Nishad N.P. v. Goshree Islands Development Authority (GIDA) & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 ``` ## **`WP(C) NO. 37825 OF 2022`** ## **`PETITIONER:`** ``` NISHAD N.P AGED 21 YEARS, S/O MUHAMMED SALI N.P, SARVYA MANZIL, PATTOTH PURAYIL, MADAVOOR, KOZHIKODE, KERALA – 673585 ``` ``` BY ADV JOMY K. JOSE ``` ## **`RESPONDENTS:`** ``` 1GOSHREE ISLANDS DEVELOPMENT AUTHORITY-GIDA GIDA BUILDINGS, NO. 45/965-C, GIDA ROAD, PACHALAM, REPRESENTED BY THE DISTRICT COLLECTOR AND SECRETARY KOCHI, PIN – 682012 2THE DISTRICT COLLECTOR ERNAKULAM CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682030 3CSML COCHIN SMART MISSION LIMITED 4[TH] FLOOR, JLN STADIUM METRO STATION, KALOOR, COCHIN, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN-682017 4K.H LATHEEF 12/216, KALLATTIL HOUSE, PANAYAPPILLY, KOCHI, PIN-682002. ``` ``` BY ADVS. VARGHESE K PAUL-R1 K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI BRIJESH MOHAN-R3 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.P(C).37825/2022**_ 2 ## J U D G M E N T Dated this the 6[th] day of February, 2023 ## S. Manikumar, CJ. ## On 24.11.2022, we passed the following order: ## “Petitioner has sought for the following reliefs: - “i) Issue writ of mandamus or any other writ or direction or order directing the 1[st] respondent to remove the construction made over the footpath running parallel to the Queen's walkway along Chathiayath Road, Kochi. - ii) Direct the 1[st] respondent to remove the blockers from cycle way/service road. - iii) Declare that the encroachment over footpath forcing pedestrians walk in unsafe circumstances is illegal. - iv) Direct the 1[st] respondent to consider Exhibit P1 complaint and take appropriate action.” 2. Short facts leading to filing of the writ petition are as under: The petitioner submitted that he is constrained to approach this Court deeply aggrieved by the illegal encroachment over footpath running parallel to the Queens Walkway along the Chathiyath road and the illegal blocking of cycle way using blockers by the authorities of the 1[st] respondent. The petitioner further submitted that he is espousing the cause of the entire people visiting the Queens Walkway and the service road and footpath running parallel to the same. It is submitted that the 1.8 Km long Queens walkway has been inaugurated in the year 2015. The walkway is maintained by the 3[rd] respondent Cochin Smart Mission _**W.P(C).37825/2022**_ 3 Limited. The petitioner also submitted that some law breakers encroached over the footpath running parallel to the Queen's Walkway along the Chathiyath road, Kochi and erected permanent structures over the footpath. Though the construction made by the 4[th] respondent is curtailing the movement of the pedestrians the 1[st] respondent remain a mute spectator and is moving hands in glove with the 4[th] respondent. The 4[th] respondent has been granted permission by the 1[st] respondent to erect permanent structures over the footpath. The illegal construction would force the pedestrians to walk in unsafe circumstances. The mobility and safety of differently abled persons are now reduced by the illegal encroachment over the footpath. The 1[st] respondent, in spite of the above aspects, remain a mute spectator of all the illegalities being committed by the 4[th] respondent. Therefore, the illegal constructions made by the 4[th] respondent is liable to be removed, without further delay. ## 3. Reliance is placed on the decision of this Court in **Yoosaf K & Another v. State of Kerala & Others** reported in **2019 (4) KLT 832.** 4. Mr. Varghese K. Paul learned counsel takes notice for GIDA/1[st] respondent, Mr. V. Tekchand, learned Senior Government Pleader takes notice for the District Collector, Ernakulam/2[nd] respondent, Smt. M.U. Vijayalakshmi, learned counsel takes notice for CSML/3[rd] respondent. Issue notice to 4[th] respondent, returnable in one week. In the meanwhile, respondents 1 to 3 are directed to file their respective counter affidavits or statement, as the case may be, on the averments and reliefs sought for. Post after one week.” _**W.P(C).37825/2022**_ 4 ## 2. The Secretary, Goshree Islands Development Authority (GIDA)/respondent No.1 has filed a counter affidavit dated 30.11.2022 defending the writ petition as hereunder: “4. GIDA is a body corporate constituted under Sub Section 1 of Section 51 of the Kerala Town and Country Planning Act, 2016 (Act 9 of 2016) and in supersession of the G.O (MS) No. 114/94/LAD dated 18/05/1994, by Government of Kerala vide G.O (P) No. 29/2018/LSGD dated 17/04/2018. The Authority was formed for the integrated development of Islands situated North of Kochi and part of Ernakulam mainland. All major decisions in relation to GIDA are taken by its General Counsel. 