Can’t Use Municipality-Owned Shopping Complex’s Parking Space For Dharna Or Public Meeting Without Official Permission: Kerala High Court

The Kerala High Court recently held that the open space designated for parking vehicles of customers and shop licensees in front of a shopping complex, even when it is owned by the municipality, could not be considered a public space for the purpose of freely conducting public gatherings, without the permission of the municipality.A single bench of Justice N Nagaresh observed: “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.” The court was considering a plea against the use of the space in front of Yathri Nivas Shopping Complex which is owned by the Perumbavoor Municipality, for holding public dharnas, meetings, etc. The petitioners submitted that political parties, associations and religious sects were conducting gatherings without the permission of the municipality and that it was interfering with the smooth running of the business of the petitioners, who are operating shops inside the complex with valid lease/license. The petitioners were also aggrieved by the unauthorised autorickshaw stand set up in the area as well. The petitioners had sought for police protection to prevent public meetings, dharnas and other functions from being held in the parking space of the Shopping Complex. The petitioners had also sought for a direction to the Municipality for removal of the autorickshaw stand from the parking space in front of the complex. The petitioners also pointed out that despite an injunction being passed by the Munsiff’s Court, Perumbavoor, preventing any sanction from being granted to hold public events at the space designated for parking in the complex, it was being put to public use. Access to public space is important for shaping the community, the court opined.“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.” However, in this case, the court was of the view that the space could not be considered a public space with free access to general public, but rather must be seen as a ‘semi-public space’. The court concluded that when the area is designated for parking for a commercial building, using the space for any other purpose would require the permission from the municipality. The court also held that the unauthorised parking of autorickshaws also cannot be permitted in such parking areas. Referring to the Kerala Municipal Building Rules, 2019, the court noted that as per Rule 5(6)(1)(b) of the 2019 Rules, the District Town Planner or the Chief Town Planner is required to assess if sufficient parking arrangements have been made while approving the usage of a plot or building layout. "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," said the court. Case Title: Priyesh B Kartha V. The Deputy Superintendent Of Police Citation: 2023 LiveLaw (Ker) 170Click here to read/download judgment

Can’t Use Municipality-Owned Shopping Complex’s Parking Space For Dharna Or Public Meeting Without Official Permission: Kerala High Court

Sheryl Sebastian

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