(Updated with order)
While hearing the matter relating to demolition of apartments in Maradu, Kochi, the Supreme Court on Monday orally warned the Chief Secretary to the Kerala Government that he will be held personally liable if unauthorized constructions have taken place in restricted zones under CRZ notification.
Tom Jose, the Chief Secretary, was personally present before the bench of Justices Arun Mishra and Ravindra Bhatt.
Justice Arun Mishra, heading the bench, was vocal in expressing unhappiness over the Kerala Government not executing the direction passed on May 8 for demolition of five apartment complexes in Maradu, Kochi.
"We are really shocked. What action the State government has taken against illegal constructions? If some disaster happens in the coastal zones, the families residing in the buildings will be the first ones to get affected. Your officers should be held responsible", Justice Mishra said.
The bench also expressed dissatisfaction at the affidavit submitted by the Kerala Government seeking more time for carrying out the demolition after studying the options available.
"We can make out your intention from the way you have filed the affidavit. You are in patent breach of law. Your attitude is of defiance", Justice Mishra added.
The bench also referred to the recent flood disaster in Kerala and said violations cannot be tolerated.
Senior Advocate Harish Salve appeared for the Kerala Government submitted that it may not be practically possible to use explosives to demolish the buildings.
In the order, the Court has stated
"Owing to such violation of law at various places, huge devastation has already been taken place in the State of Kerala in the year 2018 with colossal loss of human life and the property, the entire country was moved by it. It is due to such violation and tortuous action, the entire environment is being degraded and coastal zones are being illegally occupied. It appears that the authorities, rather than preventing the violations, are trying to mobilize the public opinion and time has come to hold them responsible for their active connivance in such activities of degrading the environment and violation of the coastal zone regulations etc. In order to prevent such loss of human life and devastation, it has become imperative to ensure that concrete plan is submitted on behalf of the State of Kerala to prevent such violations in future and also to take action against the existing violators".
The Court added :
"It is also to be put on record as to what course of action they propose against all such existing violators and how many such constructions exist at present in the State of Kerala which are in violation of the notification issued by the Coastal Regulation Zone Authority".
Senior Advocate Salve sought time till Friday to submit the concrete plan and the hearing was adjourned accordingly.
On September 6, the bench had directed that the Government should file compliance report by September 20, failing which the Chief Secretary will have to appear before Court on September 23.
The order was passed in a suo moto proceedings opened by the Court after noting that no compliance report has been filed within the one month period given by the May 8 judgment.
On July 10, the Supreme Court had dismissed the review petitions filed by builders against the May 8 judgment of the Court directing the demolition of five apartment complexes in Maradu, Kochi, for violations of Coastal Regulation Zone notification.
Earlier, the Court had dismissed the writ petitions filed by residents against the demolition order, after taking strong exception to a vacation bench granting interim stay of the demolition.
The residents had approached the Court complaining that the demolition order was passed behind their back without hearing them.
The demolition order was passed on May 8 by a bench consisting of Justices Arun Mishra and Navin Sinha based on the report of a three-member committee appointed by the Court which stated that when the constructions were made, the area was designated as CRZ-III, where such constructions are prohibited. The Court also noted that Panchayat had granted the building permits without the concurrence of the Coastal Zone Management Authority, which was mandatory.
The builders of the apartments - Alpha Ventures Pvt Ltd, Holy Faith Builders and Developers Ltd, Jain Housing and Construction, K V Jose - had filed review petitions against the judgment stating that the Court was misled by the Kerala Coastal Zone Management Authority (KCZMA) into concluding that the constructions were made in violation of Coastal Regulation Zone notification. According to the builders, the KCZMA was aware that the constructions are legal now, as the area is categorized as CRZ-II (where such constructions are permissible) in the Coastal Zone Management Plan prepared as per the 2011 CRZ notification. Though this plan was approved by the Union Ministry of Environment and Forests in February 2019, this was not brought to the notice of the Court by KCZMA "for reasons best known to it", the review petitions stated.
The builders placed reliance on Para 4.3 of the 2011 notification introduced as per amendment in March 2018, which allows the Government to give post-facto clearance for activities which are otherwise permissible. Since the building is situated in CRZ-II area as per the current CZMP, it is completely legal. The procedural lapses are curable as per law, and they should not be cited as a reason to demolish the apartments, which will affect nearly 400 families, they submitted.
But these arguments failed to persuade the Court to review the judgment.
The Court had taken the view that it was immaterial if constructions are permissible in the area at present. According to the bench, the relevant issue was whether the constructions were legal when they were made, and not whether they are permissible now.
The construction started in the year 2006 based on a building permit issued by the Maradu Grama Panchayath, which was later upgraded as Municipality. Based on an instruction from the State Government, the Panchayath issued a show-cause notice for revoking the building permit, citing CRZ violations. This was challenged in the High Court of Kerala. The High Court stayed the notices, and construction was carried out on the strength of Court's interim order. Later, the writ petitions by builders were allowed by the Court on the ground that Government had no power in law to issue instructions to a local self government authority.
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