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Law

Amidst the Spate of Demolition and 'Anti-Encroachment' Drives, What Does the Law Say?

An overview of laws and judicial precedents in the country which deal with the demolition or attachment of property reveals that the recent drives across the country fly in the face of established procedures.

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Last week, the Assam administration demolished houses of people who were allegedly involved in setting fire to a police station while protesting an alleged custodial death. The demolition took place in Salonabari in Assam’s Nagaon district.

In the past few months, we have witnessed a steep increase in the number of demolitions carried out by the state without serving appropriate notices to the parties involved.

The most high-profile incident was in Delhi’s Jahangirpuri, where the North Delhi Municipal Corporation (MCD) decided to demolish the houses of alleged encroachers.

The move allegedly came as a result of a letter written by the BJP-controlled North MCD to the deputy commissioner of police (DCP), North West demanding security for an ‘anti-encroachment’ drive on April 20 and 21, following communal clashes during Ram Navami celebrations in the Delhi locality. The demolition drive was halted by an order of the Supreme Court.

A few weeks later, on May 9, the South MCD moved to Shaheen Bagh to demolish the houses of alleged encroachers. The demolition, however, was stopped as a result of a massive protest in the area and the bulldozers were eventually called off.

A bulldozer at Shaheen Bagh. Photo: Sumedha Pal

The Communist Party of India – Marxist (CPI(M)) moved Supreme Court seeking a stay on demolition but the apex court refused to interfere at the instance of a political party.

“You will be advised better to approach the high court. Do not make this such a platform and come on behalf of a political party,” the bench said.

In fact, ‘anti-encroachment’ drives were seen in several locations which had seen communal clashes on Raam Navami, April 10.

In April, a similar drive was seen in Gujarat when the Himmatnagar civic body demolished kiosks, shacks and portions of shops as part of its own ‘anti-encroachment drive’. The administration of Gujarat’s Anand district, too, undertook such an exercise, where structures belonging to people allegedly involved in the Ram Navami clashes were razed.

A similar drive was also undertaken in Madhya Pradesh’s Khargone, another site of communal clashes in April

Another example of a demolition drive in Madhya Pradesh took place in the Jirapur village, where 48 houses were razed after the authorities identified these houses as encroachments over government land.

The move came as a result of a first information report (FIR) filed against members of the minority community. It was alleged that a Dalit marriage procession was passing in front of a mosque when some members of the minority community raised an objection to them playing loud music.

Thereafter, members of the Dalit community members alleged that stones were pelted at them, leaving five people, including a six-year-old, injured.

Two days after the FIR was filed, the authorities issued notice to some residents of Jirapur’s ward number 4, identifying them as encroachers and a day later, they demolished 48 structures, many of them being identified as belonging to the accused.  

Also read: With Khargone, Shivraj Singh Chouhan Drives Home Dream of ‘Bulldozer Justice’

What does the law say?

With regard to the right to housing, there is a landmark judgment passed by the Supreme Court in the case of Olga Tellis vs Bombay Municipal Corporation, wherein the top court observed that the right to life, guaranteed under Article 21 of the constitution, also includes a person’s right to live with dignity, housing and livelihood. 

In principle, every municipal corporation is required, by law, to serve a notice upon the parties before their property is attached/demolished. Section 343 of the Delhi Municipal Corporation Act, 1957 states that notice needs to be served to the parties before the demolition of any building.

It also states that the occupant has to be given 5-15 days before the commissioner himself orders the demolition of the structure.

The proviso of the Section states that no order of demolition shall be made unless the person has been given, by means of a notice served in such manner as the commissioner may think fit, a reasonable opportunity of showing cause why such an order shall not be made.   

Similarly, as per Madhya Pradesh Bhumi Vikas Rules, 1984, the authorities are required to serve notice to the person supposedly violating said rules, which prescribe a period of ten days for the violator to stop the violation.

Precedents

The Delhi high court, in 2010, passed a judgment in Bal Kishan Das vs Municipal Corporation of Delhi wherein the court said that serving a show cause notice to the parties is a mandatory requirement.

The Delhi high court delivered another judgment in 2010 upholding the practice of the issuance of notice before demolition, in the case of Sudama Singh & Others vs Government Of Delhi & Anr. The court had held that before the government authorities decide to evict someone from their house, they need to provide for an alternate accommodation where basic civic amenities that uphold their right to life and dignity, are available.

“Within a period of four months from today, each of those eligible among the petitioners, in terms of the above relocation policy, will be granted an alternative site as per MPD-2021, subject to proof of residence prior to cut-off date. This will happen in consultation with each of them in a ‘meaningful’ manner, as indicated in this judgment,” the judgment reads.

Further, it states, “The state agencies will ensure that basic civic amenities, consistent with the rights to life and dignity of each of the citizens in the jhuggies, are available at the site of relocation.”

Another judgment was passed by the Supreme Court in 2019 in Municipal Corporation of Greater Mumbai & Ors. v M/S Sunbeam High Tech Developers Private Ltd. wherein the court held that the government authorities need to follow proper procedure for demolition.

Yet another relevant judgment here was passed in Arun Bharti vs The State Of Madhya Pradesh by the Madhya Pradesh high court.  The court had held that the necessity of compliance with the principle of natural justice of audi alteram partem (‘Let the other side be heard’) by affording a reasonable opportunity of hearing, is inherent in the provisions of Section 248 of the Madhya Pradesh Land Revenue Code, 1959.

Are there any laws or precedents which allow authorities to demolish property?

We have one precedent where the apex court agreed to fix liability on persons accused of damaging public property. The judgment was passed by the Supreme Court in 2009 in the case, Re: Destruction of Public & Pvt. vs State Of A.P. & Ors.

In the aforesaid judgment, the Supreme Court had observed that public and private property is often damaged by the invocation of political processions, illegal demonstrations, strikes, bandhs and protests in the country, and that strict legislation is required to prevent it. 

In absence of any statute in 2009, the court had passed certain guidelines in which there was also a mention of holding perpetrators liable:

The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established… The liability will be borne by the actual perpetrators of the crime as well as organisers of the event giving rise to the liability – to be shared, as finally determined by the high court or Supreme Court, as the case may be.”

“Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.”

Also read: UP’s Property Damage Ordinance Gives Tribunals Sweeping Powers, Rulings Can’t Be Appealed

Nowhere, however, does the judgment grant government authorities the power to demolish properties without notice. It only states that if a person is a perpetrator or one of the organisers of the crime, he will be held liable for up to twice the amount of damages liable to be paid. 

Interestingly, the aforesaid judgment has also been used by BJP supporters to justify the Uttar Pradesh government’s actions against the attachment of property of ‘rioters’, even though the judgment does not allow the state to attach said property. 

Supporters with earth-mover bulldozers attend a public meeting UP Chief Minister Yogi Adityanath (unseen) for the ongoing UP Assembly elections at Domariaganj village, in Sidharth Nagar, March 1, 2022. Photo: PTI

In fact, the apex court explicitly vested the responsibility of setting up machinery to investigate the damage caused with the high court and, in case more than one state is concerned, the Supreme Court, not the government.

The concerned portion of the judgment is as follows:

Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.

Where there is more than one state involved, such action may be taken by the Supreme Court.

In each case, the High Court or Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.

An Assessor may be appointed to assist the Claims Commissioner.

The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.”

The said judgment was also invoked by the Uttar Pradesh government in 2020, to pass the Uttar Pradesh Recovery of Damages to Public and Private Property Act.