Pushpa Leela vs State Of Kerala And Ors

The petitioner who is one among the 13 shop owners running petty retail shops in the Thambanoor Bus Terminal opposite to Central Railway Station, Thiruvananthapuram, has filed this writ petition seeking to direct the 2nd respondent to remove the condemned and scrapped buses parked in front of the petitioner's shop. The petitioner further seeks to direct respondents 3 and 4 to discharge their duty and prevent the 2nd respondent from acting against Exts.P8 to P15 orders.

The Kerala State Road Transport Corporation (KSRTC) initiated acquisition proceedings in respect of 30 cents of land for the development of Trivandrum Central Bus Station. Shop owners located in the proposed area approached courts of law. Subsequently, the shop owners agreed to vacate the said land if alternate land is provided to them by the KSRTC near the bus station for continuing their business. The Board of Directors of KSRTC accordingly decided to provide the shop owners with 32 cents of land on the western side of the acquired land at Thambanoor Bus Station at a market value of ₹10,000/- per cent as fixed by the District Collector, so as to enable the shop owners to vacate the existing sites. The Government of Kerala, as per Ext.P1 order dated 05.07.1988, accorded sanction to the proposal. The shop owners entered into agreement with the KSRTC to shift their shops.

By Ext.P2 order dated 08.11.1989, the Government of Kerala exempted the land from the zoning regulations of the sanctioned Detailed Town Planning Scheme of Thambanoor area, for the re-location of the existing shops near KSRTC Bus Station.

The petitioner would submit that land was given to the shop owners on western side of the KSRTC compound, beyond a canal. Culverts were constructed across the canal. From 24.08.2017, the staff of the KSRTC with a malafide intention to gain pecuniary advantage from the shop owners running shops inside the Bus Terminal, conspired together and deliberately parked certain condemned KSRTC buses along the pathway in front of the shops allocated to the petitioner and others. Now, as a result, there is obstruction to customers coming to the shops.

One of the shop owners approached the Kerala State Human Rights Commission and the Commission passed Ext.P8 order dated 29.08.2017 directing the 2nd respondent to ensure that vehicles of KSRTC parked on the side of the shops shall be parked without causing obstruction to the shop owners. The petitioner would contend that the Ext.P8 interim order of the State Human Rights Commission was not complied with.

The Mayor of the Trivandrum Municipal Corporation held a meeting on 23.09.2017. Shop owners as well as representatives of KSRTC were present in the meeting. In the meeting, as per Ext.P9, it was decided that the buses parked causing inconvenience to the shop owners should be removed immediately. The said decision was also not honoured by the 2nd respondent.

Amayizhanchan Thodu Samrakshana Samithi filed a complaint before the Kerala Lok Ayukta in this regard. The Lok Ayukta, as per Ext.P10, restrained the KSRTC from putting up compound wall or any superstructure over the Thodu, in front of the shops in question.

The petitioner would state that the petitioner filed OS No.1416/2017 in the Munsiff's Court, Thiruvananthapuram and the Munsiff's Court passed Ext.P11 interim injunction order against the KSRTC. In spite of these orders, the KSRTC is parking scrapped/condemned buses right in front of the shops owned by the petitioner and others. The 2nd respondent is compellable by appropriate writs of this Court to remove the condemned and scrapped buses parked in front of the petitioner's shops.

The 2nd respondent resisted the writ petition. The 2nd respondent pointed out that the shop owners have already approached civil court and the issue is pending before the competent civil court. A pathway is provided to the shop owners and shops including that of the petitioner are accessible to public. The petitioner wants access to the KSRTC compound which cannot be granted. Granting vehicular access through KSRTC garage will cause security hazards to the Corporation and travelling public.

The 2nd respondent further stated that the shop owners have separate access to their shops. Therefore, the 2nd respondent is entitled to construct compound wall to protect the garage and bus stand. In public interest, the KSRTC is bound to protect its compound by constructing compound wall since a large number of buses, spare parts, machines, etc. are kept in the garage. The writ petition is therefore without any merit and is liable to be dismissed, contended the 2nd respondent.

The additional 5th respondent stated that Ext.R5(g) Advocate Commission report would show that buses are parked on the culverts which will cause substantial damage to the culverts and the canal, and therefore the KSRTC shall not be permitted to park condemned buses on the culverts over the canal.

I have heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the KSRTC, the learned Government Pleader appearing for respondents 1, 3 and 4 and the learned counsel appearing for additional 5th respondent.

The KSRTC has given alternate land to shop owners, with the intention of developing the bus stand. Ext.P1 Government Order would show that alternate land was given to the petitioner and others on the western side of the acquired land for the purpose of continuing their business. It is seen from Ext.P9 that the shop owners have approached the Trivandrum Municipal Corporation, and in a meeting held on 23.09.2017, it was decided that the buses parked by the KSRTC causing inconvenience to the shop owners should be removed immediately. The Kerala State Human Rights Commission has also passed Ext.P8 order directing the KSRTC to ensure that vehicles of KSRTC parked on the sides of the shops shall be parked without causing obstruction. The Kerala Lok Ayukta has also passed Ext.P10 order restraining the KSRTC from putting up compound wall.

But, from Ext.P11 produced by the petitioner, it is seen that the petitioner herself has filed OS No.1416/2017 before the Munsiff's Court, Thiruvananthapuram in which the petitioner has sought ad-interim injunction from the said court. In IA No.5906/2017, the Munsiff's Court, Thiruvananthapuram has passed Ext.P11 order which reads as follows:-

"Upon motion made in to this court by Adv. S. Chandrasekharan Nair, counsel for plaintiff/petitioners and upon reading the petition and affidavit of said petitioner and upon perusal and records produced and hearing the petitioner/ counsel for the petitioner, on 04.10.2017 an ad interim injunction is granted. The defendant and staffs are restrained from causing any obstruction to the use and enjoyment of the plaintiff over the plaint "B" Schedule pathway and are also restrained from putting up construction or doing anything which will affect the use of "B' Schedule by the plaintiff until further orders."

Similarly, other shop owners have filed OS No.36/2016 in the Ist Additional Munsiff's Court, Thiruvananthapuram. The Ist Additional Munsiff has also passed Ext.P12 order granting interim mandatory injunction to remove the obstructions reported in Ext.C1 Commission Report within five days.

When the petitioner and other shop owners have approached the competent civil courts and obtained interim injunction orders, the petitioner cannot be permitted to agitate the same issue through writ proceedings. If the 2nd respondent has violated Ext.P11 order of injunction, the petitioner has efficacious remedy under the Code of Civil Procedure.

The petitioner cannot be permitted to agitate the same issue before a civil court under the Code of Civil Procedure, 1908 and before this Court invoking Article 226 of the Constitution of India. For the said reason, this Court finds that the writ petition is not maintainable. The writ petition is accordingly dismissed.