IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 WP(C).No. 35258 of 2009(B) -------------------------- PETITIONER(S): --------------- DISHNET WIRELESS LTD., NO.9419/33/2365, R.R.ARCADE, GEETHANJALI BUS STOP, NH BYPASS, THAMMANAM P.O., VYTTILA, KOCHI-32, REP. BY ITS AUTHORISED SIGNATORY AND CIRCLE MANAGER LEGAL, V.K.SAJITH. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE AZHIYOOR GRAMA PANCHAYATH, AZHIYOOR P.O., KOZHIKODE, REP. BY THE SECRETARY. 2. THE SPECIAL GRADE SECRETARY, AZHIYOOR GRAMA PANCHAYATH, AZHIYOOR P.O., KOZHIKODE. 3. THE STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.R.PARTHASARATHY FOR R1-2 SRI.C.JAYACHANDRAN FOR R1-2 MR.V.MANU, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Writ Petition No.35258/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF RELEVANT PAGES OF THE LICENCE AGREEMENT DATED 18/12/2006. P2 : COPY OF THE BUILDING PERMIT NO.25/2009-2010 DATED 13/05/2009. P3 : COPY OF THE SKETCH SHOWING THE LIE OF THE PROPERTY AND THE APPROACH ROAD. P4 : COPY OF THE PHOTOGRAPHS SHOWING THE SIGNBOARD ERECTED AT BOTH ENDS. RESPONDENT'S EXHIBITS R1(a) : COPY OF EXTRACT OF R-1'S DECISION NO.112/09 DATED 11/08/2009. // TRUE COPY // PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.35258 of 2009 (B) --------------------------------- Dated, this the 5th day of January, 2010 J U D G M E N T The petitioner is a Company incorporated under the provisions of the Companies Act. Licence was granted by the Government of India for providing telecommunication and related services. Ext.P1 is the extract of the licence granted. In order to set up a telecommunication tower, the petitioner applied to the 1st respondent Panchayat for a building permit. The application was considered, and Ext.P2 is the permit that was issued. 2. According to the petitioner, subsequent to the issue of the building permit, at the instance of certain interested persons, in order to prevent the petitioner from proceeding with the work, the 1st respondent Panchayat passed Annexure R1(a) resolution prohibiting vehicular traffic through the access road. It is stated that in pursuance to the said decision, the Panchayat fixed sign boards on both ends of the road preventing vehicular traffic. As a result of this, the petitioner is prevented from transporting W.P.(C) No.35258/2009 -2- materials to the site, in respect of which the building permit was granted. 3. It is in these circumstances, this writ petition has been filed for a declaration that the respondent Panchayat is not vested with the power to regulate/control traffic by putting up sign boards prohibiting vehicular traffic over public roads. In support of this contention, the learned counsel submits that although under Section 169 of the Kerala Panchayat Raj Act, 1994, the road in question is vested in the Panchayat, still the power to regulate/restrict the use of vehicles and to erect traffic signs is vested only with the State Government or the authority authorised by the State Government, in view of Sections 115 and 116 of the Motor Vehicles Act, 1988. It is therefore contended that the prohibition imposed by the Panchayat is illegal and calls for interference. 4. The respondent Panchayat has filed a counter affidavit. The justification for the prohibition imposed is contained in paragraph 3 of the counter affidavit, which reads as under:- “3. The various allegations levelled in the above writ petition are not correct. The true facts are stated herebelow: a) It is true that the petitioner company has been issued with W.P.(C) No.35258/2009 -3- a building permit (Ext.P2) by the 1st respondent Panchayath for erection of a telecommunication power in landed property comprised in Sy.No.85/1 of Azhiyur Village. However, it was not decipherable from the application laid by the petitioner company that the access to the subject property (where the tower is proposed to be erected) is through the subject road namely “Cemetery road”. The subject road is having a width of only 2 ½ meters and the same is not a motorable road. The subject road leads to the CSI cemetery and the dominant purpose for which it is being used is to take deadbodies to the cemetery. The condition of the road is deplorably poor and the huge gutters therein are temporarily filled by the locals by using mud and soil. There were occasions where due to the extreme bad state of the road, deadbodies