We Are Not Going To Protect Any Unauthorised Construction: Apex Court Says It Will Frame Guidelines On 'Bulldozer Action' Happening Across Country

The Supreme Court, today, has orally remarked that authorities cannot demolish a house only because he is an accused or even if he is a convict without following the procedure step by step. The Court clarified that it will not protect unauthorised constructions.

The Court also said that it will frame guidelines applicable to pan India against the demolition drives happening in the country.

The Court was hearing the writ petition (PIL) filed by the Muslim body Jamiat Ulama-i-Hind against the demolition drive carried out by the North Delhi Municipal Corporation ('NDMC') in the Jahangirpuri area.

The Bench of Justice BR Gavai and Justice KV Viswanathan ordered, "The Petitioners raised the grievance that the properties of the persons who are accused are demolished. The Position is disputed by the State of Uttar Pradesh. An Affidavit has been filed that the immovable properties can be demolished only in accordance with the law. An Affidavit has also been filed by the State of Uttar Pradesh...We propose to lay down certain guidelines on a pan-India basis so that the concerns with regard to the issues raised are taken care of...We request Learned Counsels for the parties to submit their suggestions so that the Court can frame guidelines which will be applicable on pan pan-India basis."

Solicitor General Tushar Mehta submitted that an affidavit was filed dated August 9, 2022, by the State which stated that merely if a person is allegedly accused of an offence can never be a ground that an immovable property should be demolished. He said that it can only be demolished by the procedure established by law.

Justice Gavai said, "You are accepting this position."

Mehta replied, "Yes this is the affidavit."

Justice Gavai then said, "We will record and issue guidelines to all the States...It is a position of law, how can anybody demolish a house only because he is an accused, even if the reason is convicted still it can't be done without following the procedure as step by step..."

Justice Viswanathan said, "Why cannot some guidelines, to ensure that it does not happen, be laid down? Notice, time period, response, reply, order, time to avail legal remedy, avoid backdating communication with some secretary or nodal agency, automated reply, so that there is no fear, and, in taking off from what you have said in a non-adversarial way, so that it is put in position, across the States, with directions issued."

Justice Gavai said, "Every Municipal law has a provision for hearing or against unauthorized construction...we are not going to protect any unauthorised construction, not even the temples on the public road..."

Justice Viswanathan remarked, "Operate in practice, something which is streamlined."

Justice Gavai remarked to Mehta, "Though it is a position of law, it is seen that it is followed more in breach."

Mehta stated, "Each case, individual instance. They have projected as if he committed an offence, the house has been demolished. But we can show that he was independently issued notice long back, notice was repeated etc."

Justice Viswanathan said, "Today, don't get into the facts, we just want to frame some guidelines... So that tomorrow there is no bulldozer...and so that it is documented and checked so that neither them who take advantage, the people who have the unauthorized constructions, nor the authorities... reply on any lacunae. "

Mehta replied, "Suppose I am already facing a notice, I will also know that my construction is unauthorised, so merely because my construction is unauthorised, would not absolve me of inevitable consequences of demolition."

Gavai replied to him, "If the Construction is unauthorised and the municipal law provides for that, for instance, it is in the marginal area, somebody who is required to keep a 10 ft margin in front and 5 ft on both the sides, even then such constructions need to be demolished, but in accordance with law."

Justice Viswanathan remarked, "A fierce father may have a recalcitrant son and vice versa, but this is not the way to go about it..."

Senior Advocate Dushyant Dave for the Jamiat Ulama-i-Hind intervened and said, "Will you please allow to respond Mr Mehta, this is not how it all happened. In Delhi, what happened...on 16th of April 2022(Mehta interrupts)...I am responding to you and we are seeking a solution, with your assistance Mr Mehta because you are the Solicitor General of India, and you believe in the rule of law, as you said...16th of April, 2022, these organisations seek permission of Police,...and Bajrang Dal to carry a procession...(Mehta interrupted)...Police refuse and say we will not allow it. They carry out a procession, police registers FIR against them. Then what happened ,the BJP President of Delhi writes a letter to the Municipal Commissioner, North Delhi saying that give us 400 men we want to start demolition. Is this unauthorised construction?"

Dave also referred to the decision of the Guwahati High Court which gave Rs 37 lacs compensation in an identical case. He also referred to the recent incident in Udaipur where a Boy stabbed another boy in a school, and his house was set on fire. "His father was a tenant, not even the owner", Dave added.

Gavai said, "But that was done by the mob."

Dave replied, "No it wasn't."

The Court then said that they would lay down guidelines on the next date of the hearing and asked the parties to submit their suggestions.

The Supreme Court, on April 21, 2022, had extended the order of status quo regarding the demolition drive. The Court had issued notice in all cases and has directed parties to file pleadings regarding whether or not notices were served before demolition. Dave had argued that a particular section of the society is being targeted through the demolition drive and that Jahangirpuri was picked despite there being 731 unauthorised colonies in Delhi. Dave relied upon Section 343 of the Delhi Municipal Corporation Act, 1957 to argue that notice should have been given before the demolition of structures.

The NDMC had halted the demolition drive it was carrying out in the Jahangirpuri area after the Supreme Court directed its Secretary-General to convey the order to stop demolition to the NDMC Mayor and the Delhi Police Commissioner immediately. The matter was mentioned by Senior Advocate Dushyant Dave once again since the NDMC continued the demolition driving stating that it did not receive a copy of the interim order passed by the Court.

The NDMC in its Counter Affidavit before the Supreme Court had said that as per the Delhi Municipal Corporation Act, 1957, it can remove unauthorized projections on public land and unauthorized temporary structures beyond the boundary of houses and shops, without serving notice. It has also said that for the removal of such structures, bulldozers are required. "When a road or footpath is cleared, the process goes on from one end to another without any distinction of the religion or owner/occupier who has unauthorizedly occupied footpath or public road", the NDMC had said while denying the allegation of targeting any particular community.

In June 2022, the Court had also sought response from the Uttar Pradesh Government while refusing to stay the demolition drive in the Kanpur and Prayagraj districts of Uttar Pradesh. Jamiat had also through a new affidavit sought a writ of Mandamus to the Union of India and the State Government so that no lasting precipitative action is taken against any accused in any criminal proceeding. Jamiat had in its affidavit referred to the protest and the ensuing scuffle that happened in Kanpur District of Uttar Pradesh and stated that several persons of authority including the Chief Minister of Uttar Pradesh have given statements in the media that the houses and properties of the perpetrators would be razed using bulldozers.

The Jamiat Ulama-i-Hind had also moved the Supreme Court seeking a direction to the Centre and some states including Madhya Pradesh and Uttar Pradesh that "precipitative actions" like razing buildings in criminal proceedings be not taken. The plea had assumed significance because of recent actions taken by authorities in Madhya Pradesh to use bulldozers to raze the properties of those accused of rioting during the Ram Navami celebrations. Jamiat Ulama-I-Hind, in its petition, had said that the action like razing the house in a criminal proceeding as a punishment is unknown to criminal law.

Cause Title: Jamiat Ulama-i Hind v. North Delhi Municipal Corporation (W.P. (C) No. 295 of 2022)

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