P. D. Mathew v. State of Kerala and Others

W.P.(C)No.16773/2019 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941** **WP(C).No.16773 OF 2019(V)** ## **PETITIONER:** **P.D.MATHEW AGED 72 YEARS S/O. DEVASSIA, PULICKAL HOUSE, ARUVITHURA P.O. 686 122 ERATTUPETTA. MOB:9495525457** **BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.N.RAJESH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TRANSPORT, THIRUVANANTHAPURAM-695 001. 2 DEPUTY TRANSPORT COMMISSIONER CENTRAL ZONE-II, KUNNUMPURAM, ERNAKULAM-682001. 3 REGIONAL TRANSPORT OFFICER OFFICE OF THE RTO, PALA-686 575. 4 ERATTUPETTA MUNICIPALITY REPRESENTED BY SECRETARY, MUNICIPAL OFFICE, ERATTUPETTA-686 122. 5 INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION, ERATTUPETTA - 686 122.** W.P.(C)No.16773/2019 2 **Addl.R6 ADDL.R6 IMPLEADED** **THE REGIONAL TRANSPORT AUTHORITY, COLLECTORATE, KOTTAYAM – 686 002 (IMPLEADED SUO MOTU AS PER ORDER DT.9.7.2019 IN WPC 16773/2019)** **R4 BY SRI.GEORGEKUTTY MATHEW, SC, ERATTUPETTA MUNICIPALITY R1, R2, R3, R5 & R6 BY SRI MANU RAJ K.J GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## W.P.(C)No.16773/2019 3 **“CR”** ## **JUDGMENT** The petitioner is the owner of 9.75 ares of property covered by sale deed No.1133/67 dated 28.04.1967 of the SRO, Poonjar, and Ext.P1 tax receipt dated 06.07.2017. The petitioner constructed a three-storied building in the said property, which has been assigned with building Nos.III/487, 488, 489, 490, 491, 492, 493, 494, 495 and 496 of Erattupetta Municipality and the same is let out to tenants. The ground floor of the building is occupied by a photo studio, stationery shop, tailoring shop, jewellery, gas stove company and an eye clinic. The first floor is occupied by Kottayam District Co-operative Bank and the second floor is occupied by Agricultural Development Bank and an Advocate Office. The building is abutting Erattupetta - Pala Road on the south and Erattupetta - Thodupuzha Road on the east. The petitioner constructed the building after leaving sufficient parking space on both sides, for the vehicles of the tenants and their customers. 2. The grievance of the petitioner is that pickup jeeps, autorickshaws, etc. are being parked in front of the building, blocking ingress and egress of the tenants and their customers. W.P.(C)No.16773/2019 4 In order to substantiate the said fact, the petitioner has placed on record Ext.P2 photographs. The has petitioner has submitted Ext.P3 representation dated 11.05.2018 before the Secretary of the 4[th] respondent Municipality, which was followed by Ext.P4 representation dated 28.02.2019. The petitioner has also submitted Ext.P5 representation dated 28.02.2019 before the 5[th] respondent Inspector of Police and Ext.P6 representation dated 28.02.2019 before the 3[rd] respondent Regional Transport Officer. The document marked as Ext.P7 is the information provided under the Right to Information Act, 2005 by the Public Information Officer in the Office of the 4[th] respondent Municipality, which is dated 10.05.2019, wherein it has been stated that there is no approved stand for pickup taxies. The petitioner has also submitted Ext.P8 representation dated 04.06.2019 before the 2[nd] respondent Deputy Transport Commissioner. 3. A statement has been filed on behalf of the 4[th] respondent Municipality, wherein it has been stated that there is no notified taxi stand or parking area in front of the petitioner's building. The Municipality is taking steps for rearranging the W.P.(C)No.16773/2019 5 traffic system in Erattupetta Town, with the sanction and assistance of respondents 2, 3 and 5. After that rearrangement, the grievance of the petitioner will be solved. 4. On 18.07.2019 when this writ petition came up for consideration, the learned Standing Counsel for the 4[th] respondent pointed out that in front of the petitioner's building, there is a footpath and as per Ext.P2 photographs, vehicles are being parked in front of that building, blocking pedestrian passage through that footpath. The learned Government Pleader sought time to get instruction from the 5[th] respondent. 5. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 to 3 and 5 and also the learned Standing Counsel for the 4[th] respondent. 6. Pleadings and materials on record would show that the place where the pickup trucks are being parked in front of the petitioner's building is not a notified taxi stand or parking area. As evident from Ext.P2 photographs, vehicles are being parked in front of the petitioner's building, blocking pedestrian passage through the footpath on the side of Erattupetta – Pala road. W.P.