WA.No. 601 of 2015 in WP(C).30988/2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 13TH DAY OF MARCH 2015/22ND PHALGUNA, 1936** **WA.No. 601 of 2015 () IN WP(C).30988/2013 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 30988/2013 of HIGH COURT OF KERALA DATED 22-11-2014** **------------------** ## **APPELLANTS/RESPONDENTS 6,7 & 9 :-** **-----------------------------------** **1. PUNNOOSE V.K., VANIYAPURACKAL HOUSE, VAKATHANAM POST, SECRETARY AUTORICKSHAWS DRIVERS UNION, I.N.T.U.C.-686538.** **2. JAYAKUMAR, S/O. SHANMUGHAM, SHANMUGHA VILASAM (VARAVUKALAYIL) VAKATHANAM POST, SECRETARY AUTORICKSHAWS DRIVERS UNION, C.I.T.U-686538.** **3. SURESH K., KUNNATHIL HOUSE, PAARIYARAM POST, KADAMURI VAKATHANAM, SECRETARY, AUTORICKSHAWS DRIVERS UNION K.T.U.C.-686538.** **BY ADVS.SRI.SURIN GEORGE IPE** **SRI.M.V.BIPIN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 5 AND 8 :-** **-------------------------------------------------------** **1. JAMES JACOB, PRESIDENT, VYAPARA VYVASAI EKOPAN SAMITHY VAKATHANAM.** **2. ABRAHAM JOSEPH, MARUTHANAMKUZHIYIL, KADAMURI, PARIYARAM POST KOTTAYAM.** **3. K.C.JOSEPH, KOOVAKKADA HOUSE, VAKATHANAM POST, KOTTAYAM DISTRICT.** **4. K.A.MATHEW, KOOLIYATTU VADAKKEKARA, KUZHIMATTOM POST, KOTTAYAM.** **5. VAKATHANAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, VAKATHANAM POST, KOTTAYAM-686538.** **6. THE SECRETARY, VAKATHANAM GRAMA PANCHAYAT, VAKATHANAM POST KOTTAYAM-686538.** **WA.No. 601 of 2015 () IN WP(C).30988/2013 -------------------------------------------** **7. THE CIRCLE INSPECTOR OF POLICE, VAKATHANAM-686538.** **8. THE SUB INSPECTOR OF POLICE, VAKATHANAM-686538.** **9. JOINT REGIONAL TRANSPORT OFFICER, CHANGANASSERY.** **10. VENU NAIR, S/O. KRISHNANKUTTY, CHIRAKKAPARAMBIL HOUSE MANIKANDAPURAM, VAKATHANAM POST, SECRETARY AUTORICKSHAWS DRIVERS UNION, B.M.S. 686538.** **BY ADV. SRI.BECHU KURIAN THOMAS BY ADV. SRI.MATHEW JOHN (K) BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **ASHOK BHUSHAN, Ag. C.J & A.M. SHAFFIQUE, J. ---------------------------------W.A. No.601 of 2015** ## **-------------------------------Dated this the 13[th] day of March 2015** ## **J U D G M E N T** ## **Shaffique, J.** The appellants, who are respondent Nos.6, 7 and 9 in W.P.(C) No.30988 of 2013, have come up with this writ appeal challenging the judgment dated 22.11.2014 passed by the learned Single Judge. The writ petition was filed by respondents 1 to 4 herein, who are hereinafter referred to as 'petitioners', seeking for the following reliefs :- - “(i) Declare that the members of the respondent unions have no right to park their vehicles on either side of the public road referred to in Ext.P5 sketch. - (ii) Issue a writ in the nature of Mandamus or any other appropriate writ, direction or order commanding respondents 3 and 4 to take immediate steps to remove the unauthorisedly parked autorickshaws from the public road referred to in Ext.P5 sketch. - (iii) Issue a writ in the nature of Mandamus or any other appropriate writ, direction or order commanding the 1[st] respondent grama panchayath to establish a cart stand within the meaning of 1995 Rules so as to enable the members of the respondent unions to park their autorickshaws in the said place. - (iv) Issue a writ in the nature of Mandamus or any other appropriate writ, direction or order commanding the respondents 1 to 5 to pass final orders on Exts.P2 to P5 representations.” W.A. No.601 of 2015 ## -: 2 :- 2. The issue projected by the petitioners was regarding parking of autorickshaws in front of the business premises of the petitioners and alongside the public road. It was inter alia contended that the establishment of the petitioners and others, who are conducting business in the area, were in existence for more than 15 years. A Resolution was passed by the Panchayat way back in 2001 taking a decision not to park the autorickshaws on either side of the public road where the business activities is being done by the petitioners. While so, contrary to the said decision, at the instance of several Unions, the autorickshaws started parking their vehicles on either side of the public road, which was causing obstruction to the ingress and egress to the shop rooms of the petitioners. Though complaints were submitted, no action has been taken in the matter. It is pointed out that by virtue of the decision taken by the Panchayat in a meeting held on 22.11.2013 (Ext.P7), it was pointed out by the Public Works Department representative that there is no space after leaving 1.5 metres from the tar end for parking of autorickshaws by the side of the road and therefore, autorickshaws cannot be parked in W.A. No.601 of 2015 ## -: 3 :- that area. In that view of the matter, it was pointed out that the very action by the private respondents in parking their autorickshaws is bad in law and is liable to be restrained. Further, it was pointed out that the Panchayat has already acquired an extent of 18.70 Ares of land in Survey No.203/1 for the purpose of establishing a taxi stand which should be utilised for parking of autorickshaws as well. 3. A counter affidavit has been filed by respondent Nos.6, 7 and 9 inter alia stating that subsequent to the meeting held on 22.11.2013, another meeting was convened on 29.11.2013, in which, all the stake holders participated and finally a decision was taken to prohibit parking of autorickshaws on the right side of the exit of the bus stand along the side of Njaliyakuzhy - Thengana road and it was decided to permit parking of autorickshaws on the opposite side as there is enough space on the road side and to continue the existing autorickshaw parking from Njaliyakuzhi Junction to Puthuppally road on the right side of Pallam - Thottakkad road. W.A. No.601 of 2015 -: 4 :- 4. It was also indicated in the said decision that though it was opposed by certain stake holders, the proposal was accepted by the parties taking into consideration the interest of general public and to render equal justice to all concerned. On that basis, it is contended that when appropriate decision has already been taken by the Panchayat in the presence of all concerned, there was no reason to object to the same. 5. Counter affidavit has been filed on behalf of the 5[th] respondent, Joint Regional Transport Officer indicating that he has informed the Committee that autorickshaws can be parked only 1½ metres away from the tarred portion of the road. The PWD Officer has informed that there is no such space available in Njaliakuzhy junction. Therefore, it is stated that sufficient parking space was not available and this matter had been informed at the time when the meeting was held on 22.11.2013 as well as on 29.11.2013. 6. Having regard to the aforesaid factual situation, the learned Single Judge formed an opinion that the autorickshaws cannot be parked at the space between the tarred road margin and shops as held by the Division Bench of this Court in W.A. No.601 of 2015 -: 5 :- **Ummer Farookh** v. **Station House Officer and others** [2014 (1) KHC 317] in so far as it causes inconvenience to the public and the traffic is impermissible. Accordingly, the writ petition was allowed and respondent Nos.3 and 4 were directed to take necessary and effective action to ensure that the parking of autorickshaws by the side of the public road within the first respondent Grama Panchayat as seen in Ext.P6 photographs are prevented with immediate effect. 7. We have heard the learned counsel for the appellants, the learned counsel appearing for the writ petitioners and the learned Standing Counsel appearing for the Grama Panchayat as well as the learned Government Pleader. 8. It is argued by the learned counsel for the appellants that the writ petition has been filed without referring to the decision taken by the Panchayat on 29.11.2013. When the Panchayat, in the presence of all stake holders, has taken a decision and the said area was set apart for the halting place of autorickshaws, it can be termed as an approved stand. It is not a case where the autorickshaws are W.A. No.601 of 2015 ## -: 6 :- being parked without permission. As sufficient permission has been granted by the Panchayat in the meeting held on 29.11.2013, they are entitled to park their vehicles in the said area and the learned Single Judge has erred in taking a contrary view. 9. Learned counsel for the writ petitioners however submits that as per the present situation, the autorickshaws cannot be parked in the said area as there is no sufficient space beyond the tar road and they are parking their autorickshaws in the tar road itself. This causes serious inconvenience to the shop owners, who are unable to carry on their business activities on account of the obstruction created by the autorickshaws, which also causes severe traffic problem. That apart, it is contended that sufficient land has been acquired by the Panchayat for establishing taxi stand, which can be utilised for parking of autorickshaws as well, which would take care of the congestion of traffic in Njaliyakuzhy junction. 10. Learned counsel appearing for the Panchayat would however submit that the land acquired by the Panchayat is for W.A. No.601 of 2015 -: 7 :- establishing a taxi stand along with office building and other facilities for the travelling public like toilets etc. It is not intended for parking of autorickshaws and if at all such a decision is to be taken, it would create further inconvenience in the said area. 11. Learned Government Pleader referring to the counter affidavit filed by the Joint Regional Transport Officer submits that from the affidavit it is clear that sufficient space is not available in the locality for parking of autorickshaws. 12. Having regard to the aforesaid submission, the question to be considered is whether this Court can interfere in the matter relating to parking of autorickshaws as evident from Ext.R6(a). Apparently, Ext.R6(a) dated 29.11.2013 is not under challenge. At any rate, the contention urged by the petitioners is regarding the illegality in providing parking space for autorickshaws. True that and as rightly contended by the learned Government Pleader, the transport authorities were of the view that autorickshaws cannot be parked in the said area on account of lack of space from the tar road end. A minimum distance of 1½ metres from the tarred portion is W.A. No.601 of 2015 ## -: 8 :- required for parking of autorickshaws and this is not available to the locality. But the fact remains that in a joint meeting held with all the stake holders, a decision has been taken by the Panchayat, which is evident from Ext.R6(a). But that cannot be a final decision in the matter as the Panchayat and the Traffic Advisory Committee are bound to comply with the statutory provisions to enable parking of autorickshaws as well. Ext.R6(a) can only be considered as a provisional arrangement made in the matter and it is for the respondent Panchayat as well as the Traffic Advisory Committee to take a final decision to provide parking space for autorickshaws without causing hindrance to the traffic as well as the obstruction being caused to the shop owners in question. With reference to Ext.P7 decision, that again was a proposal being made by the Joint RTO to the Panchayat to identify a proper place for parking of autorickshaws. Under such circumstances, as matter stands now, when Ext.R6(a) decision is in existence, by which, an alternate arrangement had been made to avoid traffic blockade and obstruction being created by the autorickshaws, we are of the view that Ext.R6(a) has to W.A. No.601 of 2015 ## -: 9 :- be complied with as a provisional measure and thereafter, the first respondent Panchayat has to take a final decision in the matter. In the said view of the matter, we dispose of the writ appeal, modifying the judgment of the learned Single Judge, as under :- - (i) that the decision taken in Ext.R6(a) shall be complied with for the time being. - (ii) that the first respondent Panchayat along with Traffic Advisory Committee shall take a final decision with reference to parking of autorickshaws as legally permissible, within a period of three months from the date of receipt of a copy of this judgment. - (iii) the provisional arrangement shall be subject to further direction issued by the Panchayat and Traffic Advisory Committee in this matter. Sd/- **ASHOK BHUSHAN** **Ag. CHIEF JUSTICE** **Sd/A.M. SHAFFIQUE** **JUDGE** Jvt