Kerala High Court
Abraham P.Varghese vs State Of Kerala on 29 January, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940
WP(C).No. 15750 of 2016
PETITIONER/S:
1 ABRAHAM P.VARGHESE,
AGED 56, BUSINESS, S/O. LATE P.P.VARGHESE,
SOLE PROPRIETOR, LALGY PRINTERS AND ADVERTISERS,
SCS JUNCTION, THIRUVALLA, PATHANAMTHITTA DISTRICT.
2 PRASAD.P.L.
AGED 55 YEARS, BUSINESS, S/O.LATE P.K.LAKSHMMANAN,
PROPRIETOR, TOWN BAKERY, SCS JUNCTION, THIRUVALLA
VILLAGE, THIRUVALLA TALUK, THIRUVALLA,
PATHANANTHITTA DISTRICT.
3 GEORGE NINAN,
AGED 54, BUSINESS, S/O.LATE C.A.GEORGE, PROPRIETOR,
C.JOHN ABRAHAM & SONS, SCS JUNCTION, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
4 VARGHESE.P.
AGED 58 YEARS, BUSINESS, S/O.LATE CHANDY POTHEN,
MANAGER, P.C. RAJU BROTHERS, SCS JUNCTION,
THIRUVALLA, PATHANAMTHITTA DISTRICT.
5 MANCHERIKALAM BOMBAY DYING SHOWROOM,
R PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING
PARTNER SUBHASH JOSEPH, AGED 40 YEARS, BUSINESS,
S/O.MATHEW JOSEPH, MANCHERIKALAM BOMBAY DYING
SHOWROOM, SCS JUNCTION, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
6 BEEGEES TEXTILE,
A PARTNERSHIP FIRM REPRESENTED BY ITS PARTNER,
SAM JACOB, AGED 41, S/O.JACOB, BUSINESS, BEEGEES
TEXTILES, SCS JUNCTION, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
7 SECURA FOOTWARE,
A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING
PARTNER, ANISH K.JOSEPH, AGED 42, BUSINESS,
S/O.K.K.THANKACHEN, SECURE FOOTWARE, SCS JUNCTION,
THIRUVALLA, PATHANAMTHITTA DISTRICT.
8 SAFFIRE DRESS MAKERS,
A PARTNERSHIP FIRM REPRESENTED BY ITS PARTNER, JACOB
W.P.(C) Nos.15750 & 18979 of 2016 2
MAHTEW, AGED 53 YEARS, BUSINESS, S/O.LATE
N.C.MATHEW, SAFFIRE DRESS MAKERS, SCS JUNCTION,
THIRUVALLA, PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.P.HARIDAS
SMT.DIVYA K.NAIR
SMT.S.SIKKY
SRI.P.C.SHIJIN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL
SELF GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THIRUVALLA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
MUNICIPALITY OFFICE, THIRUVALLA, PIN-689 101.
3 ASSISTANT EXECUTIVE ENGINEER,
PWD ROADS SUB DIVISION, THIRUVALLA, PIN-689 101.
4 ASSISTANT ENGINEER,
PWD ROAD SECTION, THIRUVALLA, PIN-689 101.
*ADDL. JAMES.T.,
R5 AGED 60 YEARS,
S/O A.T.THOMAS, AKKATTU HOUSE, NORTH TEEPIN,
THIRUVALLA, KUTTAPPUZHA VILLAGE, PRESIDENT, THE
THIRUVALLA VIGILANCE COUNCIL.
*ADDL. D. BABU,
R6 AGED 68 YEARS,
S/O N.M.DEVASIA, MAMMOOTTIL, CHUMATHRA P.O.,
THIRUVALLA, KUTTAPPUZHA VILLAGE, THE SECRETARY,
THE THIRUVALLA VIGILANCE COUNCIL.
*ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 AND 6 AS
PER ORDER DATED 31.05.2018 IN I.A.NO.3310/2018.
R1, R3 & R4 BY SRI.PAUL ABRAHAM VAKKANAL,
GOVERNMENT PLEADER
R2 BY SRI.S.SUBHASH CHAND, SC, THIRUVALLA
MUNICIPALITY
R5 & R6 BY SRI.VARUGHESE M EASO
SRI.VIVEK VARGHESE P.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2019, ALONG WITH WP(C).18979/2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.15750 & 18979 of 2016 3
JUDGMENT
The captioned writ petitions are materially connected in respect of a beautification work carried out within the limits of the Thiruvalla Municipality and the consequential inconveniences alleged by the petitioners for parking vehicles. Therefore, I heard them together and propose to deliver this common judgment. The facts and documents available from W.P. (C) No.15750 of 2016 are relied upon for disposal of the writ petitions.
2. Petitioners are tenants of a commercial complex at Thiruvalla owned by Marthoma Syrian Church, from 1975. Apart from the petitioners in the said writ petition, there are other 32 tenants including Public Sector Undertakings, nationalized Banks etc. The Commercial Complex is a double storied building on the southern side of Thiruvalla-Kumbazha State Highway. Between the highway and the building, the church has provided a 15 feet wide parking space, which is having direct access and entry from the highway from every point, and the occupants are using the said parking space uninterruptedly from every point. The customers and visitors of the complex are also using the same. W.P.(C) Nos.15750 & 18979 of 2016 4 That apart, it is submitted that, the space in between the road and the building is the sole parking space available on the side of public roads at Thiruvalla.
