The demolition order passed by Supreme Court on May 8 of five apartments in Maradu, Kochi has been stayed by vacation court which has restored faith of families residing in 400 flats in those apartments.
A writ was filed by some group of residents in SC as they were not heard at the time of passing demolition order. Thus vacation bench of Justice Indira Banerjee and Ajay Ratogi passed that order taking into consideration the view if residents regarding violation of CRZ notification.
Further added by Bench that, it will not be justified to pass order in this matter as original order was passed by some other Bench and it has directed the listing of the matter before the bench of Justices Arun Mishra and Navin Sinha, which passed the judgment earlier.
A review petition is also filed by two builders stating that Kerala Coastal Zone Management Authority (KCZMA) misled the court and made them believe that the construction done was in violation of Coastal Regulation Zone notification. Whereas the builders contended that, KCZMA was well aware that the constructions were legal, as the area is categorized as CRZ-II as per Coastal Zone Management Plan 2011 notification. KCZMA intentionally mislead the court and also didn’t mention a single word that this plan was approved by Union Ministry of Environment and Forests in February 2019.
Also it was stated in the review petition that the orders of demolition were erroneous because court did not categorized the area of Maradu properly. The Bench missed the point that those areas were included in CRZ-II as per notification approved by Ministry and hence those constructions were legal and permissible. This was raised in petition by Holy Faith Builders and Developers and Alpha Ventures Pvt. Ltd.
Maraud earlier was governed by Gram Panchayat when construction began in 2006 and was later upgraded to Municipality. As per notification by State Government, show cause notice was issued to builders by Panchayat for violating CRZ. Later was challenged in Kerala HC which allowed the construction on the strength of Court’s interim order. Further the writ of builders was allowed bu Court on ground that Government have no authority to take cognizance in issuing instructions to a local self government authority which was challenged before SC and orders were passed on May 8.
The order of Supreme Court was passed by bench comprising of Justices Arun Mishra and Navin Sinha on the report submitted by a committee of three members specially appointed by court which stated that at the time of construction that area was categorized under CRZ-III where such type of constructions were prohibited. It was pointed out by the court that the Panchayat has granted permission without the concurrence of Coastal Zone Management Authority, which was necessary. Also bench throw light on the point that the issue was relating to legality of construction when they were made and not relating to present situation.
The court was of the view that floods which were faced by the state last year was "due to unbridled build construction activities resulting into collossal loss of human life and property" and hence authority directed to implement the order in a month.
The review petition also contended that the three member committees consisting of Secretary to the Local Self Government Department, the Chief Municipal Officer of concern municipality and the Collector of the District have not taken into consideration the views of affected parties prior to the submission of report.
It was submitted by the petitioner that the area of Maradu was under the Panchayat system and in 2010 it was upgraded to municipality. The builder stated that now Maradu is a fully developed urban area and not adjacent two coastal areas hence it does not falls within the ambit of CRZ.
The review petition was file on the order of Supreme Court in the case of DLF apartments in Kochi. In that case it was held that builders cannot be held liable for the failure of authority to take proper actions. In the present case KCZMA are still doubtful regarding violation and construction was completed on the basis of deemed environmental clearance as authority field on their part. Also show the authority was of the view that they will take action against violation after completion of construction which was criticized by Supreme Court.
In the instant case, the KCZMA did not act promptly against the alleged violations, and did not question the building permits issued to the builders, argues the builder in the review petition. On May 26, the SC had dismissed an application filed by a resident seeking extension of time.
Courtesy/By: Renu Kathale
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13 Jun 2019
