A JUDGE IS FREE TO ERR WITHIN HIS JURISDICTION,
BUT NOT OTHERWISE.
Mathews J. Nedumpara
It is a fundamental principle of law that a Court is free to err within its jurisdiction and, howsoever erroneous its decision is, it could be final and binding. Dhananjoy Chatterjee, a poor and young watchman, was found guilty of murder and sentenced to death by a Sessions Court in West Bengal. The Supreme Court confirmed the verdict. The President of India rejected his mercy petition and he was hanged. A lawyer friend of mine, who represented Dhananjoy, told me that Dhananjoy was falsely implicated in the case and the President rejected his mercy petition only because the public opinion mobilized by the wife of the then Chief Minister of West Bengal left His Excellency with no other option. Octogenarian hangman Nata Mullick, who was always proud of the unpleasant duty which he was called upon to perform and who carried out his last hanging by executing Dhananjoy Chatterjee, was devastated because he was convinced that he was executing an innocent man and cried after completing the job at the Alipur Central Jail.
2. From a strict point of law, even assuming that Dhananjoy was innocent, hanging him meant no illegality because a judicial decision is always treated as truth – judicium semper pro veritate accipitur – a judgment is always taken for truth – otherwise there would be no finality of litigation and it is in public interest to end all litigations. On the other hand, supposing that no trial was conducted, no forum for appeal ever existed and, instead of the trial Court and the appellate Court, namely, the High Court, the Supreme Court under Article 136 of the Constitution were to appoint a Committee of, say, three retired High Court Judges, all persons of exceptional integrity, ability and competence, and were to report to the Supreme Court whether Dhananjoy had committed murder and assuming that the said Committee, after taking evidence from witnesses, found him guilty and awarded him death sentence, such a judgment is one rendered void ab initio because the Supreme Court had no jurisdiction to substitute itself for the trial Court, the fact-finding authority, and the appellate Court, the High Court.
3. I am constrained to make the above comparison in the light of the judgment of the Supreme Court in the Maradu case ordering demolition of four buildings for alleged violation of CRZ-III. If the Supreme Court was acting upon as a Court of appeal against the decision of the Maradu Panchayat ordering demolition of the buildings, which had become final, authoritative and binding inasmuch as all the authorities below, namely, the Tribunal, the Single Judge and the Division Bench of the Kerala High Court confirming the order of demolition, then it would have been well within the province of the Supreme Court to order demolition because the Court is free to err within its jurisdiction. It is said res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum – a thing adjudged makes what was white, black; what was black, white; what was crooked straight; what was straight, crooked.
4. That res judicata pro veritate accipitur – a matter which has been tried and adjudicated should be accepted as true – is a fundamental principle of law. Stated in simple words, a judicial decision, whether right or wrong, is final and binding between the parties to the lis or res inter alios acta alteri nocere non debet – things done between strangers ought not to injure those who are not parties to them – a decision in a case between A and B will not bind C and D who were not parties to it. Even the concept of judgment in rem, namely, a judgment binding on all persons, whether they are parties to those proceedings or not, and a judgment in personam, meaning a judgment binding only between the parties to the lis only, has a limited application in the sense that whether a judgment of a Court has altered the status of a party to the proceeding, that will be binding on the rest of the world, for instance, where a suit between husband and wife seeking divorce is rejected, such a judgment is a judgment in personam binding only between the parties thereto and in a case where divorce is granted, the parties can enter into a marriage with A and B whose marriage the Court has dissolved. In the SLP before the Supreme Court in the Maradu case, none of the home buyers was a party. If the Supreme Court were to allow the plea of the Kerala Government against the order of the Kerala High Court quashing the show cause notice issued by the Municipality, all that it could have done within the framework of law was to allow the Municipality to proceed in furtherance of the show cause notice which it had issued. But the Court, instead, ordered demolition of the flats/buildings, which meant the flat owners being thrown out of their homes and their homes being reduced to rubbles.
5. The Supreme Court has no jurisdiction to pass such an order because in the appeal before it the only controversy involved was whether or not the Corporation/Municipality was right or wrong in issuing the show cause notice alleging violation of CRZ. I am told that the Court probably noticed this aspect and even had suggested remanding the matter to the High Court to determine the issue after affording an opportunity of hearing to the flat owners. What made the Court to deviate from this judicial procedure, which it is bound to follow, was the Kerala floods of 2018. With utmost respect, I beg to submit that the Court was swayed by emotion. It went on to assume that the unprecedented flood of 2018 was because of structures which have been built in violation of CRZ norms, a total misconception.
6. It is unfair to blame the Court, except to say that the Court allowed itself to be swayed by considerations of environmental concerns, knowing not and not being told the ground reality that the buildings in question have nothing to do with the 2018 floods. At Maradu, where the buildings are situated, the water level did not rise even by an inch during the floods. On the contrary, these buildings provided shelter and rehabilitation to thousands of people whose houses were sunk or swept away in the floods. The floods could be due to climate change, but nobody knows the exact reason for certain. Even if it is due to climate change, that is because the Americans, Europeans and Chinese use fossil fuel because millions and millions of evergreen forests in Brazil and Africa are destroyed for farming. It is said, in the days of Noah (Bible) there were unprecedented floods in which almost the entire lives were perished. About 100 years before, according to Malayalam calendar era in 1099, there was yet another unprecedented flood with the Munnar town at 5,000 feet above sea level being entirely washed away. (In the said flood) The Periyar River changed its course resulting in the death of hundreds and thousands of people. The Supreme Court cannot be blamed for proceeding on such a misconception, something entirely extraneous in the adjudication of the appeal before it wherein only one issue fell for consideration, namely, whether or not the High Court was right in quashing the show cause notice. Nobody told the Court that it has no jurisdiction to substitute itself for the fact-finding or appellate authorities under the Municipality Act, the appellate authority contemplated being a judicial Tribunal.
7. In a constitutional democracy as ours, people are sovereign. The sovereign power of the people to frame policies and enact laws for the implementation of the policies is executed through their elected representatives. The executive Government is accountable to the people through their elected representatives for its every action, every deed, nay, every moment. The function of the judiciary is to adjudicate the disputes between citizens and citizens, citizens and State and State and State; it has no power to legislate; the province of the judiciary is to declare/interpret law and not to make it, except in the interstice, to fill in gaps. By its judgment and order dated 8th May, 2019 the Supreme Court ordered demolition of the buildings, entertaining a Writ Petition by the affected parties a Vacation Bench of the Court stayed operation of the said judgment, directing the case to be listed before the Bench headed by Hon’ble Shri Justice Arun Misra. The Bench headed by Hon’ble Shri Justice Arun Misra did not take kindly the action on the part of the affected parties moving before the Vacation Court and securing an interim order. It did not mince words and by order dated 6.9.2019 directed the Chief Secretary of the State to remain present in the Court to explain as to why the flats/buildings were not demolished. On 23rd September, 2019 Shri Harish Salve represented the State Government. The Bench, in manifest conflict with the fundamental principle that the province of the Court is that of an adjudicator (a Judge) and not an actor or executive, demanded why its orders were not complied with. Neither the Chief Secretary nor Shri Harish Salve uttered a word, which they could have in all humility and with utmost respect to the Court, that enforcement of the provisions of the Municipal Act, which would also take within its ambit compliance of the CRZ norms, is in the exclusive province of the Government. They failed to bring to the notice of the Court, for, none did it before even in the curative petition settled by ‘eminent’ lawyers, that Section 406 of the Kerala Municipality Act, which empowers its Secretary to order demolition and also provides for the person aggrieved to seek regularization, it is open to the Government to regularize and in case it declines to do so, the party aggrieved can challenge the said order before the judicial Tribunal created under the Kerala Panchayat Raj Act. It appears that the Chief Secretary was mortally afraid of being hauled up for contempt and wanted to save his skin. He accordingly undertook to come forward with a plan of action on demolition. The case was accordingly adjourned for further hearing to 27th September, 2019.
8. The Court, it seems, was under the erroneous impression that demolition of the buildings, which suffer from no structural or other defects, is for securing the lives and limbs of the flat owners. However, the Chief Secretary and Shri Salve failed to bring to the notice of the Court that no threat to the lives and limbs of the residents could even be remotely thought of; that the buildings are sound and safe and that their demolition would mean waste of valuable assets, in the construction of which tons of cement, sand, steel, wood, marble and great amount of human labour have been utilized, the destruction of which would cause enormous environmental damage, health hazard, mental agony and air pollution to thousands of people in and around the buildings, literally to every sane and right-thinking people of the State, except those who are sadistic, destructive and negative in their approach. Neither the chief secretary nor Shri Salve brought it to the notice of the Court that the people of Kerala in social media and otherwise compare the demolition of the buildings as the act of the mythical Naranathu Branthan (a person with least mental balance, a character in Malayalam folklore, who was considered to be a divine person, who pretended to be mad. His chief activity consisted of rolling a big stone up a hill and then letting it fall back down). They believe that the structures could be utilized for medical college, educational institutions or housing for thousands of people who are rendered homeless in the natural calamities occurred in the State of Kerala continuously for two years or for thousands of migrant labourers who live in extremely inhuman conditions. To allow the demolition to happen, which comes close on the heels of the decision of the Supreme Court in Sabarimala case, which has caused enormous pain and agony to millions of devotees of Lord Ayyappa living in different parts of the world, and in the factional fight between the Patriarch faction and the Orthodox faction where the Patriarch faction is on the roads, would certainly lead to erosion of the faith and esteem of the Keralites in the Supreme Court as the ultimate Temple of Justice.
9. To err is human and Judges are humans. Keralites, the most literate people of the country and generally at least one member of their family is settled abroad, though are deeply pained by the decision of the Supreme Court in the Maradu case, still repose their utmost faith in the institution of judiciary. They hope, pray and trust that the Supreme Court will hear the flat owners, undo the injustice caused and render them justice. With utmost respect, nobody can brush aside the grievance that the flat owners are denied a patient hearing because the review petitions were all heard and dismissed in Chambers and when the case was listed for hearing on 27th September, 2019 the Court, with utmost respect, showed little patience to hear them.