Maradu-2 in the making: How did Chilavannur flat case reach Supreme Court? | Part II

Maradu-2 in the making: How did Chilavannur flat case reach Supreme Court? | Part II

Kerala's crisis over Coastal Regulation Zone (CRZ) violations may not end with the demolition of four high-rises in Maradu municipality of Ernakulam district. It could only be the beginning and an ominous one for the real estate sector.

Even as the four apartment complexes are set to be demolished as per a Supreme Court order, the apex court has initiated proceedings in a similar case which would decide the fate of at least 13 buildings on the banks of the Chilavannur lake.

The Supreme Court has issued notices to Kerala government and Cochin Corporation as it prepares to consider a Special Leave Petition filed by Chilavannur resident A V Antony against the 13 buildings.

The petition challenges the Kerala High Court's decision to quash the First Information Report filed by Kerala government's Vigilance and Anti-Corruption Bureau (VACB) against the builders for CRZ violations.

The vigilance had initiated a probe into the violations after Antony's complaint in 2009.

The FIR was based on a report prepared by an expert team in March 2016 after visiting the sites and observing the morphology, ecosystems and CRZ status. Dr Kamalakshan Kokkal, then joint director and scientist, Kerala State Council for Science, Technology and Environment; Dr K V Thomas, academic consultant, Kerala University of Fisheries and Ocean Studies and former scientist, national Centre for Earth Science Studies and an assistant engineer of Cochin Corporation were the members of the team. Onmanorama is in possession of the report.

The report states that Galaxy Homes (Galaxy Regent),  Heera Constructions, Ambady Retreats, Jewel Homes, Pearls Garden View, Adelie Builders & Developers (DLF), Galaxy Homes (Galaxy Clifford), Abad Lotus Lake,  Blue Lagoon, Golden Kayaloram and Rain Tree Realms and a building owned by Kalyalinkkutty Amma have been constructed in violation of CRZ rules. Business tycoon M A Yusuffali has also been mentioned for violation.

Fourteen persons, including former Kochi Mayor Tony Chammani and some officials of the Cochin Corporation, Kanayannoor taluk and Elamkulam village office were also accused in the case. 

The Kerala High Court, however, had quashed the vigilance FIR on May 23, 2019. 

From one apartment to 13

Antony had first raised complaints of CRZ violation when construction of Galaxy Homes began near his house in 2009.  

Based on his complaint, the vigilance conducted a surprise check on May 23, 2009, at the construction site and found that four officials of the corporation were guilty. Based on the vigilance report, three of them were suspended and an inquiry was launched against the fourth official.  

As the inquiry dragged on for four years, Antony approached the vigilance court in Thrissur on November 15, 2013, seeking a quick verification into the violations. 

Antony argued that though the area under the Cochin Corporation fell under CRZ - II category, the filtration ponds in the civic body came under CRZ - I category.  

The vigilance court on January 13, 2014, asked vigilance deputy superintendent of police, Ernakulam, to conduct a quick verification.

Following this, a case and first information report were registered on February 6, 2015.

The FIR states that buildings mentioned in the complaint come under Cochin Corporation and CRZ Notification, 1991. They were built “against the orders of Kerala Government”. It states that the builders had not obtained NOC from Kerala Coastal Management Authority (KCZMA).

The vigilance also found that the accused officers caused a loss of Rs 30 lakh to the exchequer as the builders did not pay the amount necessary to obtain approval from the Ministry of Environment and Forest. 

The vigilance submitted the final report of the investigation to the vigilance court on May 8, 2015. 

HC quashes report

Maradu-2 in the making: How did Chilavannur flat case reach Supreme Court? | Part II

Cyril Paul, arraigned as 22nd accused in the FIR, moved the High Court on September 6, 2018, with a plea to quash the report. He claimed that vigilance findings were wrong.

The High Court, in response to the petition, issued an interim order on December 6, 2018, directing the vigilance to submit a report as to whether the case actually involves any element of criminal misconduct or corruption, or whether it is only a case of building rule violation.

The vigilance, on March 13, 2019, submitted a final report to the High Court saying that “the violation attracts only departmental action against the accused officials for their official misconduct and fine against accused building owners for not obtaining prior clearance from the KCZMA or MoEF.” 

Why HC rapped vigilance?

The High Court was harsh on the vigilance inquiry. In the interim order, issued on December 6, 2018, Justice P Ubaid wrote: “Though the complaint is specifically against 14 persons, the vigilance registered FIR against many persons on the basis of quick verification report. It appears that the vigilance is under a misconception as to how or on what material a crime can be registered.” (sic)

Stating that the vigilance went beyond the scope of a quick verification, the court said, “If the complaint does not disclose any cognizable offence, the police or the VACB cannot find out some other materials of their own for registering a crime.” (sic)

The high court, in its order dated May 23, 2019, quashed the FIR and further proceeding against the accused on the basis of the vigilance final report.

“After a thorough investigation, the vigilance has now concluded that there is no material to prosecute this petitioner or others under the Prevention of Corruption Act, 1988, and the vigilance has decided to refer the crime or to drop further action. Let the appropriate legal decision be taken on such report by the trial court,” Justice Ubaid wrote in his final order.

The court also noted that “Everybody who is alleged to have paid bribe is seen arraigned as accused in the FIR. This is a very serious flaw in the prosecution process.”  The court said: “in such situations, there will be nobody to give evidence in court against the public servants, and ultimately the case will end in acquittal, and thus, the public servants who accepted illegal gratification would escape.”

Maradu-2 in the making: How did Chilavannur flat case reach Supreme Court? | Part II
The vigilance FIR was based on a report prepared by an expert team in March 2016 after visiting the sites and observing the morphology, ecosystems and CRZ status.

Antony, in his special leave petition to the Supreme Court, has specifically challenged this observation.

Volte-face by vigilance?

The vigilance on March 13, 2019, told the High Court that offences committed by the accused did not call for further action based on the Prevention of Corruption Act. 

“The violation attracts only departmental action against the accused officials for their official misconduct and fine against accused building owners,” it concluded.

A lawyer, who was involved in the case, told Onmanorama that the vigilance's volte-face was evident from the two contradicting reports.

Antony termed the vigilance's new stand surprising. It “probably was due to the extraneous pressures,” he said.

But vigilance officials said that the agency's probe into the violations is on.

“The High Court has stayed the proceedings against Cyril Paul. The investigation against the other accused is still on. We will also request the Supreme Court to let us proceed with the inquiry against Cyril Paul too,” VACB DySP R Asok Kumar told Onmanorama.

This is the second part of a two-part series on the fate of 13 buildings in Cochin Corporation.

Read the first part here: 

Maradu-2 in the making: Will Supreme Court order demolition of 13 buildings in Kochi?

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