Kerala High Court
Basil Attipetty @Basil A.G vs Corporation Of Cochin on 8 July, 2021
Equivalent citations: AIRONLINE 2021 KER 875
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
-1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
THURSDAY, THE 8 DAY OF JULY 2021 / 17TH ASHADHA, 1943
WP(C) NO. 12448 OF 2013
PETITIONER/S:
BASIL ATTIPETTY @BASIL A.G
AGED 54 YEARS
ATTIPETTY CHAMBERS, INFANT JESUS BUILDING,
ERNAKULAM, COCHIN -682 031 (PARTY-IN-PERSON) (SUO
MOTU) (PETITIONER (PETITIONER IN -PERSON) HAS
EXPIRED AND AS PER ORDER DATED 11/03/2019, THIS PIL
IS REGISTERED AS SUOMOTU CASE)
BY ADV SRI.A.G.BASIL
RESPONDENT/S:
1 CORPORATION OF COCHIN
REPRESENTED BY ITS SECRETARY, PARK AVENUE ROAD
ERNAKULAM, COCHIN - 682 011.
2 THE REGIONAL JOINT LABOUR COMMISSIONER
LABOUR DEPARTMENT, ERNAKULAM, CIVIL STATION,
KAKKANAD, COCHIN - 682 030
3 THE CITY POLICE COMMISSIONER
COCHIN CITY, PARK AVENUE ROAD, ERNAKULAM,
COCHIN -682 011.
4 THE DISTRICT COLLECTOR
ERNAKULAM, CIVIL STATION, KAKKANAD, COCHIN-682 030
5 GREATER COCHIN DEVELOPMENT AUTHORITY GCDA
KADAVANTHRA, ERNAKULAM, COCHIN - 682 020.
6 LABOUR DEPARTMENT & REHABILITATION DEPARTMENT
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
7 LOCAL SELF GOVERNMENT DEPARTMENT
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
8 REVENUE DEPARTMENT
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
9 SOCIAL JUSTICE DEPARTMENT
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
10 DEPARTMENT OF HEALTH AND FAMILY WELFARE
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
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11 HOME DEPARTMENT
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
12 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
BY ADVS.
SRI.E.D.GEORGE FOR R1
SRI. N.MANOJ KUMAR, STATE ATTORNEY FOR R2 TO R4 AND
R6 TO R12
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 12448 of 2013 -3-
JUDGMENT
Shaji P. Chaly, J.
This is a public interest writ petition filed by an Advocate practicing in the High Court of Kerala. During the pendency of the writ petition, petitioner died. However, taking into account the importance of the matter, we have converted it as a suo moto writ petition.
2. The subject issue raised by the petitioner in the writ petition is with regard to the inability of the State and the local bodies to construct night shelters to protect the interest of workers, who are sleeping on the streets, footpaths and other pavements. According to the petitioner the inaction on the part of the State Government and local bodies to construct the night shelters is absolute violation of the rights conferred on the citizens under Article 21 of the Constitution of India.
3. It is also pointed out in the writ petition that the Hon'ble Apex Court had considered the plight of the poor workers and has W.P.(C) No. 12448 of 2013 -4- rendered a judgment in Jolly George Varghese v. Bank of Cochin 1980 [SCC 470] wherein the Apex Court held that "to be poor in the land of poverty is not a sin". Basically with the aforesaid contentions, the following reliefs are sought for:-
"i) issue a direction to respondents 1, 2, 3 and 5 to arrange night shelters in Cochin City to those who are sleeping on the roads because of their poverty to have a house of their own;
ii) the peoples who are sleeping on the road side depicted in Exhibit P1 and P2 urgently may be provided with night shelters by respondents 1 to 5;
iii) night shelters to the workers sleeping on the road sides of Cochin city may be directed to be arranged by the respondents 1 to 5 before the commencement of the monsoon -
June 2013;
iv) Night shelters to the poor sections of the society may be arranged in the entire state of Kerala in each Panchayats, Villages, Municipalities. Corporations by the respondents 6 to
12."