3. It is also submitted, a drain is remaining on the southern side of the road for 50 years, constructed using property of the church and has provided concrete slabs over the same, so as to ensure entry of vehicles and people from every point. Ext.P1 series of photographs are produced to establish the present lie and nature of the area in question and the drain. Now the respondents have proposed to increase the height of the drain and lay slabs over the same, which will obstruct entry of vehicles to the parking space. According to the petitioners, if the drain is raised without making proper access, space in between the building and the drain will become useless and serious prejudice and irreparable loss and injury will be caused to the petitioners and customers visiting the shopping complex. Thereupon, representations were submitted before the Municipality as well as other statutory authorities, evident from Ext.P2. Case of the petitioners is that, in spite of earnest efforts of the petitioners, no action was initiated, which constrained the petitioners to approach this Court by W.P.(C) Nos.15750 & 18979 of 2016 5 filing this writ petition.
4. A statement is filed by the 2 nd respondent Municipality, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, the open space available in front of the shopping complex is having only an average width of 2.50 metres. The ground floor of the shopping complex is let out as separate shop rooms. There is no car parking space in between the shop rooms and the drain and if any vehicles are parked in between that space, it will cause obstruction to the pedestrians. Moreover, required space in accordance with the Building Rules is not available, since the shopping complex is a very old construction. Therefore, the space available in front of the building cannot be treated as a parking space, and there is no other parking facility provided to the said building.
5. It is also stated that, the drain was designed in such a way to provide a free and safe walking space to the pedestrians and also to avoid water-logging in the pathway. Therefore, raising the height of the drain could not be avoided at any particular point or to cause deviation from the plan. It is also submitted that, except 100 metres distance wherein the shopping W.P.(C) Nos.15750 & 18979 of 2016 6 complexes in question are situated, in all other area, drain is raised, and railings are provided with suitable entry points to enter into the shopping complex for the vehicles. Ext.R5(a) are series of photographs produced to show the lie and nature of the property and also the manner in which drains are constructed over other areas.
6. Additional respondents 5 and 6 have also filed a very detailed counter affidavit. According to them, they are President and Secretary of Thiruvalla Vigilance Council, which is functioning for the past 35 years with the intention of resolving public problems. It is contended thereunder that the petitioners are having any right for making hindrance in constructing footpath through the boundary drainage canal of the Thiruvalla - Kumbazha State Highway and also the M.C. Road. According to them, the contention advanced by the petitioners that there is a 15 feet wide parking space in front of the shopping complex is not true or correct. Certain photographs are also produced as Ext.R5(a). It is also pointed out that, unless and until the drains are raised and maintained properly, there will be lot of inconveniences to the people and the pedestrians. That apart, it is submitted that, W.P.(C) Nos.15750 & 18979 of 2016 7 stagnation of water in the drains is causing serious environmental problems, and on many points of the drain, street hawkers have trespassed, and consequently, affected the free flow of water through the drains. Other contentions are also put forth, relying upon the provisions of the Kerala Highway Protection Act, 1999, and submitted that the State have a bounden duty to maintain the highway in a proper manner so as to facilitate smooth traffic, and also for the safety of the pedestrians.
7. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition, wherein it is also contended that, the decision of the respondents to raise the height of the drain and fixing handrails are all without the permission of the Municipality, and the intention is only to harass the occupants of the shop rooms. That apart, it is submitted that, free access and entries are provided to other shop owners. So also, petitioners have produced additional photographs along with I.A.No.1/2019 to establish that there is sufficient space in between the shopping complex and the drain, enabling the petitioners to secure entry to that space, and one of the photograph shows that free entry is provided to one W.P.(C) Nos.15750 & 18979 of 2016 8 of the Jewellery situated in the heart of the town by providing drain at lower level.
8. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record.
9. Learned counsel for the petitioners has invited my attention to the judgment of this Court in 'M.V. Joseph v. District Magistrate' [1996 KHC 346 :
1996 (2) KLT 490], wherein this Court has held that a person owning land adjoining highway has right of access to the Highway at any point. So also, in the judgment of this Court in 'Vijayan v. State of Kerala' [2004 KHC 1116 : 2004 (3) KLT 228], it was held that, acquisition of part of land of petitioner therein shall not hinder the accessibility to the remaining properties consequent to the peculiar nature of acquisition carried out.
10. In my considered view, the judgments referred to above are rendered by this court under totally different fact situations. So far as the judgment in 'M.V. Joseph' (supra) is concerned, the same is in respect of parking of vehicles in front of the shop occupied by the petitioner therein, causing obstruction 'to the entry' and so far as the judgment in 'Vijayan' W.P.(C) Nos.15750 & 18979 of 2016 9 (supra) is concerned, it was concerning the question as to whether hindrance can be caused for free entry to the property enjoyed by the petitioner therein behind the property acquired under the provisions of the Land Acquisition Act, 1894. Therefore, the factual circumstances in those case have no bearing to the issues raised by the petitioners in these writ petitions.
