IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 WP(C).No. 13285 of 2011(I) -------------------------------------- PETITIONER(S): ----------------------- 1. ERNAKULAM DISTRICT AUTORICKSHAW DRIVERS ASSOCIATION, CITU, ARAYANKAVU UNIT, REPRESENTED BY ITS PRESIDENT, RAJESH.P.P, S/O.PARAMESWARAN, AGED 34. 2. THE ERNAKULAM DISTRICT AUTORICKSHAW THOZHILALI UNION, INTUC, AMBALLOOR MEGHALA, ARAYANKAVU UNIT, INTUC OFFICE, KANJIRAMATTOM PO, MILLINGAL JUNCTION, REPRESENTED BY ITS PRESIDENT, SANTHOSH. K.N, AGED 37 YEARS, S/O.NARAYANAN. BY ADV. SRI.SAJEEV KUMAR K.GOPAL, SRI.K.R.VINOD. RESPONDENT(S): ------------------------- 1. THE AMBALLOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY-682 314. 2. THE SECRETARY, AMBALLOOR GRAMA PANCHAYAT-682 314. 3. THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM, REPRESENTED BY ITS SECRETARY-682 030. 4. THE SUB INSPECTOR OF POLICE, MULANTHURUTHY-682 314. *ADDL. R5 TO R10 IMPLEADED ADDL. R5: T.S. SOMAN, THEKKE MALAYIL, KULAYETTIKKARA P.O., AMBALLOOR. ADDL. R6: MOIDEENKUTTY, KALAYIL HOUSE, KULAYETTIKKARA P.O., AMBALLOOR. WP(C).No. 13285 of 2011(I) ADDL. R7: ABDUL KAREEM K.M., KUNNAMKULATHIL HOUSE, KULAYETTIKKARA P.O., AMBALLOOR. ADDL. R8: NISHA SHAMEER, THOUFEEQUE MANZIL, KULAYETTIKKARA P.O., AMBALLOOR. ADDL. R9: BASHEER P.A., POYYATTIL HOUSE, KULAYETTIKKARA P.O., AMBALLOOR. ADDL. R10: HAKIM P.A., POYYATTIL HOUSE, KULAYETTIKKARA P.O., AMBALLOOR. * ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 10, AS PER ORDER DATED 13/06/2011 IN I.A. 8732/2011. R1 & R2 BY ADV. SRI.P.GOPAL. R3 & R4 BY GOVT. PLEADER MR.G. GOPAKUMAR. ADDL. R5 TO R10 BY ADV. SMT.AYSHA YOUSEFF, SMT.MOLLY JACOB, SMT.RABIA BEEGAM T.K., SRI.JOBI.A.THAMPI, SMT.ARATHI KARUNAKARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 13285 of 2011(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RESOLUTION OF THE 1ST RESPONDENT GRAMA PANCHAYAT AT ITS MEETING HELD ON 28/12/2010 VIDE RESOLUTION NO.VI (12). EXT.P2: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3: COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE JUDGMENT DATED 22/03/2011 IN WP(C) NO. 29509/2010. EXT.R5(1): COPY OF THE JUDGMENT DATED 22/03/2011 IN WP(C) NO. 29509/2010. EXT.R5(2): COPY OF THE MINUTES OF THE MEETING DATED 21/12/2010 HELD IN THE OFFICE OF THE 1ST RESPONDENT. //TRUE COPY// P.S. TO JUDGE rs C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.13285 of 2011 ---------------------------------------- Dated 30th June, 2011 JUDGMENT The petitioners are registered unions of autorickshaw drivers in Arayankavu unit. The members of their union who are autorickshaw drivers operate their autorickshaws at Arayankavu junction. The side of the PWD road has been used as their parking space for the past 25 years. There is no other alternative parking space available in the locality for parking their autorickshaws. Earlier, certain shop owners in the said locality filed W.P.(C)No.29509 of 2010 with the prayer to issue a writ of mandamus commanding the first respondent Panchayat to provide parking space for autorickshaws in the said locality so as to facilitate the petitioners therein to run their business smoothly without any obstruction to the free ingress and egress to their shops. It was submitted by the learned counsel for the first respondent in the said writ petition considering the grievances raised by the petitioners therein that a meeting of all concerned was convened and thereafter Ext.R1(a), referred as such therein, was passed on 28.12.2010. Taking note of the fact that implementation of such decision in Ext.R1(a) would redress the grievances of the petitioners therein this Court disposed of the said writ WP(C).No.13285/2011 2 petition with a direction to respondents 2 and 3 therein to take appropriate steps for implementation of Ext.R1(a), in accordance with law. 2. The grievance of the petitioners herein is with respect to the implementation of Ext.R1(a) pursuant to the said decision. According to them, in terms of the judgment in W.P.(C)No.29509 of 2010 Ext.R1(a) therein/Ext.P1 herein, was to be implemented strictly adhering to the provisions under the Kerala Panchayat Raj Act, 1994 (for short `the Act) and also the Kerala Motor Vehicles Rules, 1989 (for short `the Rules'). However, according to them, in purported compliance with the directions in the said judgment Ext.P1 was implemented in total disregard to the provisions under Rule 344 of the Rules and Section 227 of the Act. 3. Respondents 1 and 2 have jointly filed a counter affidavit in this writ petition. The additional respondents have also filed a joint counter affidavit. The steps taken prior to the implementation of Ext.P1 were elaborately explained in paragraph 9 of the counter affidavit filed by respondents 1 and 2. Before adverting to the said steps taken by respondents 1 and 2 for implementing Ext.P1 it is relevant to refer to the relevant provisions under the Kerala Motor Vehicles Rules and also Kerala Panchayat Raj Act. Rule 344 of the Rules, in so far as it is relevant for the purpose of deciding the issue involved in this case reads thus:- WP(C).No.13285/2011 3 “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.” Section 227 of the Act reads thus:- “227. Public landing places and cart-stands etc.