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Supreme Court of India | Manisha Mondal | ThePrint

These 350 apartment owners in Kerala are caught between the Supreme Court and the sea

The case of five seaside properties in Maradu in Kerala represents one of the latest clashes between development and environment.

New Delhi: Over 350 flat-owners from Kerala’s Maradu, facing the demolition of their homes by the famous backwaters of Kerala, are set to file a curative petition in the Supreme Court, a last-ditch bid to save their apartments.

The plea will be the latest chapter of a 13-year-old case that started with four builders’ plans to erect five apartment blocks in the vicinity of the backwaters, projects whose environmental feasibility has been under question from the start.

On 11 July, the Supreme Court confirmed its judgment ordering the demolition of five apartment blocks in Ernakulam’s Maradu municipality for the violation of Coastal Regulation Zone (CRZ) rules.

The flat-owners claimed they were not heard properly, but the court dismissed their review petitions. The review pleas of the builders met the same fate.

The case represents one of the latest clashes between development and environment, driven by the coveted urban dream of a waterside property.  

ThePrint takes you to the root of the dispute.

It started in 2006

Four builders — Alpha Ventures Pvt Ltd, Holy Faith Builders and Developers Ltd, Jain Housing and Construction, and K.V. Jose — started constructing the five blocks in 2006, on the basis of a building permit issued by the Maradu Grama Panchayat, which was later upgraded as a municipality.

However, prodded by the state government’s Kerala Coastal Zone Management Authority(KCZMA), the panchayat soon issued a showcause notice for the construction, alleging the violation of Coastal Regulation Zone (CRZ) norms. The builders were warned their permits could be revoked.  

In 2007, the builders approached the Kerala High Court, which stayed the notice in July that year. The construction continued on the strength of the court’s interim order.

The high court ruled in September 2012 that the government had no power to issue instructions to a local self-government authority, that is, the panchayat. An appeal filed against the order was dismissed by the court in November 2016.

The same year, the KCZMA appealed against this order in the Supreme Court, arguing that the mandate for construction in CRZ areas lay with the agency. The panchayat, it added, issued the permit without its concurrence.  

Last year, the apex court directed the constitution of an expert committee to determine whether the area in question qualifies as CRZ-II (where such construction is allowed) or CRZ-III (where such construction is not allowed), two of the four coastal zone categories within 500 metres of the high tide line where the government restricts different activities.

This committee submitted that the area in question came under CRZ-III, relying on the CRZ notification of 1991 and Kerala Coastal Zone Management Plan (KCZMP) 1996. According to the 1991 notification, no construction is permitted within 200 metres from the coast in CRZ-III areas.

In May 2019, the court ruled in favour of the KCZMA, highlighting the “devastating effects” of unbridled construction activities in eco-sensitive areas with natural water flow. It observed that such illegal constructions on river shores led to natural calamities like the flashfloods in Tamil Nadu (2016), Kerala (2018) and Uttarakhand (2013).

After this, the builders filed review petitions against the judgment, pointing out that the area had been categorised as CRZ-II in the KCZMP brought into place with a 2011 notification.

The court, however, ruled that it was only concerned with whether the constructions were legal at the time they were built, not if they were permissible at present.

A plea filed by the residents, complaining that the demolition order was passed without hearing them, was also dismissed.

Explaining the case for the curative petition, the residents’ lawyer Preeti Singh told ThePrint, “There was complete imbalance in judicial propriety since the pleas of innocent flat-owners were completely ignored in totality thus converting the flat-owners into squatters overnight.”

When the court ordered compensation for buyers

While the order in this case is silent on compensation to homeowners, the Supreme Court has, in the past, directed such payment.

One such order was passed in November last year, when the apex court directed the Haryana government to pay Rs 50 lakh each to 33 families whose homes, illegal constructions in a forest area of the Aravallis, were up for demolition.

While ordering the demolition, the court had termed the violation of laws in the case “quite frightening” and also lamented the support given by Haryana’s Town & Country Planning Department.

The court said it was up to the state government to recover 50 per cent of the compensation amount from the builder.

‘Buyer beware’

Any discussion on the demolition of illegal structures is incomplete without a reference to the Campa Cola case from Mumbai.

The case made national headlines after the Supreme Court ruled in 2013 that construction beyond five floors in the compound’s six societies was illegal and ordered their demolition.

However, the court subsequently allowed the six societies to apply for regularisation.

In its initial judgment, the court had refused to accept that the flat buyers should not be penalised for the illegalities committed by the lessee and the builders.

Asserting that it would be open for the house-owners to sue the lessee and the builders, it had observed, “In this scenario, the only remedy available to them is to sue the lessee and the developer/builder for return of the money and/or for damages and they cannot seek a direction for regularisation of the illegal and unauthorised construction made by the developers/builders.”

The case had served as an eye-opener for home-buyers, reminding them of the golden rule—caveat emptor (buyer beware).

For Maradu residents, legal battle continues

The Maradu homeowners’ curative petition is the last judicial resort for them. However, the parameters within which such a petition can be filed are narrow and, hence, very few of these are actually allowed.

The petition is usually heard in the judges’ chamber and not in open court like other petitions. The hearing is limited to “questions of law” and avoids any disputes or discrepancies in the facts of a case.

Lawyer Singh said the residents could also approach the consumer forum, adding that the government and the builders would be jointly liable.

Meanwhile, the government has assured the homeowners that it will not demolish the buildings immediately. It will take a decision after getting a report from the IIT-Madras team deputed to study the environmental impact of the demolition.

See ThePrint article . . .