Goshree Islands Development Authority Entitled To Set Up Commercial Kiosks At Kochi's Queen's Walkway: Kerala High Court

The Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Preeta A.K. set aside an order of the Single Bench, which barred construction of the kiosks citing that the same would affect the legal rights of the pedestrians.

The Court perused an additional affidavit filed by GIDA, wherein it stated proposal to make certain modification to earmark a separate space for the kiosks, including demarcation of a clear, unobstructed walkway with a 2.5m width and placing of steel handrails between the walkway and the kiosks space, throughout the length of the walkway.

“we allow the Writ Appeals by setting aside the impugned judgment of the learned Single Judge, and declare that the GIDA has the authority to develop the road and walkway situated on the land forming part of the 25 hectares originally assigned to them…We also find that in the absence of any material to suggest that the writ petitioners [Tritvam Apartment Owners Association] have any right over the said road and walkway traceable to their agreement for purchase of the apartments owned by them, the putting up of kiosks in the manner proposed by GIDA in the additional affidavit filed by them, as extracted above, cannot be seen as illegal or in violation of any rights fundamental or otherwise of the writ petitioners,” the Court observed.

The writ petition before the Single Bench was preferred by Tritvam Apartment Owners Association challenging the proposed construction of 20 kiosks, stating that the same would change the residential character of the area, overburden civic infrastructure and also create traffic congestion, health and safety risks.

GIDA had contended that the property where the kiosks are proposed to be set up belonged to GIDA and not to the petitioner. It was further pointed that constructions would not be on the footpath but on the duct space adjacent to the walkway.

The Single Bench found that GIDA has no right/authority over the Goshree Chakyath road and the Queen's walkway. A writ of mandamus was issued to GIDA, Cochin Corporation and CSML restraining construction of commercial kiosks in Queen's Walkway.

Aggrieved, appeals were filed by GIDA and M/s. C. Jacob and Company, the successful tenderer for GIDA's contract for the upkeep of the Queen's walkway, and other nearby walkways. GIDA contended that maintainability issue was not considered by the Single Judge and that the reliefs sought and granted were suited to be in a public interest litigation.

It was also pointed out that the state government had assigned patta over 25 hectres of land, including the areas where Tritvam apartment, Goshree-Chathiyath road and Queen's walkway were situated, in favour of GIDA to develop the land in accordance with the schemes prepared by GIDA and approved by the government. Additionally, reliance was placed on a certificate issued by the Kochi Corporation affirming that the Goshree-Chathiyath road and Queen's walkway were not included in its asset register.

The petitioner apartment owners' association pointed out that injunction suits were filed by some of the owners and an interim order of prohibitory injunction restraining putting up of kiosks was passed by the civil court. It supported the Single Bench decision.

After hearing the parties, the Division Bench looked into the background of events that led to GIDA obtaining patta over the 25 hectres of land, including the Queens walkway and the Goshree-Chathiyath road. It then observed:

“What is unambiguously clear from the above is that the extent of 25 hectares of reclaimed land in Sy.No.843 of Ernakulam Village was assigned to GIDA for the purposes of the Vypeen Bridges Project and development of the area and GIDA was also issued a patta in respect of the said land for carrying out its development activities in its capacity as a development authority under the extant Town and Country Planning Act.”

Considering GIDA's proposal, the Court was of the view that the apartment owners need not have any apprehension regarding obstructed walkway or violation of any fundamental rights. It added:

“While it may be true that even GIDA, which is an authority that answers to the description of 'State' within the meaning of that term under Article 12 of the Constitution of India, would be obliged to safeguard the fundamental right of pedestrians to an obstruction free walkway, if it chooses to open the said walkway for public access, the additional affidavit filed by GIDA before us in these proceedings clearly suggests that there would indeed be an unobstructed walkway adjacent to the Goshree-Chathiyath road that the public can access.”

The Court further observed that the Single Bench ought not to have delved into the issue of violation of fundamental rights of the general public.

Thus, it allowed the appeals and set aside the impugned judgment.

Counsel for the appellants: George Poonthottam (Sr.) - GIDA, Varghese K. Paul - GIDA,  For Jacob & Co - Naveen T., Chithra Chandrasekharan, V.S. Abhishek, Biji A. Manikoth, Shibu Joseph Kottayil

Counsel for the respondents: S. Muhammed Haneeff, M.H. Asif Ali, Ashik Ali M.H., Surjith T. M., Vismaya Jayaraj, R. Rema – Special Govt. Pleader, Anoop V. Nair - Standing Counsel - Kochi Municipal Corporation, K. Anand - Additional Standing Counsel - Kochi Municipal Corporation, M.U. Vijayalakshmi - Standing Counsel - Cochin Smart Mission Limited, Brijesh Mohan - Standing Counsel - Cochin Smart Mission Limited