Letter by Advocate Mathews J Nedumpara to Chief Minister of Kerala and others informing them about CAMPAIGN FOR HOME FOR ALL

2nd June, 2019

To

1.            Hon’ble Sri Pinarayi Vijayan,

Chief Minister of Kerala,

141, 3rd Floor, North Block,

Government Secretariat,

Thiruvananthapuram – 695001

2.            Hon’ble Sri Ramesh Chennithala,

                Leader of Opposition,

                Kerala.

3.            Hon’ble Shri Harindersingh Puri,

                Union Minister for Housing,

                New Delhi.

4.            Hon’ble Sri Muraleedharan,

                Minister of State for External Affairs,

                New Delhi.

5.            Shri K.K. Venugopal,

                Attorney General of India,

                New Delhi.

Honourable Sirs,

                                I address your Honourable Sirs as the President of the Campaign for Home for All, an NGO registered under the Maharashtra Public Trusts Act, which work for the cause of the millions who live in slums, matchbox-like tenements, dilapidated buildings and the homeless.

2.                            The judgment of the Supreme Court ordering demolition of five world class apartments at Marad, Cochin, for alleged violation of Coastal Zone Regulation came as a rude shock to us inasmuch as the said judgment was delivered behind the back of hundreds of flat owners, mostly NRIs, who have invested their life savings, fruits of their toil in far off places, deserts, away from their home State, for a place to rest their heads once they retire.  What was equally shocking was that the CRZ violation complained of was a hyper-technical inasmuch as if the said flats were to be constructed today in the very same place in the same manner, it would be absolutely legal because Marad today is a Municipality falling under CRZ-II while when the flats were constructed it fell under CRZ-III, Marad then being a Panchayat.

3.                            The Supreme Court is supreme, but it is not infallible.  Courts do err and the law provides for means to correct such errors so that the injustice which arises out of erroneous decisions is undone.  The judgment of the Supreme Court in the Marad case is without hearing the parties affected and without jurisdiction inasmuch as if the apartments in question were indeed liable to be demolished for violation of CRZ, then that should be in the culmination of a process which the Marad Municipality empowered by law has initiated, conducted an inquiry, which decision was amenable to appeal and review as provided by the Kerala Municipal Corporation Act.  It was, therefore, incumbent upon the Coastal Zone Management Authority and the State Government, which acted against the first principle of natural justice, namely, securing an order from the Supreme Court behind the back of hundreds of flat owners, many of whom reside overseas, to take all the requisite steps to undo the injustice which the order of the Supreme Court constitutes to be.  However, the State Government and the Ministry of Environment and Forest under it; so too the Marad Municipal Corporation, instead of coming to the rescue of the flat owners, have declared that they will “go ahead with the demolition of the Marad flats” as indicated by the news report in today’s Times of India.  Nothing could be a greater injustice and abdication of responsibility by the State Government.  The news report further indicates that the State Government has asked the IIT, Madras to conduct a study on the environmental impact due to the demolition of the apartments, the cost involved etc.  The State Government admits, going by the news report, that Marad falls under CRZ-II; that if the said flats were to be constructed today it involves no violation of the Coastal Zone Regulation and that if the Supreme Court asks for its clarification it will say so in unmistakable terms.  In short, if the Supreme Court judgment is to be implemented, world class apartments, newly constructed, an asset worth Rs.2,000 crores, will be demolished just because there is a technical violation of the Coastal Zone Regulation. 

4.                            Indeed, there is no violation of the Coastal Zone Regulation at all because the Coastal Zone Regulation being a procedural law will take retrospective effect.  The latest Notification bringing Marad under CRZ-II has the effect of repealing with retrospective effect the earlier Notification, for, a procedural law which takes retrospective effect is akin to the doctrine of ratification, omnis ratihabitio retrohabitur, et mandato priori aequiparatur – every ratification operates retrospectively and is equivalent to a prior order of an authority.  I assert with all humility that there is no violation of CRZ-II, for, the doctrine of ratification squarely applies to the instant case.

5.                            Let me address the issue not from the narrow legal angle, but from a realistic approach.  In a country where millions are denied a roof over their head, the basic amenities like food, drinking water, electricity etc., of which Kerala is no exception inasmuch as thousands of migrant workers hailing from Assam, Bengal, Orissa, Jharkhand etc., live in filth, dirt and inhuman conditions, to demolish world class apartments which, in a sense, are national asset, is a crime against humanity.  When the bungalow of Nirav Modi on the beach of Alibaug in Maharashtra in which even the closets were made of gold and silver, we requested the State and Central Governments not to destroy or demolish the same but to auction it and allow the Banks to appropriate the moneys realized in such auction.  Our pleas, alas, fell on deaf ears; the world class structure was destroyed/pulled down using detonators. Prior thereto, we repeatedly appealed to the State and Central Governments not to demolish the controversial Aadarsh building in Colaba, Mumbai, a synonym for corruption, but to use it either as quarters for Army and Navy personnel or for State or Central Government servants or as hospital or for any other useful purpose.  That request too was in vain.

6.                            I would at the same time wish to emphasize that we do not endorse corruption and malpractices so prevalent in our country which makes illegal constructions such as Aadarsh possible.  In Mumbai 72% of buildings are illegal.  To demolish them would mean demolishing the entire city of Mumbai.  The solution is elsewhere.  In the Marad case, it is only appropriate that the State of Kerala should seek a review of the judgment of the Supreme Court and request it to relegate the matter to the Municipal Corporation, permitting it to conduct a due inquiry with notice and opportunity of hearing to the flat owners, the Builders and adjudicate the issue in accordance with law or, in the worst scenario, request the Supreme Court to at least modify its order of demolition to one of imposition of penalty, as the High Court of Kerala was pleased to do in the case of DLF where similar violation of Coastal Zone Regulation was alleged.

7.                            I, therefore, request Your Honourable selves to look into the matter as expeditiously as possible and order corrective measures.

Hope to hearing from Your Honours’ end,

With respectful regards,

Yours sincerely,

(Mathews J. Nedumpara)

President