(C)No.16773/2019 6 7. The Indian Road Congress has formulated Guidelines for Pedestrian Facilities, vide IRC:103-2012. Indian Road Congress was set up in December, 1934 on the recommendations of the Indian Road Development Committee (Jayakar Committee) set up by the Government of India, with the objective of Road Development in India. Indian Road Congress works in collaboration with Ministry of Road Transport and Highways (MoRTH). The Director General (Road Development) and Special Secretary, MoRTH, is the Honorary Treasurer of Indian Road Congress. There are three Apex Committees, which are responsible for formulation and updation of Codes of Practices, Standards and Guidelines, i.e., Highways Specifications and Standards Committee; Bridges Specifications and Standards Committee; and General Specifications and Standards Committee. There are Technical Committees under each Apex Committees. The Director General (Road Development) and Special Secretary, MoRTH; the President and Secretary General of Indian Road Congress are Ex-Officio members of all Technical Committees. 8. In Chapter 1 of IRC:103-2012 'footpath' is defined W.P.(C)No.16773/2019 7 as a portion of right of way of road used for the movement of pedestrian. Chapter 2 of IRC:103-2012 deals with introduction. As per Para 2.3, all pedestrian facilities ensure social equity. Developing a pedestrian environment means more than laying down a footpath or installing a signal. A truly viable pedestrian system takes into account both the big pictures and smallest details-from how a city is formed and built to what materials are under our feet. Chapter 3 of IRC:103-2012 deals with its scope. As per Para 3.2, the guidelines cover engineering design and planning aspects of pedestrian facilities on roadside and at road crossing in urban and semi-urban areas. As per Para 3.3, the guidelines are intended for use by the local authorities responsible for creating and maintaining semi-urban and urban road transport facilities. The guidelines are framed to serve the objectives of universal accessibility and social equity for sustainable transportation. As per Para 4.2, efforts should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances and that the motorists respect the position of pedestrians. As per Para 4.5, the mobility and safety of all pedestrians including those with disabilities and W.P.(C)No.16773/2019 8 reduced mobility should be ensured to promote inclusive mobility and universal accessibility. As per Para 4.6, regular maintenance of all facilities and design elements should be undertaken to maintain accessibility, reliability, usability, safety and continuity. As per Para 4.7, while planning and designing pedestrian facilities, overall objectivity could be continuity and overall safety. 9. Chapter 5 of IRC:103-2012 deals with pedestrian level of service. As per Para 5.1, pedestrian spaces should be designed in consideration of human convenience and have to be qualitatively suitable to the needs of human beings. 9 parameters affect the quality of service of a footpath out of which 6 are pertaining to physical characteristics of footpath facility, like footpath width, footpath surface, obstruction, encroachment, potential of vehicular conflict and continuity. The 3 user factors are pedestrian volume, security, comfort and walking environment. Para 5.2 of IRC:103-2012 deals with concept of pedestrian level of service; Para 5.3 deals with physical characteristics; and Para 5.4 deals with user characteristics. Para 6 of IRC:103-2012 deals with pedestrian W.P.(C)No.16773/2019 9 facility design standards. 10. In view of the Guidelines for Pedestrian Facilities formulated by the Indian Road Congress, vide IRC:103-201, no parking of vehicles is legally permissible on the 'footpath', which is the portion of right of way of road used for the movement of pedestrians. Any such parking of vehicles on the footpath of public streets will force pedestrians to walk in unsafe circumstances, which will adversely affect the mobility and safety of all pedestrians including those with disabilities and reduced mobility. 11. In exercise of the powers under Section 118 of the Motor Vehicles Act, 1988 and in supersession of the Rules of Road Regulations, 1989, the Central Government made the Motor Vehicles (Driving) Regulations, 2017. Clause (b) of Regulation 1 defines the term 'carriageway' to mean the part or parts of a road normally used by vehicular traffic, whether separate from one another by a dividing strip or a difference of level or not. Clause (j) of Regulation 1 defines the term 'parking' to mean the bringing of a vehicle to a stationary position and causing it to wait for any purpose other than that W.P.(C)No.16773/2019 10 of immediately taking up or setting down persons, goods or luggage and includes stopping for more than three minutes. Clause (o) of Regulation 1 defines the term 'road user', which includes a person driving or traveling on the road in a vehicle or otherwise and a pedestrian. Clause (r) of Regulation 1 defines the term 'stopping' to mean halting a vehicle for a very short duration out of free will, either to allow the passenger to board or alight or quick loading or unloading of goods. 