11. It is the contention of the petitioners that, since petitioners have got sufficient parking space in front of the shopping complex, the attempt of the Municipality and other respondents to prevent the petitioners from having vehicular access to the space in question is clear violation of the fundamental rights guaranteed to the petitioners to carry on with the business activities.
12. However, learned Standing Counsel appearing for the Municipality, learned Government Pleader as well as the learned counsel appearing for additional respondents 5 and 6 submitted that, due to the heavy rush in the area, and in order to avoid flooding, especially during heavy rainy season, the only way out is to raise the height of the drains and then provide slabs over the same, so also, to cater the needs of the W.P.(C) Nos.15750 & 18979 of 2016 10 pedestrians. It is also pointed out that, it is on account of the beautification scheme, pavement tiles are laid over the slabs for the smooth passage of the pedestrians. That apart, it is submitted that, in a distance of 100 metres, three points are provided to have accessibility to the shopping complex in question, and therefore, the contention advanced by the petitioners that there is no access to the shopping complex parking area is not correct. It is also the contention of the respondents that, if direct access is provided from the road over the slabs from all points and the vehicles are allowed to park in such a fashion, it will materially affect the passage of pedestrians over the drains proposed to be constructed by raising its height.
13. I have evaluated the rival submissions made across the Bar, and I am of the considered opinion that, the decision to raise the height of the drains, beautify the same and facilitate smooth passage to the pedestrians is a policy decision taken by the Municipality and the State Government. It is with the larger interest of protecting the interest of the people, regulate traffic and also to avoid accidents. I am also of the considered opinion that, if the W.P.(C) Nos.15750 & 18979 of 2016 11 pedestrians are walking on the road, it will cause innumerable difficulties, traffic congestion, and other problems, including accidents. It is also to be taken note of the contention raised by the respondents that except 100 metres distance concerning the shopping complexes in question, at all other areas, the height of the drain is raised by providing point entries to the shopping complex and shop owners. Moreover, it is submitted that, access is provided to the jewellery pointed out by the petitioners, providing drain at a lower level to facilitate the entry of the vehicles to its basement parking area and the said building is having sufficient space in front for parking vehicles.
14. Taking into account all these aspects, I am of the view that, the individual interest of the occupants of the shop rooms will have to concede to the larger interest of the public, and therefore, the reliefs sought for by the petitioners for having entry from all points, negotiating over the drain to the parking space, cannot be sustained. Therefore, I find that petitioners have not made out any arbitrariness, illegality or unfairness on the part of the respondents, justifying interference of this Court, exercising the power of discretion under Article 226 of W.P.(C) Nos.15750 & 18979 of 2016 12 the Constitution of India. However, I make it clear that, reasonable entry points shall be provided to the petitioners to facilitate smooth entry of vehicles to the shopping complex with sufficient width.
15. So far as the connected writ petition is concerned, as I have pointed out earlier, similar reliefs are sought, and therefore, the findings and observations made above will be applicable to the petitioners in the said writ petition also.
Resultantly, the writ petitions are disposed of, directing the respondents to ensure that reasonable entry points are provided for vehicular entry to the shopping complexes in question.
Sd/-
SHAJI P.CHALY JUDGE St/-
02.02.2019 W.P.(C) Nos.15750 & 18979 of 2016 13 APPENDIX OF WP(C) 15750/2016 PETITIONER'S/S EXHIBITS:
P1 COPY OF THE PHOTOGRAPHS SHOWING THE SHOPPING COMPLEX, ROAD AND THE PARKING SPACE.
P2 COPY OF THE REPRESENTATION DTD.11.3.2016. P3 A PHOTOGRAPH SHOWING THE BUILDING AND ENTRANCE FACILITY PROVIDED TO THE PETITIONER.
P3 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PARKING SPACE OF THE PETITIONERS.
P4 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PARKING SPACE OF 'JOY ALUKKAS' ON THE OPPOSITE SIDE OF BELL MOUTH OF THE ROAD. RESPONDENT'S/S EXHIBITS:
EXHIBIT R5 TRUE COPY OF THE RESOLUTION OF THIRUVALLA VIGILANCE COUNCIL DATED 3/02/2018. EXHIBIT R5(A) PHOTOGRAPH SHOWING THE FRONT AREA OF THE PETITIONER'S SHOPS.
EXHIBIT R5(B) PHOTOGRAPH SHOWING THE PARKING AREA PROVIDED BY THE MARTHOMA CHURCH, THIRUVALLA FOR THE USE OF PETITIONERS.
EXHIBIT R5(C) PHOTOGRAPH SHOWING THE COMPLETED SHOWING THE COMPLETED FOOT PATH AREA IN FRONT OF THE SHOPPING COMPLEX OWNED BY MARTHOMA CHURCH, THIRUVALLA.
//TRUE COPY// P.S. TO JUDGE St/-