In his book titled “Off the Bench” in Chapter under the caption “Justices and justicing”, legendary Justice Krishna Iyer had lamented about the plight of millions of slum dwellers, who prayed ‘Save us from the Courts’, whose shanties within the precincts of Sanjay Gandhi National Park, Mumbai, were bulldozed in execution of an order of the Bombay High Court in a PIL on the premise that they were illegal. I was woken up from my sleep on the morning of 8th of May 2019 by an old client saying that his son’s flat at Marad, Kochi, has been ordered to be demolished by the Supreme Court with a direction to the authorities to report compliance within a month. The only question I asked him was whether he/his son was heard by the Supreme Court because I could not imagine the Court ordering demolition of one’s residential home without the affected person being heard and without hearing his woes. Had the affected persons been before the Court and it had occasion to hear their agonies and pains, sorrows and tribulations, it would not have passed such an order. My sixth sense was proved right; my client’s son and hundreds of other flat owners in the five apartments at Marad, who are similarly situated, were neither parties to the proceeding before the Supreme Court nor were they ever heard.
2. We are the largest democracy in the world; our Constitution embodies all those rights which are considered to be fundamental and the principles of natural justice without the observance of which there could be no fundamental rights. The Supreme Court of India is considered to be the most powerful Court on the planet. Our Constitution provides for judicial review; every legislation and executive action, if arbitrary, nay, failed to observe the principles of natural justice, is unconstitutional and void. Our High Courts and the Supreme Court are the guardians and protectors of the fundamental rights. In the case of demolition of the shanties of the slum dwellers in Mumbai in the year 1996, a visit to the unfortunate site where many had even lost their lives during eviction, Justice Krishna Iyer was heartbroken and could not control his tears. Thousands and thousands of slum dwellers were rendered homeless without being provided with any alternative accommodation. However, the occupants of Campa Cola building in Mumbai, which too the Supreme Court ordered to be demolished – not the entire structure but those which were illegal – were saved, thanks to Shri Fali Nariman whose presence could make a difference, which led the Court to eventually recall its order of demolition.
3. As was the case with the half a million occupants of Sanjay Gandhi National Park in Mumbai and the Tansa Pipeline slum dwellers; so too of Campa Cola, whose structures were ordered to be demolished, in Kochi (Marad flats), all the owners or inhabitants of flats, who number more than 500, were not parties to the proceeding and were not heard. It is unbelievable how the Supreme Court, the sentinel qui vive of the fundamental rights, has ordered demolition of the residential homes of about 500 flat owners without a notice to them and without hearing them. I came across in the social media; so too in the deliberations I had with some of my lawyer colleagues in Kochi, many a suggestions and many a solutions. Some I found to be tenable and some not having any foundation in law. I thought of penning these few lines to put in the public domain of what I believe to be the right course of action.
4. I will categorize the course of action which I suggest into two, namely, (a) the most appropriate course of action, which has its foundation in jurisprudence may not be considered to be realistic, for, the law in theory and the law in practice, at least so far as our country is concerned, are poles apart and (b) the conventional or more appropriately stated the practical remedy, if I were to use the term ‘remedy’ not in a pure legal sense but from a common sense parlance. It is a fundamental principle of law that if a judgment of a Court, even of the highest Court of the land, is rendered without jurisdiction, is in violation of the principles of natural justice, namely, without hearing the parties who are or will be adversely affected, is in violation of express statutory provisions or in ignorance thereof, then such a judgment is a nullity. The correctness of such a judgment and order can be questioned “whenever and wherever”, a terminology used by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 34, it is sought to be implemented, either in a direct proceeding or in a collateral proceeding.