5. The Queens Walkway is one of the most beautiful lakeside places in Kochi where large numbers of people gather here with families in the evening and on holidays for enjoying the fresh air and the panoramic views and beauty of the lake and evening sunset. The 1.8 km long walkway has been beatifically constructed with pavements, resting chairs, open gymnasium and a famous open stage with "I Love Kochi" signage. All these have been done using government funds. GIDA is committed to beautify this space all the more and provide greater amenities to the public of Kochi. With this intention, the respondent had invited Expression of Interest (EOI) in November 2021 from experienced agencies to beautify and make the GIDA road a livelier space. Nine agencies participated in the Expression of Interest and on the basis of the presentation made and the highest financial bid, the General Council of GIDA, (chaired by the Chief Minister) has approved the bid of the highest bidder. Now GIDA is doing the basic preparatory works and the steps _**W.P(C).37825/2022**_ 5 for executing the agreement. The proposed project includes exotic landscaping along the central median, variety lighting in the central median and walkway, scientific cleaning and waste management in the entire area and developing a beautiful children's park, quality food shops and activity zone for the public. The object of this project is to create a new "GIDA SMART ZONE" from Abraham Madamakkal Road to Chathiyath Church with all refreshing amenities to the Public of Kochi. In addition to the above, the highest bidder has offered an annual payment of Rs.36,36,360/- to GIDA. The purpose of this project is to provide a great place of refreshment, enjoyment, and entertainment to the public of Kochi. 6. This respondent is seriously doubting the circumstance in which, a person residing in Kozhikode is espousing the grievances of the pedestrians who are walking along the GIDA road. It is reliably learnt that the petitioner is an employee of Puravankara Limited formally known as M/s Puravankara Project Limited, who is the petitioner in W.P(c) No.14501/2022 of this Hon'ble court. The said builder has been making all attempts to jeopardize this most beautiful public-benefitting project mooted by GIDA and blindly opposing all projects of GIDA. It is reliably learnt that the petitioner is an agent of Puravankara. The above writ petition was filed by M/s Puravankara Project Limited, interalia seeking a writ of mandamus to the Respondents not to do any kind of construction including kiosks/hawkers/bunker shops in the Queen's Way- GIDA Road. In the above writ petition, GIDA filed statement contending that the Goshree-Chathiyath road starting from Abraham Madamakal road and ending at Chathiyath Church and the adjoining walkway on both sides are within the absolute ownership and authority of GIDA. As such _**W.P(C).37825/2022**_ 6 GIDA has absolute rights over the said road and walkways, including the right to utilize them for any activity in furtherance of public interest. The 1.8 km long walkway has been beautifully constructed by GIDA with pavements, resting chairs, open gymnasium, and a famous open stage with "I love Kochi" signage. All these have been done using Government funds. GIDA is all the more committed to beautifying this space and providing greater amenities to the public of Kochi. With this intention, the respondent had invited Expressions of Interest (EOI) in November 2021, from experienced agencies to beautify and make the GIDA road a livelier space. Nine (9) agencies have participated in the Expression of Interest and on