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The Uttar Pradesh government recently razed the house of Jawaharlal Nehru University (JNU) student and activist Afreen Fatima in Prayagraj after the police named her father Javed Mohammad as the “mastermind” in the protests that took place in the town on June 10 in the wake of controversy following now-suspended Bharatiya Janata Party (BJP) leader Nupur Sharma’s remarks on the Prophet.
Fatima was told on June 11 night that the Uttar Pradesh authorities had put up a notice outside their house, which asked them to vacate the house before it was demolished. The notice that was served on them was addressed to Javed Mohammad, Fatima’s father but the house belonged to Parveen Fatima, her mother. Sumaiyya Fatima (Afreen’s sister) told Indian Express that the house was gifted to her mother by her grandfather two decades ago but they had never been told that the property was “illegally built.”
“The house tax, water tax and electricity connections are in the name of my mother. All taxes have been paid on time. Before Sunday, no official told us that our house was built wrongly,” Sumaiyya said, according to Indian Express.
Law on ‘unauthorised structures’
Is the demolition of Fatima’s house in line with the law? There are multiple discrepancies in the notice served by the authorities.
Firstly, the notice was addressed to Javed Mohammad instead of his wife, to whom the property belonged. Second, the property had stood in place for two decades, they had paid water tax and housing tax. No question of it being an illegal construction was raised by authorities in all those years. And lastly, the demolition was carried out without allowing the affected party an opportunity to be heard, which is an essential aspect of Section 27 of Uttar Pradesh Urban Planning and Development Act, 1973.
The authorities have claimed that Fatima’s family was given sufficient time to reply to the notice or appear before them. They said it was only after they failed to appear before them that they carried out the demolition.
Even if we accept the contentions of the authorities, they are still not in line with the law. Even if there was no appearance made by Fatima’s family, they still have the right to appeal as per Section 27 (2) of the Urban Planning and Development Act, 1973 before the chairman, who may after hearing the parties to the appeal, either allow or dismiss the appeal or may reverse or vary any part of the order.
This means that Uttar Pradesh authorities have carried out demolition under Section 27(1) of the UP Urban Planning and Development Act, 1973, neglecting the provisos and other sub-sections, essentially violating the law they claim to have used for the demolition:
- Order of demolition of a building.:
(1) Where any development has been commenced or is being carried on or has been completed in contravention of the Master Plan or without the permission approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, in relation to the development area, then, without prejudice to the provisions of Section 26, the Vice-Chairman or any officer of the Authority empowered by him in that behalf may make an order directing that such development shall be removed by demolition, filling or otherwise by the owner thereof or by the person at whose instance the development has been commenced or is being carried out or has been completed, within such period not being less than fifteen days and more than forty days from the date on which a copy of the order of removal, with a brief statement of the reasons he therefore, has been delivered to the owner or that person as may be specified in the order and on his failure to comply with the order, [the Vice-Chairman or such officer] may remove or cause to be removed the development, and the expenses of such removal as certified by [the Vice- Chairman or such officer) shall be recoverable from the owner of the person at whose instance the development was commenced or was being carried out or completed as arrears of land revenue and no suit shall lie in the Civil Court for recovery of such expenses:
Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show-cause why the order should not be made.
(2) Any person aggrieved by an order under Sub-section (1) may appeal to the (Chairman) against that order within thirty days from the date thereof and the [Chairman) may after hearing the parties to the appeal either allow or dismiss the appeal or may reverse or vary any part of the order.
(3)The [Chairman] may stay the execution of an order against which an appeal has been filed before it under Sub-section(2).
The decision of the (Chairman) on the appeal and, subject only to such decision, the order under Sub-section (1), shall be final and shall not be questioned in any Court.
The provisions of this section shall be in addition to, and not in or derogation of, any other provision relating to demolition of buildings of contained in any other law for the time being in force.