4. Earlier, a statement was filed for and on behalf of the City Police Commissioner, the 3rd respondent on 17.05.2013, contending as follows:-
W.P.(C) No. 12448 of 2013 -5-
"2. It is respectfully submitted that most of the migrant labourers are working in organized sectors and their respective employers/contractors are under legal obligation to provide adequate shelter to such labourers as per the provisions of the Kerala Inter-State Migrant workmen (Regulations of Employment and Conditions of Service) Act 1979 and Rules 1983. As per Sec. 16 of the Act, it shall be the duty of every Contractor / Employer of the inter-state migrant workmen in connection with the work of an establishment to provide and maintain suitable residential accommodation to such workmen during the period of their employment. That apart as per Section 23 of the above Act, every Contractor shall maintain such registers and records giving such particulars of the inter-state migrant workmen employed, the nature of work performed by such workmen, the rate of wages paid to the workmen and such other particulars in such form as may be prescribed and Section 25 mandates that whoever contravenes any provision of the Act or of any Rules made thereunder regarding the employment of interstate workmen, or contravenes any condition of a license granted under the Act, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to Rs. 1000/- or with both and in the case of a continuing contravention, with an additional fine which may extend to one hundred rupees of every day during which such contravention continues after conviction for the first such contravention.
3. It is respectfully submitted that the Rule 39 of the Kerala Inter State Migrant Workmen (Regulations of Employment and Conditions of Service) Rules 1983 mandates that in every place where the migrant workmen are required to W.P.(C) No. 12448 of 2013 -6- halt at night in connection with the working of the establishment, the contractor shall provide and maintain rest rooms or other suitable alternative accommodation within 15 days of the coming into force of the Rules in case of the existing establishments, and within 15 days of the commencement of the employment of migrant workmen in the case of new establishment. The above Rule also ensures that if the amenity is not provided by the contractor within the specified period, the principal employer shall provide the same within a period of 15 days of the expiry of the period specified. That apart, separate rooms shall be provided for female migrant workers and such accommodation rest rooms, shall be so constructed as to afford adequate protection against heat, wind, rain and shall have smooth hard and impervious floor surface. That apart, rest rooms or other suitable accommodation shall be at a convenient distance from the establishment and shall have adequate supply of drinking water. Therefore, it can be seen that adequate provisions are made in the Act and Rules, so as to ensure convenient shelter for the said interstate migrant labourers who are engaged by various establishments.
4. It is humbly submitted that migrant labourers are coming to the State of Kerala because of the existing higher rate of wages than the wages paid in their respective States. Since actors/employers are providing adequate shelter to the migrant labourers and the Labour Department is effectively supervising the proper compliance of the relevant provisions of the above Act and Rules, there is no need or any obligation on the part of the State to provide separate shelters for such labourers.W.P.(C) No. 12448 of 2013 -7-
5. It is submitted that it is true that some of the migrant labourers who couldn't register under any establishment are engaged in daily koolie works, cobbler works, scrap picking etc . They are found wandering in the city and most of them are using footpaths, pavements, bus shelters, shop varandas etc. during the night hours for sleeping. Though they are getting reasonable income, they would rather prefer to sleep in such open spaces. To resolve such issues and to have a pragmatic solution by providing night shelters, a meeting was convened on 27.06.2013, by the District Collector, Ernakulam. In the aforesaid meeting the District Labour Officer, representatives of the Sub Collector, Fort Kochi, District Social Justice Officer, Ernakulam and officers of the Corporation of Kochi have participated. In the meeting it was informed that new shelters could not be provided to the workers sleeping on the road side, since infrastructures like land, building and financial aids etc. are not available to set up night shelters for such labourers. It is also opined that presence of anti social elements infiltrating into the migrant labourers could not be ruled out and if shelters are provided the same would facilitate the anti social elements to gather in one place which may result in serious law and order issues. It is also opined that if the night shelters are provided, incidental facilities such as security personnel, waste management etc. will also have to be provided and it would become a heavy burden to the public exchequer. So it is not feasible to provide night shelter to the workers sleeping on the road side, etc. The authorities of the Corporation of Kochi informed that if any organization who were working in the field of social welfare, came forward to set up night shelter with W.P.(C) No. 12448 of 2013 -8- infrastructures the Corporation of Kochi would extend all co- operation and support to their endeavor.``
5. Later, a report was filed on behalf of the Labour and Rehabilitation Department of the Government of Kerala dated 13.01.2021, explaining the steps undertaken for accommodation of the industrial migrant workers and other poor sections of the society. In the report it was made clear that under various projects of the State Government as well as the Non Governmental Organizations, steps were taken to provide night shelters and other basic amenities and facilities to the poor and the migrant workers. Having found that basically the steps were taken for rehabilitation of the migrant and other workers, it was directed to the Government as to the steps taken for providing night shelter to the poor people sleeping on the road side.
