Vinayan G. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940** ## **WP(C).No. 28369 of 2018** ## **PETITIONER:** **VINAYAN G., AGED 36 YEARS, S/O. GOPINATHAN ACHARI, PROPRIETOR, 'VINAYAKA SILKS AND SAREES', VINAYAKA BUILDINGS, ENATHU JUNCTION, PATHANAMTHITTA DISTRICT AND RESIDING AT VINOD MANDIRAM, THURUTHIKARA P.O., KUNNATHOOR TALUK, KOLLAM DISTRICT.** **BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SMT.LIYA ROSE KURIAN SRI.R. RAJESH SRI.SARATH T.S.** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA - 689 645.** - **2 THE JOINT REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, ADOOR, PATHANAMTHITTA - 691 554.** - **3 THE DISTRICT POLICE CHIEF, PATHANAMTHITTA DISTRICT, PATHANAMTHITTA-689645** - **4 THE SUB INSPECTOR OF POLICE, ENATHU POLICE STATION, PATHANAMTHITTA- 691526.** - **5 THE SECRETARY, GRAMA PANCHAYAT, EZHAMKULAM, ADOOR TALUK, PATHANAMTHITTA-691554.** 2 WPC 28369 OF 2018 - **6 THE ADOOR TALUK TRAFFIC ADVISORY COMMITTEE, REPRESENTED BY ITS CONVENER, THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, ADOOR - 691523.** - **7 THE AUTORICKSHAW THOZHILALI UNION, CITU, ENATHU UNIT, ENATHU JUNCTION, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY, ARUN, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, PIN - 691526.** - **8 THE AUTORICKSHAW THOZHILALI UNION, INTUC, ENATHU UNIT, ENATHU JUNCTION, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS PRESIDENT, JOBOY, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, PIN - 691 526.** - **9 ADDL.R9 THE REGIONAL TRANSPORT AUTHORITY, PATHANAMTHITTA, REPRESENTED BY ITS SECRETARY, PIN-689645.** - **10 ADDL.R10 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, PATHANAMTHITTA-689645. (ADDL.R9 AND R10 ARE IMPLEADED VIDE ORDER DATED 23/11/2018 IN IA.NO.02/2018)** **SRI. K.P. HARISH, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WPC 28369 OF 2018 ## **JUDGMENT** The petitioner, who is a businessman conducting textile business in Building No.392 in Ward No.XII of Ezhamkulam Grama Panchayat in Pathanamthitta district, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to remove unauthorised parking of autorickshaws by anyone including persons affiliated to 7[th] and 8[th] respondents in front of his shop, namely, M/s.Vinayaka Silks & Sarees at Enathu junction in Building No.392 in Ward No.XII of Ezhamkulam Grama Panchayat. The petitioner has also sought for a writ of mandamus commanding the official respondents to take action as per the provisions under the Motor Vehicles Act, 1988 and the Kerala Panchayat Raj Act, 1994 and prohibit parking of vehicles at Enathu junction; and a writ of mandamus commanding the respondents to take action on Ext.P3 representation dated 02.01.2018 within a time frame to be fixed by this Court. 2. On 21.08.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice WPC 28369 OF 2018 4 on admission for respondents 1 to 4. Urgent notice by speed post was ordered to respondents 5 to 8, returnable within three weeks. The learned Senior Government Pleader sought time to get instructions. 3. A statement has been filed by the 4[th] respondent Sub Inspector of Police. Paragraphs 6 to 10 of the said statement read thus; “6. It is submitted that the petitioner also do not have any separate parking space for his customers. The customers also park their vehicles in the road margin. 7. It is submitted that on the basis of the petition filed by the petitioner before the Station House Officer, Enathu both parties were summoned in the station in the month of January 2018 and strict instructions were given to the auto rickshaw drivers not to cause any obstruction to the smooth functioning of the petitioners shop. 8. It is also submitted that there is no traffic conjunction and road block in front of the petitioners shop if any such situations arises Police is ready to remove such conjunction or block fourth with. 9. As per the letter of Secretary Ezhamkulam Gramapanchayath dated 18.09.18 the auto rickshaw stand is not unauthorized. The Panjayat committee had decided to grant permit to a new auto rickshaw stand in front of the petitioners 5 WPC 28369 OF 2018 shop. The true copy of the letter dated 19.09.2018 issued by the Secretary, Ezhamkulam Gramapanchayat is produced herewith and marked as **Annexure R4(a)** . 10. Subsequently this respondent received information from the Joint R.T.O., Adoor that they have not received any application for parking place. The true copy of the letter dated 18.09.2018 of Joint R.T.O., Adoor is produced herewith and ” marked as **Annexure R4(b)** . 