ABDUL RASHEED Vs. THE SUB INSPECTOR OF POLICE,

JUDGEMENT

(1.) IT appears to me that the petitioner is having a genuine grievance. He constructed a new two storied commercial building in Sy.B13/4/1 on the main junction of the 3rd respondent -Panchayat with the objective of letting out the same for commercial purposes. The construction was on the basis of the sanction and permit from the Panchayat. After construction, the rooms were let out to tenants who are now carrying on business thereon. On 30.1.2001, the 3rd respondent passed resolution No. 15 locating taxi stand as well as stand for autorickshaws. Ext.P1 is copy of that resolution. According to Ext.P1 resolution, taxi cars are to be parked on the southern side of the M.T. Theatre. Under Ext.P1 no other place had been earmarked as taxi stand or cart stand or public landing place by the Panchayat. Ext.P1, the petitioner points out, has been passed by the Panchayat in exercise of its powers under Section 227 of the Kerala Panchayat Raj Act, 1994. Pursuant to Ext.P1, vehicles were being parked on the southern side of the gate of the M.T. Theatre. Ext.P2 is the rough sketch showing the location of the building of the petitioner and the area earmarked for bus stops, taxi stands etc. as per Ext.P1. The petitioner's grievance is that recently the Panchayat has passed a fresh resolution Ext.P4 shifting the taxi stand to the very front portion of the petitioner's building, thereby obstructing the ingress and egress to his shop. He relies on Ext.P3 photograph to show that on account of the new decision Ext.P4, ingress and egress to his shop rooms is being obstructed. The petitioner impugns Ext.P4 on several grounds. He contends that previous sanction of the Regional Transport Authority has not been obtained as contemplated by Section 227 of the Panchayat Raj Act and Rules 3, 4 and 5 of the Kerala Panchayat Raj (Landing places, Halting places, Cart Stands and other Vehicle Stands) Rules, 1995. According to him, there has been no public notice or hearing of objections as contemplated therein. He also refers to Rule 6 which provides that sides of roads cannot be used as cart stands. Ext.P4, he contends, violates the provisions of the Panchayat Raj Act, the Rules and the Kerala Motor Vehicles Rules also. Aggrieved by Ext.P4, the petitioner approached this Court and filed W.P.(C) No. 60 of 2006. This Court directed the Regional Transport Authority to take a final decision on the request said to have been made by the 3rd respondent for determination and approval of the parking place, after hearing all concerned parties including the petitioner, within a period of three weeks from the date of receipt of copy of the judgment. Ext.P5 is copy of that judgment. The petitioner alleges that pursuant to Ext.P5 no action was taken in the matter of disposing of the request said to have been made by the Panchayat to the R.T.A. and therefore he filed Cont. Case No. 1298 of 2006 before this Court. But in the Contempt Case, the R.T.A., Thiruvananthapuram filed an affidavit stating that the Panchayat had not at any time approached the R.T.A. for consent as contemplated by Section 227 of the Panchayat Raj Act. Ext.P6 is copy of that affidavit. The petitioner points out that in Ext.P6 it is stated that parking of many vehicles in front of the petitioner's shopping complex results in decreasing the width of the road and that such parking will adversely affect the convenience of the travelling public. Thereafter the R.T.A. considered the request of the Panchayat as item No. 1 in its next meeting held on 11.12.2006 and took a decision to reject the request of the Panchayat on the ground that the taxi stand at the proposed place in front of the petitioner's shop in the junction of the Panchayat will cause inconvenience to the travelling public and create traffic jam due to the narrowness of the road. Ext.P7 is copy of that decision. The petitioner complains that in spite of Ext.P7, taxi cars and autorickshaws are still being parked in front of his shop and that such parking obstructs the ingress and egress to his shop. The travelling public as well as customers are put to considerable injury and hardship on account of this. The petitioner refers to the judgment of this Court in Joseph v. District Magistrate, 1996 (2) KLT 490 and contends that the parking of vehicles in front of his shop infringes his right as the owner of property by the side of the highway for having private right of access as well public right of passage which is a valuable right available to the public and persons like the petitioner.

(2.) ON these averments, the petitioner raises various grounds and prays that Ext.P4 be quashed; that a writ of mandamus be issued commanding the 1st respondent to implement Ext.P7 order and ensure that taxi and autorickshaw stand be shifted from the present site as ordered in Ext.P7; that a declaration be issued that the petitioner, shop owners and customers are entitled to ingress and egress to the petitioner's shopping complex without obstruction by the parking of taxi cars and autorickshaws and by the functioning of the taxi stand; and that a declaration be issued that Ext.P4 can be implemented only after getting sanction from the R.T.A. in terms of Section 227(2) of the Kerala Panchayat Raj Act, 1994.

(3.) THE Secretary of the Panchayat has filed a counter affidavit through which the Panchayat tries to justify Ext.P8 resolution. According to this counter affidavit, that resolution and for that matter Ext.P4 are not illegal or contrary to the provisions of the Panchayat Raj Act or the Rules. It is the Panchayat which is having the right to prescribe restrictions or changes in the parking spaces and bus stops. The Panchayat has given requisition to the R.T.A. for sanction. Consultation with the R.T.A. is only an invitation. It does not take away the right of the Panchayat to prescribe cart stand and bus stops. The counter affidavit refers to the judgment of this Court in Sukumaran Nair v. : 2003(2)KLT903 and also in Sunny Joseph v. : 2003(3)KLT247 and contends that the Panchayat which is the best judge should have more say in the matter than the R.T.A. Exception is taken to Ext.P7 decision of the R.T.A. and it is alleged that such a decision has been taken by the R.T.A. under the pressure and influence of the petitioner without visiting the place and that Ext.P7 being an arbitrary one is liable to be quashed. The averment of the petitioner that on account of the parking of taxis and autorickshaws in front of the shopping complex, travelling public and his customers are put to inconvenience is denied. It is contended that ample space has been given to the petitioner in front of his building and that he can have the right only to say that taxis shall not be parked within 5 metres' area in front of his building. He cannot have say in the matter of area beyond that.