Sulaiman v. Mathilakam Grama Panchayat & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942** ## **WP(C).No.15094 OF 2020(J)** ## **PETITIONER:** **SULAIMAN, AGED 38 YEARS, S/O. SAIDHU, SRAMBIKKAL HOUSE, MATHILAKAM, KODUNGALLUR TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN, SRI.K.S.RAJESH** ## **RESPONDENTS:** - **1 MATHILAKAM GRAMA PANCHAYATH P. O. MATHILAKAM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN - 680 685., REP. BY ITS SECRETARY.** - **2 THE SECRETARY MATHILAKAM GRAMA PANCHAYAT, P. O. MATHILAKAM, KODUNGALLUR TALUK, THRISSUR DISTRICT,PIN 680 685.** - **3 THE REGIONAL TRANSPORT OFFICER MINI CIVIL STATION, KODUNGALLUR, PIN - 680 664.** - **4 THE STATION HOSUE OFFICER MATHILAKAM POLICE STATION, MATHILAKAM, KODUNGALLUR, PIN - 680 685.** - **5 MANIKANDAN, AGED 45 YEARS, S/O. SANKURU, VALAPPURAKKAL HOUSE, MATHILMOOLA EAST, P. O. MATHILAKAM, PIN - 680 685, THE PRESIDENT, AUTO RICKSHAW DRIVERS UNION (CITU MATHILMOOLA UNIT, MATHILAKAM GRAMA PANCHAYAT)** - **6 SREEKUMAR, AGED 51 YEARS, S/O. KUMARAN, ADIPARAMBIL HOUSE, SANKHUKULANGARA TEMPLE, SN PURAM, P. O. PANANGAD, PIN - 680 665, THE SECRETARY, AUTO RICKSHAW DRIVERS UNION (CITU MATHILMOOLA UNIT, MATHILAKAM GRAMA PANCHAYAT)** **SRI SAIGI JACOB PALATTY, SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P.(C) No. 15094 of 2020 --------------------------------------Dated this the 6[th] day of August, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: _The petitioner is the owner and in possession of 17 cents of property comprised in 239/1 A of Pappinivattom village wherein the petitioner constructed shop Room Number. 170,173,173 A,173B,173 C, 173D and 173E to let. Building Number 173 F is the residential building of the petitioner. The residence of the petitioner situates along the National Highway 66 which is on the west of the property. In between the National Highway and the building, there is Road Margin where the Auto rickshaws are parking by preventing ingress and egress to the building of the petitioner. All the shop room now were given on rent for conducting various business but those who took on 'rent are unable to commence the business as their customers cannot enter into the premises because of the Auto Rickshaw parking stand. There is no parking stand as notified by the panchayat in front of the building of the petitioner. The parking of auto rickshaw now being done by the respondents 5 and 6 and their members is totally unauthorized and_ W.P. © No. 15094 of 2020 ..3.. _illegal. Exhibit P4 to P6 are the complaints submitted by the petitioner before the 1[st] respondent Grama Panchayat,Regional Transport Officer, Kodungallur and the Circle Inspector of Police, Mathilakam describing the grievance of the petitioner. Denial of access from the road to the shops and the right of the shop owners for such free access has been an issue which was now resolved by The Division Bench of this Court in_ _**Jayaprasad.K.B v. State of Kerala & Others[2018 (2) KHC 812]** holding that parking causing hindrance to ingress and egress to the buildings cannot be permitted. Following the division bench, it was held in Exhibit P7 judgment in W.P.(C).No.21300/2017,_ _**Aleyamma and others v. The District Collector, Kollam** that “It is trite law that a person legally occupying a premise adjacent to a public road has right to access to the public road from any point of the premises. It is necessary for such commercial establishments that free access to their shops and ingress and egress are not blocked by any persons. Very same issue was agitated in W.P. (C).NO.16773/ 19 wherein this court, having analyzed the provisions of The Motor Vehicles (Driving Regulations) held in_ W.P. © No. 15094 of 2020 ..4.. _**Mathew v. State of Kerala 2019 (4) KLT SN 50** that 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. Hence this writ petition for a direction to the 1[st] respondent panchayat to remove the unauthorized parking stand of autorickshaws in front of the building of the petitioner._ It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ _I. Writ of Mandamus or any other Writ, order or direction directing the 1[st] respondent Panchayat to remove the uanuthorized parking stand of the respondents 5 and 6 in front of the building of the petitioner on the bases of Exhibit P4 application in the interest if justice. II. Writ of Mandamus or any other writ, order or direction directing the 4[th] respondent to ensure right of access to the petitioner and his tenants and ingress and egress to the shop room and house of the petitioner from the public road is not blocked by the unauthorized parking of auto rickshaws at Mathilmoola junction in front of the house of the petitioner in the interest of justice. III. Any other writ or order that this Honourable Court may deem fit.”_ 2. Heard Sri.M.Shaju Purushothaman, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 3 & 4. In W.P. © No. 15094 of 2020 ..5.. the nature of the order proposed to be passed in this petition, notice to respondents 1, 2, 5 & 6 will stand dispensed with. 3. The complaint of the petitioner is that, the autorickshaw drivers in the locality including respondents 5 & 6 are parking their autorickshaws in the road in question blocking and obstructing the access and right of ingress and egress to the petitioners’ shop building as well as his residential building, and that the autorickshaws are so parked in the said place which was not approved or permitted by the RTA in terms of the provisions contained in the MV Act or by the R-1 & R-2 in terms of the provisions contained in the Kerala Panchayat Raj Act or in terms of Section 72 of the Kerala Police Act relating to Traffic