6. Taking into account the report of the Government dated 13.01.2021, on 29.01.2021, an interim order was passed by this Court which reads thus:-
"On this day, when the matter came up for further hearing, Sri. Surin George Ipe, learned Senior Government Pleader, filed a memo dated 22.01.2021 along with a report of respondent No.6, and submitted that there are several projects, W.P.(C) No. 12448 of 2013 -9- taken up by the Government to provide accommodation to the migrant workers and other poor sections of the society. The said report reads thus:
"REPORT ON BEHALF OF THE 6th RESPONDENT IN W.P.(C) No.12448/2013 FILED BY ADV. BAISIL AITIPPETTI, ON THE MEASURES TAKEN BY THE GOVERNMENT FOR PROVIDING ACCOMMODATION TO THE INTERSTATE MIGRANT WORKERS AND OTHER POOR SECTIONS OF SOCIETY.
The Labour Department has entrusted 'Bhavanam Foundation Kerala' a non-profit company under the Department, for providing accommodation facilities for the migrant workers, plantation workers and other poor sections of society under various projects. The various projects undertaken by the 'Bhavanam Foundation Kerala' are detailed below.
'Apna Ghar' Project This project is intended to provide safe and hygienic hostel accommodation to inter state migrant workers working in Kerala on an affordable rental basis. The project is designed to provide hostels with shared rooms, multiple kitchens, mess areas, bathrooms, toilets, Sewage Treatment plant, rain water harvesting, diesel generator backup, CCTV systems, recreational facilities etc. The completed/ongoing projects under 'Apna Ghar' project are the following.
1. Apna Ghar Project- Palakkad (Palakkad District):- It is the first completed 'Apna Ghar Project, which can accommodate 620 male interstate migrant workers in a ground plus three floor hostel complex of approximately 47,000 sq.ft plinth area. The project was constructed at a cost of Rs. 8.61 Crores at the 0.84 acres land leased inside KINFRA Integrated Industrial and Textile Park, Kanjikode, Palakkad. The hostel provides 64 numbers of shared residential rooms of approximately 300 sq. ft each with bunk beds and safe lockers. Also, the hostel has bath rooms, toilets, clothes washing and drying areas, Kitchens, mess areas, Office W.P.(C) No. 12448 of 2013 -10- room, wardens room, recreational facilities including television in dining area, volleyball court and lawn with benches, etc. as per codal provisions. Accommodation is provided at the hostel on affordable rental basis of Rs.1000/- per month. The Hon. Chief Minister of Kerala inaugurated the hostel on 23rd February, 2019 and the hostel started function from 01.03.2019. At present, 580 beds available in the hostel facility are occupied.
2. Apna Ghar Project-Kinalur (Kozhikode District):-
'Bhavanam Foundation Kerala' has leased one acre of land within Kerala State Industrial Development Corporation Ltd. (KSIDC), Industrial growth center (IGC), Kinalur at Rs.67.20 Lakhs for implementing a hostel under the Apna Ghar Project. The preliminary construction activities is under process.
3. Apna Ghar Project- Kalamassery (Ernakulam District):- 'Bhavanam Foundation Kerala' has leased 1 acre of land at KINFRA HI-Tech Park, Kalamassery and awarded the preparation of Detailed Project Report to a Government Accredited agency and further action for the implementation of the project is in progress.
'Bhavanam Foundation Kerala' is now in the process of identifying land in all the districts in Kerala to implement the Apna Ghar project for interstate migrant workers in the form of hostels.
Janani Project The Janani Project aims at providing housing at affordable cost to unorganised sector workers and low paid workers in the State who are unable to own a house. The construction of the Janani project - Adimali Scheme- high - rise apartment complex with 217 two bedroom apartments of 645 sq. ft. has been completed. The project has been transferred to Adimali Grama Panchayath through Life Mission and the project was inaugurated on 25/02/2019. The construction of the Janani Project-Ponjassery Scheme for 296 two bed room apartments of 645 sq. ft. is under construction. W.P.(C) No. 12448 of 2013 -11- Bhavanam Project The Bhavanam Project aims at providing hygienic, safe and secure residential accommodation to Plantation labourers within or near plantations. Bhavanam Project - Own your own Housing Scheme- Homeless:-
It is proposed to construct good, quality decent independent houses with basic amenities for the plantation workers who own land. Construction of 10 houses is in progress.
