Demolition of five apartment buildings at Maradu, Cochin

>>Demolition of five apartment buildings at Maradu, Cochin

Demolition of five apartment buildings at Maradu, Cochin

Mathews J Nedumpara
President, NLC

6th October, 2019

To

1. Hon’ble Shri Pinarayi Vijayan
Chief Minister of Kerala.

2. Shri Ramesh Chennithala,
Leader of the Opposition,
Government of Kerala, Trivandrum.

3. Shri Oommen Chandy,
Former Chief Minister of Kerala.

4. Shri Muraleedharan,
Minister of State for External Affairs

5. All Members of Parliament from Kerala.

Honourable Sirs,

Sub: Demolition of five apartment buildings at Maradu, Cochin, for alleged CRZ norms upon orders of the Supreme Court without hearing the 350 and odd home buyers, bypassing the Kerala Municipality Act and the Kerala Panchayat Raj Act, which vest in them the right of regularization of the constructions. ALL PARTY DELEGATION TO MEET THE PRIME MINISTER – regarding.

It is unnecessary for me to delve in great elaboration into the facts of the case leading to a situation where many home buyers are made to leave their homes in the face of the forcible eviction and the very prospect of the buildings being demolished in compliance of an order of the Supreme Court, which is rendered in gross violation of the principles of natural justice, express statutory provisions, namely, the Kerala Municipality Act and the Kerala Panchayat Raj Act, and the Court assuming to itself the province of the executive, which is forbidden. Suffice is to say that while passing the said order the Court did not take into account the following cardinal issues:-

(a) The flood of 2018 was in no way on account of construction of structures in violation of CRZ norms. Maradu, where the apartments in question are situate, the water level did not increase even by an inch during the said flood.

(b) The apartments in question provided shelter to thousands of people whose homes were immersed in water;

(c) The flood was primarily due to the unscientific management of the dams; the Kerala State Electricity Board allowed the water level to reach its brim and the sudden opening of the shutters of the dams meant the water level in the rivers rising unexpectedly;

(d) The Court in ordering demolition of the building has, with utmost respect, usurped the jurisdiction of the executive and completely bypassed the Kerala Municipality Act under which the Municipal Secretary is the fact-finding authority who is empowered to order even demolition if there is violation of building rules and his decision is appealable under the and the Kerala Panchayat Raj Act. The person aggrieved can seek regularization of the construction and if the Government declines regularization, that decision is appealable before a Tribunal presided over by a Chief Judge. If the authorities under the said Acts fail to act according to law, a suit will lie, for, the bar of a suit is not absolute. Undoubtedly, a writ and even a writ appeal will also lie. Only thereafter the question of the Supreme Court exercising its authority under Article 136 of the Constitution arises;

(e) Nobody informed the Hon’ble Court, as is evident from its order dated 8th May, 2019, that appointment of a Committee, which the Court has resorted to determine the only dispute, namely, whether or not the law applicable is CRZ-III or CRZ-II, would amount to acting against the express statutory provisions, which the Court is duty bound to follow, and that the Court has no jurisdiction to appoint such a Committee in substitution of the authorities under the aforesaid Acts;

(f) Maradu became a Municipality in the year 2011, which would mean that at least with effect from that year the law applicable is CRZ-II. The only lacuna was that the Coastal Zone Management plan was to be approved by the Central Government;

(g) It is well settled that procedural law will always have retrospective effect; so too that laws which impose restrictions, burdens, obligations and penalties are to be construed in favour of the citizens. Therefore, by no stretch of imagination the Court could have held on 8th May, 2019 that legality of the buildings in question on that day ought to be decided by applying the law prior to 2011 when the buildings were constructed. The effect of the change of law, which is the result of Maradu becoming a Municipality, is that the buildings in question, which were illegal prior to 2011, becoming legal on the said day. There is no discussion whatsoever about this in the judgment;

(h) Nobody brought to the notice of the Hon’ble Court that 350 and odd home buyers, whose houses were ordered to be demolished, were not parties to the appeal decided by the Court; that a judgment of a Court, if rendered without observing the principles of natural justice, about which there can be no two opinions in the instant case, so too by bypassing the statutory provisions, is one rendered void ab initio;

(i) The Court failed to notice that the State of Kerala in many ways is distinct and peculiar, which would be noticed by anybody who visits it. The CRZ norms, which put unreasonable restrictions, are unrealistic and anti-people. Unlike other States, Kerala has 44 rivers, backwaters, fresh water lakes, which have the size of 1/6th of the State. If the CRZ norms are to be followed, that would mean no development activity in the State.

2. The National Lawyers’ Campaign for Judicial Transparency and Reforms (NLC), an organization of first generation lawyers, the sons and daughters of the common man, which has as its prime objective a judiciary which is duly inclusive in nature inasmuch as instead of the current scenario where the kith and kin of Judges and senior lawyers monopolize the higher judiciary, the sons and daughters of the common man, who can sense the agonies and pains of the fellow citizens and could endeavour to wipe out the tears from every eyes, aggrieved by the orders of the Supreme Court, as aforesaid, sought to institute a petition in the Supreme Court for recall of the order of demolition, a calamity of injustice which cannot be adequately expressed in words. The said petition was refused to be even taken on record by the Registry of the Supreme Court when tendered across the counter. I have addressed a letter to the Hon’ble Chief Justice of India in this connection and am awaiting His Lordship’s response thereon.

3. The calamity, which the demolition of the buildings is, has to be avoided through all constitutional and legal means, particularly since in our constitutional scheme the judiciary cannot be an actor, a prosecutor and a Judge, all at once. The order of the Supreme Court constitutes a clear encroachment on the province of the executive. That there is violation of the CRZ norms is completely unfounded. Maradu became a Municipality in the year 2011. Therefore, when the Supreme Court rendered its judgment on 8th May, 2019, the law applicable is the law in force on that day, namely, CRZ-II. There was, therefore, no justification for an inquiry as to whether the law applicable is CRZ-II or CRZ-III. Besides, the Court had no jurisdiction to appoint a Committee to find out the same, as it did. I beg to submit with utmost respect that I cannot imagine of a judgment which is more erroneous on all counts than the one rendered by the Supreme Court on 8th May, 2019.

4. The failure was on the part of the Government to assert that the Court has erred. The solution is simple and it is the bounden duty of the political executives, which term I use to include the Opposition parties, as well. The State Government should come forward with a notification regularizing the constructions concerned, even assuming for the sake of bringing about a solution that the structures are illegal, which they are not. The Central Government should by notification make it expressly clear that CRZ-II shall apply with retrospective effect, namely, 2011 when Maradu became a Municipality. The State Government and the Attorney General representing the sovereign should move the Supreme Court for review of the judgment dated 8th May, 2019. If the political leadership decides to act, which is its bounden duty, a solution to the current crisis, which has brought in unthinkable misery, not merely to the home buyers but to the entire people of Kerala; so too irreparable damage to the institution of judiciary, for, the common people cry out in despair that the Court has ordered demolition of the buildings without even affording the home buyers a hearing, could be found out.

5. I appeal to Your Honourable selves to do the needful on the lines suggested by me above, namely, an all party delegation to meet the Prime Minister.

With respectful regards,

Yours sincerely,

Mathews J. Nedumpara,
President,
The National Lawyers’Campaign For Judicial Transparency and Reforms
98205 35428

By | 2021-06-28T12:30:32+00:00 October 25th, 2019|blog|0 Comments

Leave A Comment