K.K. Kumaran and others v. Nileshwar Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 15TH DAY OF NOVEMBER 2018 / 24TH KARTHIKA, 1940** ## **WP(C).No. 5238 of 2017** ## **PETITIONER/S:** - **1 K.K.KUMARAN, SECRETARY, SRI. ANJOOTTAMBALAM VEERARKAVU DEVASWOM, THERU, NILESHWAR P.O., KASARAGOD DISTRICT, PIN. 671314.** - **2 K. K. BALAKRISHNAN, S/O K.K. KORAN, HOUSE NO.2/775A (OLD NO), THERU, NILESHWAR P.O., KASARAGOD DISTRICT, PIN. 671314.** - **3 P.V. SREEDHARAN, P.V RAMAN, HOUSE NO.32/886, THERU, NILESHWAR P.O., KASARGOD DISTRICT, PIN. 671314.** - **4 K.K. NARAYANAN, S/O V. KUNJAMBU, HOUSE NO.32/553, SETHARA, THERU, NILESHWAR P.O., KASARAGOD DISTRICT,PIN. 671314.** - **5 T.K. KARUNAKARAN, S/O C.K. KRISHNAN, KEDAR, HOUSE NO.32/545, THERU, NILESHWAR P.O., KASARAGOD DISTRICT, PIN. 671314.** - **6 K.K. RADHA, W/O LAKSHMANAN T.I, HOUSE NO. 32/695, THERU, NILESHWAR P.O., KASARAGOD DISTRICT,PIN. 671314.** - **7 P.C. PREMACHANDRAN, S/O P.C CHANDU, HOUSE NO. 32/711, THERU, NILESHWAR P.O., KASARAGOD DISTRICT, PIN -671314.** **BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN** ## **RESPONDENT/S:** **1 NILESHWAR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, NILESHWAR, KASARAGOD DISTRICT,PIN. 671314.** W.P.(C) No.5238 of 2017 2 **2 THE SECRETARY, NILESHWAR MUNICIPALITY, KASARGOD DISTRICT, PIN. 671314. 3 THE DISTRICT COLLECTO,R KASARAGOD, PIN. 671 121. 4 THE CIRCLE INSPECTOR OF POLICE, NILESHWAR, KASARAGOD DISTRICT. PIN. 671314. BY ADVS. R1 & R2 BY SRI.M.SASINDRAN, SC, NILESHWAR MUNICIPALITY SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU R3 & R4 BY SMT. RAJI T.BHASKAR, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.5238 of 2017 3 ## **JUDGMENT** This writ petition is filed by the petitioners seeking a writ of mandamus commanding respondents 1 and 2 not to insist on diverting heavy vehicles or traffic through Weavers Street, Nileshwar, Kasaragod District, without sanction from competent authority in accordance with law, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioners are residents of 'Saliya Theru', Nileshwar within the limits of the 1[st] respondent Municipality. According to the petitioners, the said street connecting Raja Road and the National Highway-66 is a very narrow one, and on either side of the street, people reside, however, there is no foot-path or drainage on the street. Except two wheelers and light motor vehicles, no other vehicles use the said street. Therefore, according to the petitioners, the street is unfit for heavy vehicles or traffic and there is no fitness certificate also for the street. 3. However, recently, buses and other vehicles started entering the street, and on enquiry, petitioners were informed that the Chairman of the Municipality, W.P.(C) No.5238 of 2017 4 without any formal decision of the Municipal Council, is attempting to divert the traffic through the street. Case of the petitioners is that, the only competent authority to divert traffic, for valid reasons, is the Regional Transport Authority, which is the statutory functionary under the Motor Vehicles Act. So much so, the Municipalities Act does not empower either the Municipality or the Chairman to order diversion of traffic, and that too, on a road which is not certified as fit. Therefore, according to the petitioners, the illegal diversion of the traffic is resulting in extreme hardship to the residents of the street and is a threat to their life. Even though representations were submitted before the authorities, it did not attain any result. It is in the said background, this writ petition is preferred. 4. Respondents 1 and 2 have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, the Municipality having deliberated the issue pertaining to the acute traffic congestion in the town limits, proposed one-way traffic through the main Raja road towards bus stand from the National Highway, and divert the traffic from Bus Stand W.P.