Bharathi S. Poduval and Others vs The Corporation of Cochin and Others

A.M. Shaffique, J.—1. WP(C) No. 24152/15 has been filed by residents of Giri Nagar, Panampilly Nagar and Krishna Vihar Housing Colonies situated at Elamkulam Village in Ernakulam District. They have raised a grievance regarding diversion of city traffic from Sahodaran Ayyappan Road to the service roads of Giri Nagar, Panampilly Nagar and Krishna Vihar Colony and also an attempt on the part of Greater Cochin Development Authority (GCDA) to construct a bridge across Perandoor Canal connecting Panampilly Nagar and Giri Nagar. According to the petitioners, these three Housing Colonies had been developed as part of the Elamkulam West Detailed Town Planning Scheme (hereinafter referred to as the Scheme) notified by Government in the year 1969. The main allegation is that contrary to the Scheme, the local authority as well as GCDA had taken various steps by permitting constructions which has now resulted in heavy traffic being diverted into residential colonies and has created substantial nuisance and inconvenience to the persons residing in the Housing Colonies. The petitioners contended that when an attempt was made in the year 1980 to construct a bridge connecting Panampilly Nagar 1st Street to Giri Nagar 3rd Cross Road, residents of the colonies raised objections. They filed OS No. 268/1990 before the Munsiff Court, Ernakulam which was decreed as per judgment dated 12/3/1993 by which the defendants, who included Corporation of Cochin and GCDA, were restrained from diverting traffic or a section of traffic in the Sahodaran Ayyappan Road through the disputed bridge and the interior roads available in Giri Nagar and Panampilly Nagar. In an original petition filed as OP No. 3011/90, this Court by judgment dated 11/4/1990 took note of the submission of the Corporation that restriction will be made for movement of heavy vehicles. However, it was mentioned that a provision would be made for opening the barricade in emergency situations, so that fire engines, ambulances and other vehicles could pass through the said bridge.

According to the petitioners, on account of large scale development in the locality, there had been diversion of traffic through the roads of the colonies. Petitioners submit that 11 bridges are constructed over the Perandoor Canal of which 3 of them are foot bridges which are being used by 2 and 3 wheeled vehicles. According to them, it has now come to their notice that attempts were being made to construct one more bridge over Perandoor Canal in order to connect the Elder''s Forum Road at Panampilly Nagar to Giri Nagar 4th Cross Road. The proposal is to construct the aforesaid bridge within 20 metres from the existing bridge which was the issue in Exts.P3 and P4 judgments. The Giri Nagar Welfare Association submitted detailed objections to GCDA and a meeting was convened. However, the concerns raised by the petitioners were not adhered to. They also submitted a mass representation to the Chief Minister. This writ petition was filed when attempts were made to construct the said bridge and when the traffic which included heavy vehicles was being diverted through the existing bridge which connects Giri Nagar and Panampilly Nagar. According to the petitioners, the present attempt is totally against the earlier decree in OS No. 268/1990 and the judgment in OP No. 3011/90. It is also contended that diversion of traffic to the service roads of residential colonies has created substantial increase of air and noise pollution and the narrow service roads of the residential colonies are not meant to handle such heavy traffic. It is also contended that the proposal to construct the new bridge is only for the purpose of availing funds promised by a local member of Parliament. According to them, the construction of bridge would be in total violation of the Scheme by which the residential colonies had been set up. It is in the said background that this writ petition has been filed.

When the above matter came up hearing before the learned Single Judge, it was observed that the issue involved public interest and hence the matter was placed before this Court.

