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Maradu Flat Demolitions : Ex-Judge's Enquiry Holds Kerala Govt & Local Authorities Liable Besides Builders For Illegal Constructions

18 July 2022 2:51 PM GMT
Maradu Flat Demolitions : Ex-Judges Enquiry Holds Kerala Govt & Local Authorities Liable Besides Builders For Illegal Constructions

Justice Thottathil B Radhakrishnan in his report pertaining to the enquiry about the involvement of Builder/Promoter/persons/officials responsible for the illegal construction of the buildings in Maradu, Kochi, has concluded that apart from the builders, the Kerala Government, Maradu Grama Panchayat, Maradu Municipality, officials of the State Government and Local Self Government Institutions are to be held responsible. But, he has refrained from expressing opinion on the issue of the nature of liability -whether to be joint and several or to be apportioned.

"I humbly submit that while the builders cannot but be held responsbile for the illegal construction of the buildings, which have already been razed to the ground, the Government of the State of Kerala, as also the Maradu Grama Panchayat, the Maradu Municipality, the officials of the State Government and Local Self Government Institutions are responsible for raising the constructions to the stage up to which they came up by the time they were ordered to be demolished by this Hon'ble Court",the report submitted by Justice Radhakrishnan stated.

By order dated 02.05.2022, the Supreme Court had appointed Justice Radhakrishnan, former Chief Justice of the Calcutta High Court and former judge of the Kerala High Court to carry out the afore-mentioned inquiry.
On 27.9.2019, the Apex Court had directed the State Government to pay a sum of Rs. 25 lakhs to each flat owner, which it can then recover from the builders/promoters/officials etc. In this backdrop, the builders had argued that before determining the quantum of liability, it was pertinent to ascertain, in the first place, who is responsible for the illegal construction. Accordingly, a Bench comprising Justices L. Nageswara Rao and B.R. Gavai had asked Justice Radhakrishnan to ascertain the same.

In 2019, the Apex Court had appointed former Kerala High Court judge Justice K Balakrishnan Nair to head a panel which was entrusted with the duty to fix the compensation payable to flat buyers at the high rise apartment building in Maradu which were demolished in January 2020. The demolition was carried out pursuant to the order of the Apex Court finding that the buildings had been constructed in violation of relevant Coastal Regulation Zone norms.

The key findings in the report of Justice Radhakrishnan.

No stop memo issued by the competent authority

The construction of the buildings were on the basis of the permits issued by the Secretary of Maradu Grama Panchayat. On a complaint, in 2007, the Minister for Local Self Government had sent an inspection team for a surprise visit. It had concluded that the applications for building permits and the plans were highly irregular. Consequently, a letter was sent to the Secretary directing him to revoke permits for the identified buildings. The report notes that except for issuing notices to show cause against cancellation of building permits, no stop memo was issued by the competent authority.

Government and Officers failed to comply with order of Supreme Court

The report refers to the judgment and interim orders of the Apex Court in the writ petition relating to the Coastal Zone Management, whereby restrictions were imposed on certain types of constructions within the Coastal Regulation Zone. It observes that the State of Kerala and its Government officers at all levels, in all relevant departments of administration and enforcement had failed to comply with the directions of the Court.

Gram Panchayat was aware of the CRZ categorisation

On perusal of documents and based on deposition statements, the report finds that the Maradu Grama Panchayat was well aware of the issues relating to CRZ-III categorization of the concerned area. As per the relevant notification dated 1991, CRZ-III indicates that the area of 200 meters from the High Tide Line was no development zone.

Builders relied on re-classification, but could not show retrospective applicability

The report notes that the authorities as well as the builders have harped upon the approval granted by the Government of India to the plans which were pending consideration by the Kerala Government. They sought to argue that if the re-classification of the land as CRZ-II category would have been placed before the Court, the demolition would not have been ordered. But the report categorically observes that there was nothing to demonstrate that the approvals were to operate retrospectively.

The report also observes that the responsibility of the Kerala State Coastal Zone Management Authority (KCZMA) is limited to providing the regulatory yardsticks by ensuring preparation of maps; delineating the yardsticks for permitted activities and would not extend to enforcement of CRZ notification and to see to it that the provisions of the notification is adhered to, which is in the exclusive domain of the Government.

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