Petitioner challenged a temporary bund across Chilavannur Lake causing flooding. Court noted KCZMA declined CRZ approval for the associated cycle track project. Held it is duty of respondents to remove the unbund as project is in implementation.
Directions to remove the temporary bund constructed across Chilavannur Lake.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
WP(C).No.12604 OF 2020(A)
PETITIONER:
G.MOHANDAS, AGED 78 YEARS S/O.LATE K.GOPALAN, SIVOM, XXXI/20-B3, APR 6TH LANE, AMBELIPADOM ROAD, VYTTILA JANATHA, KOCHI-682019
BY ADVS. SRI.M.S.UNNIKRISHNAN SRI.V.S.SREEJITH SRI.K.SUNIL SRI.RINU. S. ASWAN SMT.M.ARDRA KRISHNAN SMT.ALEENA MARIA JOSE SMT.SUSAN JACOB (S-3481)
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695003
R3 BY ADV. SRI.K.JAJU BABU (SR.) R3 BY SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.
W.P.(C) No.12604 of 2020
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R4 BY ADV. SHRI.S.SUDHEESH KUMAR, SC, KOCHI MUNICIPAL CORPORATION SRI. PAUL ABRAHAM VAKKANAL GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2020, THE COURT ON 10-11-2020 DELIVERED THE FOLLOWING:
W.P.(C) No.12604 of 2020
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P.B.SURESH KUMAR, J.
------------------------------------W.P.(C) No.12604 of 2020
Dated this the 10th day of November, 2020
JUDGMENT
Petitioner is residing in a property adjoining Chilavannur Lake, on its eastern side. The property of the petitioner is situated within the limits of the fourth respondent Kochi Municipal Corporation (the Corporation). During 2005, the Corporation had decided to construct a cycle track and walkway across the Chilavannur Lake, and entrusted the construction of the same to the third respondent, the Kochi Metro Rail Limited. In order to enable the construction of the cycle track and walkway, the third respondent has constructed a temporary bund across the lake. The case of the petitioner in the writ petition is that on account of the construction of the temporary bund, during rainy season, there is flooding in the properties on either side of the lake. The petitioner and similarly placed persons have been, therefore, making requests to the Corporation and also to the third respondent to
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W.P.(C) No.12604 of 2020
take action to prevent flooding in the area by making appropriate openings in the temporary bund. Exts.P2 and P4 are two representations submitted by the people in the locality for the said purpose. The writ petition is filed thereafter, seeking directions to the respondents concerned to comply with the demands made in Exts.P2 and P4 representations.
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“But the 105th meeting of the KCZMA on 13.12.2019 has declined the approval, since the construction of Sarovaram walkway and cycle track as proposed will obstruct the flow of tidal influenced water body in CRZ and flood prone area. A photocopy of the letter dated 1.1.2020, intimating the declining of approval is produced herewith and marked as Exhibit R4(b). It is most respectfully submitted that the Kochi Municipal Corporation submitted a letter to KCZMA dated 13.2.2020 to reconsider the decision, but the same has not been considered. A photocopy of the letter dated 13.2.2020 submitted by the Kochi Municipal Corporation to reconsider the declining, is produced herewith and marked as Exhibit R4(c) ”
It is evident from the extracted paragraph of the counter affidavit that the project cannot be implemented. If the project cannot be implemented, according to me, it is the duty of respondents 3 and 4 to remove the temporary bund across the lake, which was constructed for the purpose of setting up the cycle track and walkway.
In the said view of the matter, the writ petition is allowed and respondents 3 and 4 are directed to remove the temporary bund constructed across the Chilavannur Lake referred to in the writ petition, forthwith.
Sd/-
P.B.SURESH KUMAR JUDGE
ds 10.10.2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENT CONDITION OF THE EASTERN AND NORTHERN SIDE OF THE METRO STATION, ELAMKULAM. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 22.5.2020 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT WITH COPY OF THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE TRACK CONSIGNMENT REPORT IN RESPECT OF EXT.2 HAVING RECEIVED BY THE RECEIVED BY THE RESPONDENTS 2 AND 3 EXHIBIT P4 TRUE COPY OF THE LETTER DATED 4.6.2020 ISSUED BY THE PETITIONER TOT EH 3RD AND 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE POSTAL RECEIPT OF EXT.P4 EXHIBIT P6 TRUE COPY OF THE NEWS ITEMS APPEARED IN MALAYALAM MANORAMMA DAILY DATED 15.6.2020 EXHIBIT P7 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENT CONDITION OF THE NEARBY AREAS AROUND THE BUND IN CHILAVANOOR LAKE. EXHIBIT P8 TRUE COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION OF THE BUND AT ITS INITIAL STAGE.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(A) A TRUE COPY OF THE STATUS REPORT (AUGUST 2019) PREPARED BY THE NATIONAL CENTRE FOR EARTH SCIENCE STUDIES (NCESS)
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W.P.(C) No.12604 of 2020
EXHIBIT R4(B) A TRUE COPY OF LETTER DATED 1.1.2020 INTIMATING THE DECLINING OF APPROVAL EXHIBIT R4(C) A TRUE COPY OF THE LETTER DATED 13.2.2020 SUBMITTED BY THE KOCHI MUNICIPAL CORPORATION TO RECONSIDER THE DECLINING EXHIBIT R3 (a) TRUE COPY THE G O (Rt) NO.1499/2018/LSGD DATED 31.05.2018. EXHIBIT R3 (b) TRUE COPY OF THE TECHNICAL SANCTION LETTER NO.KMRL/PRJ/AMRUTSAROVARAM/383/2018/2906 DATED 13.07.2018 BY THE 3RD RESPONDENT. EXHIBIT R3 (c) TRUE COPY OF THE LETTER OF AWARD VIDE NO.KMRL/PRJ/AMRUTSAROVARAM/383/2018/LOA/3002 DATED 16.11.2018 ISSUED BY THE 3RD RESPONDENT TO M/s. DEENS GROUP. EXHIBIT R3 (d) TRUE COPY OF THE LETTER VIDE NO.KMRL/PRJ/AMRUT-SAROVARAM/383/2018 DATED 25.02.2019 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT R3 (e) TRUE COPY OF THE STOP MEMO DATED 11.3.2019 ISSUED BY THE 2ND RESPONDENT TO THE TO THE 4TH RESPONDENT ALONG WITH TYPED COPY. EXHIBIT R3 (f) TRUE COPY OF THE LETTER NO.DEENS/KMRL/KMC/AMRUT-PIV/01207/06008 DATED 08.06.2020 ISSUED BY M/s DEENS GROUP TO THE 3RD RESPONDENT. EXHIBIT R3 (g) TRUE COPY OF THE LETTER VIDE NO.KMRL/PROJ/AMRUT.320/2017/658 A DATED 18.06.2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.
3 issues framed by the court
Whether the temporary bund constructed across Chilavannur Lake for a cycle track and walkway should be removed in light of the declining of CRZ approval.
Whether the respondents are under a duty to remove the bund when the project cannot be implemented due to lack of approval.
Whether directions should be issued to remove the bund constructed across the water body in a flood-prone CRZ area.
1 provisions across 1 enactments
G.Mohandas
State of Kerala
District Collector
Kochi Metro Rail Ltd
Kochi Municipal Corporation
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