Counter affidavit has been filed by the 3rd respondent Corporation of Cochin. According to them, the roads of Giri Nagar Colony are maintained by the Corporation by using public funds. It is contended that, if traffic is not allowed to be diverted through as many roads as possible especially in the backdrop of Metro Rail construction, the traffic congestion will increase in the area. According to them, initially the bridge between Giri Nagar and Panampilly Nagar was a narrow bridge, but, when development demanded construction of a wider bridge, the Corporation attempted to build a wider bridge. Though the residents filed a suit and sought for an interim injunction, the same was rejected. The High Court also did not prohibit construction of the bridge and accordingly, the Corporation has built a wider bridge connecting both the colonies. However, heavy traffic movement was restricted. It is stated that the present diversion of traffic is on account of the Metro Rail constructions being carried on through the main road and being an emergency situation, it is possible for the authorities to permit movement of heavy vehicles through the said road as well, which is permitted as per judgment in OP No. 3011/90.

IA No. 13972/15 has been filed by the petitioners seeking for an interim injunction to restrain the GCDA from constructing the proposed bridge across Perandoor Canal wherein they have taken a contention that the same shall not be permitted during the pendency of the writ petition. In the counter affidavit filed by GCDA, it was stated that Panampilly Nagar and Giri Nagar Colonies are predominantly residential colonies and Panampilly Nagar is guided by the DTP Scheme, rules of Elamkulam West DTP Scheme of GCDA. According to them, construction of the new bridge is highly necessary as the majority of residents in Panampilly Nagar and Giri Nagar were in favour of construction of the bridge. According to them, the existing bridge is too narrow and when traffic congestion occurs, it creates pollution and heavy vehicular traffic in the area. They have filed counter affidavit in IA No. 1232/16 which is an application filed to restrain GCDA from constructing the bridge. They also filed an additional counter affidavit in IA No. 341/2016. According to them, the bridge had been proposed as per the requirement of the residents of the locality and necessary fund in that regard had been allotted by the Member of Legislative Assembly. The work order for the new bridge was issued on 3/12/2015. The piling activities had started and a small bund has been constructed on one side of the canal. According to them, bridge is constructed using Korean technology which will not cause any obstruction to the free flow of water in the canal. Additional counter affidavit has been filed on the question whether the Perandoor canal area where the bridge is proposed to be constructed is covered by the Coastal Zone Regulation Notification 2011. It is stated that though some stretches near the coast line of the Thevara Perandoor canal falls within the regulated zone, the area where the bridge is proposed does not fall within any of the definitions given by the Coastal Zone Management Authority. According to them, modern technology is being used for the construction of the bridge. A statement is filed on behalf of the 7th respondent inter alia stating that the diversion of traffic was only on account of construction being made for the Metro Rail project and once it is completed, there won''t be any diversion through those areas. The 6th respondent, Cochin Metro Rail has also filed a statement inter alia stating that the decision for diversion of traffic was taken in a joint meeting held between the stake holders on 20/6/2014 and it is only a temporary phenomena.

Heard the learned counsel appearing on either side. It is argued by the learned counsel for the petitioners based on the judgment in R.K. Mittal v. State of U.P. [, (2012) 2 SCC 232] that the construction of the bridge is contrary to the Detailed Town Planning Scheme for Elamkulam West Village. It is stated that Panampilly Nagar is considered to be a residential colony as per the DTP scheme and Perandoor canal forms part of the said scheme. Only one bridge was contemplated as per the Scheme whereas presently there are several bridges across the Perandoor canal. Certain photographs have been produced in order to indicate that the construction of bridges had been made in such a manner in order to obstruct the free flow of water through the canal. This has given rise to substantial pollution in the locality. That apart, the GCDA has not taken any steps to ensure compliance of the DTP Scheme. He referred to paras 37 and 38 of the judgment, which read as under:

"37. The meaning of "residential use" under the Regulations is a restricted one and is incapable of being given a wide connotation. It means the use of any land or building or part thereof for human habitation and such other uses incidental to the residential use. The very language of Regulation 2 (1)(k) of the Regulations clearly depicts the intent of the framers that the expression "residential use" is not to be understood in its wider sense, in fact, it would require strict construction because all other uses have been separately defined. The different kinds of uses, therefore, have to be understood only in terms of the explanation or meaning given to them under the Regulations. If unduly wide meaning is given to the expression "residential use", then it is bound to cause overlap between the other uses. It would cause unnecessary confusion. Thus, each use has to be understood as per its plain language and there is no need for the Development Authority or, for that matter, even for the courts, to expand the meaning given to such expressions. The expression "such other uses incidental to residential uses" in Regulation 2(1)(k) has to take its colour from the use of the building for human habitation. In other words, the latter part of the Regulation has to be read ejusdem generis to the earlier part of that Regulation.

