A wise (? or is it simply
realistic?) quip goes…you do not get justice in our courts, what you get in our
courts is called justice.
It is now becoming
impossible to defend our judiciary even through such play of words.
The latest case is that of
about 400 odd occupants of 5 flat complexes
in a small township called Marad in Kochi. The flats fall in the
category of luxury apartments and reportedly cost between Rs 60 lakhs and 1.5
Crores. Many of them had been NRIs and invested their life’s earnings in these
dwellings with backwater views. These had been ordered to be demolished by the
apex court within 30 days though an order dated 08 May 2019.
Alfa Serene, Holy Faith
H2O, Golden Kayaloram, Holiday Heritage and Jain Housing projects were granted
building permits in 2005-06 when the Maradu local self-governing body was a
panchayat. At that time, the High Court, in another matter, had stated that the
coastal zone mapping of Maradu was wrong. But the builders went ahead with the construction.
The issue whether these builders were aware of this order or not is not clear.
The sanctioning authorities, no doubt, had to be aware. If not, again it would
be a failure of the government administration only.
In 2012, the Kerala High
Court had observed that permit holders cannot be taken to task for the failure
of local authorities in complying with statutory provisions and notifications.
Subsequently even the apex court had stated that there was no categorical
finding recorded on whether the area in question was in CRZ Category III,
Category II or Category I. The builders claimed that the area fell within CRZ
Category II whereas the Coastal Zone Management Authority said the area was in
CRZ Category III.
The Supreme Court then appointed
a three-member committee which said that the Coastal Zone Management Plan
(CZMP) of Kerala currently applicable was the one approved in 1996. Under that
CZMP, Maradu had been marked as a panchayat area and, therefore, was in CRZ
Category III. Therefore, construction could not be allowed up to 200 metres
from high tide line.
Interestingly, Maradu (now
a municipality) has been included in the CRZ category II in the coastal
management plan submitted by the state government as per the CRZ notification
of 2011 and approved by the Union Government on 29 Feb 2019.
This is what one of the
owners, Joyson, said: Before buying the flats, we all took legal opinion and
examined all documents. Even the bank which financed my flat did not find any
fault. I invested Rs 65 lakh.
C M Varghese of Maradu
Bhavana Samrakshana Samithi had to say this: more than 2000 buildings,
including houses that had come up in the area before Feb 2019 will have to be
demolished.
Former Chairperson of
Maradu Municipality is very clear when she states that the ordinary citizen is
convinced that justice had different meanings in our country. She says that it
was the High Court of Kerala that questioned the show cause notice issued by
the Municipality to the builders and forced it to issue occupation certificate
to the flat owners.
The latest report on the
subject informs us that the apex court has accepted a review petition on file
and it will be heard in the chambers of the judges and apart from the judges
who ordered the demolition the three senior most judges of the court will also
be part of the bench that hears the review petition.
But even while the petition
is pending decision, the Municipality has gone ahead and ordered the residents
to vacate the premises within 5 days. And this has been done when the whole
state is in a festive mood and all the offices of the State Government are
closed for the whole week, beginning 8 Sep 2019, on account of Onam.
The ultimatum of the apex
court to demolish the flats by 20 Sep, failing which the Chief Secretary to the
State Government will have to appear in person and explain has set the
bureaucrats on overdrive. But one commentator on Youtube had rightly observed
that it is better that the Chief Secretary spend time in jail rather than the
innocent flat owners being driven to the streets.
Now, both the Panchayat
and the State Government are in another fix. It is estimated that the cost of
demolishing the flats would be around Rs 300 cr. The method suggested is
controlled implosion. The environmental impact of which the locals are already
vociferous but the authorities, as usual, are both deaf and blind. Not to
mention the burden of managing the debris.
As
a layman, the following facts are obvious:
-
The Marad
Panchayat had cleared the construction of the apartments either due to the
ambiguity in the law or due to the ever present corruption.
