Shani Xaviour, Shafeeq, Hussian, Ali Akbar and Asif TM v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY,THE 15TH DAY OF MARCH, 2019/24TH PHALGUNA, 1940** **WP(C).No. 3588 of 2019** **PETITIONERS:** ***1 SHANI XAVIOUR AGED 47 YEARS W/O.XAVIER, THAMARAPARAMBIL HOUSE, PALLIKAVAL, CHERANELLOOR.(DELETED). PETITIONER 1 DELETED FROM THE ARRAY OF PETITIONERS AS PER ORDER DATED 28.2.2019 IN IA.NO.1/2019 IN THE WP(C) 2 SHAFEEK AGED 45 YEARS S/O.ABDUL KADER, PALLIKAVALA, CHERANELLOOR. 3 HUSSIAN AGED 64 YEARS S/O.MUHAMMED, AMBALATH HOUSE, PALLIKAVALA, CHERANELLOOR. 4 ALI AKBAR AGED 48 YEARS S/O.MOIDU, THAMARASSERRY, PALLIKAVALA, CHERANELLOOR. 5 ASIF T M AGED 34 YEARS S/O.IQBAL, THAMARASSERRY, PALLIKAVALA, CHERANELLOOR, PIN-682034.** **BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME AFFAIRS, THIRUVANANTHAPURAM.** WP(C) NO.3588 OF 2019 :-2-: - **2 THE COMMISSIONER OF POLICE, REVENUE TOWER, PARK AVENUE, ERNAKULAM, PIN-682011.** - **3 ASSISTANT COMMISSIONER OF POLICE, KOCHI CITY TRAFFIC (EAST), MARKET ROAD, EDAPPALLY, KOCHI-682024.** - **4 THE CIRCLE INSPECTOR OF POLICE, KOCHI CITY TRAFFIC (EAST), MARKET ROAD EDAPPALLY, KOCHI-682024.** - **5 SUB INSPECTOR OF POLICE, CHERANELLOOR POLICE STATION, CHERANELLOOR, PIN-682034.** - **6 A.I.T.U.C. TRADE UNION, PALLIKAVALA UNIT, REPRESENTED BY ITS SECRETARY, BACKER, S/O.MAMMU, AGED 45, THAMARASSERY HOUSE, CHERANELLOOR, PIN-682034.** - **7 SUDHEER, AGED 52, S/O.RAGHAVAN, KANAVALLIPADATH HOUSE, CHERANELLOOR-682034.** - **8 ADDL.R8-CHERANELLOOR GRAMA PANCHAYATH REP. BY ITS SECRETARY,CHERANELLOOR P.O, ERNAKULAM, (ADDL.R8 IS IMPLEADED AS PER ORDER DATED 28.2.2019 IN IA.NO. 2/2019 IN THE WP(C))** **BY ADVS.** **R6 AND R7 BY ADV,SRI.R.SUDHISH** - **R8 BY ADV SRI.T.K.AJITHKUMAR (VALATH) SMT.M.MANJU** ## **OTHER PRESENT:** **R1 TO R5 BY SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No. 3588 of 2018 :-3-: ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** This writ petition is filed by the petitioners seeking the following reliefs:- “(i) Issue a Writ of Mandamus or any other writ or order directing the respondent Nos.2 to 5 to render adequate police protection to the life of the petitioners herein and to ensure the peaceful life by removing the obstruction of illegal parking of goods autorickshaws in Pallikavala Junction within the limits of Cheranelloor Panchayath, (ii) Issue a writ of mandamus or any other writ or order directing the 2[nd] respondent to take appropriate decision and action upon Ext.P8 petition.” ## 2. The petitioners are residing in the areas around Pallikavala Junction, within the limits of Cheranalloor Panchayath. The five metres PWD road named Ponekkara/Amrita Hospital road runs from north towards south and from Pallikkavala junction to west having various institutions like schools,churches, mosques and hospitals within a radius of 3 kms. making the Pallikavala Junction a heavy traffic area. The members under the 6[th] respondent are parking their goods autorickshaws unauthorisedly in front of the residential house of the second petitioner in Pallikavala Junction beside the Amrita Hospital road. The WP(C) No. 3588 of 2018 :-4-: parking of the goods autorickshaws are also causing hindrance to the first, third and fourth petitioners while moving to Thamarasserry Ahemed Bava Lane. Consequent to the details collected under the Right to Information Act as per Exts.P3(a),P4,P5(a) and P6(a), the petitioners are made to understand that no permissions were granted by the local authority for parking at Pallikavala Junction. It is alleged that the drivers under the 6[th] respondent Union claim the stand to be an authorised one as of right and begin to threaten and intimidate the petitioners with dire consequences. Hence the petitioners are before this Court. 3. Third respondent filed a statement stating that the goods autorickshaws are parking at Pallikavala Junction and there is no authorised parking permitted near Pallikavala Junction where the width of the road is only 5 ms. and 50 cms. adding that the goods autorickshaw parking is causing much inconvenience to the petitioners and other road users. The third respondent brought Annexure R4(a) to the Chairman, Regional Transport Authority, Ernakulam to get approval for installing 'No parking' Board at Pallikavala junction. WP(C) No. 3588 of 2018 :-5-: 4. The 8[th] respondent filed a counter affidavit stating that the Cheranelloor Panchayat has not given any permission to park goods autorickshaws at Pallikavala Junction. According to the 8[th] respondent, some drivers of the goods autorickshaws including the 7[th] respondent, had filed a representation on 14.10.2019 to the Secretary of the 8[th] respondent Panchayat seeking to continue the goods autostand at Pallakavala Junction. The representation was placed in the meeting of the 8[th] respondent, which was held on 27.2.2019. Since the Panchayath had no role in fixing auto stands in PWD roads, the Panchayath had not taken any decision on the above representation. 