have to be physically carried to the cemetery. b) The neighbouring people who came to know about the issuance of Exhibit P2, gave a mass complaint to the Panchayath pointing out their difficulties and misery if loaded heavy vehicles and vehicles like JCB are permitted to be plied through the subject road. On enquiry, it was further revealed that the pipe line distributing drinking water to about 150 families is drawn through the subject road, which line was ruptured earlier in few occasions due to the indiscreet use of the road by loaded vehicles. That apart, the subject road is being used by about 800 students for accessing the BEM UP School situated nearby. The further worsening of the road's condition would detrimentally affect the interests of the said students as well. In the circumstances, the Panchayath Committee, being prima facie satisfied of the genuineness of the complaint and being convinced about the deplorably poor state of the road, took decision No.112/09 in its meeting held on 11/8/2009 to prohibit W.P.(C) No.35258/2009 -4- motorable traffic by heavy vehicles through the subject road. Certified extract of the said decision No.112/09 dated 11-8- 2009 taken by the 1st respondent Panchayat is produced herewith, marked Exhibit R-1(a).” 5. The Panchayat denies the allegation of the petitioner that the prohibition was imposed at the instance of some interested parties to defeat the petitioner. The learned counsel for the Panchayat also submits that village roads, paths and lanes within the Village Panchayat area have been vested with the Village Panchayat. It is stated that in terms of the statutory provisions, there has been a total vesting and it is the duty and power of the Panchayat to maintain the roads as well. 6. As already seen, the contention of the petitioner is that although the road in question has been vested in the Panchayat, restriction of vehicular traffic can be imposed only by the State Government or by authorities authorised by the State Government. However, having regard to the fact that the Panchayat Raj Act, 1994 is a legislation subsequent to Motor Vehicles Act, 1988, there is absolute vesting of the Village Roads in the Panchayat, I am not persuaded to accept the contention of the learned counsel for the W.P.(C) No.35258/2009 -5- petitioner. This is all the more for the reason that, under Section 169(2) of the Kerala Panchayat Raj Act, the entire liabilities of the Government also have been vested in the Panchayat. Therefore, in my view, the Panchayat has the power to impose restrictions including prohibition of vehicular traffic provided the circumstances justified such an action. In this case, paragraph 3 of the counter affidavit, extracted above shows the existence of factual circumstances, which justify the exercise of such powers and there is no material whatsoever to conclude that the exercise of power is vitiated either by arbitrariness or malafides justifying interference of this Court. 7. Coupled with the power of the Panchayat, there is also a duty vested in the Panchayat to maintain the roads. Even according to the Panchayat, the road is unfit for vehicular traffic due to poor maintenance. The statute itself casts the obligation of the Panchayat to maintain the roads. Therefore, while it may be open to the Panchayat to prohibit vehicular traffic if the condition of the road does not suitable for vehicular traffic, it is also incumbent on the part of the Panchayat to maintain and improve the road W.P.(C) No.35258/2009 -6- condition and make the same suitable for vehicular traffic. In this case, it is seen that Annexure R1(a) resolution was passed as early as on 11/08/2009. However, even as on date, nothing appreciable has been done by the Panchayat to maintain the road to make it suitable for vehicular traffic. Therefore, having regard to this aspect of the matter, I direct the Panchayat to maintain and make the road suitable for vehicular traffic, which the Panchayat shall do as expeditiously as possible, at any rate, within six weeks of receipt of a copy of this judgment. It is made clear that if the Panchayat does not make the road suitable for vehicular traffic within the time as above, it will be open to the petitioner to transport their materials through suitable vehicles to the site in question. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg