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2025 DIGILAW 744 (KER)

ROSHY J PALLAN v. STATE OF KERALA

2025-03-26

VIJU ABRAHAM

body2025
JUDGMENT : (VIJU ABRAHAM, J.) The above writ petition is filed seeking the following reliefs: “(i) Issue a writ in the nature of mandamus, order or direction directing the 2 nd and 3 rd respondents to provide adequate, necessary and sufficient protection by removing the illegal parking of Autorickshaws by the respondents 6 to 9 who are blocking access to the properties of the petitioner; and (ia) may be pleased to dispense with filing of translation of vernacular documents; (ii) Pass such other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.” 2. The brief facts necessary for disposal of the writ petition are as follows: The petitioner is the co-owner of a building by name “Joseph Plaza” situated in Thammanam Junction. The building has frontages on the eastern side of Palarivattom Road and on the northern side of Thammanam–Pullepady road. Ground floor of the building consists of various shop rooms which are let out to tenants who are doing business therein. First floor portion is let out to M/s.National Insurance Company Limited and to M/s.Capitol Saloon. Initially few Autorickshaws used to park on the eastern side of the building without causing any obstruction to the ingress and egress to the shop rooms on the eastern side. While so on 15.9.2022 few Autorickshaw drivers under the leadership of respondents 7 to 9 started to park Autorickshaws on the northern side of the building completely blocking the entry and exit to the shop rooms on the northern side of the building. They are parking the Autorickshaws on the tarred portion of the road. The staircase leading to the first floor where the Branch of the National Insurance Company is functioning is also blocked because of the parking of the autorickshaws. Because of the parking of the autorickshaws as stated above, vehicular access to the shop rooms is completely lost. It is also submitted that before parking as stated above, the respondents 7 to 9 marked “NO PARKING” on the tarred portion of the road. Though the petitioner requested them not to park autorickshaws on the northern side of the building, they refused to do so. Ext.P3 photograph shows the manner in which autorickshaws are parked on the northern side of the building and also the marking of “no parking” on the tarred portion of the road. Though the petitioner requested them not to park autorickshaws on the northern side of the building, they refused to do so. Ext.P3 photograph shows the manner in which autorickshaws are parked on the northern side of the building and also the marking of “no parking” on the tarred portion of the road. In view of the obstruction to the ingress and egress created by the parking of the autorickshaws, the petitioner has submitted Ext.P4 complaint. Further complaints are preferred as Exts.P6,P7 and P8. Petitioner submits that no parking space is notified under the Motor Vehicles Act, Kerala Municipality Act or under the Kerala Police Act, 2011 in front of the building of the petitioner. Petitioner contend that the parking is completely illegal and caused serious prejudice to the petitioner as well as the tenants of the building. 3. A detailed counter affidavit has been filed by respondents 6 to 9 contending that the above writ petition has been field suppressing many of the factual aspects. The respondents had never blocked the ingress and egress of the building owned by the petitioner. It is further contended that the 7 th respondent has no connection with the issue involved and his only connection is that he is the son of an auto driver. The respondents are the owners/drivers of the autorikshaw and the meager income received from driving the autorickshaw is their only source of income. It is contended that the tarred portion of the road shown in Ext.P3 photograph is not owned by the petitioner and it is owned by the Cochin Corporation. As there was traffic block, the 10 th respondent Corporation decided to widen and develop the Thammanam Junction and an amount of Rs.2 Crore was sanctioned by the Cochin Corporation. By utilizing that amount the disputed portion of property was acquired by the 10th respondent Municipal Corporation for widening the road. This resulted in vacant place at the Thammanam Junction and as the continuation of the road is blocked due to the non acquirement of the adjacent land, the said portion cannot be used for free and continuous vehicular traffic and the same has been used for parking. Respondents 6 to 9 have produced R8(a) series of photographs to show the factual position available in the subject property. The authorities have not taken any steps to declare the property as a no parking area. Respondents 6 to 9 have produced R8(a) series of photographs to show the factual position available in the subject property. The authorities have not taken any steps to declare the property as a no parking area. The attempt of the petitioner is to use the property of the Cochin Corporation as his exclusive private parking for which he has absolutely no right and the petitioner as well as these respondents have equal right to park the vehicles in the said area. The respondents also contended that the building of the petitioner is an unauthorised construction and they have not provided the requisite set back as per the provisions of the Kerala Municipality Building Rules. On the strength of the interim order the petitioner is using the property as his exclusive parking area of his shopping complex and the petitioner as well as the official respondents are threatening the party respondents from parking autorickshaws. It is further submitted that the respondents or their colleagues are not parking their vehicles in that space from 4th November onwards. The respondents are finding it difficult as they could not park their auotorickshaws on the basis of the interim order passed by this Court. Petitioner on the basis of Ext.R8(b) photographs submits that other vehicles are being parked in the road portion. The 7th respondent Corporation is having a duty to provide adequate parking space for the autorickshaws also. The respondents are trying to park only five authorickshaws horizontally in the said space. Even after parking five autorickshaws there is sufficient space left for the ingress and egress of the petitioner. The learned counsel appearing for respondents 6 to 9 further submits that necessary request has been submitted before the Corporation of Cochin and Regional Transport Authority on 14.11.2022 so as to declare the said area as a parking space. In the light of the above said averment the respondents 6 to 9 sought for dismissal of the writ petition. 4. The learned counsel appearing for the respondent Corporation upon instructions submitted that the road in question no longer belongs to the Corporation and the road is taken over by the Government for the further development of the said road. 5. The learned Government Pleader submits that as per the instructions received from the Regional Transport Authority, no notification has been issued declaring the said area as a parking area. 5. The learned Government Pleader submits that as per the instructions received from the Regional Transport Authority, no notification has been issued declaring the said area as a parking area. The learned Government Pleader would further submit that no request in this regard has been received from the local authority or by respondents 6 to 9 as contended by the learned counsel appearing for respondents 6 to 9. 6. I have heard the rival contention on both sides. 7. The specific case of the petitioner is that a perusal of Ext.P3 would reveal that a no parking sign has been put by respondents 6 to 9 in the road portion itself which they have absolutely no authority to do. Further the road is clearly abutting the property of the petitioner. Section 472 of the Kerala Municipality Act is extracted below: 472. Provision of public cart stands etc ._(1) A Municipality may, subject to such [guidelines] as the Government may issue in this behalf, construct or provide public landing places, halting places and cart stands and may levy fees for the use of the same. (2) The Municipality may- (a) place the collection of any such fees under the management of such person as may appear to it to be proper;or (b) farm out the collection of any such fees for any period not exceeding three years at a time and on such terms and conditions as it may think fit. (3) A statement in English and the language of the locality, showing the fees fixed by the Municipality for the use of such place, shall be put up in a conspicuous part thereof. Explanation._ A cart stand shall, for the purposes of this Act, include a [bus stand, taxi stand, autorickshaw stand, lorry stand and stand for other vehicles arid for animals] Going by the said Section the Municipality may construct or provide public landing places, halting places and cart stands and may levy fees for the use of the same. So Section 472 deals with the duty or right of the Municipality to construct or provide a public landing spaces or halting places and cart stands and they have authority to levy fee for the use of the same. Section 117 of the Motor Vehicles Act deals with parking places and halting stations, which is extracted below: “117. So Section 472 deals with the duty or right of the Municipality to construct or provide a public landing spaces or halting places and cart stands and they have authority to levy fee for the use of the same. Section 117 of the Motor Vehicles Act deals with parking places and halting stations, which is extracted below: “117. Parking places and halting stations ._ 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 vehicles may stand either indefinitely or for a specified period of time, and may 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. [Provided that the State Government or the authorised authority shall, give primacy to the safety of road users and the free flow of traffic in determining such places: Provided further that for the purpose of this section the National Highways Authority of India, constituted under the National Highways Authority of India Act, 1988(68 of 1988) or any other agency authorised by the Central Government, may also determine such places.]” As per the said provision 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 vehicles may stand either indefinitely or for a specified period of time, and may 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. Rule 344 of the Kerala Motor Vehicles Rules, 1989 dealing with Bus stand and parking places is extracted below: “344. Rule 344 of the Kerala Motor Vehicles Rules, 1989 dealing with Bus stand and parking places is extracted below: “344. Bus stand and parking places ._ (1) Authority to determine location of._ The Regional Transport Authority shall, in consultation with the concerned authorities of any Corporation, Municipality or Panchayat, the Executive Engineer and the Superintendent of Police of the District, determine the location of _ (a) bus stands, where from stage carriages start or terminate service; and (b) parking places wherein motor vehicles in general or of specified description may stand either indefinitely or for a specified period of time: Provided that in the case of vehicles of the Kerala State Road Transport Corporation, the District Transport Officer or the Assistant Transport Officer may, in consultation with the local authority concerned, fix up stands at the starting points and at the termini of the bus routes and also bus stands and stopping places in the course of the route subject to the following conditions:_ (i) The District Transport Officer or the Assistant Transport Officer, as the case may be, shall consult the local authority concerned before determining the starting points, termini and the bus stops and bus stands within the limits of the local authority; (ii) In case of any difference of opinion between the local authority and the concerned officer of the Corporation the matter shall be referred to the District Collector concerned; (iii) The District Collector, after giving an opportunity of being heard to the officers of the Corporation and the local authority concerned, shall determine the issue and the decision of the District Collector shall be final. (2) Construction of._ Government or subject to the previous approval of Government, any Corporation, Municipality or Panchayat may construct_ (a) waiting sheds at bus stands for protection of stage carriages from weather during the period when they are at the bus stand before the commencement of any journey and for the convenience of the passengers, including public comfort stations, and (b) parking places wherein provisions may be made for the accommodation of motor vehicle generally or of a specified class with or without protection from weather. (3) Maintenance of._Government or other authority constructing waiting sheds at bus stands, or parking places shall arrange for their maintenance and also for the regulation and safe custody of vehicles garaged therein. (3) Maintenance of._Government or other authority constructing waiting sheds at bus stands, or parking places shall arrange for their maintenance and also for the regulation and safe custody of vehicles garaged therein. (4) Rules regarding._ Government may lay down regulations regarding any or all matters including the levy of waiting charges on motor vehicles using the bus stands or parking places”. The Regional Transport Authority shall, in consultation with the concerned authorities of any Corporation, Municipality or Panchayat, the Executive Engineer and the Superintendent of Police of the District, determine the location of bus stands or parking spaces. Therefore, it is the Regional Transport Authority, who is the authority to determine the location of a parking space. 8. The learned counsel appearing for the petitioner would contend that the property of the petitioner is adjoining a road owned by the State and therefore, he has right of access to the road from any point. The learned counsel for the petitioner relying on the judgment in M.V.Joseph v. District Magistrate 1996 KHC 346, which is a writ petition filed aggrieved by the parking of taxi cars in front of the petitioner's workshop on the side of the national highway causing obstruction to his business. The court after considering the authoritative principles laid down by the Indian and English Courts held in paragraphs 9 and 10 as follows: “9. It is evident from the above mentioned authoritative principles laid down by Indian and English Courts, a person who is having business on the side of the national highway has got a right of access at every point. Just as the taxi owners have access at all points in the highway for passage in exercise of their occupation, trade or business, petitioner has got equally the same right for using the highway at all points in exercise of his avocation, trade or business. 10. But more than that, the owner on the side of the national highway has a private right of access as well, subject to the public right of passage which is a higher right to be enjoyed by public including the person like the petitioner. In other words, a private right of access to the highway may co-exist with a public right of way though it does not necessarily merge with the public right. In other words, a private right of access to the highway may co-exist with a public right of way though it does not necessarily merge with the public right. Public right of passage is subject to private right of landowners' right to access to the highway. Where a foot-path intervenes between a highway and adjoining premises, the owner of the premises is entitled to access across the foot-path to the highway for any kind of traffic which is necessary for the reasonable enjoyment of his premises. The interest of the public in a highway consists solely in the right of passage. Such right would include stopping perhaps for refreshments, enjoying the view, etc. But no highway user may use the highway for parking their vehicles permanently for their business so as to invade the private right of entry of a owner of adjoining land to the highway. For traffic regulation and for public purpose and for the safety of pedestrians it is open to the authorities to plant barriers separating the foot path and the highway, which may invade the private right of a person owning land abutting the highway. It may also possible for a statutory authority to erect obstruction in the highway such as electric posts, telephone posts, but shelter, etc., which may invade the private right land owners abutting the highway. The same is for public interest. But allowing taxi cars to park on the side of the highway obstructing the private right of landowners abutting the highway is not for a public purpose, but for the private interest of taxi operators in exercise of their business. 11. Allowing taxi operators who are engaged in their business to park their their vehicles permanently in front of petitioner's workshop on the side of the national highway is an invasion of the private right of petitioner to have access to the national highway. It is not as if taxi cars are parked for sometime to board or alight passengers, but parked there for their business. Parking of taxi cars round the clock in front of the petitioner's shop as part of their business cannot be said to be legal.” 9. It is not as if taxi cars are parked for sometime to board or alight passengers, but parked there for their business. Parking of taxi cars round the clock in front of the petitioner's shop as part of their business cannot be said to be legal.” 9. This Court has categorically held in MV Joseph 's case cited supra, that the petitioner therein has got the right to use the highway at all points in the highway for passage in exercise of their occupation, trade or business. The Court distinguished public purpose as well as the private purpose in the said judgment and held that for traffic regulation and for public purpose and for the safety of pedestrians it is open to the authorities to plant barriers separating the foot path and the highway, which may invade the private right of a person owning land abutting the highway. It is further held that it is possible for a statutory authority to erect obstruction in the highway such as electric posts, telephone posts, bus shelter, etc., which may invade the private right of the land owners abutting the highway, but the same is in public interest, but allowing taxi cars to park on the side of the highway obstructing the private right of landowners abutting the highway is not for a public purpose, but for the private interest of taxi operators in exercise of their business and held that parking of vehicles permanently in front of petitioner's workshop on the side of the national highway is an invasion of the private right of petitioner to have access to the national highway. This Court in Chandran C.E v. District Collector, Kozhikode and Others 2013 (3) KHC 53 was considering a similar case alleging unauthorised parking of autorickshaws/taxis on the side of public roads impeding vehicular and pedestrian traffic and held in paragraph 3 as follows: “3. A minimum of 1.5 metres beyond the tarred margin of the road is to be left for pedestrian traffic throughout the State. This finds support from Rule 6 of the Kerala Panchayat Road (Landing places, halting place, cart stands and other vehicle stands) Rule, 1995 also. The specification of 1.5 metres beyond the tarred margin has to be maintained whether it be a Panchayat area or any urban area as the State is replete with motor accidents. This finds support from Rule 6 of the Kerala Panchayat Road (Landing places, halting place, cart stands and other vehicle stands) Rule, 1995 also. The specification of 1.5 metres beyond the tarred margin has to be maintained whether it be a Panchayat area or any urban area as the State is replete with motor accidents. Unauthorised erection of sign boards as authorickshaw stands and taxi stands by the unions should not detract the police from plucking it out and facilitate pedestrian traffic for the public.” This Court in Chandran C.E s' case sited supra, has found that unauthorised erection of sign boards as authorickshaw stands and taxi stands by the unions should not detract the police from plucking it out and facilitate pedestrian traffic for the public. Going by the judgment in M.V.Joseph 's case cited supra, the right of a person owning land adjoining a highway to have access to the highway at any point was uphold. It was also held that allowing taxi cars to park on the side of the highway obstructing the private right of land owners abutting the highway is not a public purpose but for the private interest of the taxi operators in exercise of their business and held that allowing taxi operators who are engaged in their business to park their vehicles permanently in front of petitioner's workshop on the side of the national highway is an invasion of the private right of petitioner to have access to the national highway. The official respondents has also stated that the place where the autorickshaws were parked by the respondents has not been declared as notified parking area by the authority concerned. Though the party respondents have a contention that they have approached the authority concerned with a request to declare that the area where they are parking the autorickshaws to be declared as a parking area and has filed necessary request before the Regional Transport Authority on 14.11.2022, the said fact was refuted by the learned Government Pleader, who upon instruction submitted that no such application is received from the local authority or by any of the party respondents. Whatever that be, that is not a subject matter of issue in this writ petition and if the party respondents have filed any such application in this regard, it is for them to prosecute the matter further in appropriate proceedings. Whatever that be, that is not a subject matter of issue in this writ petition and if the party respondents have filed any such application in this regard, it is for them to prosecute the matter further in appropriate proceedings. In the counter affidavit filed by respondents 6 to 9, they have also admitted that after the interim order was passed they are not parking the vehicles in the said space from 4th November, 2022 onwards. 10. Taking into consideration the fact that the area where the party respondents were parking their autorickshaws is part of the road itself, I am of the opinion that since the area is not being notified as a parking area by the competent authority, respondents 6 to 9 have no right to park the vehicles so as to violate the right of the petitioner to have access to the road from any point of his property as held by this Court in M.V.Joseph 's case cited supra. 11. Therefore, the writ petition is allowed. It is ordered that respondents 6 to 9 have no manner of right to park their vehicles on the northern side of the building of the petitioner facing Thammanam-Pullepady Road until the said area is declared as a parking area by the competent authority. There will be a direction to respondents 2 and 3 to provide necessary and sufficient police protection to the petitioner by removing the illegal parking of autorickshaws of respondents 6 to 9, blocking the access to the property of the petitioner. With the above said observations and directions, the writ petition is disposed of.