While speaking on the subject of demolition, Delhi high court advocate Harshit Anand said that the governments have the power to demolish unauthorised constructions raised in contravention of a given statute, however, such demolitions can only occur by following the rigours of the same statute.
“While governments have the power to demolish unauthorised constructions raised in contravention of a given statute, such demolitions can only occur by following the rigours of the same statute.
For instance, in the case of Afreen Fatima’s residence, the state action of demolition is not only contrary to the said Section 27 of the UP Urban Planning and Development Act, it is backed by inconsistent and shabby paperwork. While the said Section 27 allows demolition in specific circumstances, it also mandates a process that has to be mandatorily followed before any demolition is carried out. There are gaping holes in the demolition notice and the version forwarded by the authorities which cast aspersions on the whole process and undermines due process of law,” Harshit Anand said.
He also said that such an instant method of punishment is designed to render civil remedy infructuous:
“What is imperative to note here is that the modus which the state is adopting to carry out these demolitions is designed to render civil remedy infructuous. Civil courts have the power to pass injunction orders against demolition notices, but the haste with which demolition is carried out makes an injunction against the notice virtually impossible.
In such a case, the only forum that the aggrieved person is left with is a constitutional court which can stay such demolitions by exercise of its writ power. Needless to mention, right to property is a human right explicitly embedded in our constitution.
Further, such demolition drives continue to happen even though cases against similar demolitions are pending in courts and the Supreme Court has given its oral assurance against such hasty demolitions,” Anand added further.
The demolition of Fatima’s house is also contrary to the principles of natural justice, he said.
“The above discussion, however, is only happening under the assumption that the actions of the State are bonafide. It appears however that this demolition drive in effect is a punitive measure against individuals who have been associated with protests and issues involving public order. This renders such demolitions contrary to every principle which constitutes the rule of law.
By carrying out these demolitions, the State is assuming guilt even before trial and suppressing dissent by instilling fear in the minds of its citizens. Such a measure against any rights-bearing individual is completely unconscionable and betrays a breakdown of constitutional state of affairs.
All of this therefore makes such demolitions a fit case for the high court or the Supreme Court to take suo moto cognizance of the issue to uphold the due process of law and protect the human right to property and housing,” the lawyer observed.
In a recent judgment passed by the Allahabad high court in the case of Abbas Ansari And Another vs State Of U.P. And 3 Others, the court observed that the state authorities cannot demolish a property before the statutory period of an appeal came to an end.
“The state authorities, wherever demolition orders are passed in respect of constructions raised on the private properties under the two acts, should wait from taking any action for actual demolition till the statutory period of the appeal comes to an end.”
The same was upheld by the Allahabad high court again in the case of Thakur Prasad vs State Of U.P. And 3 Others, wherein the court asked the chairman/commissioner, Varanasi Development Authority, Varanasi to decide the interim application in the aforesaid appeals in accordance with law within two weeks from the date of production of the copy of the order and disposed of the matter in the aforesaid direction.
“The Court has proceeded to examine the record in question and find that statutory appeal is pending consideration. The date was fixed in the appeal on 10.12.2020 and learned counsel for the petitioner is unable to apprise when it is likely to be listed.
In the aforesaid facts and circumstances, no useful purpose would be served in keeping the writ petition pending consideration. In the interest of justice, the writ petition stands disposed of asking the Chairman/Commissioner, Varanasi Development Authority, Varanasi to decide the interim application in the aforesaid appeals in accordance with law within two weeks from the date of production of copy of this order.”
Are there any laws or precedents which allow authorities to demolish property?
There is 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 the case of Re: Destruction of Public & Pvt. vs State Of A.P. & Ors.
The aforesaid judgement laid guidelines in absence of a statute in relation to the destruction of public and private properties.
The judgment does not grant government authorities the power to demolish properties. It only states that if a person is a perpetrator or one of the organisers of a crime, he will be held liable for up to twice the amount of damages to be paid. 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 – but not the government.