Sulaiman 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** **TUESDAY,THE 26TH DAY OF MARCH, 2019/5TH CHAITHRA, 1941** **WP(C).No. 8328 of 2019** **PETITIONER:** **SULAIMAN, AGED 53 YEARS, S/O.BAVA RAWTHAR, BAVA MANZIL, PATHANAPURAM.P.O., KOLLAM-689695.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DEPUTY SUPERINTENDENT OF POLICE, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** - **3 THE CIRCLE INSPECTOR OF POLICE, ADOOR POLICE STATION, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** - **4 THE SUB INSPECTOR OF POLICE, ADOOR POLICE STATION, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** - **5 THE ADOOR MUNICIPALITY, REP. BY ITS SECRETARY, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** - **6 THE SUB REGIONAL TRANSPORT AUTHORITY, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** - **7 SHAJI PUTHENTHARA, SHEEJA MANZIL, PARAKODE, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** WP(C) NO.8328 OF 2019 :-2-: **8 FAZAL, FOUSIYA MANZIL, KANNAMKODE, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** **9 C I T U, AUTORIKSHAW UNION, MARIYA JUNCTION, REPRESENTED BY ITS SECRETARY, NAZAR, PALLIKIZHAKETHIL HOUSE, KANNAMKODU, ADOOR.P.O., PATHANAMTHITTA DISTRICT-691523.** R5 BY STA NDING COUNSEL SRI.K.SHAJ. **OTHER PRESENT:** **R1 TO R4 AND R6 BY SR.GP SRI.P.N.SANTHOSH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 26.03.2019, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** WP(C) NO.8328 OF 2019 :-3-: ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** This writ petition is filed by the petitioner seeking the following reliefs:- - “(i) Issue a Writ of Mandamus or any other writ,order or direction commanding the respondents 2 to 4, to provide adequate, substantial and sufficient police protection to the petitioner and property from any further threat from the said respondents 7 to 9, to protect his life and the life of his other persons in his building and also to see that no unathorized parking of autorickshaws are permitted, either as parking stand or otherwise, in front of the building of the petitioner, in the interest of justice; - (ii) Issue a writ of mandamus or any other writ, order or direction commanding the second respondent to take up Ext.P5 and to do all that is necessary to protect the interest of the petitioner as raised in his complaint, within stipulated time limits, interest of justice.” 2. Petitioner is stated to be an owner of a two storied building in Adoor Municipality which had been given on tenancy arrangements for running business establishments. According to the petitioner, respondents 7 to 9 and the members of the Unions are parking the autorickshaws right in front of the building of the petitioner at Mariya Junction in Adoor Municipality in such a manner that the entire entry to the premises is blocked by the unauthorized parking of the autorickshaws. Consequent to the details collected under the Right to WP(C) NO.8328 OF 2019 :-4-: Information Act as per Exts.P4, the petitioner is made to understand that no permission is granted by the local authority for parking autorickshaws in front of the petitioner's premises. Petitioner has lodged complaints before the Police authorities, but no action has been taken. It is alleged that respondents 7 to 9 and the members of the Union claim the stand to be an authorised one as of right and begin to threaten and intimidate the petitioner with dire consequences. Hence the petitioner is before this Court. 3. The question arising for consideration in this case is as to whether the owners in possession of the shoprooms at Mariya Junction in Adoor Municipality has a right to go upon the road from any point from their shoprooms, especially when there is a public road; and if that right is obstructed by anyone, the owners in possession of the shoprooms are entitled to maintain an action for the injury, no matter whether the obstruction does or does not constitute a public offence. 4. When the matter came up for admission before this Court on 19[th] March, 2019, this Court issued notice by special messenger to respondents 7 to 9. But as seen from the order of this Court dated 26.3.2019, the WP(C) NO.8328 OF 2019 :-5-: notice sent to respondents 7 to 9 has been returned stating that all of them refused to accept the notice and hence, this Court declared the service of notice to the above respondents as complete. Heard the learned counsel for the petitioner, Sri.P.N.Santhosh, the learned Senior Government Pleader for respondents 1 to 4 and 6. 