High Court of KeralaDivision Bench2019-08-06Disposed: Writ petition disposed of; parking ca...

Rajamany (Legal Heir) and Others v. Kattappana Municipality and Others

Case / Petition Number:WP(C) No.7797 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
V. G. Arun
Judgment Date: 2019-08-06
Court Decision / Holding: The writ petition is disposed of, limiting the parking of autorickshaws in front of the petitioners' building to five. If more than five autorickshaws are parked, the police shall immediately intervene and remove the excess and prevent further parking in front of the building. No order as to costs.
Final Disposition: Disposed: Writ petition disposed of; parking capped at five autorickshaws; police to remove excess; no costs.

Parties to the Case

Appellants / Petitioners

Rajamany (Legal Heir)
Vijaya (Added P2)
Arun (Added P3)
Ambily (Added P4)

Respondents

Kattappana Municipality represented by its Secretary
Regional Transport Office at Kuyilumala, Pinavu, IDUKKI District
Sub Inspector of Police, Kattappana Police Station
Superintendent of Police Office at Kuyilumala, Pinavu
All India Trade Union Congress (AITUC) represented by its Secretary, K.N. Vasu
Centre of Indian Trade Union (CITU) represented by its Secretary, Tomy George
Bharatiya Mazdoor Sangham (BMS) represented by its Secretary, N.B. Mohandas
Indian National Trade Union Congress (INTUC) represented by its Secretary, V.N. Vijayan

Legal Representation & Advocates

Counsels for Petitioners

• A.C. Devasia
• Ancy Mathew
• C.K. Jacob

Counsels for Respondents

• Biju C. Abraham

Case Synopsis & Summary

The High Court of Kerala heard a writ petition challenging the custom of autorickshaw parking on the road frontage of a commercial building in Kattappana, which the petitioner claimed obstructed ingress and egress to his property. The petitioner, Rajamany (the legal heir) along with his siblings (added as petitioners 2–4 after the original petitioner’s death) alleged that the 30-metre road adjoining their building was being inappropriately used for permanent autorickshaw parking by associations represented by unions such as AITUC, CITU, BMS and INTUC. They argued that the space had long been allotted by the Panchayat/Municipality for parking, but parking there was causing obstruction to private rights and access. Despite complaints to the Panchayat and police, little action was taken. The respondents contended that parking was already present and that traffic regulation was to be entrusted to a Traffic Regulatory Committee under Section 72 of the Kerala Police Act, 2011, to regulate parking. The court relied on Naushad.M v State of Kerala and others (2019(2) KHC 562) to reaffirm that permanent roadside parking in front of private shops is an encroachment on private rights, though authorized spaces near the bus stand could be retained. The bench noted steps toward forming the Traffic Regulatory Committee and ultimately limited parking to five autorickshaws, with police intervention for excess parking and no costs awarded.

Provisions of Law Cited

Section 72 of the Kerala Police Act, 2011

Legal Doctrines & Maxims

Right of ingress and egress to a private building cannot be obstructed by parking
Traffic regulation is to be entrusted to a Traffic Regulatory Committee under Section 72 of the Kerala Police Act, 2011

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that permanent autorickshaw parking in front of their building amounts to encroachment on private rights to access the road, undermining ingress and egress to their property, despite regulatory action by authorities. They urged that the Traffic Regulatory Committee be constituted urgently under Section 72 Kerala Police Act, 2011 and that parking be restricted to safeguard private rights until such regulation is in place.

