Kerala High Court
K.J. Tomy vs Dr. V.P. Joy on 18 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 18th day of January 2023 / 28th Pousha, 1944
CONTEMPT CASE(C) NO. 204 OF 2022(S) IN WP(C) 1812/2016
PETITIONER/PETITIONER:
K.J. TOMY, S/O.JOSEPH, AGED 68 YEARS, JESUS BHAVAN,
KOCHAKKANADU,KONTHURUTHY, ERNAKULAM.
BY ADVOCATES M/S. ENOCH DAVID SIMON JOEL, S.SREEDEV, RONY JOSE,
SUZANNE KURIAN, CIMIL CHERIAN KOTTALIL, & LEO LUKOSE.
CONTEMNORS/RESPONDENTS 1 TO 3 & THIRD PARTY:
1. DR.V.P. JOY, THE CHIEF SECRETARY TO GOVERNMENT,
STATE OF KERALA, THIRUVANANTHAPURAM - 695 001.
2. NAISAM A.S., THE SECRETARY,
CORPORATION OF COCHIN, COCHIN - 682 011.
3. JAFFAR MALIK, THE DISTRICT COLLECTOR, ERNAKULAM - 682 030.
4. DR. A. JAYATHILAK, PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, STATE OF KERALA,
THIRUVANANTHAPURAM - 695 001.
ADDL.R5 IMPLEADED
5. THE SECRETARY, KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
THIRUVANANTHAPURAM.
IS SUO MOTU IMPLEADED AS PER ORDER DATED 08/12/2022 IN COC.
SRI.K. GOPALAKRISHNA KURUP, ADVOCATE GENERAL ALONG WITH SENIOR
GOVERNMENT PLEADER FOR R1, R3 & R4
SRI.K. JANARDHANA SHENOY, STANDING COUNSEL FOR R2.
This Contempt of court case (civil) having come up for orders on
18.01.2023, the court on the same day passed the following:
P.T.O.
C.O.(C) No. 204/2022 :1:
S. MANIKUMAR, CJ & SHAJI P. CHALY, J.
---------------------------------------------------------
C.O.© No. 204 of 2022
---------------------------------------------------------
Dated this the 18rd day of January, 2023.
ORDER
S. MANIKUMAR,CJ.
Pursuant to the directions issued by this Court dated
03.01.2023, the District Collector, Ernakulam and the Secretary of
the Kochi Corporation are present before court.
2. The District Collector, Ernakulam, respondent No.3, has
filed an additional affidavit dated 18.01.2023 explaining the steps
taken. On perusal of the above, we find that as per letter dated
28.06.2022 of the Executive Engineer, PWD (Bridges), the bund
which has been directed to be demolished, is currently used as a
road by the Kochi Corporation and therefore, the flow of the river is
obstructed and all the encroachments, nearby need to be vacated to
construct a bridge, and a vertical clearance of 5 meters is required
for the construction of the bridge.
3. We are of the view that the averment made by the District
Collector, Ernakulam, a new fact is introduced in the Contempt
Case.
4. The counter affidavit further reads that when the matter
with regard to the removal of the road by the Kochi Corporation was
taken up with PWD, vide letter dated 09.12.2022, the Executive
Engineer, PWD (Bridges) has issued a reply dated 15.12.2022
stating that PWD will be able to undertake the work only if the
Corporation acquires additional land required for the construction of
the bridge, gets necessary funds and NOC from the Corporation to
carry out the construction work.
5. It is also stated the Corporation has been instructed on
30.12.2022 to issue NOC for the construction of bridge, to acquire
the land and also to allocate fund for the construction of the bridge,
for which, a meeting was convened on 12.01.2023.
6. The Corporation, in that meeting, has informed that they
would not be able to acquire the land required for the construction
of the bridge or allocate funds as they are in a state of financial
crisis.
7. However, PWD (Bridges) seemed to have informed that the
demolition and reconstruction of the bridge will approximately cost
around Rs.5 crores and a detailed estimate would be required to
confirm the cost, and that PWD can undertake that work only when
the Corporation allocate necessary fund for the same.
8. From the above, it is clear that there is no land for the
construction of the bridge and funds have not been allocated for
acquisition. Even though this Court, as early as on 09.06.2020, has
issued directions, steps have not been taken by the respondents for
the construction of the road. But, the bund itself is being used as a
road.
9. As stated supra, the Executive Engineer, PWD (Bridges),
vide letter dated 28.08.2022, has already reported that the bund is
currently being used as a road by the Kochi Corporation and due to
which the flow of the river is obstructed and the bund across the
river requires to be demolished.
10. That being the view of the Executive Engineer, PWD
(Bridges), neither the Corporation nor the District Collector, has
approached the Government, either for allocation of funds or to
identify the land to be acquired for construction of the bridge.
11. Learned Senior Government Pleader submitted that the
Government have allocated funds for the rehabilitation of the
encroachers; but, the project site falls within the CRZ category.
When Cochin Corporation has submitted an application to the Kerala
Coastal Zone Management Authority to get the CRZ clearance, the
said authority has requested the Corporation to furnish certain
documents.
12. That apart, it is stated that the pursuant to the letter
dated 09.12.2022 by the District Collector, Ernakulam, directing the
Kochi Corporation, to submit an urgent application along with the
documents required for CRZ clearance, Kochi Corporation has
informed that Institute of Remote Sensing, Anna University, Chennai
has been selected to prepare the report required by KCZMA and the
approval to allot fund for the same is under consideration of the
Corporation Finance Standing Committee.
13. According to the District Collector, a study has be
conducted and one month's time is required for the above said
purpose.
14. Mr. K. Janardhana Shenoy, learned Standing Counsel for
the Kochi Corporation, submitted that in the meeting convened, the
Kerala Coastal Zone Management Authority has informed that
already there is a possibility to get CRZ clearance.
15. Whatever be the steps taken, as stated in the additional
counter affidavit filed by the District Collector, even if action is being
expedited for the rehabilitation of the encroachers, the same would
take a long time, since study has to be completed, clearance has to
be obtained, and construction to be commenced and completed.
16. Nearly two years have elapsed since the date of passing
of the judgment. There is laches on the part of the respondents in
implementing the directions.
17. In view of the sequence of events as stated above, we
requested the assistance of Mr. K. Gopalakrishna Kurup, learned
Advocate General, who seeks time till 30.01.2023 to get appropriate
response from the State Government for the allocation of funds for
the construction of bridge. He, however, submitted that a
temporary and alternative arrangement can be made by converting
a portion of the road, as a culvert, so as to ensure free flow of
water. The said submission is placed on record.
Post the matter on 31.01.2023. Personal appearance of the
parties appeared today is dispensed with for the time being.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
18-01-2023 /True Copy/ Assistant Registrar
