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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** ## **WP(C).No.764 of 2018** ## **PETITIONERS:** - **1 SUNIL V., S/O VASUDEVAN, AGED 37 YEARS, KORULPADIKATHIL, PAYKUZHI, OCHIRA, KOLLAM. (CONVENER, AITUC)** - **2 SHYAM RAJ, S/O RAJAN, AGED 37 YEARS, PATHIYANTAYYATH, POST PAYIKUZHI, KOLLAM (SECRETARY, INTUC)** - **3 SUDHEESH KUMAR R.K., S/O KUMARAN, AGED 41 YEARS, PUTHENPURAYIL, ATHINAD SOUTH POST KATTILKADAVU, KARUNAGAPPALLY, KOLLAM (JOINT SSECRETARY, BMS)** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, STATE SECRETARIAT,THIRUVANANTHAPURAM.** - **2 THE OACHIRA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY,OCHIRA.P.O, KOLLAM690526** - **3 THE REGIONAL TRANSPORT OFFICER, KOLLAM.** - **4 THE COMMISSIONER OF POLICE, KOLLAM.** - **5 THE SUB INSPECTOR OF POLICE 6 ADDL.R6-NAZAR, AGED 48 YEARS, S/O NOOHU KUNJU, PULIKKAL HOUSE, KRISHNA PURAM PO, KAYAMKULAM-690533.** - **7 ADDL.R7-KABEER KUTTY, AGED 61 YEARS, S/O MAITHEEN KUNJU, MUZHANGODI KIZHAKKATHIL, MEMANA, OACHIRA PO-690526.** - **8 ADDL.R8-THE REGIONAL TRANSPORT AUTHORITY, KOLLAM.** - **9 ADDL.R9-THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOLLAM - 691001.** - **ADDL.R8 AND R9 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 08.07.2019.** **BY ADV.SRI.B.HARISH KUMAR SMT.M.ISHA** **SRI.AMAL KASHA SRI.T.B.HOOD SMT MABLE C.KURIEN- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.07.2019, ALONG WITH WP(C).36891/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)764 & 36891/2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** ## **WP(C).No.36891 of 2018** ## **PETITIONERS:** |**PETITIONERS**<br>**:**|| |---|---| |**1**|**N.NAZAR,**| ||**AGED 48 YEARS, S/O.NOOHU KUNJU, PULIKKAL HOUSE,**| ||**KRISHNA PURAM P.O., KAYAMKULAM, ALAPPUZHA - 690**| ||**533.**| |**2**|**KABEER KUTTY,**| ||**AGED 61 YEARS, S/O. MAITHEEN KUNJU,**| ||**MUZHANGODI KIZHAKKATHIL,**| ||**MEMANA, OACHIRA P.O.,**| ||**KOLLAM 690 526.**| ||**BY ADVS.**| ||**SRI.T.B.HOOD**| ||**SMT.M.ISHA**| ||**SRI.AMAL KASHA**| |**RESPONDENTS**<br>**:**|| |**1**|**OACHIRA GRAMA PANCHAYAT,**| ||**REPRESENTED BY ITS SECRETARY, OACHIRA P.O., KOLLAM**| ||**- 690 526.**| |**2**|**SECRETARY,**| ||**REGIONAL TRANSPORT AUTHORITY,**| ||**KOLLAM-691001.**| |**3**|**ADDL.R3 SHAJAHAN,**| ||**S/O. ABDUL SAMAD, AGED 34 YEARS, SHAH NIVAS,**| ||**VALYAKULANGARA, OACHIRA, KOLLAM.**| |**4**|**ADDL.R4 SASIDHARAN,**| ||**S/O. VELAYUDHAN, AGED 64 YEARS, PERUTHARA,**| ||**VARAVILA, KARUNAGAPALLY, KOLLAM DISTRICT.**| |**5**|**ADDL.R5 VISWANATHAN,**| ||**S/O. THANKAPPAN, AGED 50 YEARS, VYSAKHAM,**| ||**NJAKKANAL POST, OACHIRA, KOLLAM DISTRICT. (ADDL.R3**| ||**TO R5 ARE IMPLEADED AS PER ORDER DATED 29/11/2018**| ||**IN IA.01/2018)**| ||**BY ADVS.**| ||**SRI.K.A.SALIL NARAYANAN**| ||**SRI.B.HARISH KUMAR**| ||**SMT.MABLE C. KURIAN, GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.07.2019, ALONG WITH WP(C).764/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)764 & 36891/2018 3 ## **JUDGMENT** Since common issue is raised in these writ petitions, they are heard together and are being disposed of by this common judgment. 2. **W.P.(C) No.764 of 2018** :- The petitioners, who are autorickshaw drivers, plying their autorickshaws within the jurisdiction of Oachira Grama Panchayat, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 5 to ensure that auto taxis in Oachira Grama Panchayat are parked in the area exclusively earmarked for them by the Grama Panchayat, in terms of Ext.P2 resolution dated 19.12.2017 of the Grama Panchayat, and as indicated in Ext.P4 sketch. 2.2. On 09.01.2018, when this writ petition came up for admission, this Court admitted that matter on file. The learned Government Pleader took notice for respondents 1, 3, 4 and 5. The learned Standing Counsel took notice for the 2[nd] respondent. 2.3. By order dated 12.04.2018 in I.A.No.4579 of 2018, the writ petitioners in W.P.(C)No.36891 of 2018 got WP(C)764 & 36891/2018 4 themselves impleaded as additional respondents 6 and 7 in this writ petition. 2.4. The 2[nd] respondent Grama Panchayat has filed a counter affidavit. Paragraphs 3 to 5 of the said counter affidavit read thus; “3. It is true that the petitioners are autorickshaw drives and they filed this writ petition aggrieved by the illegal action on the part of atuo taxis/motor cabs drivers in parking their vehicles in the places allotted to the petitioner's vehicle. It is respectfully submitted that there exists disputes between the above 2 parties and do this respondent along with the police authorities and Joint RTO taken a decision on 13.12.2017 directing this respondent sort out the issue and take a decision in accordance with law. It is submitted that on that basis, this respondent has passed a resolution in Panchayath Committee on 19.12.2017 after hearing the affected parties as well as the petitioners and granted a parking space to auto taxis/motor cabs (Ext.P2). 