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 concerns about 400-odd occupants of five 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 lakh and 1.5 crore. Many owners had been NRIs and invested their life’s earnings in these dwellings with backwater views. These have been ordered to be demolished by the apex court within 30 days through an order dated May 8, 2019.

Alfa Serene, Holy Faith H2O, Golden Kayaloram, Holiday Heritage and Jain Housing, 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, 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 Feb. 29, 2019.

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 said: more than 2000 buildings, including houses that had come up in the area before Feb. 2019, will have to be demolished.

Sunila Sibi, former chairperson of Maradu Municipality, 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 five days. This has been done when the whole state is in a festive mood and all offices of the State Government are closed for the whole week, beginning Sep. 8, 2019, on account of Onam.

The ultimatum of the apex court to demolish the flats by Sep. 20, failing which the Chief Secretary to the State Government will have to appear in person and explain, has set the bureaucrats on overdrive. One commentator on Youtube 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 crore via the suggested method of controlled implosion. The local people are already vociferous about the environmental impact, but the authorities, as usual, are both deaf and blind. There is also 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 administration in communicating judicial observations /orders down the line, particularly to those who are required to act on them.

The notorious delays in our judicial system 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 was only in 2019 that an apex court-constituted committee reported that when permission was given in 2005-6, what was applicable were CZMP approved in 1996. It also failed to report that in 2011 the categorization had been reviewed, but notified in 2019, shortly before submission of the 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 July 6, 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 June 10, 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.

The statement by Justice 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 the 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 as the order was passed without hearing their side. If anybody is under the impression that these are aberrations in our judicial proceedings, he/she is mistaken.

A few years ago, the Food Safety Commissioner of Kerala had ordered six lakh kilograms of adulterated pepper to be destroyed by burning because it had been colored with mineral oil and polished with paraffin wax, both of which are known carcinogenic substances. A judge of the High Court of Kerala 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, can pepper and spices be removed from pickled vegetables? Ultimately, the pepper was cleaned with detergent and water and reports have confirmed that having been found unfit for export, it was marketed locally.

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 judgment, 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 wonder 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 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 to 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 despair. They need to join 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’, July 6 2019

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/

‘Flat owners say justice denied’, July 29, 2019 Deccan Chronicle, Kochi

Former Chairperson of Marad Municipality, Sunila Sibi, on Sep 11, 2019

https://www.youtube.com/watch?v=A7sSb7zQQLo          (in Malayalam)