the basis of the presentation made and the highest financial bid, the General Council of GIDA has approved the bid of the highest bidder Mr. Latheef K.H., Kallattil House, Panayapilly, Ernakulam, who has offered an amount of Rs.3,03,030/- per month, i.e., an amount of Rs. 36,36,360/- annually. The object of this Project is to create a new "GIDA Smart Zone" from Abraham Madamakal road to Chathiyath Church with all refreshing amenities for the public of Kochi. The purpose of this project is to provide a great place of refreshment, enjoyment, and entertainment for the public of Kochi as well as for the tourists visiting Kochi. Upon considering the rival contention in the above case, this Hon'ble Court as per the order dated 14/10/2022, vacated the stay and permitted GIDA to go ahead with the project. 7. The averment that the authorities of the 1[st] respondent illegally encroached over the footpath running parallel to the Queen's walkway along the Chathiyat road and the illegal blocking of the cycleway using blockers is false and nothing but a clear attempt to mislead this Hon'ble court for private gains. The walkway was in a very shabby condition and _**W.P(C).37825/2022**_ 7 was constantly trespassed upon by the nearby Puravankara Builders and also illegal vendors making it impossible for pedestrians to use the walkway. All the vehicles used for transportation of construction materials to the Puravankara site including multi-axle Taurus vehicles, cement mixtures, lorries, trucks, JCB, and jeeps were being plied through the walkway making pedestrian movements dangerous and impossible. Due to the above reason, no pedestrian could use this walkway since there was always the danger of vehicles colliding with them. Also, it was absolutely unsafe for blind citizens to walk through the walkway because of the possibility of occurrence of collision with the vehicles. Several requests/letters have been received from the nearby residents including the nearby TRITVAM Apartments, requesting GIDA to prohibit vehicular passage through the walkway. A similar request has been submitted by Ernakulam Walkers Club, which is an Organisation comprising more than 400 people who use both the two Walkways of GIDA for walking, jogging, cycling, skating, and other physical exercises. They have requested GIDA to prohibit vehicular traffic by placing bollards in the walkway so as to enable them to do their aerobic activities safely and without fear of accidents. Considering the request of the public, GIDA placed bollards in the walkway so as to restrict vehicle entry into that area. Walkways are meant for walking and vehicles cannot and should not be allowed there. All the new footpaths constructed recently by Cochin Smart Mission Limited in Kochi City have bollards. The purpose is to prevent vehicles from entering the footpaths and thereby ensure safe walking by pedestrians. 8. Lots of appreciation are being received in GIDA from various sections of society expressing their happiness in having _**W.P(C).37825/2022**_ 8 obtained a safe walking track. The GIDA walkway stretches 1.8 km from Abraham Madamakkal Road to Chathiyath Church. The people of Kochi have now got the longest walkway in Kerala and the public is extremely happy about maintaining the walkway cleanly and properly. It is submitted that the Queen's Walkway is not maintained by Kochin Smart Mission Ltd. The said walkway is constructed on the land owned by GIDA and the same is maintained by GIDA. Any averment in paragraphs 1 to 5 of the Writ Petition contrary to what is stated above is false and hence denied. 