The development plan has to be prepared in accordance with the provisions of the Act and the Regulations framed thereunder. As already noticed, the Development Authority has to prepare the draft plan, give public notice thereof, invite objections and thereupon conduct an inquiry and hearing as contemplated under the law, before preparing a final development plan. This final development plan is a statutory requirement which has to be prepared as ordained under the provisions of Section 6(2)(b) of the Act read with Regulations 5 to 11 of the Regulations. This Plan necessarily provides for a particular use or purpose of any area/site, namely, industrial, commercial, institutional or residential. The notified development plan has a legal sanction and provisions contained therein are mandatory in nature. They are incapable of being altered or varied without following the due process prescribed in law."

Reference is also made to the DTP Scheme which was published as per notification G.O.M.S.290/69/DD dated 15/10/1969. It is submitted that as per the DTP Scheme, only one bridge is proposed over the canal as evident from Appendix V Form No. 11 attached to the Scheme. It is argued that when the Scheme itself has provided only construction of one bridge across Perandoor canal as part of the Scheme, there was no question of constructing any other bridge unless there is an amendment to the Scheme. As per the Scheme, the Perandoor canal has to be remodelled to 60 feet for a length of 2500 feet. It is submitted that without even trying to widen the canal in terms of the Scheme, GCDA has virtually narrowed the canal and permitted construction to be made. They have constructed several bridges across the Perandoor canal and that too by putting beams and pillars in such a manner that the flow of water has been prevented. The counsel also argued that the construction of bridge is contrary to the provisions of Coastal Zone Regulation of 2011.

On the other hand, learned counsel appearing for GCDA submits that as per the information received by them, the aforesaid area does not come under the CRZ plan as per the Coastal Zone Management authorities. According to them, they have not violated the Town Planning Scheme in any manner and construction of the bridge is for a public purpose to enable the people in the locality to use the same for easy access from one part of the canal to the other part. The present bridge is not sufficient for the movement of traffic which necessitated GCDA to consider the proposal of a new bridge. The construction of the bridge is being done at the instance of the people in the locality and by using MLA funds. The temporary filling has been made within the canal for the purpose of erecting pillars by the side of the canal and once the construction of the bridge is over, there will be free flow of water.

It is submitted that as far as the diversion of traffic is concerned, it was only a temporary affair and as on the date when the writ petition was being heard, it is submitted by the learned senior counsel appearing on behalf of Cochin Metro Rail project that the work on the main road had been completed and opened for traffic, as a result of which the diversion of traffic is not required. Therefore, as far as the diversion of traffic is concerned, the complaints raised by the petitioners have virtually become infructuous and there is no reason to issue any restriction in that regard. As rightly pointed out by the learned counsel for the respondent, directions were already issued in the judgment in OP No. 3011/90 with reference to the diversion of traffic during emergency situations.

The only question to be considered is whether the construction of the new bridge is against any statutory provision or whether it is necessary under the factual circumstances. Whether there is a requirement of an additional bridge along the side of the new bridge is purely a question of fact which has to be decided by the competent authorities taking into consideration the normal traffic and other factual situation. The Panampilly Nagar Welfare Association has been impleaded in the case as additional 9th respondent. According to them, the petitioners have not ventilated the grievance of the residents of the Panampilly Nagar though they claim to have done so. According to them, a new bridge is required for easy traffic as the present bridge cannot contain the traffic through the said road. It is stated that several persons are using the bridge across Perandoor canal and if a new bridge is constructed it will add on to the requirement of the people in the locality. As far as the contention regarding CRZ violation is concerned, GCDA has taken up a stand that the area does not come within CR Zone. Learned counsel for GCDA also placed before us a plan prepared by the Coastal Zone Management Authority and according to them, this area is not shown in the map as a CRZ area. However, since no such materials are placed on record, we do not think that we will be justified in arriving at a conclusion, whether the area comes under CRZ or not. This is a fact which has to be taken up before the Coastal Zone Management Authority and it is for them to address the issue.