4. But thereafter also there exists a law and order problem with regard to the same issue and so the circle inspector of police under the 4[th] respondent's against convened a meeting with the affected parties as well as the petitioners on 28.12.2017 and directed the affected parties as well as to the petitioners to implement the directions of the Panchayath. It is submitted that thereafter also there exists a law and order problem with regard to same issue WP(C)764 & 36891/2018 5 and is still subsisting. 5. It is respectfully submitted that this respondent has already allotted parking spaces to auto taxis/motor cabs in accordance with the law, but they are reluctant to accept the above spaces of parking. If the parking lots allotted by this deponent are accepted by all concerned, there wont' be any issue at all. But the drivers belonging to the auto taxi/motor cab is unjustly and without any reason, failing to obey this.” 3. **W.P.(C) No.36891 of 2018** :-The petitioners, who are owners/drivers of autorickshaws, which are being plied within the area of 1[st] respondent Grama Panchayat, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 resolution dated 19.12.2017 of the 1[st] respondent Grama Panchayat (which is Ext.P2 resolution sought to be implemented in W.P.(C) No.764 of 2018); and a writ of mandamus commanding the 1[st] respondent Grama Panchayat to follow the procedure prescribed in the relevant Rules before notifying parking places. 3.2. By the order dated 29.11.2018 in I.A.No.1 of 2018, third parties were impleaded as additional respondents 3 to 5, who have also filed a counter affidavit. WP(C)764 & 36891/2018 6 4. Heard the learned counsel for the petitioners in the respective writ petitions, the learned Government Pleader appearing for the official respondents, the learned Standing Counsel for the Grama Panchayat and also the learned counsel for the party respondents. 5. The issue that arises for consideration in these writ petitions is as to whether any interference is warranted on Ext.P1 resolution dated 19.12.2017 of the 1[st] respondent Grama Panchayat in W.P.(C) No.36891 of 2018 (which is Ext.P2 resolution sought to be implemented in W.P.(C) No.764 of 2018). 6. The legality or otherwise of the aforesaid resolution has to be decided with reference to the provisions under Section 117 of the Motor Vehicles Act, 1988, Rule 344 of the Kerala Motor Vehicles Rules, 1989 and also Rules 3, 4 and 5 of the Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and other Vehicles Stands) Rules, 1995. 7. Section 117 of the Motor Vehicles Act, 1988, which deals with parking places and halting stations, reads thus; “ **117. Parking places and halting stations** :- The State Government or any authority authorised in this behalf by WP(C)764 & 36891/2018 7 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 necessary for the taking up and setting down of passengers.” 8. Rule 344 of the Kerala Motor Vehicles Rules, 1989, which deals with bus stand and parking places, reads thus; “ **344. 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 or Panchayat, the Executive Engineer and the Superintendent of Police of the District, determine the location of - (a) bus stand, 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:- WP(C)764 & 36891/2018 8 (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 of 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 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 shed 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 WP(C)764 & 36891/2018 9 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.” 9. Rules 3, 4 and 5 of the Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and other Vehicles Stands) Rules, 1995 read thus; “3. **Panchayat to invite objections before providing public landing places, halting places, cart stands or other vehicle stands** .- (1) A 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 WP(C)764 & 36891/2018 10 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.” 10. Having considered the submissions made by the learned counsel on both sides with reference to the pleadings and materials on record and also the statutory provisions referred to hereinbefore, this Court finds that Ext.P1 resolution of the 1[st] respondent Grama Panchayat in W.P.(C) No.36891 of 2018 (which is Ext.P2 resolution sought to be impemented in W.P.(C) No.764 of 2018) cannot be said to be one passed in accordance with the statutory mandate. 