5. The aforesaid legal position was reiterated by the Supreme Court in a catena of judgments, the most celebrated being in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 in which a Seven-Judge Constitution Bench of the Supreme Court set aside the judgment of a Five-Judge Constitution Bench in a collateral proceeding, namely, in a SLP arising out of a judgment of the Bombay High Court wherein the validity of the judgment in the Five-Judge Bench in the very Antulay’s case was questioned, which plea the High Court was pleased to reject. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 in which a Seven-Judge Constitution Bench of the Supreme Court by a majority of 6:1 was pleased to hold that even a Constitution Bench of the Supreme Court cannot confer jurisdiction upon itself where the statute has not provided so and a judgment rendered by it, if void ab initio for want of jurisdiction and non-observance of the principles of natural justice, could be challenged even in a collateral proceeding.
6. The judgment in A.R. Antulay, cited above, is founded on the first principle of jurisprudence that qui aliquid statuerit parte inaudita altera aequum liquid dixerit haud aequm secerit – he who decides without the other side being heard, although he may have said what is right, will not have done what is right. It is in equal conformity with the maxim lex iniusta non est lex – an unjust law is no law at all – the proposition of St. Augustin, which is considered to be the foundation on which the doctrine of nullity is built. If the judgment of the Supreme Court ordering demolition of the Marad apartments is one rendered void ab initio and without hearing the parties affected, the most appropriate forum/remedy, in my opinion, is by way of a civil suit in the Sub-Court, Ernakulam. Many would wonder whether such a course of action is legally permissible; is it not weird, will not it amount to even contempt of the Supreme Court? The answer is, in our constitutional scheme, contrary to the popular misconception, the Civil Court is the Court of record of plenary jurisdiction competent to adjudicate any dispute of a civil nature under the sun, including the constitutionality of a statute. In actual practice, however, if one were to institute a suit in the Sub-Court, Ernakulam, wherein the constitutionality of a statute is challenged, I doubt whether the Registry will even be willing to take it on record.
7. According to me, each and every flat owner whose rights are adversely affected by the order of the Supreme Court is entitled to protect their rights, the order of the Supreme Court being in a proceeding where they were not parties and thus its judgment not binding on them. It is well settled in law that a judgment of a Court or Tribunal, howsoever erroneous it could be, will be binding on the parties thereto, it constituting to be a res judicata, provided the Court had jurisdiction to deal with the subject matter, it had observed the principles of natural justice, it had acted in accordance with the statutory provisions and not in ignorance thereof. No one is bound by a judgment in the ordinary course unless he is a party to the proceeding culminating in the said judgment, the principle applicable being the doctrine of res inter alios acta alteri nocere non debet, meaning a transaction between others does not prejudice one who was not a party to it or things done between strangers must not cause an injury to people who are not parties to
8. A legal proceeding can broadly be classified into two, namely, inter omnes and inter partes. Inter omnes proceedings are hardly in practice, for, such proceedings are like the one instituted by the Attorney General for larger public good as contemplated in Section 92 of the Civil Procedure Code. The proceeding which we often come across, even those in the nature of representative suits, are inter partes proceedings. A judgment in an inter omnes proceeding is always a judgment in rem and it will bind on those who are not even parties thereto. The judgment of the Supreme Court in the Marad demolition case was not one which is instituted inter omnes. On the contrary, it was inter partes. A proceeding which is inter partes, whether it will only bind the parties or those who are not parties will depend upon the nature of the remedies granted. If the remedy granted in the judgment is one altering the status, title etc., of the parties to the lis, then such a judgment is a judgment in rem. All other judgments, even in proceedings which are inter partes, are judgments in personam and will bind only the parties to the proceeding. In the Marad case, the judgment of the Supreme Court is one inter partes; it is in the nature of a judgment in personam and it will not bind anyone who is not a party to the proceeding or a privy thereto.
9. As stated above, a judgment in a case would only be binding on the parties to the proceeding. An exception to the said principle is made in judgments which are in the nature of judgments in rem to subserve larger public interest, for instance, a judgment in a case between A and B, husband and wife, where divorce is granted, which is a judgment in rem, for, third parties are free to enter into a marriage with the husband or wife, who are freed of their matrimonial relationship. Where, however, divorce is declined, there is no change of status and a judgment in such a case is one rendered in personam.