9. The allegation in Exhibit P1 that permanent structures are now erected over the footpath illegally is false and without ascertaining the facts. The construction so made by GIDA is temporary construction which is on the duct space and not on the footpath. In fact, the 4-meter wide walkway is the ‘Foot path'. Therefore, the case law stated by the petitioner is not applicable to the facts of this case. These constructions are actually food stalls, intended to provide quality food for tourists. At present, food is supplied by illegal vendors. The quality of the food supplied by them is a serious cause of concern. The recent stories of food poisoning from various parts of the state including the tragic shawarma death case serve as strong warning signals for the strict enforcement of street food standards. The branded food shops envisaged by GIDA would provide safe, hygienic, tasty, and variety of food to the public. The shops will abide by all the FSSAI standards. The vendors would have the licence, health cards, and protective uniforms. The shops and the entire surroundings would be clean and hygienic. In short, the new GIDA walkway which is the longest walkway in Kerala is one of the greatest tributes to the cause of public health and interest. Any averment in Paragraph _**W.P(C).37825/2022**_ 9 6 of the writ petition contrary to what is stated above is false and hence denied. It is submitted that the 4[th] Respondent has invested tens of lakhs of rupees and satisfactorily completed the work mentioned below:- - a) Painting of walkway, medians, and 180 lamp posts throughout the 1.8 km long GIDA-Chathiyath Road. b) Replacement of all old streetlights with new LED lamps. c) Landscaping and beautification of Queens Walkway and the 1.8km long central median of GIDA - Chathiyath Road. d) Street sweeping and waste management in the area. The GIDA project area has already been transformed into a beautiful space and the proposed project would make this place even more beautiful and the most attractive public place in Kerala. The averment that the petitioner submitted Exhibit P1 to GIDA is not correct. Actually, it has been sent to the office of the District collector, Ernakulam. Therefore, there is no question regarding the non-consideration of Exhibit P1 representation as alleged.” 3. In support of the averments respondents No.1 has also filed documents Exhibit R1(a), (R1(b), R1(c2). Exhibit R1(a) is the order dated 14.10.2022, vacating the stay and permitting GIDA to go ahead with the project, which reads thus: “O R D E R The counter affidavit filed on behalf of the 4[th] respondent indicates that from among the 74 vending zones in the vending plan approved by the Municipal _**W.P(C).37825/2022**_ 10 Corporation, based on the letters of the Member of Parliament and the Secretary of GIDA, steps have already been initiated to remove zone numbers 28, 68, 69, 70 and 71 from the approved list of vending zones, and that the said removed zones pertain to the area from the beginning of Abraham Madamakkal Road up to Chathiath Church. Taking note of the said fact, I deem it appropriate to vacate the interim order passed on 23.09.2022 so as to permit the respondents to proceed with the constructions envisaged under the project being implemented by them, subject to the rider that for the time being there shall be no construction effected at those places abutting the property owned by the petitioner where, as per the approved plan for construction, there are entrances to the property earmarked at the instance of the petitioner.” 4. Exhibit R1(c2) is the translated version of letter dated 2.7.2022 sent by the Secretary of Queensway runners and riders club, Kochi to the Secretary, GIDA, which reads thus: “QUEENSWAY RUNNERS & RIDERS, KOCHI Reg No.EKM/TC/280/2022 Venad Square, South Chittoor, Kochi-682027 Ph:9447030779,9947376301 Email teamqrcochi@gmail.com Date 02-07-2022 To, The Secretary Goshree Islands Development Authority (GIDA) Kochi _**W.P(C).37825/2022**_ 11 ## From, Queen's way Runners/Riders Club Kochi Subject: Parking of large vehicles, waste dumpingrequest for prohibiting vehicular traffic in the side road. We are an association of running/cycling people from Pachalam. We have been doing exercises, in the said place for over atleast 5 years. Of late, several vehicles (including JCB, Trailer and heavy vehicles) are being illegally parked in the side road causing obstructions to the pedestrians and the people doing exercises. Anti social elements are dumping waste behind the parked vehicles and as a result the nuisance of stray dogs is severe. People like us who are doing exercise are not able to do so peacefully and fearlessly because of this illegal parking and waste dumping. There is always the possibility of danger for the pedestrians because of