5. The contention set forth by the petitioner raises important questions of law and fact and it is necessary to examine various judgments of the Apex Court and this Court in detail. 6. In **Municipal Committee** v. **Mohammad Ibrahim** [AIR 1935 Lah 196], **Sheonarayan** v. **Dindayal** [AIR 1931 Nag 189], **Mandakinee Debee** v. **Basantakumaree Debee** [AIR 1933 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 WP(C) NO.8328 OF 2019 :-6-: 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. 7. Going by the above legal precedents, it is clear that permitting the private respondents to park autorickshaws unauthorisedly in front of the building owned by the petitioner, obstructing his private right is not at all justified. No doubt, permitting the party respondents to park their autorickshaws permanently in front of the petitioner's building is an appropriation of his private right to have free access to the highway. 8. One of the contentions advanced by the learned counsel for the petitioner 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. WP(C) NO.8328 OF 2019 :-7-: 9. We will briefly refer to the statutory provisions governing the context. 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 5[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 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 WP(C) NO.8328 OF 2019 :-8-: 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 Ext.P4, pursuant to the information sought invoking the provisions of the Right to Information Act from the fifth respondent that no such permissions were granted by the Municipality to park the autorickshaws at Mariya Junction. Thus, it is evident that no autorickshaw stand has been approved by the 5[th] respondent- Municipality. 10. Judged by the above standards, we are of the considered view that the petitioner is entitled to have access in Mariya Junction abutting his buildings which are given on tenancy arrangements to run the business establishments 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 fourth respondent to give adequate and effective WP(C) NO.8328 OF 2019 :-9-: police protection for removing the autorickshaws parked in front of the petitioner's building at Mariya Junction by stopping the illegal parking of the autorickshaws and others. - 2) Fifth respondent is directed to constitute a Traffic Regulatory Committee in accordance with Section 72 of the Kerala Police Act within two weeks from the date of receipt of a copy of this judgment. - 3) The fifth respondent is directed to determine the location of the parking place for 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 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 autorickshaws are parked, only five autorickshaws can be parked. We also make it clear that this temporary arrangement of parking of five autorickshaws at a time shall not give them any right to claim parking, as of right, in the said area. WP(C) NO.8328 OF 2019 **==> picture [27 x 9] intentionally omitted <==** The Writ Petition is disposed of as indicated hereinabove. Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/ WP(C) NO.8328 OF 2019 ## :-11-: ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE RECENT PHOTOGRAPHS WHICH THE PETITIONER HAS TAKEN DATED NIL.** **EXHIBIT P2 A TRUE COPY OF THE TAX RECEIPT ISSUED IN THE NAME OF THE PETITIONER DATED 19.9.2018.** **EXHIBIT P3 A TRUE COPY OF THE INFORMATION PROVIDED BY THE ADOOR MUNICIPALITY TO THE FRIEND OF THE PETITIONER DATED 26.2.2015.** **EXHIBIT P4 A TRUE COPY OF THE INFORMATION PROVIDED TO THE PETITIONER DATED 13.2.2019.** - **EXHIBIT P5 A TRUE COPY OF THE COMPLAINT LODGED BY THE PETITIONER BEFORE THE D Y S P DATED NIL.** **EXHIBIT P6 A TRUE COPY OF THE REPORTED JUDGMENT IN 2018 VOL 2 K H C PAGE 812 DATED 10.4.2018 BY THIS COURT. EXHIBIT P7 A TRUE COPY OF THE REPORTED JUDGMENT IN 2014 VOL K H C PAGE 317 DATED 16.1.2014 BY THIS COURT.** **EXHIBIT P8 A TRUE COPY OF THE REPORTED JUDGMENT BY THE HON'BLE SUPREME COURT REPORTED IN 2009 VOL 17 S C C PAGE 597 DATED 17.5.2007.**