5. The question arising for consideration in this case is as to whether the owners in possession of the shoprooms and buildings adjoining the Pallikkavala Junction in Cheranelloor Panchayat in Ernakulam District 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 shoprooms or houses are entitled to maintain an action for the injury, no matter whether the obstruction does or WP(C) No. 3588 of 2018 **==> picture [21 x 9] intentionally omitted <==** does not constitute a public offence. 6. Heard the learned counsel for the petitioners, Sri.P.P.Thajudeen, the learned Senior Government Pleader for respondents 1 to 5, Sri.R.Sudhish, the learned counsel appearing for respondents 6 and 7 and Sri.T.K.Ajithkumar, the learned counsel appearing for 8[th] respondent. 7. Learned counsel for the party respondents contended that the particular road on which the parking complained of has been constructed as public road and no person has exclusive right to claim right over such a public road under any circumstance. It is contended that petitioners 2 to 5 are having a shopping complex just opposite to the autostand. It is further contended that the tenants as well as the owners of the building had trespassed upon the footpath as well as the parking area of the building which ultimately cause the customers to park the vehicle on the road. It is further contended that the petitioners being trespassers have no right to object parking of autorickshaws on the side of the public road as alleged by them. It is further contended that assuming for argument's sake that parking is a nuisance, still the remedy WP(C) No. 3588 of 2018 :-7-: of the petitioners is to abate the nuisance in accordance with law and not by way of mandamus directing to issue necessary police protection to abate the nuisance. 8. As against this, the learned counsel for the petitioners contended that the road on which the parking has been challenged, is a public road and road frontage is of great importance and hence a person, who owns a house or shoproom abutting the public road, can legally claim access to the public road at any point. Learned counsel for the petitioners further submits that in the case of a public road, the public are entitled to use the entire width of the public road as the highway and are not confined to the part which may be tarred or kept vacant in order for the convenient use of carriages and foot passengers. 9. 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. 10. In **Municipal Committee** v. **Mohammad Ibrahim** [AIR 1935 Lah 196], **Sheonarayan** v. **Dindayal** [AIR 1931 Nag 189], **Mandakinee Debee** v. **Basantakumaree Debee** [AIR 1933 WP(C) No. 3588 of 2018 :-8-: 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 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. 11. Going by the above legal precedents, it is clear that permitting the private respondents to park autorickshaws unauthorisedly in front of the shoprooms and WP(C) No. 3588 of 2018 :-9-: 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. 12. 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 within the Panchayat area. 13. We will briefly refer to the statutory provisions governing the context. As per Section 227 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act'), the third respondent is the authority to prescribe public landing places, halting places and cartstands and levy fees for their use. Section 227 of the Act reads as follows:- WP(C) No. 3588 of 2018 **==> picture [27 x 9] intentionally omitted <==** “227. Public landing places and cart-stands etc.--Subject to such rules as may be prescribed, the Village Panchayat may - - (a) provide public landing places, halting places - and cart-stands (including stands for animals and vehicles of any description) and levy fees for their use; and (b) where any such place or stand has been provided, prohibit the use for the same purpose by any person, within such distance, thereof, any public place or the side of any public road as the panchayat may, subject to the control of the Regional Transport Authority, specify: Provided that the previous sanction of the Regional Transport Authority shall be obtained before any stand or halting place for motor vehicles is opened.” The Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and other Vehicle Stands) Rules,1995 (for short 'the Rules') provides elaborate rules for prescribing stands for taxis and other vehicles as follows:- “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 WP(C) No. 3588 of 2018 **==> picture [27 x 9] intentionally omitted <==** of 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 or the Regional Transport Authority before opening any public stand of halting place to motor vehicles.” 