Contentions of Respondents

Respondents contended that parking was long-standing and space had been allotted by the Panchayat; the matter involves traffic regulation which should be handled by the Traffic Regulatory Committee; until such committee is formed, interim steps to regulate five vehicles at a time would suffice.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Naushad.M and others v State of Kerala and others	2019(2) KHC 562	Positive	Cited to support the proposition that permanent roadside parking encroaching on private rights to access is impermissible, reinforcing the petitioners’ challenge to unrestricted parking.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** **WP(C).No.7797 OF 2017(Y)** ## **PETITIONER/S:** |**1**|**RAJAMANY, (LEGAL HEIR)**| |---|---| ||**AGED 61 YEARS**| ||**S/O.THANKAYYA NADAR, CHEVIDANVILA HOUSE,**| ||**KATTAPPANA KARA, IDUKKI DISTRICT. (DIED)**| |**2**|**ADDL. P2. VIJAYA,**| ||**AGED 57 YEARS**| ||**W/O.LATE RAJAMANI,CHEVIDANVILA HOUSE,**| ||**KATTAPPANA KARA, IDUKKI DISTRICT, PIN-685508.**| |**3**|**ADDL. P3. ARUN,**| ||**AGED 32 YEARS**| ||**S/O.LATE RAJAMANI,CHEVIDANVILA HOUSE,**| ||**KATTAPPANA KARA, IDUKKI DISTRICT, PIN-685508.**| |**4**|**ADDL. P4. AMBILY,**| ||**AGED 20 YEARS**| ||**D/O.LATE RAJAMANI,CHEVIDANVILA HOUSE,**| ||**KATTAPPANA KARA, IDUKKI DISTRICT, PIN-685508.**| ||**(LEGAL HEIRS OF THE DECEASED SOLE PETITIONER**| ||**IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 4 AS**| ||**PER ORDER DATED 01.7.2019 IN IA.1/2019 IN WP(C)**| ||**7797/2017 BY KVC (J) VGA(J))**| **BY ADVS. SRI.A.C.DEVASIA SMT.ANCY MATHEW SRI.C.K.JACOB** W.P.(C) No.7797 of 2017 2 ## **RESPONDENT/S:** - **1 KATTAPPANA MUNICIPALITY REPRESENTED BY ITS SECRETARY,KATTAPPANA, IDUKKI DISTRICT - 685 508.** - **2 REGIONAL TRANSPORT OFFICER OFFICE AT KUYILUMALA, PINAVU,IDUKKI DISTRICT - 685 501.** - **3 SUB INSPECTOR OF POLICE KATTAPPANA POLICE STATION,KATTAPPANA, IDUKKI DISTRICT - 685 508.** **4 SUPERINTENDENT OF POLICE OFFICE AT KUYILUMALA,PINAVU, IDUKKI DISTRICT - 685 501.** - **5 AITUC UNION REPRESENTED BY ITS SECRETARY,K.N.VASU, CPI OFFICE, KATTAPPANA,IDUKKI DISTRICT - 685 508. (CORRECTED) .** **(THE NAME CORRECTED AS 'ALL INDIA TRADE UNION CONGRESS, (AITUC) REPRESENTED BY ITS SECRETARY, K.N. VASU, CPI OFFICE, KATTAPPANA, IDUKKI DISTRICT, PIN-685508' AS PER ORDER DATED 23.3.2018 IN IA.NO. 5761/2018)** - **6 CITU REPRESENTED BY ITS SECRETARY,TOMY GEORGE, CITU OFFICE,KATTAPPANA, IDUKKI DISTRICT - 685 508. (CORRECTED).** **(THE NAME CORRECTED AS 'CENTURE OF INDIAN TRADE UNION, (CITU), REPRESENTED BY ITS SECRETARY, TOMY GEORGE, CITU OFFICE, KATTAPPANA, IDUKKI DISTRICT, PIN-685508' AS PER ORDER DATED 23.3.2018 IN IA.NO. 5761/2018).** - **7 BMS REPRESENTED BY ITS SECRETARY,N.B.MOHANDAS, BJP** W.P.(C) No.7797 of 2017 3 **OFFICE,KATTAPPANA, IDUKKI DISTRICT - 685 508. (CORRECTED).** **(THE NAME CORRECTED AS 'BHARATIYA MASDOOR SANGHAM (BMS), REPRESENTED BY ITS SECRETARY, N.B.MOHANDAS, BJP OFFICE, KATTAPPANA, IDUKKI DISTRICT PIN-685508' AS PER ORDER DATED 23.3.2018 IN IA.NO. 5761/2018).** **8 INTUC, REPRESENTED BY ITS SECRETARY,V.N.VIJAYAN, INTUC OFFICE, KATTAPPANA, IDUKKI DISTRICT - 685 508. (CORRECTED).** **(THE NAME CORRECTED AS 'INDIAN NATIONAL TRADE UNION CONGRESS (INTUC), REPRESENTED BY ITS SECRETARY, V.N. VIJAYAN, INTUC OFFICE, KATTAPPANA, IDUKKI DISTRICT, PIN-685508' AS PER ORDER DATED 23.3.2018 IN IA.NO. 5761/2018.)** **BY ADV. SRI.BIJU .C. ABRAHAM** **OTHER PRESENT:** **SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.7797 of 2017 4 ## **JUDGMENT** ## V.G.Arun, J. The petitioner was the owner of 10.18 Ares of land in Kattappana Village, wherein he had constructed a three storied commercial building. On the western extremity of the petitioner’s property, adjacent to his building, is a 30 metre road which goes up to the Kattappana Panchayat Bus Stand. The petitioner’s grievance is against the illegal parking of autorikshaws by the members of respondents 5 to 8 Unions in front of his commercial building, obstructing the free ingress and egress of vehicles to the building. The petitioner submits that for the purpose of constructing the 30 metre road, he along with two others, had surrendered 27 cents of land from their properties. Even though the petitioner had, time and again, complained before the Panchayat and the Police W.P.(C) No.7797 of 2017 5 regarding the illegal parking of autorikshaws, no worthwhile action was taken. Hence the writ petition. 2. Pending the writ petition, the original petitioner died and his legal heirs got themselves impleaded as additional petitioners 2 to 4. 