V.A. Sebastian Pariyarithu Silks & Others v. District Police Chief, Kottayam & 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 05TH DAY OF APRIL, 2019/15TH CHAITHRA, 1941** **WP(C).No. 7218 of 2019** ## **PETITIONERS:** - **1 V.A.SEBASTIAN PARIYARITHU SILKS, KANJIRAPPILLY, KOTTAYAM DISTRICT.** - **2 N.C.THOMAS, NARIPPARA DENTAL CLINIC, KANJIRAPPILLY, KOTTAYAM DISTRICT.** - **3 SHAMSUDDIN.A, THOTTATHIL HOUSE, KANJIRAPPILLY, KOTTAYAM DISTRICT.** - **4 SONY THOMAS, MANNAMPLACKAL, CHIRAKKADAVU, KOTTAYAM DISTRICT.** - **5 SHAJI MON, KUTHIRAMKAVIL, KANJIRAPPILLY, KOTTAYAM DISTRICT.** - **6 P.E.SHUKKOOR, THOTTATHIL HOUSE, KANJIRAPPILLY, KOTTAYAM DISTRICT.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.ABY.J.AUGUSTINE SRI.MATHEW DEVASSI** ## **RESPONDENTS:** **1 THE DISTRICT POLICE CHIEF, KOTTAYAM-686001.** WP(C) NO.7218 OF 2019 :-2-: - **2 DEPUTY POLICE CHIEF, KANJIRAPPILLY-686004.** - **3 CIRCLE INSPECTOR OF POLICE, KANJIRAPPILLY -686004.** - **4 THE SECRETARY, KANJIRAPPILLY GRAMA PANCHAYAT, KANJIRAPPILLY, KOTTAYAM DISTRICT-686004.** - **5 PROMOD,** - **NJONDAMMAKAL, CHIRAKADAVU, KANJIRAPPILLY, KOTTAYAM DISTRICT-686 004** - **[R5 DELETED AS PER ORDER DATED 1-04-2019 IN IA 1/2019]** - **6 ZAKIR HUSSAIN, PUTHUPPARAMBIL, KANJIRAPPILLY, KOTTAYAM DISTRICT-686004.** - **7 NAUSHAD T.S, THAIPURAYIDATHIL, NEAR MASJID NOOR, IDAPPALLY, KANJIRAPPILLY, KOTTAYAM DISTRICT-686004.** - **ADDL.R8 TRAFFIC REGULATORY COMMITTEE OF KANJIRAPPILLY GRAMA PANCHAYAT-REPRESENTED BY ITS CHAIRMAN (PRESIDENT, KANJIRAPPILLY GRAMA PANCHAYAT), KANJIRAPPILLY.P.O., KOTTAYAM DISTRICT.** - ***[ADDL.R8 IMPLEADED AS PER ORDER DATED 5.4.2019 IN I.A.No.2/2019]** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** - **ON 05.04.2019, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** WP(C) NO.7218 OF 2019 :-3-: ## **WP(C).NO.7218 OF 2019** ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** This writ petition has been filed seeking for a writ of mandamus commanding respondents 1 to 4 to take immediate action to remove unauthorised parking of autorickshaws on either side of Anathanam road and its bell mouth. 2. The petitioners purchased the property on either side of the public road by name Anathanam Road, branching from the National Highway at Kanjirappally- Petta Junction. This property is situated on either side of the public road. Ext.P1 sketch would show that the petitioners have constructed commercial buildings on the side of the said road in their properties and are doing various business activities. The Traffic Advisory Committee of the Kanjirappilly Grama Panchayat in Ext.P2 decision dated 11.9.2018 has clearly recorded that autorickshaws operating in Petta Junction shall be entitled to park only upto the Town Muslim Church. A reference to Ext.P2 would WP(C) NO.7218 OF 2019 :-4-: show that autorickshaws are not entitled to park on either side of the Anathanam road or on the side of the National Highway from where Anathanam road branches. The complaint of the petitioners is that in gross violation of the decision in Ext.P2, autorickshaws and other vehicles are parked on either side of Anathanam road and also the bell mouth(an area with increase in width on a circular shape) on either side of the said road making it impossible to even entry to the Anathanam road. 3. The learned counsel for the petitioners contends that the parking of autorickshaws is per se illegal and runs contrary to the decision in Ext.P2 and is in violation of the right of the petitioners to gain access from their properties on either side of Anathanam Road. 4. Feeling aggrieved by the unauthorised parking of autorickshaws and other vehicles, petitioners submitted Ext.P4 complaint before the first respondent on 5.12.2018 with copies to respondents 2 to 4, which has not evoked any WP(C) NO.7218 OF 2019 :-5-: response, leaving the petitioners no other adequate and alternate remedy than to approach this Court. Hence the petitioners are before this Court. 