES IN THE SHED BEHIND THE KITCHEN. EXHIBIT P7: TRUE COPY OF THE NOTICE ISSUED BY THE SECRETARY OF THE KOTTAYAM MUNICIPALITY DATED 30.3.2019 TO THE CONVENER OF THE AUTORICKSHAW DRIVERS UNION. EXHIBIT P8: PHOTOGRAPH SHOWING THE UNAUTHORIZED PARKING OF THE AUTORICKSHAWS. WP(C) NO.9041 OF 2019 :-13-: RESPONDENTS' EXHIBITS: EXT.R3(A): TRUE COPY OF THE NOTICE DTD.30.3.2019 ISSUED BY THE 3RD RESPONDENT. EXT.R4(a): TWO PHOTOGRAPHS SHOWING THE LOCATION OF THE SHOPS OWNED BY THE PETITIONERS AND THE FOOTPATH PASSING IN FRONT OF THE SAID SHOPS. EXT.R4(b): PHOTOGRAPHS SHOWING THE ENTRY OF THE WALKWAY LEADING TO THE RESIDENTIAL BUILDING OF THE 1ST PETITONER. EXT.R4(c): TRUE COPY OF THE TWO PHOTOGRAPHS SHOWING THE GATE IN THE RESIDENTIAL COMPOU D OF THE 1ST PETITONER AND THE ROAD LEADING THERETO. EXT.R4(d); TRUE COPY OF THE PHOTOGRAPHS SHOWING THE SAID ENTRY. EXT.R4(f): THE COPY OF THE CONTRACT CARRIAGE PERMIT ISSUED TO ONE SURENDRAN WITH RESPECT TO VEHICLE NO.KL05 AG 332. EXT.R4(g): THE COPY OF THE CONTRACT CARRIAGE PERMIT ISSUED TO ONE ANIL KUMAR.V. WITH RESPECT TO VEHICLE NO.KL 05 AF 7376.