IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 WP(C).No. 31296 of 2011(J) -------------------------- PETITIONER(S): --------------- JAIMON JAMES,VALLITHOTTATHIL HOUSE, KOODALLOOR POST 686 595,KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): --------------- 1. THE KIDANGOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY KIDANGOOR POST, 686 572,KOTTAYAM DISTRICT. 2. THE SECRETARY, KIDANGOOR GRAMA PANCHAYATH KIDANGOOR POST 686 572,KOTTAYAM DISTRICT. 3. THE CIRCLE INSPECTOR OF POLICE PALA 686 575. 4. THE S.I OF POLICE, PALA 686 575. 5. V.P.PHILIP,VELLAPALLIL,KOODALLOOR POST 686 595, KOTTAYAM DISTRICT. 6. DEVASSIA SEBASTIAN @ BABY, ARATHUKUZHY HOUSE,KOODALLOOR POST, KOTTAYAM 686 595. BY GOVT. PLEADER SMT. P. MAYA ADV. SRI.V.G.ARUN FOR R1-2 SRI.T.R.HARIKUMAR FOR R1-2 SRI.V.V.SIDHARTHAN, SENIOR ADVOCATE FOR R5,6 SRI.D.G.VIPIN FOR R5,6 SRI.DINNY THOMAS FOR R5,6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31296 of 2011(J) APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1. A TRUE COPY CONSENT ISSUED BY THE POLLUTION CONTROL BOARD DATED 4.8.2009. EXHIBIT P2. A TRUE COPY OF THE LICENSE DATED 27.7.2011 ISSUED BY THE IST RESPONDENT. EXHIBIT P3. A TRUE COPY OF THE PERMIT DATED 22.10.2011. EXHIBIT P4. A TRUE COPY OF THE PERMIT DATED 17.11.2011. EXHIBIT P5. A TRUE COPY OF THE AGREEMENT DATED 23.6.2011 BY THE PETITIONER AND HIS BROTHER. EXHIBIT P6. A TRUE COPY OF THE NOTICE DATED 24.10.2011 BY THE IST RESPONDENT. EXHIBIT P7. A TRUE COPY OF THE REPLY DATED 28.10.2011 BY THE PETITIONER. EXHIBIT P8. A TRUE COPY OF THE NOTICE DATED 14.11.2011 ISSUED BY THE IST RESPONDENT. EXHIBIT P9. A TRUE COPY OF THE REPLY DATED 15.11.2011 BY THE PETITIONER. EXHIBIT P10. A TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER DATED 21.11.2011. EXHIBIT P11(A). A TRUE COPY OF THE BILL DTD.12.11.2011 EXHIBIT P11(B). A TRUE COPY OF THE BILL DTD.14.11.2011 EXHIBIT P11(C). A TRUE COPY OF THE BILL DTD.15.11.2011 EXHIBIT P11(D). A TRUE COPY OF THE BILL DTD.17.11.2011 EXHIBIT P11(E). A TRUE COPY OF THE BILL DTD.19.11.2011 EXHIBIT P11(F). A TRUE COPY OF THE BILL DTD.21.11.2011 EXHIBIT P11(G). A TRUE COPY OF THE BILL DTD.23.11.2011 EXHIBIT P11(H). A TRUE COPY OF THE BILL DTD.24.11.2011 EXHIBIT P11)I). A TRUE COPY OF THE BILL DTD.26.11.2011 EXHIBIT P11(J). A TRUE COPY OF THE BILL DTD.28.11.2011 EXHIBIT P11(K). A TRUE COPY OF THE BILL DTD.29.11.2011 EXHIBIT P11(L). A TRUE COPY OF THE BILL DTD.30.11.2011 EXHIBIT P11(M). A TRUE COPY OF THE BILL DTD.30.11.2011 WP(C).No. 31296 of 2011(J) EXHIBIT P11(N). A TRUE COPY OF THE BILL DTD.1.12.2011 EXHIBIT P11(O). A TRUE COPY OF THE BILL DTD.1.12.2011 EXHIBIT P11(P). A TRUE COPY OF THE BILL DTD.2.12.2011 EXHIBIT P11(Q). A TRUE COPY OF THE BILL DTD.3.12.2011 EXHIBIT P11(R). A TRUE COPY OF THE BILL DTD.3.12.2011 EXHIBIT P11(S). A TRUE COPY OF THE BILL DTD.4.12.2011 EXHIBIT P11(T). A TRUE COPY OF THE BILL DTD.4.12.2011 EXHIBIT P12. A TRUE COPY OF THE GOODS CARRIAGE PERMIT DTD.2.2.2010 RESPONDENTS' EXHIBITS: EXT.R5(A) : COPY OF THE ORDER DTD.16.7.2010 IN W.A.NO.741/2010 EXT.R59B) : PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THARAPPELPPADY- KOODALLOOR MARKET ROAD. //TRUE COPY// P.A TO JUDGE ab PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- W.P(C) No.31296 of 2011 -------------------------------------------------- Dated this the 13th day of December, 2011 J U D G M E N T Pius C. Kuriakose, J The petitioner is running a metal crusher unit under the name and style Vallithottathil Industry complains that respondents 5 and 6 and persons who owe allegiance to them are opposing the operation of his tipper lorry bearing registration No.KL-35C-5268 through a road by name Koodallur Tharappelpady Market Road. According to the petitioner his crusher unit has been issued with all requisite permits, consents and licenses by competent statutory authorities. He relies on Ext.P1 consent to operate, issued by the Pollution Control Board. He relies on Ext.P2 Panchayat license. According to him the new tipper lorry having registration No.KL-35C-5268 has been issued with Ext.P3 permit. He submits that as the 1st respondent Koodallur Panchayat entertained the apprehension that the user of the Koodallur Tharappelpady road by the petitioner's lorries caused damage to the road in question, the 2nd respondent Panchayat Secretary insisted upon execution of an agreement by W.P(C) No.31296 of 2011 2 the petitioner and his brother one Vinod James, who is running another metal crusher unit. Accordingly, Ext.P5 agreement was executed and he claims that Ext.P5 was honoured in all respects by the petitioner and his brother. He has produced Ext.P6 issued to him by the 2nd respondent Panchayat Secretary alleging that he is operating a torus type lorry (heavy lorry with more than four wheels with carrying capacity of more than 10 tons). The petitioner asserts that he is not operating any torus type tipper lorry but what he operates is an ordinary tipper lorry with measurements slightly different from that of the other tipper lorry belonging to him. He submits that in terms of width the tipper lorry having registration No.KL-35-C 5268 as well as the other tipper lorries belonging to him has the same width. To Ext.P6 he filed Ext.P7 reply. On receiving Ext.P7 no further action was taken by Panchayat pursuant to Ext.P6. However, recently Ext.P8 notice is issued to him containing four specific directions therein. To P8, the petitioner submitted Ext.P9 reply claiming that all the directions in Ext.P8 are being obeyed by him. The petitioner reiterates that his tipper lorry having registration No.KL-35 C-5268 is not torus type and it is like any other tipper lorry having a width of 2 metre 45 cms. The W.P(C) No.31296 of 2011 3 petitioner claims that the 2nd respondent Panchayat Secretary has been fully convinced about the correctness of the explanation offered by the petitioner. But the party respondents are now obstructing. These obstructions are without any justifiable cause. The metal crusher unit has been established availing substantial amounts by way of loan from the Federal Bank. Obstruction of the petitioner's tipper lorry by the party respondents will result in the loan becoming sticky. The petitioner cannot afford to close down the unit even for a day. 2. A detailed counter affidavit has been filed by respondents 5 and 6. They have produced Ext.R5(a) order passed by this Court in W.A.No.741/2010. It is pointed out on the basis of Ext.R5(a) that M/s.Infant Jesus Metal Crusher Unit, Kidangoor owned by the petitioner's father Sri.James Joseph has been restrained by a Division Bench of this Court under Ext.R5(a) from making use of the Koodallur Tharappelpady road. As the user of the very same road has been prohibited in the case of the petitioner's father by the Division Bench of this Court, the petitioner cannot aspire to make use of the very same road. It is contended that the road in question is too narrow to permit movement of tipper lorries like the lorry having registration No. W.P(C) No.31296 of 2011 4 KL-35/C-5268. The width of the road it is specifically pointed is just 3 meters, which means that once the lorry moves on the road, there will be hardly 55 cm width for the people to walk through the road. There are schools in the neighbourhood and the movements of the tipper lorries through this road will endanger the life of the school going children apart from the pedestrians. To the counter affidavit a reply affidavit has been filed by the petitioner re-iterating the contentions. Along with the reply affidavit Ext.P11 series of bills and P12 permit pertaining to a vehicle which the petitioner has been operating on hire basis is also produced. Ext.P11 series are relied on by the petitioner to show that the petitioner's tipper lorry is not the only tipper lorry that passes through the road in question. 3. After hearing the counsel for the petitioner Sri.Mathew John, Sri.V.V.Sidharthan, the learned senior counsel for the party respondents and Sri.V.G.Arun, the learned counsel for the Panchayat for some time, we passed the following order on 7.12.2011. “Sri.M.K.Aboobacker, learned senior Government Pleader will seek instructions from any competent person in the Motor Vehicles Department as to the relative size of the tipper lorries in respect of which Exts.P3 and P4 permits have been issued. It will be W.P(C) No.31296 of 2011 5 reported as to whether the tipper lorry, in respect of which Ext.P3 permit is issued, will occupy more space on the road than the tipper lorry in respect of which Ext.P4 permit is issued. 2. The officer concerned should be told that the information is called for resolving a controversy that unlike lorry covered by Ext.P4 permit, the lorry covered by Ext.P3 permit will cause more difficulties to the pedestrians and other users of the road. 3. The 2nd respondent is directed to take measurement of the lorries covered by Exts.P3 and P4 permits and furnish the same to the senior Government Pleader.” 4. Today Sri.V.G.Arun, the learned counsel for the Panchayat has placed before us the written instruction furnished by the Panchayat regarding measurements of the two tipper lorries belonging to the petitioner. These details will show that in terms of width the tipper lorry which is objected to having registration No.KL-35-C 5268 and other tipper lorries belonging to the petitioner is of the same width. The main difference seems to be in the matter of height. The tipper lorry having registration No. KL-35-C 5268 has a height of 2.45 cm. while other tipper lorry having a height of 2 mtrs. In terms of length, the tipper lorry which is objected to appears to be shorter. Extensive submissions were addressed before us by Sri.Mathew John, the learned counsel for the petitioner, Sri.V.V.Sidharthan, W.P(C) No.31296 of 2011 6 the learned Senior counsel for the party respondents and Sri.V.G.Arun, the learned counsel for the Panchayat. The submissions were mainly based on the pleadings raised by the respective parties and the materials placed on record. It was mainly on concerns of security of school going children and people who pass through the road in question Koodallur Market Tharappelpady road that the learned senior counsel Sri.V.V.Sidharthan opposed to the grant of police protection sought for. The learned senior counsel also highlighted that the Division Bench of this Court considering the writ appeal preferred against the petitioner's father who is conducting a similar unit has restrained the petitioner's father from making use of the road in question for operation of the tipper lorries. Sri.V.G.Arun's submission was that the petitioner should be made accountable for any accident and resultant damages on account of his insistence of operating the tipper lorry through this narrow road. Sri.Mathew John, the learned counsel for the petitioner submits that it is not the petitioner alone who is operating tipper lorries through the road in question. Instructions will be given to the drivers of the petitioner's lorries to be extra cautious while driving the lorries through this road W.P(C) No.31296 of 2011 7 and maximum care and caution will be taken to avert accidents. 5. Having given our anxious consideration to the rival submissions addressed at the Bar, we feel that the petitioner is justified in seeking police protection in the matter of operating his tipper lorry having registration No. KL-35-C 5268 through Koodallur Market Tharappelpady road. We don't find much of a difference between the width of the petitioner's lorry which is objected to and the other lorries which are not being objected to by respondents 5 and 6. Ext.R5(a) order cannot bind the petitioner. True, the Panchayat is a party to Ext.R5(a) as pointed out by Sri.V.V.Sidharthan. But so long as the Panchayat has not issued any prohibitory order against the petitioner from making use of the road in question for operation of lorry having registration No. KL-35-C 5268, the petitioner is justified in police protection. We allow this writ petition to a certain extent and direct respondents 3 and 4 to afford requisite protection to the petitioner for operating his tipper lorry having registration No. KL-35-C 5268 through Koodallur Market Tharappelpady road. However, we caution the petitioner and clarify that he alone will be responsible for any accident which may happen due to the operation of his tipper lorry through the road which is W.P(C) No.31296 of 2011 8 very narrow. We also make it clear that if the 2nd respondent Panchayat or any other competent authority issues any prohibitory order restraining operation of the above lorry thorough this road by the petitioner, the protection direction issued as above will stand withdrawn. PIUS C. KURIAKOSE JUDGE K.HARILAL JUDGE ab