-
There was
definite failure of the government administration in communicating judicial
observations/orders down the line, particularly to those who are required to
act on them
-
The notorious
delays in our judiciary has also played havoc in this case. The Kerala High
Court had observed, around 2005-6, that the coastal zone mapping of Marad was
wrong and the apex court had viewed the same as ambiguous. But it is only in
2019 that an apex court constituted committee reported that when the permission
was given in 2006-6 what was applicable were CZMP approved in 1996. It had also
failed to report that in 2011 the categorization had been reviewed but notified
in 2019, shortly before submission of their report.
-
Worse, the apex court had passed this order without
hearing the most affected parties- the owners of the flats. This is evident from the Indian Express report, dated
6 Jul 2019, titled ‘SC judge hits out at stay on demolition in Kochi by another
bench’. As per this report a vacation bench of Justices Indira Banerjee and
Ajay Rastogi had, on 10 Jun 2019, stayed the demolition till further orders
even while maintaining that judicial
propriety demanded that the petitions be heard by the same bench which ordered
the demolition.
-
A statement by
Arun Mishra, the senior judge of the bench that ordered the demolition -I am
surprised that an apex court judge has
stayed an order without knowing that such an order existed- should make every
citizens interested in rule of the law to ask ‘what is happening in our apex
courts?’
-
There is also
merit in the assertion by C M Varghese of Maradu Bhavana Samrakshana Samithi
that they were denied natural justice by the apex court because of the order
being passed without hearing their side.
If anybody is under the impression that these are
aberrations in our judicial proceedings they are mistaken.
A few years ago the Food Safety Commissioner of Kerala
had ordered 6 lakh kilograms of adulterated pepper to be destroyed by burning
because it has been colored with mineral oil and polished with paraffin wax,
both of which are known cancerogenous substances. A judge of the High Court of
Kerala had ordered the FSC to permit National Commodity Exchange to get the
pepper cleaned without realizing that pepper, being an organic material would
have ingested the adulterants and could never be made consumable. To take an
analogy I shall ask whether the pepper and spices can be removed from picked
vegetable. Ultimately it was cleaned with detergent and water and reports have
confirmed that having been found unfit for export it was marketed locally
itself.
Similar was the judicial decision in the matter of
exploiting ground water by the Coca Cola plant at Plachimada in Palakkad,
Kerala. A single judge of the Kerala High Court had rightly ruled that the
company could not exploit ground water commercially. But a division bench of
the same court overturned the judgement stating that the right of a company to
draw water from its property, even commercially, was the same as that of a
citizen using water from his property for personal use.
I have been wondering how these judges could forget
one of the basic lessons in hydraulics about water finding its own level and
that if somebody overdraws water from his well it would affect the water levels
in the neighboring wells too.
Our judiciary is a failure
on account of preposterous delays. That it is a failure from the point of view
that ‘justice should not only be done but seen to be done’ may be known only
those who have been victims of unfair judgments and to students of judicial
conduct and performance.
I only hope that the
victims of Marad flats demolition judgment would not give in to despair and
commit the worst crimes on themselves. They need to join the crusaders
demanding comprehensive and urgent judicial reforms that would make our
judiciary not only transparent and just but also accountable and effective.
Further reading:
‘SC orders 5 Kochi bldgs with 500 flats razed for
CRZ breach’ at https://epaper.timesgroup.com/olive/apa/timesofindia/Print.Article.aspx?mode=text&href=TOIM%2F2019%2F05%2F09&id=Ar00107
‘SC judge hits out at stay on demolition in
Kochi by another bench’ and dated 6 Jul 2019 available at https://indianexpress.com/article/india/sc-judge-hits-out-at-stay-on-demolition-in-kochi-by-another-bench-5817838/
Deccan
Chronicle report titled ‘Flat owners say justice denied’ date lined 29 Jul 2019
at Kochi
Former
Chairperson of Marad Municipality Sunila Sibi, on Sep 11, 2019, at https://www.youtube.com/watch?v=A7sSb7zQQLo (This
is in Malayalam)
12 Sep 2019
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