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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. NAGARESH, J.
D. Prabhakaran, S/o. Dinakaran - Petitioner
Versus
State of Kerala, Represented by The Principal Secretary, Local Self Government Department & Ors. - Respondents
W.P.(C) Nos.14698 of 2021 and 21508 of 2022
Decided On : 27-07-2022
Constitution of India, 1950 - Article 19(1)(g) - Kerala Police Act, 2011 - Section 72 - Control of National Highways (Land and Traffic) Act, 2002 - Section 28 - Issue of locating Autorickshaw Stand - Freedom to practise any profession, or to carry on any occupation, trade or business - Whether Auto Stand will affect vehicular traffic flow or pedestrian movement due to crowding of commuters in Auto Stand, is a matter of concern - Section 72 of Kerala Police Act, 2011 and Section 112 of Motor Vehicles Act, 1988, it is Traffic Regulatory Committees chaired by heads of Local Self Government Institutions constituted under Section 72 of Kerala Police Act, 2011 who are competent to decide, locate and demarcate autorickshaw stands. (Para 18)
Findings of the Court :
Petitioner in W.P.(C) submitted that they intend to inaugurate their business in premises in a grand manner and unless autorickshaws in front of building are not cleared on day, inaugural ceremony will be spoiled - Petitioner in W.P.(C), who is President of Autorickshaw Thozilali Samrakshana Samithy, submitted that they have no intention to obstruct or spoil inauguration ceremony and will cooperate with petitioner in W.P.(C) for smooth conduct of inauguration - Traffic Regulatory Committee are set aside - Committee is directed to reconsider issue of locating Autorickshaw Stand in question, taking into consideration rights and convenience of all stakeholders in matter, within a period of two months.
Result : Writ petitions disposed of.
JUDGMENT :
1. Both these writ petitions relate to regulating an Autorickshaw Stand near the KSRTC Bus Stand, Haripad, adjacent to NH-66. Hence, the writ petitions are heard together and being disposed of by a common judgment.
2. The petitioner in W.P.(C) No.14698 of 2021 is an autorickshaw driver and President of Autorickshaw Thozhilali Samrakshana Samithy. Autorickshaws are parked at the northern end of KSRTC Bus Stand at Haripad, which place is used as Autorickshaw Stand. About 70 autorickshaws are normally parked in the said Stand, states the petitioner. The 6th respondent, who owns 3.66 Ares land on the western side of the Autorickshaw Stand, constructed a commercial building there, without providing sufficient parking area.
3. The 6th respondent filed W.P.(C) No.26868 of 2019 to remove autorickshaws parked in the Stand and this Court directed the 3rd respondent to convene a meeting of the Traffic Regulatory Committee and identify places for parking. A meeting convened by the Traffic Regulatory Committee decided as per Ext.P2 that parking of the Autorickshaws should be without obstructing entrance to shops.
4. The petitioner submits that the decision taken as per Ext.P2 is impractical. Space for parking two autorickshaws is sufficient to enter into the Building Complex of the 6th respondent. The Building of the 6th respondent is not provided with sufficient Parking Area. The building does not have enough setbacks as per the Building Rules. The 6th respondent seeks to remove the Autorickshaw Stand only to facilitate parking of the vehicles of his customers. The petitioner therefore seeks to quash Ext.P2 decision of the 5th respondent-Traffic Regulatory Committee.
5. The petitioner in W.P.(C) No.21508 of 2022 is a Partnership Firm intending to run a showroom in ‘SAS Tower’ at Haripad. Respondents 7 to 9, who are autorickshaw drivers, are parking their autorickshaws in front of the showroom causing obstruction to ingress and egress to the showroom. In spite of requests, the autorickshaws are not removed. The area is not a notified Autorickshaw Stand, contends the petitioner. The complaints filed by the petitioner before various authorities were of no avail.
6. The petitioner argues that this Court has held in the judgment in Naushad M. and others v. State of Kerala and others [2019 (2) KHC 562 (DB)] that permitting parking of autorickshaws permanently in front of shoprooms on the side of Highway is an appropriation of the private right of owners of shops and houses, to have free access to Highways. The ratio laid down in the said judgment is applicable to respondents 7 to 9. It is the duty of the Government / Municipal authorities to provide suitable parking areas to autorickshaws. But, parking cannot be permitted, offending the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution of India.
7. The 4th respondent-Secretary to Municipality filed a counter affidavit. According to the 4th respondent, autorickshaws have been parking in that area for the last about 25 years. It is useful to the general public to travel from KSRTC Bus Stand to Taluk Hospital and to Haripad Railway Station. On 05.07.2022, a meeting of the Traffic Regulatory Committee (TRC for short) was held. The TRC heard all affected parties. The site was inspected. The auto drivers agreed to exclude six metre area from parking, to facilitate ingress and egress to the building in question.
8. The building possessed by the petitioner in W.P. (C) No.21508 of 2022 is situated above the National Highway Line and there is no obstruction to the visibility of textile items displayed in the building. The petitioner in W.P.(C) No.21508 of 2022, however, made Ext.R5(b) complaint requesting to remove all autorickshaws being parked in front of the building.
9. A meeting of the TRC was convened again on 13.07.2022. The petitioners in both the writ petitions were present in the meeting. The TRC suggested that the existing 6 metre access be enhanced to
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