Mathews J. Nedumpara
I pen these few lines with great amount of pain and anguish. The Government of Kerala, in furtherance of an all party meeting convened by Shri Pinarayi Vijayan, Chief Minister of Kerala, engaged Shri Harish Salve, probably the highest paid lawyer in the country, to save 450 odd families of their homes, which were ordered to be demolished by a Bench of the Supreme Court headed by Hon'ble Shri Justice Arun Misra. The background of the case is fairly known to all. Stated in brief, the Supreme Court, in complete violation of the procedure contemplated under the Kerala Municipality Act read with the Kerala Panchayat Raj Act, appointed a Committee to report to it whether or not the CRZ-III norms are violated and ordered demolition of five world class apartment buildings within one month and report compliance. It appears that the Court failed to notice that the buildings were constructed years before and are in full occupation; that its order of demolition would render thousands homeless and that no Court is empowered to pass an order which will adversely affect those who are not party to the proceeding and, at any rate, without notice to them and without hearing them.
- In a situation as the instant one, where a Court has ordered demolition of five multi-storied buildings in a proceeding in which the flat owners were not parties, without notice to them and without hearing them, and the judgment thus rendered not being res judicata, not binding on them, one void ab initio, one which never ever existed in the eye of law, any lawyer worth his salt would point out the said position to the Court, but Shri Salve, to my dismay, did not do so. The Supreme Court is supreme; its decisions rendered within its jurisdiction are final and binding, howsoever erroneous they could be. However, if the Court has acted without jurisdiction, in excess of jurisdiction, has failed to observe the principles of natural justice or has acted in violation or ignorance of express statutory provisions, then such judgments constitute no res judicata and would not bind anyone, not even the parties thereto, and certainly not those who are not parties thereto, but one rendered void ab initio, stillborn.
- Whether CRZ-III was violated and, if yes, what is the nature of penalty to be imposed, whether the buildings ought to be ordered to be demolished etc., are issues which fall within the exclusive domain of the Secretary of the Municipality, the fact-finding authority, against whose order the flat owners could file an appeal before the Tribunal constituted under the Kerala Panchayat Raj Act. It is open to them to seek regularization of the buildings and if the Government regularizes them, that is the end of the matter. If the Government refuses to regularize, that order is appealable to the Tribunal. The flat owners, if aggrieved by the order of the Tribunal, will have a further remedy of a writ and a writ appeal in the High Court of Kerala. Even a suit will lie if the fact-finding or appellate authorities fail to observe the principles of natural justice or act in ignorance of law.
- The question whether the buildings in question were constructed in violation of the CRZ is not an issue which the Supreme Court could have determined by appointing a Committee, completely bypassing the mechanism provided under the Kerala Municipality Act and the Kerala Panchayat Raj Act. The said Acts provide for a fact-finding body and an appellate body. In arriving at a conclusion in the manner in which it did, the Supreme Court has denied to the flat owners the principles of natural justice as contemplated in the form of an inquiry following the principles natural justice with an appellate body to correct the error, if any. However, neither Shri Salve nor, to my knowledge, any of the lawyers representing the flat owners or the Government ever pointed out this to the Supreme Court. The failure to do so is considered to be a grave failure in the discharge of the obligation which a lawyer owes to his client. What is still worse is that nobody ever thought it appropriate to bring to the notice of the Supreme Court that it has no jurisdiction, even invoking Article 141 of the Constitution, to substitute itself for the executive and act as if it is the executive.
- There can be no two opinions that environmental protection is of paramount concern. The citizens and the Government, for, the voice of the legislature and the executive, which is accountable to the legislature, is indeed the voice of the people. The elected Government certainly knows the needs of its people and, undoubtedly, it will include the emergent need to conserve and protect the environment and prevent calamities. By no stretch of imagination can it be said that environment is the concern of Courts only. I had a chance meeting with Shri Oommen Chandy, a former Chief Minister of Kerala. I explained to him in great length what is stated above, namely, that in ordering the demolition the Supreme Court has forgotten the fact that it cannot be an actor (executive), but its role is that of a judex (Judge) and it is bound to act according to the statutory provisions; so too follow the principles of natural justice and I, as a lawyer holding the institution of judiciary in utmost respect and awe, would blame the Court for causing the pain, agony and distress to thousands of home buyers which no words could explain. Shri Oommen Chandy was taken aback and wondered why these questions, which are extremely relevant, were never urged by anyone, including Shri Salve. I told Shri Oommen Chandy that neither Shri Salve nor any of the eminent lawyers practising in the Supreme Court would ever raise these vital issues, and added that the army of senior lawyers, including S/Shri Ravi Shankar Prasad, Abhishek Manu Singhvi, Rajiv Dhawan, Colin Gonsalves, Prashant Bhushan or Ms. Indira Jaising, since the invention of PIL, a concet which is contrary to the first principle of jurisprudence, vested all the functions of the sovereign, the legislature, executive and judicial, all at once, in the judiciary.
- Shri Salve has lamented about the slowdown of the Indian economy due to PILs. However, he himself has been an amicus curiae in innumerable cases where the Court became the actor, the Plaintiff, the executive and judex, all at once. Nowhere in the world, Judges appoint themselves, but the army of lawyers pleading for judicial supremacy made the Supreme Court declare that the words “The President shall, in consultation with the Chief Justice of India, by warrant appoint a Judge” to mean as the “President shall appoint a person recommended by the collegium of Judges consulted by the Chief Justice of India as a Judge”. The word “consultation” was interpreted to mean “primacy”. Shri Parasaran, who represented the Union of India in the Judges-2 case, did not raise the issue of maintainability of the said case, namely, how a person, who claims no infringement of his rights, can seek any remedy in law and how a petition will lie where the PIL Petitioner had not claimed violation of any of his rights or sought any remedy at all. In the NJAC case, Shri Salve was there to defend the Central/State Government. However, he failed to ask a simple question as to how the Writ Petition is maintainable. In that case, nobody claimed violation of their fundamental right, without which a petition under Article 32 cannot lie; nobody sought any relief known to law as a person aggrieved.
- India is no longer a democracy in the sense the Founding Fathers had conceived it to be. For good, bad or worse, we are ruled by the Judges. Article 142 of the Constitution no longer means the concept of precedent. In the last 35 years of my practice, I have been in search of a single legal principle which the Supreme Court has evolved for the first time where none existed, which could be binding on all Courts and Tribunals subordinate to it as a precedent, except the basic structure, one against the first principle of jurisprudence. Nobody has been able to point out a single principle which could be called a precedent. The question, therefore, is, who will tell the Court that its order to demolish the buildings in question is one without jurisdiction, that it has erred, unfortunate though, and that it is its duty to correct its error.
- September 29, 2023
Our Supreme Court is termed as the most powerful court on the planet by the so-called eminent jurists. Even the ordinary civil courts can declare an Act of Parliament to be unconstitutional, though the power is not used in actual practice.
- September 29, 2023