3. In the counter affidavit filed on behalf of respondents 5 to 8, it is stated that the Panchayat (presently the Kattappana Municipality) had allotted the space being utilised for parking of autorikshaws even prior to construction of the petitioners' building and therefore, the petitioners cannot complain against parking of autorikshaws at the space allotted by the Panchayat. 4. The learned Counsel for the Municipality submits that autorickshaws are being parked in a row for about 30 metres on the road in front of the petitioners' building. It is W.P.(C) No.7797 of 2017 6 submitted that parking is in deviation of the space marked for the purpose by the Municipality. That, the Municipality has taken a decision to entrust the regulation of traffic including allotment of parking areas with the Traffic Regulatory Committee. 5. The learned Senior Government Pleader submits that his instructions are also to the same effect. 6. The photographs produced along with the writ petition evidences the fact that the entire road frontage of the petitioners' building is utilised for parking of autorikshaws. This would definitely obstruct the free ingress and egress of vehicles to and from the petitioners' building. The question as to whether the right of free ingress and egress to a private building can be obstructed or curtailed by the illegal parking of vehicles has time and again been considered by this Court 7 W.P.(C) No.7797 of 2017 and answered in the negative. After an elaborate consideration of the precedents, this Court in **Naushad.M and others v State of Kerala and others (2019(2) KHC 562)** categorically held that, permitting the parking of autorikshaws permanently in front of the shop rooms on the side of the roads is an appropriation of the private right of owners of shops and houses to have free access to the road. This being the position, respondents 5 to 8 or their members do not have any indomitable legal right to park the autorikshaws in front of the petitioners' building, obstructing its ingress and egress. At the same time, permission having been granted to park autorikshaws near the Panchayat bus stand, the said right cannot be completely curtailed. In this context, it may be appropriate to refer to Section 72 of the Kerala Police Act 2011, which mandates the constitution of Traffic Regulatory W.P.(C) No.7797 of 2017 8 Committees in every Grama Panchayat, Municipality and Corporation matters related to traffic. 7. From the submissions made by the learned counsel for the Municipality and the learned Senior Government Pleader, it is evident that the Municipality is taking urgent steps for entrusting the regulation of traffic in Kattappana Town, including allotment of parking spaces, with the Traffic Regulatory Committee to be constituted in terms of Section 72. 8. In such circumstances, till a decision regarding the allotment of space for parking of autorickshaws is taken by the Traffic Regulatory Committee, five autorickshaws at a time can be permitted to be parked in front of the petitioners' building. The petitioners do not have any objection to such a course of action being taken. W.P.(C) No.7797 of 2017 9 In the result, the writ petition is disposed of, limiting the parking of autorickshaws’ in front of the petitioners' building to 5. If more than 5 autorickshaws are parked in front of the building, the petitioners shall inform the Police and the Police shall immediately intervene and remove all the autorikshaws and prevent further parking of autorikshaws outside the petitioners' building. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/ xxx W.P.(C) No.7797 of 2017 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE SALE DEED DATED 23.03.2012.** - **EXHIBIT P2. TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE KATTAPPANA GRAMA PANCHAYATH (1ST RESPONDENTS PREDECESSOR) DATED 22.10.2012.** - **EXHIBIT P3. TRUE COPY OF THE PHOTOGRAPHS SHOWING AUTO RICKSHAWS WHICH ARE PARKED IN A LINE ON THE EXTREME WESTERN SIDE OF THE PETITIONER'S COMMERCIAL BUILDING.** - **EXHIBIT P4. TRUE COPY OF THE REPRESENTATION DATED 16.01.2015 AND ITS ACKNOWLEDGEMENT RECEIPT.** - **EXHIBIT P5. TRUE COPY OF THE REPRESENTATION DATED 22.12.2016 FILED BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P6. TRUE COPY OF THE REPRESENTATION DATED 03.02.2017 BEFORE THE RESPONDENTS 3 AND 4.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5(A) TRUE COPY OF THE ONE OF THE IDENTITY** W.P.(C) No.7797 of 2017 11 **CARD WITH PARKING STICKER ISSUED TO AUTO RICKSHAW DRIVERS DURING THE YEAR 2010.** **EXHIBIT R5(B) TRUE COPY OF THE FEW IDENTITY CARDS ISSUED BY THE 1ST RESPONDENT PANCHAYAT TO THESE RESPONDENTS.** W.P.(C) No.7797 of 2017 12