12. Regulation 5 deals with duties of drivers and riders. As per clause (4) of Regulation 5, the driver and the riders shall take special care and precautions to ensure the safety of the most vulnerable road users such as pedestrians, cyclists, children, elderly and the differently-abled persons. As per clause (5) of Regulation 5, the driver shall ensure that his vehicle, while moving or when stationary does not cause any hindrance or undue inconvenience to other road users or to occupants of any property. 13. Regulation 22 deals with stopping and parking. As per sub-clause (iv) of clause (1) of Regulation 22, a vehicle shall not be stopped on, or five meters before a pedestrian crossing. W.P.(C)No.16773/2019 11 As per sub-clause (b) of clause 2 of Regulation 22, a vehicle shall not be parked on a main road or at a stretch of road where the notified maximum speed limit is 50 km per hour or more. As per sub-clause (c), a vehicle shall not be parked on footpath, cycle path and pedestrian crossing; as per sub-clause (d), before or after an intercession or a junction upto a distance of 50 meters from the edge of intercession or junction; as per subclause (e), where it would block access to designated parking places; as per subclause (i), in front of the entrance or exit of a property; and as per sub-clause (m), if it is likely to obstruct other vehicle or cause inconvenience to any person. 14. Regulation 39 deals with pedestrian crossing, footpath and cycle track. As per clause (1) of Regulation 39, while approaching an uncontrolled pedestrian crossing, the driver shall slow down, stop and give way to pedestrian, users of invalid carriages and wheelchairs. As per clause (2), if the traffic has come to a standstill, the driver shall not drive the vehicle on the pedestrian crossing, if he is unlikely to be able to move further and thereby block the pedestrian crossing. As per sub-clause (3), when a road is provided with a footpath or cycle W.P.(C)No.16773/2019 12 track, no vehicle shall drive on such footpath or track, except on the directions of a Police Officer in uniform or where traffic signs permitting some movements have been displayed. 15. As per the provisions under the Motor Vehicles (Driving) Regulations, 2017, referred to hereinbefore, the driver of a vehicle has to ensure that his vehicle, while moving or when stationary does not cause any hindrance or undue inconvenience to other road users or to occupants of any property. No parking of a motor vehicle is legally permissible on footpath, cycle path and pedestrian crossing or in front of the entrance or exit of a property. 16. The Apex Court in W.P.(C)No.295 of 2012 filed under Article 32 of the Constitution of India, by a public-spirited citizen, seeking enforcement of road safety norms and appropriate treatment of accident victims, constituted a 'Committee on Road Safety', vide its order dated 22.04.2014 - **S. Rajaseekaran v. Union of India [(2014) 6 SCC 36]** , and the said Committee was notified by the Ministry of Road Transport and Highways, Government of India, on 30.05.2014. In the said decision, after referring to the revenant provisions W.P.(C)No.16773/2019 13 under the Motor Vehicles Act, which deals with licensing; vehicular fitness; etc. the Apex Court observed that, while improvements in different spheres of law are imminent with passage of time, any change of law has to be preceded by serious debate and consideration of a wide variety of factors all of which takes time. While such changes or amendments can be brought in only upon completion of the necessary exercise, the enforcement of the existing laws would stand on an entirely different footing. Strict and faithful enforcement of all existing laws and norms must be insisted upon not only as an absolute principle of law but also for the huge beneficial effects thereof. Though directions to the States to enforce the existing laws can be issued even in their absence, the Apex Court observed that the matter cannot be allowed to rest merely by issuance of directions. Observance and implementation of the directions to be issued by the Court in exercise of the power under Article 142 of the Constitution of India would require continuing scrutiny and therefore, the Apex Court decided to monitor such implementation and to make the States accountable for any inaction or lapse in this regard. The Apex Court impleaded all W.P.