Bhavanam Project-Own your own Housing Scheme- Landless:-
It is proposed to provide apartments for plantation workers who do not own land. 'Bhavanam Foundation Kerala' identified 5.49 acre land at Devikulam, Idukki for the purpose and is in the process of obtaining the above land for construction.
Studio Apartment Project for working Women Project This project is envisaged to provide good quality decent and safe accommodation for women working in Kerala in the form of one bedroom studio apartments in rental basis. BFK has leased 0. 733 acres of land within KINFRA International Apparel park, Menamkulam, Thiruvananthapuram for implementing studio Apartment.
In addition to this as per G.O.(Rt.) No. 782/2020/LBR dated 05.08.2020, Government have accorded sanction for the implementation of first phase of 'Guest Workers Friendly Residence in Kerala' Project called 'Aalay' in Paippad (Kottayam), Bengal colony (Perumbavoor, Ernakulam) and Pattambi (Palakkad) in co-operation with the Local Self Government Department and owner of the building/rented house for ensuring better rental accommodation facilities for guest workers by accepting the parameters and guidelines furnished by the Labour Commissioner."W.P.(C) No. 12448 of 2013 -12-
2. In addition to the above, the learned Special Government Pleader has handed over a copy of the letter of instructions furnished by the Secretary to Government, Social Justice (C) Department, Thiruvananthapuram, dated 19.01.2021, which reads thus:
"Social Justice Department is implementing different welfare schemes for the most vulnerable and marginalized in the society and the major sectors of this department addressing are the Differently abled, Senior Citizen, Transgenders, Probationers, Ex-convicts and other destitute in the society.
Govt. had accorded sanction to the Directorate of Social Justice to implement a scheme for destitute by which the Govt. is providing grants to institutions who are rehabilitating the destitute street dwellers of whom there is nobody to take care of. Those who are discharged from Government hospitals and having no relatives are also admitted in these institutions if they are destitute. The scheme is implemented in collaboration with NGOs. There are 3 accredited NGOS each working in Ernakulam and Trivandrum Districts under the above said scheme.
In the case of night shelters to migrant laborers who have their own livelihood, the Department of Social Justice is not having a scheme by which safety and security to these persons can be ensured. The main issues of migrant labourers are being addressed by Labour Department, Local Self Government Department and Health Department."
3. We invited the attention of the learned Government Pleader to the affidavit filed by the State of Kerala in Peoples Union for Civil Liberties (Night Shelter Matters) v. Union of India and others, dated 24.11.2010 [(2010) 14 SCC 245] and also the order of the Hon'ble Supreme Court dated 15.11.2020 in the same matter.
W.P.(C) No. 12448 of 2013 -13-
Paragraphs 18 and 19 of Peoples Union for Civil Liberties (supra) dated 24.11.2010 reads thus:
"Kerala
18. An affidavit has been filed by B.R. Mohan Kumar, Law Officer, on behalf of the State of Kerala in which it is mentioned that the Social Welfare Department is dealing with the affairs of children up to the age of 18 years, pregnant women, lactating mothers, adolescent girls, aged people, destitute, orphans, disabled and mentally challenged persons and for providing care and protection and other services to these people, a lot of schemes and programmes are being implemented with the financial support from the Union and the State Governments. The Department also provides shelter to the children, aged, disabled, beggars, handicapped persons and mentally challenged persons through a number of institutions, details of which have been furnished at the end of Para 2 of the affidavit.
19. In the affidavit it is also mentioned that night shelters have been established in 9 districts of Kerala and in addition to these institutions, there are 574 orphanages run by non-governmental organisations for different categories of inmates with financial support from the State Government. It is further mentioned that the State of Kerala is quite conscious of the problem and many such shelter homes are in existence under different names. Apart from that, there is Kerala Social Security Mission for addressing specific issues for those who are in need of special attention. It is also mentioned therein that the problem of shelter for urban homeless can well be addressed by the various welfare measures being implemented through the Social Welfare, Local Self Government and Food & Civil Supplies Departments of the State."
