Sunteți pe pagina 1din 3

HOW TO MURDER JUSTICE…LEGALLY

P M Ravindran; raviforjustice@gmail.com

A wise (? or is it simply realistic?) quip goes…you do not get justice in our courts, what you
get in our courts is called justice.

It is now becoming impossible to defend our judiciary even through such play of words.

The latest case is that of about 400 odd occupants of 5 flat complexes in a small township
called Marad in Kochi. The flats fall in the category of luxury apartments and reportedly cost
between Rs 60 lakhs and 1.5 Crores. Many of them had been NRIs and invested their life’s
earnings in these dwellings with backwater views. These had been ordered to be
demolished by the apex court within 30 days though an order dated 08 May 2019.

Alfa Serene, Holy Faith H2O, Golden Kayaloram, Holiday Heritage and Jain Housing projects
were granted building permits in 2005-06 when the Maradu local self-governing body was a
panchayat. At that time, the High Court, in another matter, had stated that the coastal zone
mapping of Maradu was wrong. But the builders went ahead with the construction. The
issue whether these builders were aware of this order or not is not clear. The sanctioning
authorities, no doubt, had to be aware. If not, again it would be a failure of the government
administration only.

In 2012, the Kerala High Court had observed that permit holders cannot be taken to task for
the failure of local authorities in complying with statutory provisions and notifications.
Subsequently even the apex court had stated that there was no categorical finding recorded
on whether the area in question was in CRZ Category III, Category II or Category I. The
builders claimed that the area fell within CRZ Category II whereas the Coastal Zone
Management Authority said the area was in CRZ Category III.

The Supreme Court then appointed a three-member committee which said that the Coastal
Zone Management Plan (CZMP) of Kerala currently applicable was the one approved in
1996. Under that CZMP, Maradu had been marked as a panchayat area and, therefore, was
in CRZ Category III. Therefore, construction could not be allowed up to 200 metres from
high tide line.

Interestingly, Maradu (now a municipality) has been included in the CRZ category II in the
coastal management plan submitted by the state government as per the CRZ notification of
2011 and approved by the Union Government on 29 Feb 2019.

This is what one of the owners, Joyson, said: Before buying the flats, we all took legal
opinion and examined all documents. Even the bank which financed my flat did not find any
fault. I invested Rs 65 lakh.

C M Varghese of Maradu Bhavana Samrakshana Samithi had to say this: more than 2000
buildings, including houses that had come up in the area before Feb 2019 will have to be
demolished.

Former Chairperson of Maradu Municipality is very clear when she states that the ordinary
citizen is convinced that justice had different meanings in our country. She says that it was
the High Court of Kerala that questioned the show cause notice issued by the Municipality
to the builders and forced it to issue occupation certificate to the flat owners.
The latest report on the subject informs us that the apex court has accepted a review
petition on file and it will be heard in the chambers of the judges and apart from the judges
who ordered the demolition the three senior most judges of the court will also be part of
the bench that hears the review petition.

But even while the petition is pending decision, the Municipality has gone ahead and
ordered the residents to vacate the premises within 5 days. And this has been done when
the whole state is in a festive mood and all the offices of the State Government are closed
for the whole week, beginning 8 Sep 2019, on account of Onam.

The ultimatum of the apex court to demolish the flats by 20 Sep, failing which the Chief
Secretary to the State Government will have to appear in person and explain has set the
bureaucrats on overdrive. But one commentator on Youtube had rightly observed that it is
better that the Chief Secretary spend time in jail rather than the innocent flat owners being
driven to the streets.

Now, both the Panchayat and the State Government are in another fix. It is estimated that
the cost of demolishing the flats would be around Rs 300 cr. The method suggested is
controlled implosion. The environmental impact of which the locals are already vociferous
but the authorities, as usual, are both deaf and blind. Not to mention the burden of
managing the debris.

As a layman, the following facts are obvious:


- 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 has 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 the apex court had viewed the same as ambiguous. But it is only in 2019 that an
apex court constituted committee reported that when the permission was given in
2006-6 what was applicable were CZMP approved in 1996. It had also failed to report
that in 2011 the categorization had been reviewed but notified in 2019, shortly before
submission of their report.
- Worse, the apex court had passed this order without hearing the most affected
parties- the owners of the flats. This is evident from the Indian Express report, dated 6
Jul 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
Jun 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 to ask ‘what is
happening in our apex courts?’
- There is also 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.
If anybody is under the impression that these are aberrations in our judicial proceedings
they are mistaken.
A few years ago the Food Safety Commissioner of Kerala had ordered 6 lakh kilograms of
adulterated pepper to be destroyed by burning because it has been colored with mineral oil
and polished with paraffin wax, both of which are known cancerogenous substances. A
judge of the High Court of Kerala had ordered the FSC to permit National Commodity
Exchange to get the pepper cleaned without realizing that pepper, being an organic material
would have ingested the adulterants and could never be made consumable. To take an
analogy I shall ask whether the pepper and spices can be removed from picked vegetable.
Ultimately it was cleaned with detergent and water and reports have confirmed that having
been found unfit for export it was marketed locally itself.
Similar was the judicial decision in the matter of exploiting ground water by the Coca Cola
plant at Plachimada in Palakkad, Kerala. A single judge of the Kerala High Court had rightly
ruled that the company could not exploit ground water commercially. But a division bench
of the same court overturned the judgement stating that the right of a company to draw
water from its property, even commercially, was the same as that of a citizen using water
from his property for personal use.
I have been wondering how these judges could forget one of the basic lessons in hydraulics
about water finding its own level and that if somebody overdraws water from his well it
would affect the water levels in the neighboring wells too.

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

I only hope that the victims of Marad flats demolition judgment would not give in to despair
and commit the worst crimes on themselves. 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.

Further reading:
‘SC orders 5 Kochi bldgs with 500 flats razed for CRZ breach’ at
https://epaper.timesgroup.com/olive/apa/timesofindia/Print.Article.aspx?mode=text&href
=TOIM%2F2019%2F05%2F09&id=Ar00107
‘SC judge hits out at stay on demolition in Kochi by another bench’ and dated 6 Jul 2019
available at https://indianexpress.com/article/india/sc-judge-hits-out-at-stay-on-
demolition-in-kochi-by-another-bench-5817838/
https://indianexpress.com/article/india/life-savings-put-in-flats-ordered-razed-these-kochi-
residents-have-nowhere-to-go-5827203/
Deccan Chronicle report titled ‘Flat owners say justice denied’ date lined 29 Jul 2019 at
Kochi
Former Chairperson of Marad Municipality Sunila Sibi, on Sep 11, 2019, at
https://www.youtube.com/watch?v=A7sSb7zQQLo (This is in Malayalam)

12 Sep 2019