Regulatory Committee and therefore the said parking of auto is illegal and unlawful. Further that, this Court has passed a series of decisions including the one as per Ext.P-7 judgment rendered on 15.3.2019 in WP©.No.21300/2017 that such parking of autorickshaws and other vehicles without permission or approval of the competent statutory authorities is illegal and unlawful, and further that such parking done in such a manner so as to block the way, the right of W.P. © No. 15094 of 2020 ..6.. access to buildings of third parties would also be illegal, and further that, as can be seen from paragraph No.5 of Ext.P-7 judgment, this Court has passed an interim order on 14.8.2017 directing that as an interim measure the autorickshaws should be parked with a distance of 4 feet in between the autorickshaws, and that the said interim order should be scrupulously followed and obeyed until consideration of matter in Ext.P-7 etc. 4. It is seen that petitioner has submitted Ext.P-4 representation/complaint dated 6.7.2020 before the respondent Mathilakam Grama Panchayat and Ext.P-5 representation dated 6.7.2020 before the 3[rd] respondent RTO who is stated to be the ex-officio secretary of the statutory RTA, and that the said representation are lying unattended. Further it is pointed out that, Chairperson/President of the local body concerned like the Panchayat/Municipality etc has been made the ex-officio chairman of the Traffic Regulatory Committee constituted in terms of the provisions contained in Section 72of the Kerala Police Act and that powers are assigned to the said Traffic Regulatory Committee as per the said Act etc. W.P. © No. 15094 of 2020 ..7.. 5. Taking note of the facts and circumstances of the case it is ordered that the 2[nd] respondent Secretary of Mathilakam Grama Panchayat will take up the matters in Ext.P-2 representation for consideration and may conduct an inspection to ascertain the correctness of allegations raised in Ext.P-3 and to ascertain whether autorickshwas are parked as stated above, after getting prior permission from statutory authorities concerned, with prior notice to the petitioners as well respondents 5 & 6 and to any office bearer of any recognized unit of autorickshaw drivers in the locality if any, and thereafter the copy of inspection report should be given to the petitioner as well respondents 5 & 6 as well as to R-3 & R-4 and may thereafter refer the matter to the Traffic Regulatory Committee, which is headed by the President of the 1[st] respondent Panchayat. Thereafter, it is for the Traffic Regulatory Committee to afford reasonable opportunity of being heard to the petitioner and respondents 5 & 6 and to any office bearer of any recognized unit of autorickshaw drivers in the locality if any, and take a considered decision on the matters raised therein, after taking due regard to the factual aspect as to whether the parking done now has been W.P. © No. 15094 of 2020 ..8.. approved by any of the statutory authorities etc and then take a considered decision on the matter taking due note of the dictum laid down by this Court in the judgments as in Ext.P-7 judgment dated 15.3.2019 in WP©.No. 21300/2017. 6. The process of inspection and report should be duly completed by the 2[nd] respondent Secretary of Grama Panchayat within 2 weeks from the date of receipt of a copy of this judgment, and decision by the Traffic Regulatory Committee should be finalized within 6 weeks thereafter. 7. The counsel for the petitioner submits that, in the meanwhile this Court may direct that necessary interim arrangements shall be maintained in the light of Ext.P-7 and as otherwise the very access and entrance to the petitioners shop building is affected by the abovesaid illegal parking of autorickshaws as aforesaid. 8. In that regard, it is for the petitioner to also file a representation before the 2nd respondent Secretary of the Grama Panchayat with copy to the 4[th] respondent SHO for such interim arrangement, and on receipt of the same, the 2[nd] respondent with W.P. © No. 15094 of 2020 ..9.. notice to the petitioners and respondents 5 & 6 and any office bearer of any recognized unit of autorickshaw drivers in the locality if any, may take a decision thereon in the light of the decision in Ext.P-7 judgment, and such interim arrangement shall be enforced by the 4[th] respondent SHO till matters are finally decided as above by the TRC. 9. The petitioner will produce certified copies of this judgment along with copies of memorandum of this WP© with all exhibits before respondents 2, 3 & 4 for necessary information and further action. 10. Registry will forward a certified copy of this judgment to respondents 5 & 6 at the cost of the petitioner. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 15094 of 2020 ..10.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPIES OF THE CARD ON WHICH BUILDING NUMBERS OF THE SHOP ROOM AND HOUSE ARE AFFIXED DATED NIL.** - **EXHIBIT P2** **THE TRUE COPY OF THE RENT AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE TENANT WITH RESPECT TO ROOM NO.173 A DATED 05.06.2020.** - **EXHIBIT P3** **THE PHOTOGRAPH SHOWING THE OBSTRUCTION TO THE HOUSE AND THE BUILDING DATED NIL.** - **EXHIBIT P4** - **THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE GRAMA PANCHAYAT MATHILAKAM DATED 6.7.2020.** - **EXHIBIT P5 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE REGIONAL TRANSPORT OFFICER, KODUNGALLUR DATED 6.7.2020.** - **EXHIBIT P6** **THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE CIRCLE INSPECTOR OF POLICE, MATHILAKAM DATED 6.7.2020.** - **EXHIBIT P7** **THE TRUE COPY OF THE JUDGMENT IN WP(C) NO.21300/2017 DATED 15.03.2019.**