11. In **Mampad Grama Panchayat v. the Convenor Mampad Friends All India Sevens Football Tournament Committee and others [2016 (5) KHC 846]** , in the context of Section 7A of the Kerala Local Authorities Entertainments Tax Act, 1961, inserted by the Local Authorities (Amendment) Act, 1989, which deals with the power of Government to WP(C)764 & 36891/2018 11 exempt from the liability to tax, this Court held that, subsection (1) of Section 7A of the Act, mandates that any general or special order of the Government granting exemption from the levy of entertainments tax any entertainment under clause (a) or clause (b) thereof, should be supported by reasons to be specified in such order. In view of the mandate of sub-section (1) of Section 7A, it is imperative for the Government to specify reasons in any general or special order issued under the said sub-section granting exemption from the levy of tax. This Court held further that, when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. Paragraphs 8 to 14 of the said decision read thus; “8. Section 7A of the Act, inserted by the Local Authorities (Amendment) Act, 1989, which deals with the power of the Government to exempt from the liability to tax, reads thus; “7A. Power to exempt.- (1) Notwithstanding anything contained in the Act, the Government may, by general or special order and for reasons to be specified in such order, exempt from liability to tax,- - (a) any entertainment or class of entertainments; WP(C)764 & 36891/2018 12 ## or (b) any or all of the entertainments provided in a place owned by the Government or a Corporation owned or controlled by the Government. (2) Any local authority concerned shall be bound to comply with any order made by the Government under sub-section (1). (3) A local authority may with the previous sanction of the Government exempt any entertainment or class of entertainments not exempted under sub-section (1) from liability to the tax.” 9. Sub-section (1) of Section 7 of the Act empowers the local authority to exempt any entertainment from the levy of entertainments tax, where the local authority is satisfied that such entertainment is of the nature referred to in clauses (a) to (d) thereof. Therefore, the power of the local authority to grant exemption from the levy of entertainments tax is confined to entertainments of the nature referred to in clauses (a) to (d) of sub-section (1) of Section 7 of the Act. On the other hand, Section 7A of the Act, which begins with a non-obstante clause, empower the Government to exempt from the liability to tax, (a) any entertainment or class of entertainments; or (b) any or all of the entertainments provided in a place owned by the Government or a Corporation owned or controlled by the Government, by general or special order and for reasons to be specified in such order. 10. Sub-section (1) of Section 7A of the Act, therefore, mandates that any general or special order of the Government granting exemption from the levy of WP(C)764 & 36891/2018 13 entertainments tax any entertainment under clause (a) or clause (b) thereof, should be supported by reasons to be specified in such order. In view of the mandate of subsection (1) of Section 7A, it is imperative for the Government to specify reasons in any general or special order issued under the said sub-section granting exemption from the levy of tax. This is more so, when any such Government order will have an adverse impact on the revenues of the local authorities, and since the local authorities mainly depend on such sources of revenue for carrying out their obligatory duties under the relevant statutes. 11. It is well settled that, when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim “expressio unius est exclusion alteris” meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of exercise of statutory power has first been identified by Jassel M.R. in the case of **Taylor v. Taylor (1876 (1) Ch.D. 426)** , wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of **Nazir** WP(C)764 & 36891/2018 14 ## **Ahmed v. King Emperor (AIR 1936 PC 253)** . 12. In **Ajanta Industries v. Central Board of Direct Taxes (1976 (1) SCC 1001)** , a Three-Judge Bench of the Apex Court held that, when law requires reasons to be recorded in a particular order, affecting prejudicially the interest of any person, who can challenge the order in court, it ceases to be a mere administrative order and the wise or violation of the principles of natural justice on account of omission to communicate the reasons is not expiated. The said decision of the Apex Court was in the context of Section 127(1) of the Income Tax Act, 1961 which empowers the Commissioner of Income Tax to transfer any case from one Income Tax Officer subordinate to him to another, also subordinate to him, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so. After taking note of the corresponding section in the Income Tax Act, 1922, i.e., Section 5(7A), the Apex Court held that, unlike Section 5(7A) of the 1922 Act, Section 127(1) of the 1961 Act requires reasons to be recorded prior to the passing of an order of transfer. However, the impugned order does not state any reasons whatsoever for making the order of transfer. The Apex Court held that, the requirement of recording reasons under Section 127(1) of the 1961 Act is a mandatory direction under the law and noncommunication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee. The Apex Court held further that, the reason for WP(C)764 & 36891/2018 15 recording of reasons in the order and making those reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even the Apex Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is a mala fide or arbitrary exercise or that, it is based on irrelevant and extraneous considerations. 13. In the instant case, sub-section (1) of Section 7A of the Act empower the Government to exempt an entertainment or class of entertainments, etc. from the levy entertainments tax, for reasons to be specified in the general or special order passed by the Government granting such exemption. Going by sub-section (2) of Section 7A, on such general or special order being passed, the local authority concerned shall be bound to comply with such order of exemption. If the reasons stated by the Government in granting exemption from the levy of entertainments tax is vitiated by arbitrary exercise of power or based on irrelevant or extraneous considerations, it would be open to the local authority concerned to challenge the same invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. In order to exercise such right efficaciously, the reasons for granting such exemption should be made known to the local authority concerned. 14. In the instant case, Ext.P2 order is in the nature of a special order issued by the Government granting WP(C)764 & 36891/2018 16 exemption from the levy of entertainments tax for a Football Tournament conducted by the 1[st] respondent. The said order contains no reasons whatsoever for granting such exemption. Since Ext.P2 order does not contain any reason for exercise of such power by the Government, invoking the provisions under sub-section (1) of Section 7A of the Act, conclusion is irresistible that the said order is one issued contrary to the mandate of the said sub-section and as such vitiated, which cannot be sustained in law.” 12. Viewed in the light of the law laid down in the decision referred to supra, conclusion is irresistible that Ext.P1 resolution dated 19.12.2017 of the 1[st] respondent Grama Panchayat in W.P.(C) No.36891 of 2018 (which is Ext.P2 resolution sought to be implemented in W.P.(C)No.764 of 2018), which is one taken not in accordacne with the statutory mandate of the provisions referred to hereinbefore, cannot be sustained in law. 13. In such circumstances, Ext.P1 resolution dated 19.12.2017 of the 1[st] respondent Grama Panchayat in W.P.(C) No.36891 of 2018 is set aside. The 1[st] respondent Grama Panchayat shall make a proposal for notifying a parking place, after complying with the statutory mandate of the provisions referred to hereinbefore, before the Regional Transport WP(C)764 & 36891/2018 17 Authority, Kollam through the Secretary of that Authority. On receipt of such a proposal, the Secretary of the Regional Transport Authority shall obtain a report from the Field Officer and thereafter, the request made by the Grama Panchayat along with the report of the Field Officers shall be placed before the Regional Transport Authority, Kollam and the said Authority shall take appropriate decision in that matter, with notice to the petitioners and party respondents in the respective writ petitions and also others interested in the matter. An appropriate decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The writ petitions are disposed of as above. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** WP(C)764 & 36891/2018 18 ## **APPENDIX OF WP(C) 764/2018** **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE REPLY ISSUED UNDER THE RIGHT TO INFORMATION ACT DATED 19/7/2017** **EXHIBIT P2 TRUE COPY OF MINUTES OF THE MEETING OF THE OACHIRA GRAMA PANCHAYATH DATED 19/12/2017** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT DATED 2/1/2018** **EXHIBIT P4 TRUE COPY OF THE SKETCH OF THE LOCATION WHICH INDICATING THE PARKING SPACE ALLOTTED TO THE AUTORICKSHAWS ETC BY THE PANCHAYATH.** ## **RESPONDENT'S EXHIBITS:NIL** WP(C)764 & 36891/2018 19 ## **APPENDIX OF WP(C) 36891/2018** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE RESOLUTION TAKEN BY THE 1ST RESPONDENT PANCHAYAT IN ITS MEETING HELD ON 19.12.2017** **EXHIBIT P2** **TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF MOTOR CAB HAVING REGISTRATION NO. KL/56/K - 998** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF MOTOR CAB HAVING REGISTRATION NO. KL/23/H- 4375** ## **RESPONDENTS 3 AND 4 EXHIBITS:** **EXHIBIT R3(A) ANSWERS RECEIVED FROM THE AUTHORITY UNDER THE RIGHT TO INFORMATION ACT.** **TRUE COPY** **P.A. TO JUDGE**