(C) No.5238 of 2017 5 to National Highway through the 'Theru' road, which is also a major road having length of 800 metres and 6 metres width. It is also pointed out that, the features of the said road is shown in the Asset Register produced as Ext.R1(a). The said suggestion among others was placed for consideration by the Traffic Regulatory Committee constituted in terms of the Government Order bearing G.O.(MS) No.2861/Home dated 24.09.2011, evident from Ext.R1(b). The meeting held on 01.10.2016 was attended by the Chairperson of the Municipality, Motor Vehicles Inspector and Circle Inspector of Police, and resolved to implement the one-way system as proposed, evident from Ext.R1(c). The aforesaid traffic regulation was thus implemented with effect from 09.01.2017, which has produced results on the expected lines, thereby removing traffic blocks affecting normal plying of the vehicles through the main road to a larger extent. The Committee again in its meeting held on 30.01.2017 reviewed the working of the traffic system and upon being satisfied of the results, decided to continue the said measure, evident from Ext.R1(d). 5. The diversion of traffic through 'Theru road' was made, keeping in view the relevant factors and public interest and the tarred portion of the road is having a W.P.(C) No.5238 of 2017 6 width of 4.15 to 4.40 metres, and it is fit to take heavy vehicles and stage carriages. The said street was recently re-metalled to facilitate smooth conveyance. It is also pointed out that, the area on either side of the 'Theru' is not an exclusive residential area as contended, and further that the Municipality has sanctioned a project for renovation of 'Theru road', to make it a bus bay for permanent solution to the traffic problem being faced by the public, and the sketch drawn is Ext.R1(e). 6. That apart, it is stated that, the fitness certificate required in terms of the Rules envisages for grant of permit and this requirement of law has no application in relation to exercise of traffic regulation by the Committee in exercise of powers conferred on it by virtue of Ext.R1(b) Government Order. Therefore, according to the Municipality, the action of the Municipality does not suffer with any illegality or unreasonableness, and it is with the intention of protecting public interest, such a decision was taken by the Municipality. 7. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition and has also produced additional documents along with the W.P.(C) No.5238 of 2017 7 same, which includes the intelligence report obtained by the residents of the locality under the Right to Information Act, marked as Ext.P10. 8. Respondents 1 and 2 have also filed an additional affidavit and has produced additional documents along with the same, including Ext.R1(i) minutes of the meeting of the Traffic Regulatory Committee held on 14.09.2018. 9. I have heard Sri. Sreedhar Ravindran, learned counsel for the petitioners, Sri. M. Sasindran, learned Standing Counsel for the Municipality and Smt. Raji T. Bhaskar, learned Government Pleader appearing for respondents 3 and 4. Perused the documents on record and the pleadings put forth by the respective parties. 10. The sum and substance of the contention advanced by learned counsel for the petitioners is relying upon Section 115 of the Motor Vehicles Act, 1988 [for brevity, 'the Act, 1988']. According to the petitioners, the power to restrict the use of vehicles is to be exercised by the authority in contemplation of Sec.115 of the Motor Vehicles Act, 1988, which read thus: _**“115. Power to restrict the use of vehicles.** -- The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification_ W.P.(C) No.5238 of 2017 8 _in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under Section 116 at suitable places:_ _Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction.”_ 11. So also, learned counsel pointed out that, Rule 336 of the Kerala Motor Vehicles Rules, 1989 [for brevity, 'the Rules, 1989'] deals with use of Heavy/Motor Vehicles, which read thus: _**“336. Use of Heavy/Motor Vehicles** .--(1) Restrictions of roads or areas regarding.