4. Paragraph 4 of the order dated 15.11.2010 of the Hon'ble Supreme Court in IA. Nos. 94 and 96 in W.P.(C) No. 196 of 2001 is extracted hereunder:
"4. The learned counsel appearing for the respective W.P.(C) No. 12448 of 2013 -14- States submit that pursuant to the orders of this Court, some night shelters have been constructed and they pray for a short adjournment to give the up-to- date position. Let an affidavit be filed by the respective Chief Secretaries of these States on or before next Monday, 22-11-2010."
Learned Senior Government Pleader seeks time to get instructions in the matter."
7. Based on the directions issued by us, now a statement is filed on 29.03.2021 providing the details of night shelters maintained by different local bodies across the State. The said statement reads thus:-
"2. It is respectfully submitted that the following are the details of night shelters and also shelter for urban homeless maintained by the different local bodies across the State.
Sl. Name of Owned / Numb Location
No. Institution Maintained ers
by
1 Shelter for Urban ULB 3 Kollam
Homeless
2 Shelter for Urban ULB 3 Thiruvananthapur
Homeless am
3 Shelter for Urban ULB 1 Thrissur
Homeless
4 Night Shelter ULB 1 Kollam
5 Night Shelter ULB 1 Muvattupuzha
6 Shelter for Urban ULB 1 North Paravur
Homeless
7 Shelter for Urban ULB 1 Perumbavur
Homeless
8 Night Shelter ULB 1 Perumbavur
9 Night Shelter ULB 1 Thrippunithura
10 Night Shelter ULB 1 Ottappalam
11 Night Shelter ULB 1 Perinthalmanna
12 Night Shelter ULB 1 Vadakara
13 Apna Ghar, Labour 1 Palakkad
Bhavanam Department
Foundation
W.P.(C) No. 12448 of 2013 -15-
14 Sneha Bhavan, NULM 1 Kochi
Shelter for Kudumbashre
Migrant Labours e
3. Thus totally there are 7 night shelters and 9 shelters for Urban Homeless. In these night shelters and shelter for urban homeless total capacity is 184 and there are only 99 inmates as on 28.03.2021.
4. In addition to this, Apna Ghar Bhavanam Foundation has been piloted through Labour Department at Palakkad and Kudumbasree mission under the National Urban Livelihood Mission (a Central Government Scheme) is running a Sneha Bhavan shelter for migrant labours at Kochi."
8. It is clear from the said statement that the total capacity is 184, however there are only 99 inmates as on 28.03.2021. That apart, it is reiterated that various projects of the Government stated in the interim order extracted above are also being used for the convenience of the migrant labourers in Kochi.
9. The report produced along with the said statement also narrates the number of persons occupying the shelter homes in each district and townships. Taking into account all the above said aspects and the steps taken by the Government, we are of the view that the writ petition can be disposed of since there is no point in keeping it before this Court and with appropriate directions. W.P.(C) No. 12448 of 2013 -16-
Accordingly the writ petition is disposed of recording the steps taken by the Government as above and further directing the State Government as well as the Local Self Government Institutions, District Collectors and other authorities to ensure that the poor people are not sleeping on the roadside, footpaths, medians and other pavements. The respective District Collectors shall convene meetings of the Local Self Government Departments and other NGOs conducting night shelters periodically and identify the issues and further to ensure through such bodies that the homeless sleeping on streets and other public places are provided with sufficient night shelters with basic amenities for their day-to-day requirements. We also remind the state Government about the affidavit filed by it before the honourable Supreme Court, as is extracted above, in order to avoid any unpleasant situation in future .
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb W.P.(C) No. 12448 of 2013 -17- APPENDIX OF WP(C) 12448/2013 PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOGRAPH SHOWING THE WORKERS SLEEPING ON THE ROAD SIDES AND ROAD MARGINS IN COCHIN CITY.
EXHIBIT P2 TRUE COPY OF THE REPORT SHOWING THE WORKERS SLEEPING ON THE ROADS WITH A REPORT APPEARED IN THE INDIAN EXPRESSS ON 15-5-2013 EXHIBIT P3 TRUE COPY OF THE BASIC STATICS APPEARED IN THE GOVERNMENT OF KERALA DIARY 2011 WITH REGARD TO THE POPULATION, AREA ETC.