the running of heavy vehicles from the construction site through the side road. Therefore we request you to prohibit vehicular traffic by placing bollards in the said road so that pedestrians alone will use the same as Walkway. Queen's way Runners/Riders Club Kochi |Secretary|President| |---|---| |Patrick Mathew|Libin| |Sebastian”|| _**W.P(C).37825/2022**_ 12 5. On behalf of Cochin Smart Mission Limited (CSML)/respondent No.3, the General Manager (Civil), CSML has filed a counter affidavit dated 2.12.2022, wherein at paragraph 3 it is stated thus: “It is understood that the Queens Walkway and the Goshree-Chathiyath road starting from Abraham Madamakkal Road and ending at Chathiyath Church and the adjoining walkway on either side are within the absolute ownership and authority of the 1[st] respondent in the above writ petition and no relief is also sought against the 3[rd] respondent. As such the 3[rd] respondent is not a necessary party to the above writ petition and is unnecessarily dragged to this Hon’ble Court without any justification.” 6. Though petitioner has sought for larger reliefs of removal of construction made over the footpath running parallel to the Queen's walkway along Chathiayath Road, Kochi and also for a direction to the 1[st] respondent to remove the blockers from cycle way/service road and further for a declaration that the encroachment over footpath forcing pedestrians walk in unsafe circumstances is illegal, after filing of the counter affidavits by the above said respondents, today, learned counsel for the _**W.P(C).37825/2022**_ 13 petitioner submitted that it is suffice to direct Goshree Islands Development Authority/respondent No.1 to consider Exhibit P1 complaint. Submission of learned counsel is placed on record. 7. Respondents have made their stand clear in the counter affidavits. On the basis of the material on record, writ petition can be disposed of. However, it is submitted by Mr. Varghese K. Paul, learned counsel for GIDA/respondent No.1, that no such complaint (Exhibit P1) has been sent to respondent No.1. The Complaint is stated to have been sent to the District Collector, Ernakulam. If the said complaint is acknowledged by respondent No.2, the same be forwarded to the Secretary, Goshree Islands Development Authority (GIDA). 8. Mr.Varghese K. Paul, learned counsel for GIDA have no objection for complaint being disposed of on merits. 9. The District Collector, Ernakulam/respondent No.2 is directed to forward the complaint (Exhibit P1) dated 7.11.2022 to Goshree Islands Development Authority/respondent No.1, within one week from the date of receipt of a copy of the judgment. On receipt of the same, the Secretary, Goshree Islands Development Authority (GIDA)/respondent No.1 is directed to dispose of _**W.P(C).37825/2022**_ 14 Exhibit P1 complaint on its merits, in accordance with law, within two weeks thereafter. With the above said directions writ petition is disposed of. Pending interlocutory applications, if any, shall stand closed. Sd/S. Manikumar, Chief Justice Sd/- Murali Purushothaman, Judge sou. _**W.P(C).37825/2022**_ 15 ## **`APPENDIX OF WP(C) 37825/2022`** ## `PETITIONER EXHIBITS` ``` EXHIBIT P1A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER DATED 07-11-2022 ``` - `EXHIBIT P2 A TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 1[ST] RESPONDENT` - `EXHIBIT P2(a) ENGLISH TRANSLATION OF EXHIBIT P2` - `EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ILLEGAL ENCROACHMENT OVER THE FOOTPATH AND BLOCKING OF CYCLE WAY` ## `RESPONDENT EXHIBITS` ``` EXHIBIT R1aTHE TRUE COPY OF THE ORDER DATED 14/10/2022 OF THIS HON'BLE COURT IN W.P(C) NO.14501/2022. EXHIBIT R1bTHE TRUE PRINTOUT OF THE E-MAIL COMMUNICATION DATED 17/06/2022, SENT BY THE FACILITY MANAGER, TRITVAM APARTMENT OWNERS ASSOCIATION TO GIDA. ``` - `EXHIBIT R1c A TRUE COPY OF THE LETTER DATED 02/07/2022, SUBMITTED BY THE SECRETARY OF QUEENS-WAY RUNNERS AND RIDERS CLUB, KOCHI TO THE SECRETARY, GIDA.` - `EXHIBIT R1d TRUE COPY OF THE MALAYALA MANORAMA DAILY DATED 26/10/2022, APPRECIATING THE GIDA WALKWAY.` - `EXHIBIT R1d2 THE TRUE ENGLISH TRANSLATION OF EXHIBIT R1(d).` - `EXHIBIT R1 c2 THE TRUE ENGLISH TRANSLATION OF EXHIBIT R1(c).`