-Government or the State Transport Authority may in consultation with the Public Works Department and such other Local Authority as is deemed necessary, approve a list of roads or areas in the State fit for operation by heavy goods vehicles or heavy passenger motor vehicles._ _(2) Issue of permits for.-- The State or any Regional Transport Authority shall not issue a permit for regular operation of any heavy goods vehicles or heavy passenger vehicles on any road or area, which is not included in the list referred to in sub-rule (1):_ _Provided that the above restriction shall not apply in the case of temporary permits issued by any Transport Authority for a limited number of trips on any road or area, not prohibited under Section 115 of the Act:_ W.P.(C) No.5238 of 2017 9 _Provided further that temporary permits may be issued by any Transport Authority on any road or area prohibited under Section 115 of the Act on specified sanction from the Government, or in the case of vehicles engaged for public works on the recommendation of the Executive Engineer of the Roads, subject to such restrictions and conditions as may be imposed by the Transport Authority.”_ 12. Therefore, according to the petitioners, except the exceptions provided under Sec.115 of the Act, 1988 and the Rules, 1989, the requirement under the provisions of law is that, the restriction shall only be made by the authority contemplated under the aforesaid provisions and the Municipality is not vested with any powers to regulate the traffic by imposing a one way. It is also pointed out that, the Municipal Chairman or the Municipality is not empowered to assume powers from the aforesaid provisions of the Act and the Rules, and then impose restrictions and regulations on the traffic. According to the learned counsel, the street in question is a very narrow one and residential buildings are situated on either side of the road, and therefore, it is not a suitable one for taking heavy traffic. It is also pointed out that, there is no certification to the street to contain heavy traffic. It is also pointed out that, even if the road is maintained under ordinary circumstances by the Municipality, that by itself will not confer any power or authority to the Chairman or the 10 W.P.(C) No.5238 of 2017 Municipality to take its own decision to divert traffic through the street. It is also amply clear, submits learned counsel, that no efforts were made by the Government or the State Transport Authority to have any consultation with the Public Works Department and then implement the traffic regulations. The sum and substance of the contention advanced by the learned counsel is that, the power exercised by the Chairman/ Municipality to have a one-way traffic, by its own decision, is arbitrary and illegal and does not pass the muster of the law provided under the Motor Vehicles Act. 13. Learned Standing Counsel for the Municipality, on the other hand, invited my attention to the judgment of a learned Single Judge in ' _**Pathanamthitta District Private Bus Operators' Association (Ranni Unit) and**_ _**Another v. Traffic Regulatory Committee, Pathanamthitta**_ _**and Others'**_ [2014 (4) KHC 21], and contended that, the issue raised by the petitioners is considered by this Court in the afore-quoted judgment. Moreover, it is submitted that, the Traffic Regulatory Committee under the provisions of the Kerala Police Act have taken into account all these aspects and has entered into decisions in order to regulate the traffic so as to avoid any traffic congestion, and to protect the larger interest of ## W.P.(C) No.5238 of 2017 ## 11 the public. It is also pointed out that, the Traffic Regulatory Committee is constituted in accordance with the Government notification dated 24.09.2011, evident from Ext.R1(b), and therefore, when a decision is taken by the Traffic Regulatory Committee, evident from Ext.R1(c), it cannot be said that the decision so taken by the Traffic Regulatory Committee is in any manner illegal. 