The issue involved in this writ petition would then
revolve around the question whether an open space in front of
a Shopping Complex, in this case owned by the Municipality,
would be a public place or public space. The Statement filed
by the 3rd respondent-Municipality would clearly indicate that
the open space is intended for parking the vehicles of the
licensees and customers. Though every citizen has a right to
access to the Shops in the building, the open space is
intended for parking of the vehicles of the customers only.
Therefore, such spaces can have a status of semi-public
space only. No organisation or group of citizens can claim a
right to organise Dharna or public meeting in such places,
without the permission of the Municipality. {Para 11}
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) NO. 7181 OF 2023
PRIYESH B KARTHA Vs THE DEPUTY SUPERINTENDENT OF POLICE
PRESENT
MR.JUSTICE N.NAGARESH
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 in the society.
10. Exercise of many of the fundamental rights by
citizens like freedom of expression, right to assemble, right to
travel, etc., depend on the availability of physical public space.
Absence of public space may hinder exercise of many human
rights. Human Rights activists across the world often argue in
favour of Right to Public Space. Constitution of India also
recognised the importance of public spaces. Article 15 states
that persons who are citizens of India must have equal access
to public places like Shops, public restaurants, hotels and
places of public entertainment.
11. The issue involved in this writ petition would then
revolve around the question whether an open space in front of
a Shopping Complex, in this case owned by the Municipality,
would be a public place or public space. The Statement filed
by the 3rd respondent-Municipality would clearly indicate that
the open space is intended for parking the vehicles of the
licensees and customers. Though every citizen has a right to
access to the Shops in the building, the open space is
intended for parking of the vehicles of the customers only.
Therefore, such spaces can have a status of semi-public
space only. No organisation or group of citizens can claim a
right to organise Dharna or public meeting in such places,
without the permission of the Municipality.
12. There is yet another issue in using the open space
in front of the Shopping Complex. Under Rule 5(6)(1)(b) of the
Kerala Municipal Building Rules, 2019, the 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. Rule 17 of the Rules,
2019 makes it the duty and responsibility of the
owner/developer to furnish details of parking spaces and area
earmarked. After construction of a building, the parking area
earmarked for the building cannot be used for any other
purpose unauthorisedly. Such parking spaces cannot be
converted as autorickshaw stand or taxi stand either.
13. Admittedly, the building and the 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.
14. In view of the facts as stated above, I am of the
opinion that 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.
Therefore, the writ petition is disposed of directing
respondents 1 and 2 to ensure that no meetings, Dharnas,
etc., are taken place in the parking place in front of the
building rented out to the petitioners, without due sanction or
permit of the 3rd respondent-Municipality. No unauthorised
autorickshaw parking shall also be permitted in the parking
area of the Shopping Complex.
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