Maradu case: Hear them, your honour

Kochi: Around 350-odd families in Maradu in five buildings in the outskirts of Kochi are under the threat of imminent demolition of their flats following an order of the Supreme Court of India. A section of the public considers the Supreme Court’s order of demolition of the buildings a grave injustice.

The reason is simple. The court seemingly usurped to itself the role of the secretary of the municipality who alone is competent to order demolition if the buildings are constructed in violation of the CRZ.

The law requires the secretary to conduct an investigation where he is duty bound to afford due opportunity to all concerned, namely, the builders, flat owners et al.

Assuming that the secretary were to hold that it amounted to violation of CRZ-III, which the flat owners assert that it does not, for, Maradu became a municipality in 2011 and the law applicable is CRZ-II and not CRZ-III, then under Section 407 of the Municipality Act, the flat owners are entitled to seek a regularisation. Against the order of the secretary, the flat owners are entitled to institute an appeal under Section 509 (6) to the Tribunal under the Panchayat Raj Act.

If the tribunal were to reject the appeal against the order of the secretary under Section 406 ordering demolition of the buildings or the appeal against the order of the government rejecting regularisation under Section 407, the flat owners could invoke the jurisdiction of the High Court under Article 226 or even institute a suit because the bar of a suit under Section 563 in no way can be absolute.

If a single judge of the High Court were to reject the plea of the flat owners, it is open to them to challenge the same in a writ appeal.  If they were to lose their plea before the division bench, a special leave petition will lie before the Supreme Court. The role of the Supreme Court is that of an adjudicator and not that of an executive.

In the instant case, the municipality issued a notice under Section 406. That was challenged by the builders before the High Court under Article 226. The High Court set aside the notice, which was challenged before a division bench in appeal. 

The division bench, too, held in favour of the builders.  The CRZ Management Authority challenged the said order of the division bench before the Supreme Court.

The CRZ Management Authority was really not concerned about the merits of the case, but was against certain adverse observations made against it. Be that as it may, the Supreme Court could have either dismissed the appeal or allowed it and remanded the matter back for a de novo inquiry by the municipality.  Instead, the Supreme Court appointed a committee, directing it to hear all stakeholders.

The committee found that there is a violation of CRZ-III. The Supreme Court accepted the said report and ordered demolition. 

In doing so, the court not merely committed gross violation of the principles of natural justice inasmuch as no notice was given to the flat owners, nor were they heard, and, far beyond that, the court acted contrary to the Municipal Corporation Act; so too the Panchayat Raj Act under which a Tribunal was created to examine the correctness or otherwise of a decision of the municipality either ordering demolition or refusing regularisation.

One could easily compare the instant situation with an order of the Supreme Court convicting and sentencing a citizen to death for an offence of murder without there being a trial, without the convict being afforded an opportunity of appeal whereby he could have got corrected the injustice of the fact-finding court.

The Supreme Court has umpteen times held that an inquiry as contemplated under a statute which involves many stages, namely, a trial, an appeal, a revision etc., cannot be bypassed.  The classical example is its judgment in A.R. Antulay v. R.S. Nayak, (1988).  The said judgment is a mini constitution of India. 

In the said case the court held in express terms that if a judgment, even of a constitution bench of the Supreme Court, is rendered without jurisdiction or in excess of jurisdiction or in violation of the principles of natural justice, namely, without hearing the parties affected, or in violation or ignorance of express statutory provisions, in the instant case by bypassing the Kerala Municipality Act, such a judgment is one rendered void ab initio, the correctness of which could be questioned whenever and wherever it is sought to be enforced.  So was held in Kiran Singh (1954). 

In I.R. Coelho (2007), the Supreme Court held that natural justice constitutes to be the inviolable basic structure of the constitution.

The judgment of the Supreme Court in the Maradu case, therefore, is one rendered void ab initio, which never ever existed in the eye of law, the correctness of which could be questioned whenever and wherever it is sought to be enforced by way of a review, by way of a suit, by way of a curative petition and by way of a petition under Article 32. 

The case on hand is comparable with the facts of A.R. Antulay where a five-judge constitution bench of the Supreme Court in the first Antulay case directed the chief justice of the Bombay High Court to designate a high court judge as a special judge to hear the case of Antulay which was then pending before the special court under the Prevention of Corruption Act which was presided over by a session judge. 

Antulay challenged the said order under Article 32, which was declined. Later Antulay raised the competence of the special judge of the high court before the said judge himself, which was rejected.

Against that he filed an appeal before the Supreme Court.  The appeal was referred to a seven-judge bench which held that the judgment of the five-judge bench as one rendered void ab initio.

In short, the doctrine of finality and authoritativeness has no application where a judgment even of a constitution bench of the Supreme Court where it is null and void.

 

(The author is president of National Lawyers Campaign for Judicial Transparency and Reforms)