14. Further, learned counsel also submitted that, the question with respect to the power conferred under Sec.22 of the Kerala Police Act, 2011 _vis-a-vis_ Sec.115 of the Motor Vehicles Act was also taken note of by this ## Court in **'Pathanamthitta District Private Bus Operators'** **Association'** case ( _supra_ ), and has held that, Traffic Regulatory Committee would be justified in introducing one-way traffic if situation demands. However, RTA can consider request for variation of timings, in view of the introduction of one-way traffic. Therefore, according to the learned Standing Counsel for the respondents, the reliefs sought for by the petitioners can never be sustained under law. 15. I have evaluated the rival contentions advanced by the respective counsel. It is evident from Sec.115 of Act, 1988, that the State Government is vested with W.P.(C) No.5238 of 2017 12 powers under Act either by itself or to authorise any authority if satisfied that it is necessary in the interest of public safety or convenience or because of the nature of any road or bridge by notifying it in the Official Gazette, prohibit or restrict subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road. The only exception provided thereunder is that, where any prohibition or restriction is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction. 16. Therefore, it is clear and evident that the only exception from the rigour of Sec.115 of Act, 1988 is temporary regulation of traffic, for which, no Gazette publication is required, however, by making sufficient local publicity. So is the case with Rule 336 of the Kerala Motor Vehicles Rules, 1989, which stipulates that, Government or the State Transport Authority may in consultation with the Public Works Department and such W.P.(C) No.5238 of 2017 13 other Local Authority as is deemed necessary, approve a list of roads or areas in the State fit for operation by heavy goods vehicles or heavy passenger motor vehicles. Sub-rule (2) therein deals with issue of permits, which states that, the State or any Regional Transport Authority shall not issue a permit for regular operation of any heavy goods vehicles or heavy passenger vehicles on any road or area, which is not included in the list referred to in sub-rule (1). However, the restrictions contained under sub-rules (1) and (2) are relaxed to the extent that, restriction shall not apply in the case of temporary permits issued by any Transport Authority for a limited number of trips on any road or area, not prohibited under Sec.115 of the Act. 17. Therefore, the exceptions are only as per the proviso contained under Sec.115 of Act, 1988, and the proviso contained under Rule 336(2) of the Rules, 1989. There is no case for the respondents that any such exercise is undertaken by the statutory authorities, in order to regulate the traffic, consequent to the decision taken by the Municipality. Learned Standing Counsel for the Municipality heavily relied on Ext.R1(c) decision taken by the Traffic Regulatory Authority. From Ext.R1(c), what I could gather is that, three persons W.P.(C) No.5238 of 2017 14 have participated in the said meeting i.e., K.P. Jayarajan, Vijayan and V.Unnikrishnan, who are Chairperson of the Municipality, Motor Vehicles Inspector and Inspector of Police, respectively. 18. Now, taking into account Sec.72(1) of the Kerala Police Act, in every Grama Panchayat, Municipality and Corporation, Traffic Regulatory Committees shall be constituted as may be prescribed, for regulating matters in respect of traffic. Sub-section (2) stipulates the constitution of the Committee. The Chairman of the Traffic Regulatory Committee shall be the head of the Local Government Institution and the nominees of the District Magistrate, the District Police Chief, the Regional Transport Officer and the Executive Engineer of Public Works Department shall be the members of the said Committee. 19. Therefore, even assuming that there is power vested with the Committee, it is not a Committee constituted as per Sec.72(2) of the Kerala Police Act, 2011. On an evaluation of Ext.R1(c) dated 01.10.2016 and Ext.R1(d) dated 30.01.2017, what I could gather is that, there was no representative of the District Magistrate and the Public Works Department. In the meeting held on 01.10.2016, the Chairman of the Municipality, Motor W.P.