The Kerala High Court recently ruled that an open space designated for parking vehicles of customers and shop licensees in front of a shopping complex, even if 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 stated, “Though every citizen has a right to access the shops in the building, the open space is intended only for parking of the customers’ vehicles. As a result, such places can only have the status of semi-public space. Without the approval of the Municipality, no organisation or group of citizens has the right to hold a Dharna or a public meeting in such locations.”
The court was hearing a petition challenging the use of the area in front of the Yathri Nivas Shopping Complex, which is owned by the Perumbavoor Municipality, for public dharnas, meetings, and so on.
The petitioners claimed that political parties, associations, and religious sects were holding gatherings without the municipality’s permission, which was interfering with the smooth operation of the petitioners’ businesses, who are operating shops within the complex under a valid lease/license. The petitioners were also displeased with the unlicensed autorickshaw stand that had been set up in the neighbourhood.
The petitioners had requested police security to prevent public meetings, dharnas, and other functions from being conducted in the Shopping Complex’s parking lot. The petitioners also asked the Municipality to remove the autorickshaw stand from the parking area in front of the complex.
The petitioners also highlighted that despite an injunction passed by the Munsiff’s Court, Perumbavoor, prohibiting any sanction from being granted to conduct public events at the complex’s designated parking space, it was being used for public purposes. According to the court, access to public area is critical for shaping the community.
“Many fundamental rights of citizens, such as freedom of expression, right to assemble, right to travel, and so on, are dependent on the availability of physical public space. Many human liberties may be hampered by a lack of public space. Human rights activists all over the globe frequently advocate for the right to public space. The importance of public spaces was also acknowledged in the Indian Constitution. According to Article 15, Indian citizens must have equal access to public places such as shops, public restaurants, hotels, and places of public entertainment,” it stated.
However, in this case, the court determined that the space could not be deemed a public space with unrestricted access to the general public, but rather a “semi-public” space.
The court determined that when an area is designated for parking for a commercial building, using the space for any other reason would necessitate obtaining permission from the municipality. The court also ruled that unlicensed parking of autorickshaws is not allowed in such areas.
According to Rule 5(6)(1)(b) of the Kerala Municipal Building Rules, 2019, the District Town Planner or the Chief Town Planner is required to evaluate whether adequate parking arrangements have been made when authorising the use of a plot or building plan.
“Rule 17 of the Rules, 2019 makes it the owner/developer’s duty and responsibility to provide details of parking spaces and area earmarked. After the construction of a building, the parking area designated for the building may not be used for any other reason. Such parking spaces cannot be converted into an autorickshaw or taxi stand,” the court stated.