The other question is whether Perandoor canal forms part of the DTP Scheme and whether only one bridge had been contemplated. This is a matter to be addressed by the GCDA itself. In this case they have not stated anything regarding the violation of DTP scheme whereas according to them Panampilly Nagar falls under the DTP scheme. If Perandoor canal is also part of the DTP Scheme and as contended by the counsel for petitioner, the scheme provided only one bridge across Perandoor canal, unless there is a change in the scheme, it may not be possible for GCDA or any other authority, as the case may be, for construction of another bridge. Of course, there might be change in circumstances which may require additional facilities to be provided especially when the number of persons using the bridge may increase, number of vehicles may increase and generally the traffic may increase, heavy vehicles may have to ply and these are all factors to be looked into by the competent authorities. But when a scheme is in force, unless a modification is made in accordance with the statutory provision, it is not open for any authority to change the scheme on their own interest. In Philip George v. State of Kerala (, 2014 (2) KLT 116), a learned Single Judge of this Court held at paragraph 20 as under:

"20. On a consideration of the legal provisions, therefore, it is apparent that in an area that has been developed in accordance with a scheme, that was validly prepared and duly notified in accordance with the provisions of the Town Planning Act, future construction must adhere to the terms of the scheme and the plans approved thereunder. This must be so unless and until the scheme itself is varied or altered by the State Government. This position will assume greater rigour if the land comprised in the area, covered by the scheme in question, has itself been acquired through land acquisition proceedings for the purposes of the scheme. The mandate and purport of the scheme assumes the nature of a law that regulates future construction in the area and must bind subsequent purchasers of such land and users thereof."

Therefore, it is for the Corporation of Cochin and GCDA to consider whether construction of bridge will be contrary to the DTP Scheme now in force. If the DTP scheme does not permit construction of an over bridge contrary to the scheme over Perandoor Canal, necessarily, the construction of the bridge will be against the very scheme itself.

WA No. 327/2016 is filed against the judgment dated 3/2/2016 in WP(C) No. 35270/2015. The writ petitioners being the residents of Giri Nagar Housing Colony filed writ petition when the traffic was diverted through Giri Nagar 3rd Cross Road and Panampilly Nagar 1st Street. They relied upon judgment dated 11/4/1990 in OP No. 3011/90 as well as the judgment dated 12/3/1993 in OS No. 268/1990 to contend that such diversion of traffic by which heavy vehicles are permitted to ply shall not be permitted. The learned Single Judge dismissed the writ petition taking note of the fact that the traffic diversion was made on account of the ongoing work related to Metro Project which is of public importance. We have already indicated that the diversion of traffic has now been stopped through the Giri Nagar-Panampilly Nagar Road and thoroughfare had been permitted through the main road. Under such circumstances, we do not think it necessary to consider the appeal on merits. That apart, it was clear that traffic was diverted on account of certain exigencies when development works for Metro Rail Project was being carried on through the main road. Under such circumstances, the learned Single Judge was justified in not interfering with the diversion of traffic at the relevant time. Now that the issue has already subsided and the main road traffic is permitted, nothing further survives to be considered in the present appeal.

Accordingly,

"(i) WA No. 327/2016 is dismissed.

(ii) WP(C) No. 24152/2015 is disposed of as under:

(1) That the GCDA shall get necessary permission from Coastal Zone Management Authority certifying that the area in question is not affected by the provisions of CRZ.

(2) That GCDA as well as Corporation of Cochin shall ensure that construction of bridge which is proposed by GCDA does not violate the DTP Scheme."