Law and the Layman - II
by P M Ravindran on 24 Oct 2019 2 Comments

Let me put it straight: the apex court verdict in the matter of demolition of 5 apartment complexes at Maradu, Kochi, is literally a legal murder of justice. I do not know if ever in the history of any court a verdict has been announced without hearing the most affected parties, in this case, the flat owners.


As a layman, the following facts are deducted from the media reports:

-        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 have 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, subsequently, the apex court had viewed the same as ambiguous.


But it is only in 2019 that the apex court constituted a committee to bring clarity on the issue. This committee, headed by the District Collector (who should have been one of the accused for his failure to detect the violations in the first place and prevent construction), reported that when the permission was given in 2005-6 what was applicable was the Coastal Zone Management Plan approved in 1996. But it failed to report that in 2011 the categorization had been reviewed but notified only in 2019, shortly before submission of their report.


The frenzy with which the implementation of the order has been sought to be executed is also a matter of concern. As per the report in The Times of India (May 9, 2019), the state government, on the basis of vigilance reports about violation of CRZ norms, had asked the Maradu municipality to revoke all building permits. The municipality issued show cause notices to the builders, one of whom challenged it in the Kerala High Court. In 2012, a single-judge bench quashed the municipality’s notices to the builders on the ground that the state had no power to issue directions to local bodies to act in a certain manner. A division bench of the High Court upheld this decision in 2015.


The matter has been pending in the Supreme Court since December 2015 on an appeal filed by the Kerala State Coastal Zone Management Authority (KSCZMA). It is apparently this appeal that has been now taken up and the buildings ordered to be demolished within one month.


Worse, the apex court passed this order without hearing the most affected parties: the owners of the flats. This is evident from the Indian Express report (6 July 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 June 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 ask, ‘what is happening in our apex courts?’


There is 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. It was only on the court hauling up the Chief Secretary of the State that the bureaucracy starting moving. And the way they started moving is there for all to see. Issuing notices to vacate the flats within 5 days, cutting off electricity and water, inviting bids to demolish the flats - unheard of efficiency in persecuting innocents.


It is amidst all this torture that the apex court started thinking of justice for the victims. But again, its decisions cannot be said to be exactly judicious.


All flat owners are now required to be paid an interim compensation of Rs 25 lakhs each by the Government of Kerala. Since the flats have distinct floor areas and facilities which dictate their prices, the irrationality of the order is striking. Worse, the Kerala Government has not yet paid compensation to the thousands who lost their belongings, including homes, during the floods of 2018. The roads in Kerala are in shambles. All because the government is practically bankrupt. So where will the money come from? (Following the footsteps of the apex court, the Kerala High Court has now ordered the State Government to pay compensation to the flood-affected within two weeks.


This money is directed to be recovered from the developers and public servants who connived in breaking rules. But how? Given the snail’s pace of our court processes and the lethargy of our public servants, it is very unlikely that this money will be recovered at all, in the predictable future.


The court has also ordered freezing of accounts of the developers. The latest report on the subject is that two developers have approached the court to cancel the freeze.


A single judge commission has been constituted to go into the claims of compensation. This has to be done within one year. 


I would even question the need to demolish the flats at considerable cost to the exchequer (even if theoretically, or legally, it can be recovered from the developers). To one who is used to thinking rationally, the following would have been the correct steps to have been followed by the court(s):-


First, bring the public servants who flouted the laws (the original sinners!) and the developers to book. They should be punished exemplarily so that no one henceforth dares to bend or break rules. Even if all their wealth is confiscated and if they have to spend the rest of their lives behind bars and their families have to beg on the streets, so be it.


From the recoveries so made, compensation should be paid to the flat owners, based on (I repeat, based on and not equal to) the value shown in the registration documents. The fact is that most flats have been undervalued in these documents to reduce the burden of stamp fees. The flat owners should be given reasonable time, say one year, from the date of receipt of compensation, to vacate.


Thereafter, the flats should be left to self-destruct with nature taking over. As per reports available, now even the locals will be ordered to shift to safer places when the demolition process is carried out!


Lastly, it should be mentioned that there are gross abuses of nature that are making life miserable for the population of Kerala. Some of these are listed below.


Failure to implement the Gadgil Committee Report on conservation of Western Ghats: it has to be said that only in India can a report on ecology, prepared by an environmentalist, be allowed to be reviewed by a space scientist and diluted so much so that it results in the subversion of the whole effort.


Almost all fresh water bodies are polluted in Kerala. A study of water samples from Bharathapuzha, the second longest river in Kerala, shows that E coli contamination is almost 700 times the permissible levels.


The longest river, Periyar, is totally polluted by the industries on its banks. Of interest is the case of Nita Gelatin, a factory against which the locals have protested many times. Yet the courts have directed the police to provide protection to the factory.


The Hindustan Coca Cola Beverages company in Plachimada has not only exploited the underground water resources of the area, but also contaminated all fresh water sources as well as land by selling its heavy metal contaminated waste as manure to the innocent locals, mostly tribals. A case against the now closed factory is pending in the apex court for more than a decade. Meanwhile, a High Power Committee, constituted in 2009, had assessed the compensation due to the locals to be about Rs 230 cr. This has also not made any headway as far as implementation is concerned.


Right from the southern tip to the north there are plenty of protests in Kerala against sand mining in rivers, deforestation, razing hillocks and filling of agricultural lands. And there are many cases covering these very issues, pending with various authorities, including the courts. If there is any action being taken on them, these are not visible to the citizens.


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 to those who have been victims of unfair judgments and to critics of judicial conduct and performance.


I only hope that the victims of Marad flats demolition judgment would not give in to despair. 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.


Tailpiece: There is a controversy over a car shed for metro rail to be constructed at Aarey Colony which is contiguous to the Sanjay Gandhi National Park in Mumbai. The Chief Minister of Maharashtra is on record saying that all due diligence has been given to the issue before deciding on the site. Petitions by environmentalists and locals against felling of trees have been dismissed by the high court as well as the apex court. Now an LLB student has reportedly written to the Chief Justice of India on the issue and the CJI has accepted it as a suo moto PIL.


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