Saving the Maradu Homes- Amendment of the CRZ to give it retrospective effect is the simplest and ethical solution

The Complete text of the article written by Shri Mathews J. Nedumpara which is published in the Times of India, today.

Saving the Maradu Homes- Amendment of the CRZ to give it retrospective effect is the simplest and ethical solution

The supreme court ordered demolition of the 5 Buildings (apartments) at Maradu, Cochin on the finding that, it is in violation of CRZ-III. The Supreme court did not take notice of the fact that by notification issued in 2011 by the Central Government, Maradu was brought under the CRZ-II which would mean that if the buildings in question if were to be demolished in compliance of Supreme Court order today, the very same building could be reconstructed in the very same place without attracting any CRZ violation. Maradu today falls under CRZ-III which means that the violation frowned upon by the court is purely technical.

Rules are framed by the executive for enforcing the Act of Parliament. Rules are in the province of procedural law. It is a fundamental principle of law that the procedural laws will always take retrospective effect. Therefore, the rules which are applicable in respect of the buildings in question are the rules in force today, namely, CRZ-II and not CRZ-III. Therefore, there is no CRZ violation at all. The effect of repeal or amendment of an existing law is that ‘except for things past and done’, it is as if the repealed or amended law never ever existed in the statute book. If that be so, there can be no case of violation of CRZ-III. I am conscious of certain judicial pronouncements which are contrary to the first principles of jurisprudence, supporting a contrary view. However, that is not an insurmountable difficulty. All that is required is to amend the rules making it expressly clear that, the 2011 notification will have retrospective effect.

The Supreme Court by its order dated 8.5.2019 ordered demolition of five buildings (apartments) at Maradu in Cochin, for violation of Coastal Zone Regulations (CRZ) and to report the compliance of its order within 1 month. The court order came as a bolt from the blue for hundreds of flat owners, many of whom are NRIs working in different parts of the world. They couldn’t believe that the Supreme Court could pass such an order, for neither the court, nor any authority, ever issued any notice to them informing of the alleged violation of the CRZ or affording them an opportunity to be heard. They were spellbound, not they alone, millions of fellow malayalees. Then only they, so too, the malayalees came to know that the Maradu Municipality had issued a show cause notice to the five builders alleging violation of CRZ. And that the builders challenged the notice in the Kerala High Court, and the HC decided in favour of the builders. The Kerala Coastal Zone Management Authority (KCZMA) challenged the order of the Kerala HC in the Supreme Court and the Supreme Court allowing the appeal, ordered demolition of the flats.

The procedure which the Supreme Court adopted in deciding the SLP of the KCZMA was, shocking though, by bypassing of the Kerala Municipality Act and the Rules made under, which the Court has no jurisdiction to do. In our constitutional scheme, the executive is sovereign in its domain, so too the parliament, so too, the judiciary. Neither is the executive superior to the judiciary, nor the judiciary superior to the executive.

The function of the court contrary to the erroneous perception, which is the fallout of PIL, is to decide lis or disputes. The court has no power to decide matters of executive and legislative policy. Assuming that the Supreme Court while hearing the SLP of the KCZMA has found that there is a violation of the CRZ, then the court is well within its jurisdiction to allow the appeal, which will mean restoration of the show cause notice issued by the municipality. This would mean that the municipality will be free to proceed further with the show cause notice issued by them on the premise that the apartments are build in violation of CRZ-III and even order demolition. Instead, the court, failing to notice that it is bound by the statutory provisions, constituted a committee to report to it after due inquiry as to whether or not there is a violation of CRZ-III. The committee purportedly conducted an enquiry and reported to the court that there is a violation. The court acting on the report of the committee ordered demolition. This has calamitous ramifications. It meant the Supreme court usurping to itself the powers vested in the fact finding, appellate and revisional authorities and vesting it in itself and acting in substitution of the statutory authorities. Had the court not done so, the municipality would have conducted an enquiry,nay, a trial, as contemplated by law. In which case the municipality would have certainly issued notice to the flat owners. Assuming the improbable, namely, the Muncipality failing to issue notice, the flat owners would have themselves intervened and sought to be heard. Assuming that the decision was against the flat owners, namely that the Municipality had ordered demolition, they could have availed of the remedies of appeal and revision. Assuming that at all stages they had lost, and the Muncipality’s order of demolition of the flats in question had become final, then they could have sought correction by way of a Writ Petition in the Kerala HC, so too writ appeal or even a suit. Assuming that they had lost everywhere, and they faced the threat of their homes being demolished, they could have sought justice under Article 136. Assuming on the contrary that the appellant and revisional authorities, so too, the single bench and the division bench of the HC had decided in favour of the flat owners, the Muncipality, which had passed an order of demolition, as the party aggrieved could have challenged the order of the HC under Article 136 in the SC. In short, the Supreme court’s jurisdiction in a matter as the instant one, involving construction of apartments in violation of law is that of the highest court of appeal of the land.