- Subject to such rules as may be prescribed, the Village Panchayat may- (a) provide public landing places, halting places and cart-stands (including stands for animals and vehicles of any description) and levy fees for their use; and (b) where any such place or stand has been provided, prohibit the use for the same purpose by any person, within such distance, thereof, any public place or the side of any public road as the panchayat may, subject to the control of the Regional Transport Authority, specify: Provided that the previous sanction of the Regional Transport Authority shall be obtained before any stand or halting place for motor vehicles is opened.” A conjoint reading of the said provisions would reveal that there is no conflict between these two provisions but, at the same time, they would WP(C).No.13285/2011 4 reveal that for fixing a parking space previous sanction from the Regional Transport Authority is to be obtained. Therefore, the short question to be decided in this case is whether previous sanction from the Regional Transport Authority was obtained before implementing the decision in Ext.P1. As already noticed hereinbefore, the steps that were taken prior to the implementation of Ext.P1 have been elaborately discussed in detail in paragraph 9 of the counter affidavit filed by respondents 1 and 2. However, it is evident from the statements in paragraph 9 that prior to the fixation of the parking place in terms of Ext.P1 previous sanction of the Regional Transport Authority was not obtained. As per the judgment in W.P.(C)No.29509 of 2010 this Court directed the authorities to implement Ext.P1 herein, in accordance with law. Therefore, it was obligatory on the part of the respondents to ensure strict compliance with the relevant provisions viz., the provisions under Rule 344 of the Rules and Section 227 of the Act before implementing the decision in Ext.P1. 4. Evidently, before obtaining sanction from the Regional Transport Authority the authorities compelled the autorickshaw drivers to park their vehicles in the place that was fixed in terms of Ext.P1. While admitting this writ petition on 10.5.2011 this Court passed an interim order as hereunder:- “There will be an interim direction that implementation of Ext.P1 shall be postponed for a WP(C).No.13285/2011 5 period of one month. The learned standing counsel for respondents 1 and 2 and the learned counsel appearing for additional respondents 5 to 10 submitted that prior to the issuance of the said order the decision in Ext.P1 order was virtually implemented. At the same time, admittedly, from 11.5.2011 onwards the autorickshaws are being parked at the said junction in the manner as has been done earlier. The contention of respondents 5 to 10 is that the autorickshaw drivers who are members of petitioners 1 and 2 should be compelled to shift the parking space in compliance with the decision in Ext.P1. I have already found, after adverting to the relevant provisions, that Ext.R1(a) therein viz., Ext.P1 herein, even in terms of the judgment in W.P.(C)No.29509 of 2010 should have been implemented only after following the procedures prescribed under the relevant provisions of law referred earlier. When the admitted position is that the provisions under Rule 344 of the Rules and also Section 227 of the Act were not scrupulously followed for implementing the decision in Ext.P1, I am of the view that this Court cannot issue a direction to the authorities to implement the decision in Ext.P1 especially, in the light of the judgment in W.P.(C)No.29509 of 2010. As already noticed, in terms of the said judgment it could be implemented only in accordance with law. Respondents 1 and 2 as also respondents 5 to 10 have a grievance that WP(C).No.13285/2011 6 after 11.5.2011 the autorickshaws are being parked in such a manner causing great inconveniences and hardships to the ingress and egress of the customers coming to the shops belonging to respondents 5 to 10 and such other shop owners. Taking into account all these aspects, I am inclined to dispose of this writ petition as hereunder:- In accordance with the provisions referred earlier, the second respondent shall forward a copy of Ext.P1 to the third respondent within 10 days from the date of receipt of a copy of this judgment. On receipt of Ext.P1 the Regional Transport Authority shall consider the same in accordance with law. Notice shall be issued to the Panchayat and the Executive Engineer of PWD having jurisdiction over the area in question and the concerned Superintendent of Police also shall be put on notice before determining the location taking into account the decision in Ext.P1 in terms of Rule 344 of the Rules. Before taking a decision notice shall also be issued to the petitioners' representatives and also to additional respondents 5 to 10. After affording opportunity to the parties, a decision shall be taken with respect to the implementation of Ext.P1 viz., determination of the location for parking in the area concerned expeditiously, at any rate, within a period of six weeks from the date of receipt of copy of Ext.P1 from the 2nd respondent. Till such time, taking into account the grievances and difficulties raised by additional WP(C).No.13285/2011 7 respondents 5 to 10 and also respondents 1 and 2, there will be a direction to the fourth respondent and also to the Joint Regional Transport Officer, Tripunithura to ensure that autorickshaws are being parked at Arayankavu junction in such manner leaving sufficient space for the ingress and egress of the customers visiting the shops belonging to respondents 5 to 10 and also to other similarly situated shop owners in the said locality. Sd/- C.T.RAVIKUMAR Judge TKS