10. Actus curiae neminem gravabit – an act of the Court shall prejudice no one – is a fundamental principle of law. To put it differently, no person can be deprived of his life, liberties and properties without due process of law. The instant case, in substance, is founded on the allegation that the apartments in question were constructed in violation of the Coastal Zone Regulations. If, indeed, the apartments in question were constructed in violation of the Coastal Zone Regulations, the authority competent to take cognizance thereof and impose penalties, including demolition of the structures, is the Municipal Corporation of Marad. The persons aggrieved thereby are primarily the flat owners and occupants of those apartments and the Builders. The Municipal Corporation has till date not issued any notice to the flat owners. The Stop Memo issued by the Corporation, which the High Court was pleased to set aside, was issued against the Builders. Had the Municipal Corporation issued notices to the flat owners and afforded them an opportunity of hearing in any action which it proposed to take, the flat owners individually and collectively, are vested with the right to challenge the same in a Court of competent jurisdiction and if the decision of the Municipal Corporation was to demolish the apartments, they could have challenged the same. If such a challenge was ultimately lost before the Supreme Court, then face the demolition, for, a decision of the Supreme Court as the final Court of appeal is final and binding. But in the instant case, the flat owners were not served with any notice, to which they are entitled because they are the real “persons aggrieved”. Since no notice was served, they had no occasion to challenge any action which they were to face if the flats indeed were constructed in violation of the Coastal Zone Regulations and therefore are liable to be demolished, if that if the fate to be met with for such violations. I am afraid to say that the Supreme Court failed to take notice of the fundamental principle of law, which could be traced as back as in Magna Carta, that no person shall be deprived of his life, liberties and properties except in accordance with the law.
11. As aforesaid, since the judgment in question is a nullity, it is open to challenge in a direct proceeding, namely, by way of a review and by way of a collateral proceeding, namely, a suit. Though a suit before a competent Civil Court is the most appropriate procedure, for practical considerations it cannot be resorted to. The next option, therefore, is to file a review petition. However, the Registry of the Supreme Court will raise the objection that no review at the hands of the flat owners will lie because they were not parties to the SLP in which the order to demolish the apartments was passed. This could be overcome by a petition seeking leave to file a review petition as a third party. As per the Rules of the Supreme Court, review petitions will not be posted for hearing in the open Court. They will be disposed of by circulation. With utmost respect, I beg to submit that hearing of the review petitions in Chambers in majority of cases is an exercise in futility. Thousands of review petitions are filed every year. Not even 1% thereof is heard in the open Court, and the review petitions are invariably dismissed almost by way of a cyclostyled order. Review in Chambers being of little use, the flat owners could make a request to the Supreme Court to place the review petition for hearing in the open Court. Let me not be pessimistic; assuming that the Court orders the review petition to be heard in the open Court, even then a review could be on the narrow premise that the judgment in question is vitiated by errors apparent on the face of the record. That the flat owners were not heard and the judgment sought to be reviewed is in violation of the principles of natural justice are valid grounds to seek a review. But a review cannot be equated with an original proceeding. The original proceeding in the instant case is the Writ Petition instituted by the Builders before a single Judge of the Kerala High Court. The flat owners had a right of hearing in the said Writ Petition; so too in the Writ Appeal; so too in the SLP. Right of appeal is a vested right. Even an open Court hearing of the review petition cannot undo the injustice of having denied a hearing before the learned single Judge of the Kerala High Court, its Division Bench and the Supreme Court.
12. Ubi jus, ibi remedium – where there is a right there is a remedy – is a fundamental principle of law. The flat owners as persons aggrieved are entitled to assert their rights, adduce evidence in support of their rights and seek remedies. Therefore, if the review petition is allowed to be treated as an original proceeding i.e. of a fact-finding body, that could, to a great extent, undo the injustice caused to the flat owners. Against such an order, the flat owners are entitled to a right of hearing. Though there are innumerable cases where parties are adversely affected by orders of the Supreme Court which are rendered behind their back, the procedure suggested by me as above has never been adopted.