5. Pending proceedings, the petitioners filed IA No.2/2019 to implead additional eighth respondent in the party array. The petition is allowed and the Traffic Regulatory Committee of Kanjirappilly Grama Panchayat represented by its Chairman is impleaded as additional 8[th] respondent in this writ petition. 6. Heard Sri.Mathew John, the learned counsel appearing for the petitioner, Sri.P.P.Thajudeen, the learned Senior Public Prosecutor appearing for respondents 1 to 3 and Sri.Manilal, the learned Standing Counsel for the fourth respondentPanchayat 7. Learned counsel for the petitioners contends that the petitioners, who are the owners of the properties on either side of Anathanam road is a public road branching from the National highway 183 at Petta Junction, are entitled to WP(C) NO.7218 OF 2019 ## :-6-: gain access from the registered holdings to Anathanam road through every inch of property, where their property touches Anathanam road. The party respondents or any others are not legally entitled to park their vehicles on either side of the Anathanam road or of its bell mouth so as to obstruct the free entry of the vehicles to the Anathanam road and also the property and the building of the petitioners on either side of the Anathanam road, submits the learned counsel for the petitioner. 8. The learned Standing Counsel for the Panchayat submits that the Panchayat has taken action against the unauthorised parking and at present parking of autorickshaws on either side of Anathanam road and its bell mouth has been stopped. 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** WP(C) NO.7218 OF 2019 :-7-: [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 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 WP(C) NO.7218 OF 2019 :-8-: autorickshaws unauthorisedly in front of the shoprooms and 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 **fourth respondent** is the authority to prescribe public landing places, halting places and cart-stands and levy fees for their use. Section 227 of the Act reads as follows:- WP(C) NO.7218 OF 2019 :-9-: “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 of Regional Transport Authority is not required, consider the objections received from the public within the fixed day and dispose them within fifteen days. WP(C) NO.7218 OF 2019 ## :-10-: **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 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 WP(C) NO.7218 OF 2019 :-11-: 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. 15. Judged by the above standards, we are of the considered view that the respondents 1 to 4 are bound to remove unauthorised parking of autorickshaws on either side of Anathanam road and its bell mouth. In view of the discussion made hereinabove, the writ petition is disposed of as indicated hereinbelow. 1. Respondents 1 to 4 are directed to take immediate action to remove unauthorised parking of autorickshaws on either side of Anathanam road and its bell mouth. WP(C) NO.7218 OF 2019 :-12-: 2. The Traffic Regulatory Committee - additional 8[th] respondent is directed to convene Traffic Regulatory Committee in accordance with Sec.72 of the Kerala Police Act frequently and take appropriate remedial action in accordance with law. 3. The fourth respondent is directed to determine the location of parking place of autorickshaws in consultation with the District Police Chief and 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. The Writ Petition is disposed of as indicated hereinabove. ## Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- 5[th] April,2019 **N.ANIL KUMAR** , JUDGE MBS/ WP(C) NO.7218 OF 2019 :-13-: ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SKETCH SHOWING THE HIGHWAY THE ANATHANAM ROAD THE JUNCTION IN QUESTION.** **EXHIBIT P2 TRUE COPY OF THE DECISION TAKEN BY THE TRAFFIC ADVISORY COMMITTEE OF THE KANJIRAPPILLY GRAMA PANCHAYAT MEETING HELD ON 11.9.2018.** **EXHIBIT P3 PHOTOGRAPHS SHOWING THE UNAUTHORIZED PARKING OF VEHICLES. EXHIBIT P4 TRUE COPY OF THE PETITION DATED 5.12.2018 SUBMITTED BY THE PETITIONERS AND ANOTHER BEFORE THE 1ST RESPONDENT.**