(C) No.5238 of 2017 15 Vehicles Inspector and the Inspector of Police alone were present. So far as the meeting dated 30.01.2017 is concerned, it is quite evident that the Headquarters Deputy Tahsildar, Hosdurg, Sub Inspector, Neeleswaram, SRTO, Kanhangad and the Chairman of the Municipality participated in the meeting, but, there was no representative of the PWD. 20. Looking at that angle also, in my considered view, the decision taken by the Traffic Regulatory Committee was not a properly constituted one. So much so, taking into account Ext.R1(i)minutes of the Traffic Regulatory Committee dated 14.09.2018, it is not attended by the Executive Engineer of PWD. There are only representatives for Local Self Government Institution, nominee of District Magistrate, nominees of District Police Chief and Regional Transport Officer. Therefore, the said Traffic Regulatory Committee is also not in contemplation of Sec.72(2) of the Kerala Police Act, 2011. 21. It is true, it is held by this Court in the decision in _**'Pathanamthitta District Private Bus Operators' Association'**_ ( _supra_ ), in paragraph 8, as follows: W.P.(C) No.5238 of 2017 16 _“8. It is to be noticed that Section 72 of the Police Act of 2011 specifically confers power on the TRC, by sub-clause (a) of sub-section (2), to regulate the manner and time of traffic of all kinds in public places. Section 68 refers to the constitution of the State and Regional Transport Authorities and the powers to be exercised by the said authorities; which are to be prescribed as per the Rules. The apparent conflict with the provisions of the Motor Vehicles Act is a contention which has to be specifically looked at in the context of Sections 113 and 115 of the MV Act and Rule 339 of the KMV Rules. Section 113 refers to the limitation with respect to use of vehicles; which limitations are prescribed on the aspect of weight and other conditions. Section 115 is a power to restrict the use of “a vehicle” on a specified route or a specified area. This is not a power which is synonymous with that of the TRC. The RTA could, in specified cases, impose restrictions of 'one way traffic' in any sector invoking Section 115 read with Rule 339; but, that is not to say that the powers are exclusive on the authority under the Motor Vehicles Act. Again the power under the Police Act is wider than the power conferred under the MV Act.”_ 22. However, paragraph 9 of that judgment is also relevant to the context, which read thus: _“9. In any event, it is to be noticed that the constitution of the TRC as indicated in sub-section (2) of Section 72 of the Police Act of 2011 ensures the representation of all departments concerned with the regulation of traffic, including the Regional Transport Officer, the Secretary of the RTA, who would be competent to air the opinion of the Regional Transport Authority, before the TRC. The order passed under Section 115 cannot, in any way, be said to be in violation of the provisions of the Motor Vehicles Act, especially since the RTA has not, in the same sector, passed any contrary orders. In such circumstances, the contention raised by the petitioner with respect to a decision taken by the TRC is found to be unsustainable.”_ 23. Therefore, the ratio so arrived at by this Court by taking into account the fact circumstances thereunder 17 ## W.P.(C) No.5238 of 2017 is that the situation shall be analysed by the Traffic Regulatory Committee constituted as per sub-section (2) of Sec.72 of Act, 2011, ensuring representation of all Departments concerned, for the regulation of traffic. Be it noted, if the said judgment was rendering more power on the Traffic Regulatory Committee _vis-a-vis_ the power of the authority under Sec.115 of Act, 1988, it should have been a properly constituted Committee in accordance with the provisions of the Kerala Police Act, 2011. 