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2023 Supreme(Ker) 209
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. NAGARESH, J.
Priyesh B. Kartha, S/o. Balakrishnan Kartha and 7 Ors. – Petitioners
Versus
The Deputy Superintendent Of Police, Office Of The Deputy Superintendent Of Police, Kuzhippallikkavu Road, Perumbavoor – 683542 and 2 Ors. – Respondents
WP(C) No. 7181 Of 2023
Decided On : 30-03-2023
For the Petitioners: A. Balagopalan, Prabhu Murali Krishnan, M.S. Imthiyaz Ahammed, P. Seena, M.N. Manmadan, A. Rajagopalan
For the Respondents: Sri. K.T. Thomas, Sri. Mathew B. Kurian, Sri. E.C. Bineesh.
Point of Law: Rule 17 of the Rules, 2019 makes it the duty and responsibility of owner/developer to furnish details of parking spaces and area Earmarked.
Headnote:
Kerala Municipal Building Rules, 2019 - Rule 5(6)(1)(b) – Constitution of India, 1950 - Article 15 - Seeking to direct respondents 1 and 2 to afford adequate and effective police protection to the petitioners by preventing convening of public meetings, Dharnas and other functions in the parking space of Yathri Nivas Shopping Complex - Whether an open space in front of Shopping Complex, in this case owned by the Municipality, would be a public place or public space - Whether parking arrangements are adequately provided - Under Rule 5(6)(1)(b) of Kerala Municipal Building Rules, 2019, District Town Planner or the Chief Town Planner, while approving usage of plot or lay out of building, has to consider whether parking arrangements are adequately provided.
Finding of the Court: Admittedly, building and parking space belong to the 3rd respondent-Municipality. The Municipality has taken a specific stand that no organisation has been granted permission for conducting any meeting in the parking area. There is no authorised autorickshaw parking in the said area, submits the 3rd respondent. In a parking area earmarked for a commercial building, Dharnas, meetings, etc., cannot be conducted without the consent or permit of the owner of the building. Unauthorised autorickshaw parking also cannot be permitted in such parking areas.
Result: Writ petition is disposed of
JUDGMENT :
1. The petitioners, who are licensees of Shop Rooms in Yathri Nivas Shopping Complex owned by the Perumbavoor Municipality, have approached this Court seeking to direct respondents 1 and 2 to afford adequate and effective police protection to the petitioners by preventing convening of public meetings, Dharnas and other functions in the parking space of the Yathri Nivas Shopping Complex. The petitioners have also sought for a direction to the 3rd respondent-Municipality to prohibit parking of autorickshaws in the parking space.
2. The petitioners state that there is a vacant space lying between the Yathri Nivas Shopping Complex and Aluva-Munnar Road, owned by the 3rd respondent-Municipality. The space is provided for parking of vehicles of the licensees of Shops and their customers. There is no other parking space for the building.
3. According to the petitioners, various political parties, associations and religious sects have started to use the aforementioned parking space for holding public meetings, Dharnas, etc. Such meetings are sometimes without any permission from any authorities. Conduct of meetings has become a routine affair now and it adversely affects the business establishments in the building.
4. A suit O.S. No.37 of 2021 in the Munisiff’s Court, Perumbavoor was filed seeking for a decree of permanent prohibitory injunction, restraining the respondents from granting sanction or permission or otherwise allowing any person to hold public meetings, conventions, Dharnas, etc., in the parking space. A Decree has already been passed. In spite of that, the open area is being used for conducting Dharnas and meetings and autorickshaws are also parked illegally in that area resulting in grave inconvenience to the petitioners and their customers.
5. Standing Counsel entered appearance on behalf of the 3rd respondent-Municipality filing a Statement. The 3rd respondent submitted that a Municipal Bus Terminal is situated in front of the Shopping Complex. The vehicles of the licensees and customers are parked in the area in front of the Shopping Complex. The Municipality has not granted permission for conducting any meeting in the parking area. Meetings are permitted only near Subhash Maidan Open Stadium on payment of rent. The 3rd respondent further submitted that there is no authorised/notified autorickshaw stand near the Shopping Complex. The Engineering Wing of the Municipality has initiated action on Ext.P8 representation, contended the Standing Counsel for the 3rd respondent.
6. Government Pleader entered appearance on behalf of respondents 1 and 2 and submitted that persons who have conducted the meetings have not been made respondents in the writ petition. Therefore, there is non-joinder of necessary parties.
7. I have heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 and 2 and the learned Standing Counsel representing the 3rd respondent.
8. The grievance of the petitioners is that the area in front of the Shopping Complex, where the petitioners are conducting business on the basis of valid lease/licence agreement, is being consistently misused for holding public Dharnas, meetings, etc., causing grave inconvenience to the petitioners, their customers and the general public. Unauthorised autorickshaw stand is also functioning in the area, contend the petitioners.
9. The vacant area lying in between the Yathri Nivas Shopping Complex and the Aluva-Munnar Road is one vested with the 3rd respondent-Municipality. The area being in front of a Shopping Complex owned by a Local Self Government Institution, it is a public area where general public have access. In that limited sense, it is a pubic space. Public areas are generally used to shape community ties in neighbourhoods. Public spaces contribute to a flourishing society promoting social interaction and social discourse. They promote inclusiveness of diversity among the people. They create a social space for everyone
