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2012 DIGILAW 1009 (KER)

Rajesh v. Bharananganam Grama Panchayat

2012-11-16

K.SURENDRA MOHAN

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JUDGMENT : K. Surendra Mohan, J. 1. The petitioner is an Auto Rickshaw driver. He owns a valid permit, Ext.P2, which shows his parking place as Bharananganam. The petitioner is aggrieved by the action of the first respondent in not permitting him to conduct Auto Rickshaw service within the limits of the first respondent. Though the petitioner had tried to submit an application for the issue of such permission, the Panchayat authorities did not even receive the same, it is alleged. Therefore, the petitioner seeks the issue of appropriate directions to the Panchayat authorities to issue necessary permit to him. 2. A counter affidavit has been filed by the first respondent contending that the Panchayat has already sanctioned nine Auto Rickshaw stands within the. Panchayat area. There are 70 Auto Rickshaws in each Auto Rickshaw Stand, on an average. Any addition to the said number would only result in traffic congestion and other problems, it is submitted. Reliance is also placed on Ext.R1, which is the minutes of the meeting of what is called the Traffic Advisory Group. A number of decisions appear to have been taken at the said meeting. The decision at S. No. 12 prohibits persons residing outside the limits of the Panchayat from submitting applications for plying their Auto Rickshaws within the Panchayat or from considering any such applications. The counsel for the Panchayat submits that the said decision has been taken under Section 227 of the Kerala Panchayat Raj Act, (the Act for short) 1994. 3. The counsel for the petitioner submits that Exts.P4 and P5 are his applications and that there are absolutely no grounds prohibiting the right of the petitioner to conduct Auto Rickshaw service within the Panchayat. 4. I have heard the counsel for the contesting parties, at length. 5. Section 227 of the Act reads as follows:- "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. 5. Section 227 of the Act reads as follows:- "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. (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." 6. A reading of the above provision shows that power has been conferred on the Panchayat by the same for establishing public landing places and cart stands etc., which include the power to establish Auto Rickshaw stands. The power conferred by Sub-Section 'b' is limited to prohibiting 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. Therefore, the power of the Panchayat to prohibit is limited to use as a halting place, any public place or the side of a public road other than what has been designated as an authorised parking place. The said power cannot include a power to restrict the entry of Auto Rickshaws from outside the limits of the Panchayat for the purpose of conducting Auto Rickshaw service in any Panchayat area. The power to grant permits to Auto Rickshaws is on the Regional Transport Authority and in exercise of the power under the Motor Vehicles Act, 1988. The petitioner has already been issued with Ext.P2 permit. Ext.P2 has designated the petitioner's parking place as Bharanganam. The only restriction that can be placed on the right of the petitioner to ply his Auto Rickshaw is in accordance with what has been stipulated by Ext.P2 permit. Section 227 of the Act does not confer power on the Panchayat to impose any further restrictions Ext R1 appears to be the minutes of a Traffic Advisory Group. The only restriction that can be placed on the right of the petitioner to ply his Auto Rickshaw is in accordance with what has been stipulated by Ext.P2 permit. Section 227 of the Act does not confer power on the Panchayat to impose any further restrictions Ext R1 appears to be the minutes of a Traffic Advisory Group. No provision of law has been brought to my notice conferring power on the authority described as Traffic Advisory Group to impose restrictions that are stipulated in Ext.R1 and to enforce the same within the Panchayat area. No provision of law has been brought to my notice by the counsel for the Panchayat, though he was called upon to do so. For the above reasons, the petitioner is entitled to succeed. 7. This writ petition is accordingly allowed. The first respondent is directed to issue necessary licence or permission for the purpose of facilitating the petitioner to conduct Auto Rickshaw service within the Bharanganam Panchayat, in terms of Ext.P2 permit issued to him.