(C)No.16773/2019 14 the States as party respondents and directed the Government of each State to effectively implement and enforce all the provisions of the Motor Vehicles Act in respect of which the States have the authority and obligation to so act under the Constitution, in addition to the tasks specifically alluded to in the subsequent paragraphs of that order dated 22.04.2014. By the said order, the Apex Court constituted a Committee having the composition, as enumerated in paragraphs 35, and the functions, as enumerated in paragraphs 36.4 to 36.8, to undertake the process of monitoring on behalf of the Court, the measures undertaken by the Central Government and the State Governments and the extent of affirmative action on part of the Union and the States, from time to time. 17. In W.P.(C).No.295 of 2012, the Apex Court delivered a judgment dated 30.11.2017 - **S. Rajaseekaran v. Union of India [(2018) 13 SCC 532]** . In the said decision, the Apex Court observed that all States and Union Territories are expected to implement the Road Safety Policy with all due earnestness and seriousness. The responsibility and functions of the Road Safety Council constituted in terms of Section 215 of W.P.(C)No.16773/2019 15 the Motor Vehicles Act will be as recommended by the Committee on Road Safety constituted as per the order dated 22.04.2014 and Road Safety Councils should periodically review the laws and take appropriate remedial steps whenever necessary. In paragraph 94.13 of the said decision, in the context of Lane Driving, the Apex Court held that the Ministry of Road Transport and Highways has already issued the Motor Vehicles (Driving) Regulations, 2017, vide G.S.R.634 (E) dated 23.06.2017, which should be implemented by the State Governments and Union Territories strictly. Paragraphs 94.1 to 94.25 of the said decision contains various directions issued by the Apex Court. In paragraph 95, the Apex Court has made it clear that, if there is any doubt or clarity is required in implementing those directions, the State Government or Union Territory concerned is at liberty to move the Committee on Road Safety. 18. In the instant case, as can be seen from Ext.P2 photographs, pickup jeeps are being parked in front of the petitioner's building blocking pedestrian passage through the footpath on the side of Erattupetta – Pala road and also the W.P.(C)No.16773/2019 16 ingress and egress of the tenants, the customers and their vehicles, in violation of the provisions under the Motor Vehicles (Driving) Regulations, 2017 and also the Guidelines for Pedestrian Facilities formulated by the Indian Road Congress, vide IRC:103-201. As per the statement filed on behalf of the 4[th] respondent Municipality, there is no notified taxi stand or parking area in front of the petitioner's building and the Municipality is taking steps for rearranging the traffic system in Erattupetta Town, with the sanction and assistance of respondents 2, 3 and 5. 19. The petitioner has made Ext.P3 representation dated 28.02.2019 before the 3[rd] respondent Regional Transport Officer. The 3[rd] respondent shall place that petition before the additional 6[th] respondent, Regional Transport Authority, Kottayam and the said authority shall take necessary action on that representation, with notice to the petitioner, the secretary of the 4[th] respondent Municipality and also the representatives of the drivers/owners of the pickup jeeps, etc., strictly in accordance with law, taking note of the provisions referred to hereinbefore, as expeditiously as possible, at any rate, within a period of one W.P.(C)No.16773/2019 17 month from the date of receipt of a certified copy of this judgment. Till such time, the 5[th] respondent Sub Inspector of Police shall ensure that parking of pickup trucks in front of the petitioner's building is not blocking pedestrian passage through the footpath on the side of Erattupetta – Pala road also the ingress and egress of the tenants, the customers and their vehicles to the petitioner's building. **Sd/ANIL K.NARENDRAN JUDGE** **DG** W.P.(C)No.16773/2019 18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF TAX PAID RECEIPT ISSUED TO THE PETITIONER FROM ERATTUPETTA VILLAGE OFFICE ON 6.7.17 BEARING NO.4186013.** - **EXHIBIT P2 PHOTOGRAPHS 5 IN NUMBERS.** - **EXHIBIT P3 TRUE COPY OF PETITION FILED BY PETITIONER BEFORE THE 4TH RESPONDENT ON 11.5.18.** - **EXHIBIT P4 TRUE COPY OF PETITION FILED BY PETITIONER BEFORE THE 4TH RESPONDENT ON 28.2.2019.** - **EXHIBIT P5 TRUE COPY OF PETITION FILED BY TGHE PETITIONER BEFORE THE 5TH RESPONDENT ON 28.2.2019.** - **EXHIBIT P6 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 28.2.2019.** - **EXHIBIT P7 TRUE COPY OF INFORMATION RECEIVED BY THE PETITIONER FROM INFORMATION OFFICER ERATTUPETTA MUNICIPALITY ON 10.5.19 BEARING NO.R2-4026/19.** **EXHIBIT P8 TRUE COPY OF PETITION FILED BY PETITIONER BEFORE THE 2ND RESPONDENT ON 4.6.19.** **RESPONDENTS' EXTS: NIL**