24. Moreover, in my considered opinion, the said judgment was rendered on the basis of the grievances put forth by the stage carriage operators, expressing the inconvenience faced by them consequent to the regulation of traffic, and that is the reason why this Court has directed the RTA to take into account any alteration of timing required in order to cope up with the regulation so made, and therefore, clearly distinguishable. So also, Rule 336 of the Rules, 1989, as discussed above, was not a subject matter of consideration in the said writ petition. More pertinently, sub-rule (2) thereunder is imposing a significant prohibition on the Regional Transport Authority from issuing a permit for regular operation of any heavy goods vehicles or heavy passenger W.P.(C) No.5238 of 2017 18 vehicles on any road or area, which is not included in the list referred to in sub-rule (1), which makes the provision mandatory, presumably to protect the interest of the people, who are occupying buildings in any narrow, or unfit roads for containing heavy vehicular traffic. 25. Therefore, I find force in the contention advanced by learned counsel for the petitioners that unless and until the stipulations contained under Rule 336 of Rules, 1989 are followed, diversion of heavy traffic through the street in question is unsustainable under law. Taking into account the factual and legal circumstances discussed above, petitioner is entitled to succeed in the writ petition, and therefore, the decision taken by the Traffic Regulatory Committee as per Exts.R1(c) and R1(d) cannot be sustained under law, and the writ petition is allowed to the above extent and the diversion of heavy vehicles traffic through the Weavers Street is declared unauthorized. However, it will not stand in the way of the authorities considering the issue in accordance with law, taking into account the provisions of Sec.115 of Act, 1988, Rule 336 of the Rules, 1989 and Sec.72 of the Kerala Police Act, 2011. W.P.(C) No.5238 of 2017 19 The writ petition is allowed to the above extent. **Sd/-** **SHAJI P.CHALY** **JUDGE** W.P.(C) No.5238 of 2017 20 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF THE NEWS ITEM APPEARED IN MATHRUBHOOMI DAILY DATED 13.1.2017. EXHIBIT P2 TRUE COPY OF THE REPLY RECEIVED UNDER THE RIGHT TO INFORMATION ACT DATED 6.2.2017. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE DISTRICT COLLECTOR, KASARGOD DATED 9.2.2017. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE NILESHWAR MUNICIPALITY DATED 3.2.2017. EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT OF THE NILESHWAR MUNICIPALITY DATED 3.2.2017. EXHIBIT P6 TRUE COPY OF THE ROUGH SKETCH OF THE ROUTE. EXHIBIT P7 PHOTOCOPY OF THE APPLICATION DATED 1/2/2017 EXHIBIT P8 TRUE COPY OF THE APPEAL DATED 28/2/2017 EXHIBIT P9 TRUE COPY OF THE REPLY DATED 16/3/2017 EXHIBIT P10 TRUE COPY OF THE INTELLIGENCE REPORT OBTAINED BY THE RESIDENT OF THE LOCALITY UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P11 PHOTOS EVIDENCING THE PRESENT LAYOUT OF THE ROAD EXHIBIT P12 TRUE COPY OF THE NEWS PAPER CLIPPING DATED 25/9/2018 EXHIBIT P13 PHOTOS EVIDENCING THE MAIN ROAD LEADING TO THE BUS STAND. RESPONDENT'S/S EXHIBITS: EXHIBIT-R1(a) TRUE COPY OF THE EXTRACT OF ASSET REGISTER EXHIBIT-R1(b) TRUE COPY OF GO(MS) NO. 2861/HOME DATED 24/9/2011 EXHIBIT-R1(c) TRUE COPY OF THE MINUTES OF THE MEETING OF THE TRAFFIC REGULATORY COMMITTEE ON 1/10/2016** |W.P.(C) No.5238 of 2017|21| |---|---| |**EXHIBIT-R1(d)**|**TRUE COPY OF THE MINUTES OF THE MEETING HELD**| ||**ON 30/1/2017**| |**EXHIBIT-R1(e)**|**TRUE COPY OF THE SKETCH OF PROJECT NO.**| ||**263/16-17 FOR RENOVATION OF THERU ROAD.**| |**EXHIBIT-R1(f)**|**A TRUE COPY OF THE DECISION TAKEN IN THE**| ||**MEETING HELD ON 9/4/2018**| |**EXHIBIT-R1(g)**|**A TRUE COPY OF THE TENDER NOTICE**| |**EXHIBIT-R1(h)**|**A TRUE COPY OF THE TENDER ADVERTISEMENT**| ||**DATED 14/9/2018**| |**EXHIBIT-R1(i)**|**A TRUE COPY OF THE MINUTES OF THE MEETING OF**| ||**THE TRAFFIC REGULATORY COMMITTEE HELD ON**| ||**14/9/2018.**| ## **//TRUE COPY//** **P.S. TO JUDGE** **St/-**