4. On 07.11.2018, when this writ petition came up for consideration, after referring to Annexure R4(b) letter dated 18.09.2018 of the 2[nd] respondent Joint Regional Transport Officer addressed to the Station House Officer, Enath Police Station, the learned counsel for the petitioner pointed out that, parking place in front of the petitioner's shop is unauthorised. The learned counsel submitted further that, if not already made, the petitioner shall file a proper request before the Regional Transport Authority against unauthorised parking of autorickshaws in front of his shop and the same shall be placed on record along with an application to accept additional documents. 5. Today, when the case is taken up for consideration, the petitioner has produced as Ext.P5, a representation dated WPC 28369 OF 2018 6 14.11.2018 made before the Secretary of the Regional Transport Authority, Pathanamthitta. The petitioner has also filed an application to implead the Regional Transport Authority, Pathanamthitta and the Secretary of that Authority as additional respondents 9 and 10. The aforesaid applications are allowed by a separate order dated 23.11.2018 . 6. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 to 4 and 9 and 10. Despite service of notice, none appears for respondents 5 to 8. 7. The grievance of the petitioner, which is highlighted in this writ petition, is unauthorised parking of autorickshaws in front of his textile shop, namely, Vinayaka Silks and Sarees in Building No.392 in Ward No.XII of Ezhamkulam Grama Panchayat, which is situated at Enathu junction. In order to substantiate the said fact, the learned counsel for the petitioner would place reliance on Ext.P2 series of photographs. 8. As can be seen from the statement filed on behalf of the 4[th] respondent, the autorickshaw stand in front of the petitioner's shop is not an authorised one and the Panchayat WPC 28369 OF 2018 7 Committee, vide Annexure R4(a) letter, has informed the Station House Officer of Enathu Police station that the Committee has taken a decision on 23.08.2018 to grant permission for an autorickshaw stand in front of the petitioner's shop. Along with I.A.No.1 of 2018, the petitioner has placed on record Ext.P5 representation dated 14.11.2018, stated to have been made before the additional 10[th] respondent, who is the Secretary of the additional 9[th] respondent Regional Transport Authority. 9. During the course of arguments, the learned counsel for the petitioner would place reliance on the judgment of this Court in **Joseph v. District Magistrate [1996 (2) KLT 490]** , **Chandran C.E. v. District Collector, Kozhikode and others [2013 (3) KHC 53]** and also the judgment of the Division Bench of this Court in **Ummer Farookh v. Station House Officer and others [2014 (1) KHC 317 (DB)]** . 10. The learned Senior Government Pleader would submit if Ext.P5 representation made by the petitioner is still pending consideration, the additional 10[th] respondent shall place it before the additional 9[th] respondent Regional Transport Authority, and the said Authority shall take an appropriate 8 WPC 28369 OF 2018 decision on that representation, with notice to the petitioner, respondents 5 to 8 and other interested parties, within a time limit to be fixed by this Court. 11. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; i). If Ext.P5 representation made by the petitioner is still pending consideration, the additional 10[th] respondent shall place it before the additional 9[th] respondent Regional Transport Authority within a period of two weeks from the date of receipt of a certified copy of this judgment. ii). Thereafter, the additional 9[th] respondent Regional Transport Authority shall consider the same and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner, respondents 5 to 8 and other affected persons, if found necessary by issuing public notice. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a further period of two months. iii). The legal contentions raised by the petitioner WPC 28369 OF 2018 9 relying on the judgment of this Court referred to supra are left open to be raised before the additional 9[th] respondent Regional Transport Authority at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 10 WPC 28369 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE D & O LICENSE VIDE E7-391/17-18 ISSUED BY THE 5TH RESPONDENT GRAMA PANCHAYATH** - **EXHIBIT P2 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STATE OF AFFAIRS OF THE UNAUTHORISED PARKING AT ENATHU JUNCTION IN FRONT OF THE PETITIONER'S SHOP** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 02/01/2018 PREFERRED BY THE PETITIONER BEFORE RESPONDENTS 1 TO 6** - **EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGEMENT EVIDENCING THE SERVICE ON SOME OF THE RESPONDENTS** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION TO SECRETARY RTA, PATHANAMTHITTA CARRYING RECEIPT SEAL DATED 14.11.2018.** - **4TH RESPONDENT'S EXHIBITS:** - **ANNEXURE R4(A) A TRUE COPY OF THE LETTER DATED 19.09.2018 ISSUED BY THE SECRETARY, EZHAMKULAM GRAMA PACHAYATH** **ANNEXURE R4(B) A TRUE COPY OF THE LETTER DATED 18.09.2018 OF JOINT R.T.O., ADOOR** **TRUE COPY** **P.A. TO JUDGE**