13. There is a perception that the Supreme Court cannot be criticized and doing so will amount to contempt of Court. This is a misconception. Right to dissent is the essence of a democracy; the right to criticize has been recognized even prior to Jesus Christ in Roman law which we follow, the maxim being de fide et officio judicis non recipitur quaestio; sed de scientia, sive error sit juris sive facti – the honesty and integrity of a Judge cannot be questioned, but his decision may be impugned for error either of law or fact. Here I am not criticizing the Judge, but the judgment, which is well within my constitutional right.
14. The course of action for filing a review petition, as suggested above, being one having great limitations in jurisprudence, the best course of action is to institute a Writ Petition under Article 32 of the Constitution, may be, in addition to a review petition. It is well settled that no writ will lie against a judgment of a co-ordinate Bench or of a superior Court. Therefore, the judgment in question cannot be assailed by means of a writ of certiorari. However, that should not be a handicap because the jurisdiction under Article 32 is no longer confined to grant of the writs named therein, namely, writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Under Article 32, declaratory reliefs are also granted. Even Acts of Parliament are declared as unconstitutional by invoking Article 32, though only a suit would ideally lie. There are innumerable instances where Acts of Parliament are declared as unconstitutional and void under Article 32. The judgment in Judges-1 case was set aside in Judges-2 case, though by a larger Bench. The judgment of the Five-Judge Constitution Bench of the Supreme Court in A.R. Antulay was declared to be void by a Seven-Judge Constitution Bench. That was in a collateral proceeding, namely, a SLP arising out of an order of the Bombay High Court. In Supreme Court Bar Association of India v. Union of India, AIR 1998 SC 1895, a judgment of a Three-Judge Bench which disqualified the then Chairman of the Bar Council of India from practising, it having found him guilty of contempt of Court, was interfered with in a petition under Article 32. A petition under Article 32, in reality, is a suit. However, the flat owners, for practical reasons, cannot be advised to file a suit in a Civil Court seeking a declaration that a judgment of the Supreme Court is void ab initio, being one without notice to them, without hearing them and entirely behind their back because such a suit will never be entertained by the Civil Court, not because a suit will not lie in law, but because of the popular misconception, even of ‘eminent jurists’ that no such suit will lie. A relief which can be sought in a civil suit can well be claimed in a petition under Article 32, for, the Supreme Court too falls within the meaning of the term “State” as embodied in Article 12 of the Constitution and the prohibition in Article 13(2) that the “State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”, namely, fundamental rights, equally applies to judgments and orders of the Supreme Court.
15. So far I have not said anything about the merits of the case. The common man will be aghast to be told that the Supreme Court has ordered demolition of the apartments, which will render about 500 families homeless, because the apartments were constructed in violation of the Coastal Zone Regulations as it stood when the building plans were approved when Marad was a Panchayat. In 2010 Marad became a Municipality. When Marad was a Panchayat, it came under CRZ-III and when it became a Municipality it fell under CRZ-II. The Regulation applicable as of the date of the judgment of the Supreme Court; so too today, is CRZ-II and in terms thereof the apartments are all legal. If the apartments are to be demolished in terms of the Supreme Court judgment for violation of the Coastal Zone Regulation and the flat owners were to reconstruct the apartments, they can do so in the very same place where they stand today and, if not, a few meters away from the backwaters, for, while CRZ-III requires… metres to be maintained from the water bodies, CRZ-II only requires .. metres. In other words, if one were to think of the law to be implemented in its letter, forgetting its spirit and reason, it is as if what Horace had said, namely, parturient montes, nascetur ridiculus mus – mountains will be in labour, and an absurd mouse will be born (all that work and nothing to show for it).