14. In this context, reference may also be made to Section 117 of the Motor Vehicles Act, 1988. 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 8[th] 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 WP(C) No. 3588 of 2018 :-12-: 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 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. It is evident from Exts.P3(a),P4(a),P5(a) and P6(a) informations issued by the Public Information Officers of Traffic East Police Station, Regional Transport Office, Ernakulam and PWD Roads and Bridges Division, Ernakulam and the Secretary, Cheranelloor Grama Panchayat pursuant to the information WP(C) No. 3588 of 2018 :-13-: sought invoking the provisions of the Right to Information Act that no such permissions were granted by the Panchayat to park the goods autorickshaws at Pallikavala Junction. Thus, it is evident that no autorickshaw stand has been approved by the 8[th] respondent- Panchayat or anybody else. 15. Judged by the above standards, we are of the considered view that the petitioners are entitled to have access in Pallikavalla Junction abutting their shoprooms and houses free of any obstruction. In view of the discussion made hereinabove, the writ petition is liable to be disposed of as indicated hereinbelow:- - 1) There will be a direction to the fifth respondent to give adequate and effective police protection for removing the goods autorickshaws parked on the side of the highway at Pallikavala Junction by stopping the illegal parking of the goods autorickshaws and others in front of the petitioners' residential buildings. - 2) Eighth respondent is directed to constitute a Traffic Regulatory Committee in accordance with Section 72 of the Keala Police Act within two weeks from the date of receipt of a copy of this judgment. WP(C) No. 3588 of 2018 :-14-: - 3) The eighth respondent is directed to determine the location of the parking place for goods autorickshaws in consultation with the District Police Chief and the 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, five goods 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 in the area where the goods autorickshaws are parked, only five goods autorickshaws can be parked. We also make it clear that this temporary arrangement of parking of five goods 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 hereinabove. ## Sd/- **P.R.RAMACHANDRA MENON** , JUDGE ## 15[th] March,2019. Sd/- MBS/ **N.ANIL KUMAR** , JUDGE WP(C) No. 3588 of 2018 :-15-: ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE GOOGLE MAP OF THE PALLIKAVALA JUNCTION AND PLACES WITHIN 3 K.M.** **EXHIBIT P2 PHOTOGRAPHS EVIDENCING THE TRAFFIC CONGESTION.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 30.7.2018.** - **EXHIBIT P3 A TRUE COPY OF THE REPLY TO EXT.P3. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 6.9.2018.** **EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 24.9.2018.** - **EXHIBIT P5 A TRUE COPY OF THE REPLY TO EXT.P5.** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 24.7.2018 TO THE SECRETARY, CHERANELLOOR GRAMA PANCHAYATH.** - **EXHIBIT P6 A TRUE COPY OF THE REPLY DATED 1.8.2018.** - **EXHIBIT P7 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE PARKING OF THE VEHICLE EVEN AFTER SETTING NO PARKING BOARD.** **EXHIBIT P8 TRUE COPY OF THE PETITION DATED NIL SUBMITTED A MASS PETITION BEFORE THE 2ND RESPONDENT PRIOR TO THE FLOOD.** WP(C) No. 3588 of 2018 :-16-: ## **RESPONDENTS' EXHIBITS:** EXT.R6(a): COPY OF THE PHOTOGRAPH OF THE BUILDING AND THE GROUND FLOOR PORTION OF THE BUILDING AND ALSO THE PARKING OF VEHICLE ON THE ROAD. EXT.R6(b): COPY OF THE VEHICLE DETAILS OBTAINED FROM THE GOVERNMENT WEBSITE OF KERALA MOTOR VEHICLE DEPARTMENT. EXT.R6(c): COPY OF THE COMPLAINT FILED BYTHE AUTORICKSHAW OWNERS CUM DRIVERS INCLUDING THE RESPONDENTS NOS.6 AND 7. EXT.R6(d): COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE CHERANALLOOR PANCHAYATH DTD.15.2.2019. EXT.R6(e): COPY OF THE COMPLAINT FILED BY THE 6TH RESPONDENT UNION BEFORE THE ASSISTANT COMMISSIONER OF POLICE, TRAFFIC, ERNAKULAM EXT.R6(f): COPY OF THE COMPLAINT FILED BY THE AUTO STAND WORKERS BEFORE THE KOCHI CITY POLICE COMMISSIONER DATED 6.6.2018. Annexure R3(a): TRUE COPY OF THE LETTER DTD.24.7.2018 ADDRESSED TO THE CHAIRMAN, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM.