IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 34260 of 2004(C) ---------------------------------------- PETITIONER: --------------------- M. SAINULABDEEN, SAJI HOUSE, T.C.5/931, PEROORKADA, THIRUVANANTHAPURAM-695 005. BY ADV. SRI.M.DINESH SRI.G.S.MOHANDAS SRI.V.V.MATHEW RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRAM-695 001. 2. SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. EXECUTIVE ENGINEER, ROADS DIVISION, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695 033. 5. ASSISTANT EXECUTIVE ENGINEER, CITY ROADS SUB DIVISION, PMG JUNCTION, THIRUVANANTHAPURAM-695 033. 6. ASSISTANT ENGINEER, CITY ROADS SECTION NO.II, P.M.G. JUNCTION, THIRUVANANTHAPURAM-695 033. Kss ..2/- ..2..... WPC.NO.34260/2004 C 7. CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-695 033. 8. SHRI. A.S. SUDARSAN, FORMER SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-695 033. 9. SHRI.M.M. YACOB, S/O. MUHAMMED IBRAHIM, TC.43/771, KALLATTUMUKKU, MANACAUD, THIRUVANANTHAPURAM-695 009. BY GOVERNMENT PLEADER SRI. SANDESH RAJA - R1 TO 6 BY ADV. SRI.N.NANDAKUMARA MENON,SC,TVM CORPN. - R7 SRI.R.S.KALKURA - R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008 ALONG WITH WPC NO. 10933 OF 2007 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34260/2004 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DTD. 5/11/03 IN O.P.NO.13207 OF 2001 V. EXT.P2: COPY OF COUNTER AFFIDAVIT DTD.11/06/04 OF THE 7TH RESPONDENT IN CCC © NO.594 OF 2004 (WITHOUT EXTS.). EXT.P3: COPY OF JUDGMENT DD. 30/09/95 IN OS.NO.337 OF 1992 AND 955 OF 1993 OF THE PRINCIPAL SUB JUDGE, THIRUVANANTHAPURAM. EXT.P4: COPY OF REPLY AFFIDAVIT DD. 22/06/04 IN CCC.NO.594 OF 2004. EXT.P5: COPY OF JUDGMENT DTD. 23/06/04 IN CC(C) NO.594 OF 2004. RESPONDENT'S EXHIBITS: EXT.R9(A): COPY OF THE JUDGMENT DTD. 6/10/1994 IN OP.NO.4942/1994. EXT.R9(B): COPY OF THE LIST PRODUCED IN O.P.NO.4942/1994. EXT.R9(C): COPY OF THE JUDGMENT DTD. 30/10/1995 IN OP.NO.14002/1993. EXT.R9(D): COPY OF THE JUDGMENT DTD. 16/02/1995. EXT.R9(E): COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE PWD AUTHORITIES DTD. 30/10/985. EXT.R9(F): COPY OF THE LATEST LICENCE RENEWED FOR CONDUCTING BUSINESS FOR THE YEAR 2004-05. EXT.R9(G): COPY OF THE JUDGMENT IN CRP.NO.590/1990. EXT.R9(H): COPY OF THE JUDGMENT DTD. 30/09/1995 IN O.S.NO.337/1992 AND 955/1993. EXT.R9(I): COPY OF THE JUDGMENT DTD. 7/04/1995. EXT.R9(J): COPY OF THE ORDER IN I.A.NO.6112/1994. EXT.R9(K): COPY OF THE PLAINT IN O.S.NO.153/2001. /TRUE COPY/ P.A.TO JUDGE Kss P.N. RAVINDRAN, J. ---------------------------------------------------- W.P.(C)NO.34260 OF 2004 & W.P.(C)NO.10933 OF 2007 ---------------------------------------------------- Dated this the 4th day of July, 2008. JUDGMENT Since common questions arise for determination, these writ petitions were heard together and are being disposed of by this common judgment. 2. The petitioner in W.P.(C)No.34260 of 2004 is running Bunk No.28 placed near the eastern gate of the Museum at Trivandrum, He had earlier moved this Court by filing O.P.No.13207 of 2001 claiming that the bunk shop being run by him should not be removed. By Ext.P1 judgment delivered on 5.11.2003, the petitioner's claims in that regard were repelled. However, it was observed that as and when the Corporation implements any rehabilitation scheme for the owners of removed bunks, the petitioner's claim shall also be considered. The operative portion of Ext.P1 judgment reads as follows: “ I head both sides. The petitioner has no legal right to run a bunk shop by the margin of a public road. The public roads and its margin are meant for the use of the public. May be at WPC.NOS.34260/04& 10933/07 . 2 some point of time, there were road margins which could be occupied by bunks without causing obstruction to the pedestrians or vehicles. Now the number of users of the road have increased substantially. Vehicles have also increased. Therefore, if the Corporation thinks of removing the bunks of the petitioner and others, this court cannot interfere with it in the absence of any legal right in the petitioner to continue to do the business from the bunk. Recently a learned Judge of this court has dismissed O.P.No.4192/2003 and connected cases filed by similarly placed bunk owners. So, this original petition is also liable to be dismissed. But the grievance of the petitioner is that a rich man's bunk in the neighbourhood is being spared whereas the petitioner's bunk is being demolished is to be looked into by the first respondent. If the petitioner's bunk is removed, other bunks in the neighbourhood shall also to be removed. In similar cases filed by the similarly paced persons, the Corporation has admitted that as and when rehabilitation is implemented for the benefit of the owners of demolished bunks, claims of all the petitioners therein will be considered. I think that direction can be issued in this case also. As and when the Corporation implements any rehabilitation scheme for the owners of removed bunks, the petitioner's claim shall also be considered. Subject to this observation, the original petition is dismissed". 3. It is not in dispute that Ext.P1 judgment has become final. In view of Ext.P1 judgment, the petitioner cannot claim any right to WPC.NOS.34260/04& 10933/07 . 3 continue to run his bunk shop. Therefore, the prayer made by the petitioner for an order directing respondents 1 to 7 to permit him to conduct business in his bunk shop placed at the eastern gate of the Museum at Trivandrum cannot be granted. The other prayer in this writ petition is to quash Ext.P3 judgment passed by the court of the Subordinate Judge, Trivandrum in O.S.Nos.337/1992 and 955/1993. The plaintiff in the said suit is the petitioner in W.P.(C). 10933 of 2007 and the ninth respondent in this writ petition. The court of the Subordinate Judge has in Ext.P3 found that the petitioner in W.P.(C).No.10933 of 2007 was running the bunk shop legally and that the removal of the said bunk shop was illegal. The court of the subordinate judge accordingly directed the defendants in the suit not to remove the bunk. He was also allowed to recover the sum of Rs.1,11,200/= and costs from the Corporation and its officials. The said decree has become final and it is not in dispute that the amount ordered to be paid as per Ext.P3 judgment has been paid to the petitioner in W.P.(C)No.10933 of 2007. When the writ petition was taken up for hearing today, the learned counsel for the petitioner in W.P.(C).No.34260 of 2004 submitted that he is not pressing prayer-(i) for quashing Ext.P3 judgment. In view of the WPC.NOS.34260/04& 10933/07 . 4 findings of this court in Ext.P1 judgment, the petitioner in W.P.(C). No.34260/04 is not entitled to any relief. Accordingly, the writ petition fails and it is dismissed. The direction as regards rehabilitation in Ext.P1 judgment will however continue to operate. 4. As regards W.P.(C).No.10933 of 2007, the prayer therein is for a direction to the second respondent, Trivandrum Corporation, to remove the unauthorised bunk put up by the third respondent therein, who is none other than the petitioner in W.P.(C).No.34260 of 2004. It is contended that in view of the decision of this Court in W.P.(C).No.13270 of 2001 (Ext.P1 in W.P.(C).No.34260 of 2004), the third respondent cannot continue to run his bunk shop. It is brought to my notice that the government have stayed the steps taken by the Corporation of Trivandrum to evict the bunk shop run by the third respondent and that on the strength of the stay order, he is running his bunk shop. In view of the fact that the State Government is now seized of the matter, the relief prayed for the petitioner in W.P.(C).No.10933 of 2007 cannot be granted. Further the petitioner in W.P.(C).N.10933 of 2007 who is himself running a bunk shop cannot be heard to contend that no one else WPC.NOS.34260/04& 10933/07 . 5 shall be permitted to run a bunk shop close to his bunk shop. It is primary for the official respondents to decide whether the third respondent in this writ petition should be permitted to continue to run his bunk shop or whether it should be removed. For these reasons I find no merit in this writ petition. The writ petition accordingly fails and it is dismissed. P.N. RAVINDRAN, JUDGE. cl