However, in the instant case, the Supreme Court in directing demolition of the apartments has assumed to itself the role of the executive, so too of the judiciary, it being an ‘actor’ and ‘judex’ (judge) both at once which is forbidden.

The “Supreme Court is supreme, not because it is infallible, it is infallible because it is supreme” said by Chief Justice Marshall. The judgements of the supreme court are final, authoritative and binding, no matter whether it is right or wrong.It is right even if it is wrong. But this principle has a few exceptions. If the Supreme Court acts without jurisdiction, or in excess of jurisdiction or failed to observe the principles of natural justice or acts in violation or ignorance or express statutory provisions, it’s judgements are not final or authoritative, but is one rendered void ab initio, still born, one which never existed in the eye of law. Such a judgement is amenable to correction by way of a review as provided under Article 137. So too, under Article 32, though instances where the court has corrected its manifest error under Article 32 are only few indeed. The constitution does not provide for a curative petition. That is a creation of judicial legislation, namely, Hurra v Hurra. The said judgement does not provide for any new ground for Review than those already recognized except to re-emphasize that even where a Review Petition was rejected, it is amenable to correction by way of a curative Petition if there is manifest injustice. For instance, as in the instant case where the parties affected were not heard or the judge was biased or where the settled law needs a reconsideration a Curative Petition will undoubtedly lie.

In other words, the means of the correction of the grave error which the judgement of the Supreme Court, unfortunately is, is far from being exhausted. The Supreme Court, I have no doubt, will certainly recall its order.

What makes one feel frustrated is the attitude of the state Government. It has failed to remind itself that it is accountable to its own people, which includes redressal of even injustice arising out of erroneous judicial verdicts. It is shocking that it did not care to bring to the notice of the court that the entire Muncipality Act and the Rules made there under were bypassed, that the Supreme Court had no jurisdiction to constitute a committee to report to it as to whether there indeed is a violation of the CRZ, for that had meant denial of the benefit of the due process of law which the Municipalities Act confer upon the flat owners. So too, that the court’s order is one rendered void ab initio for the added reason that the judgement was one rendered behind the back of the flat owners. That the question whether the flats were to be demolished or not is one which falls in the exclusive domain of the municipality, nay the executive. The Government is duty bound to seek correction on the ground that the Muncipality has even the power of regularisation and assuming that there was in fact CRZ violation in the larger public interest, demolition of the structure cannot at all be the only penalty that can be imposed.

Since the Supreme Court has directed the Government of Kerala to carry out the demolition before 20th of September, failing which the Chief Secretary is to be present in court on 23rd, to assume that the Muncipality could regularise the violation, if any, is too unrealistic. But the government has all the power to regularise the apartments in question by means of an executive order. The sovereign (executive) like private citizens, is free to do whatever is not expressly prohibited by law. The residuary powers of the executive are well recognized, known as the ‘Sir Ramsay Doctrine’. If the government is afraid of criticism in the exercise of its legitimate executive powers to wipe out the tears of the flat owners, which is its bounden duty, then it should issue an ordinance regularizing the apartments. The legislature is supreme in its province and where manifest injustice results from judicial pronouncements, legislation is the remedy.

I am not oblivious of the fact that there is no violation of the CRZ at all, for Maradu today is a Muncipality and the norms applicable are that of CRZ-II. The violation alleged is on the manifestly erroneous presumption that Maradu is still a panchayat where CRZ-III is applicable.

The urgency with which the apartments are sought to be demolished defies all sense of reason, logic and compassion. If the flats are allowed to survive, no further damage will be caused to the environment. Demolition of the flats, on the other hand, would mean precious housing stock being destroyed, which could be availed for many a profitable use, and further irreparable and wholly avoidable injury to the environment.

Mathews J. Nedumpara
President
NLC