I still remember the lectures on the topic of ‘Rule of Law’ being among the longest during my years in law college. It would take a full fortnight for the professors to finish it. The concept of Rule of Law is imbibed both in constitutional as well as administrative law, and hence I had to attend both the classes to get complete understanding.
During academics and thereafter in litigation, by and large, we inclined to agree, with a few exceptions, that the edifice of our nation is built on the strong pillars of the Rule of Law. This belief was strengthened on several occasions by the Supreme Court and the High Courts when they came to the rescue of the last person in the queue, defying all procedural regulations. Constitutional courts are custodians of the Rule of Law, and hence rightly came to the rescue of citizens for whose welfare they are bound to act.
But recently, some instances in different states, across different political party lines, have shattered this belief completely. After reading hundreds of books, thousands of case laws, and having lengthy discourse with some of the best legal minds of the nation, I completely failed to understand the law that empowered the state machinery to bulldoze the house of a suspect or an accused.
Recently, in Uttar Pradesh, Madhya Pradesh, West Bengal, Gujarat, Maharashtra, Delhi and Assam, the residential houses of suspected rioters were bulldozed, citing some provisions of local municipality laws terming such buildings as illegal encroachments. Whatever the reason given by concerned authorities may be, most of these so-called illegal encroachments were bulldozed in the name of deterrence.
At the outset, it is significant to mention that as far as criminal law is concerned, there is no provision that empowers the state to destroy the property of individuals unless the property is seditious, lascivious or libelous in nature. Offences against public tranquility, including rioting, are made punishable under Chapter VIII of Indian Penal Code 1860. None of the sections in this Chapter speak about destruction of property as punishment. There is no jurisprudence in India that permits eye for an eye. If any wrongful act is committed by any accused, due process of law as mandated by the Constitution of India is followed to punish such accused. It is correct that procedure is in a moribund state, but it does not allow the state machinery to act illegally on its sweet will.
Since most of these houses are bulldozed citing municipality laws, it is appropriate to discuss these laws for the purpose of their application and implication. Through this article, the author has attempted to highlight the existing laws and related judicial precedents that regulate the demolition of illegally encroached property.
Existing statutory laws in different states that regulate demolition of unauthorized buildings
In the State of Uttar Pradesh, the authorities justified their action under Section 10 of Uttar Pradesh (Regulation of Building Operations) Act, 1958. For easy reference, the relevant portion of this Section is reconstructed below:
10. Order of demolition of buildings in certain cases. - (1)Where the erection or re-erection of or material change in any building has been commenced or is being carried on or has been completed in contravention of any regulation made under this Act or without the permission referred to in Section 6 or in contravention of any condition subject to which such permission has been granted the Prescribed Authority may without prejudice to the provision of Section 9 make an order directing that such erection, re-erection or material change in shall be demolished by the owner thereof within such period not exceeding two months as may be specified in the order, and on the failure of the owner to comply with the order the Prescribed Authority may itself through the local authority concerned or through such other agency as it thinks fit cause the erection, re-erection or material change in to be demolished and the expenses of such demolition shall be recoverable from the owner in the same manner as an arrear of land revenue: Provided that no such order shall be made unless the owner has been given an opportunity of being heard.
Under Section 15 of the same Act, there is a provision of appeal by aggrieved persons within 30 days of the order in question. The appellate authority under this Section is competent to stay the order of demolition till the final adjudication of the appeal. Under Section 15A of this Act, the aggrieved person has the right of revision against the decision of the State government.
Another relevant Section is Section 27 of the Uttar Pradesh Urban Planning & Development Act, 1973, which regulates encroachment in areas under the development authority. As per this Section, the Vice-Chairman of the development authority is competent to order the removal of illegally constructed buildings by the owner himself after a period of 15 to 40 days of notice. If the owner fails to remove the building within the prescribed period, then the Vice-Chairman may issue an order of demolition.
The proviso to this Section reads:
Provided that no such order shall be made unless the owner or person concerned has been given a reasonable opportunity to show cause why the order should not be made.
Clause (2) of Section 27 gives the owner of the building the right to appeal before the Chairman of the authority against the order of the Vice- Chairman within a period of 30 days. The Chairman, as the appellate authority, may allow, dismiss or partially allow the appeal.
Similar municipal laws are in existence in other states also. In Madhya Pradesh, Section 248 of the Madhya Pradesh Land Revenue Code, 1959 and provisions under the Madhya Pradesh Bhumi Vikas Rules, 1984 empower the authority to demolish unauthorized constructions. In Delhi, the Municipal Commissioner is the competent authority under Section 343 of the Delhi Municipal Corporation Act, 1957 to order the demolition of illegally constructed buildings.
Scope of statutory laws
The statutory laws described above are passed by respective state legislation. The highest law of the land is the Constitution of India and every other law is subordinate to it. Article 21 of the Constitution says that the life and liberty of any person cannot be taken away without procedure established by law. In the case of Maneka Gandhi v. Union of India, Article 21 was interpreted by the Supreme Court broadly; it was held that "life" was not only bodily life, rather it included all the factors that ensure a dignified life. It further added that the procedure established by law must be due process of law and not merely any procedure made by legislation or the executive.
Furthermore, in the landmark case of Olga Tellis v. Bombay Municipal Corporation, the apex court recognized the rights of housing and livelihood as fundamental rights protected under article 21. In Sudama Singh v. Government of NCT of Delhi, the High Court of Delhi had also emphasized on fair procedure to be followed by the State while evicting persons from their houses.
In addition to this, the courts in India have time and again cautioned the executive branch that no citizen can be deprived of his rights without fair procedure of law, and fair procedure includes proper hearing. The concept of audi alteram partem, meaning no one can be condemned unheard, is part of the Rule of Law. This is a principle of natural justice which must be followed in judicial, administrative or executive orders.
If any person is punished without hearing then it is against the very objective of article 14. The authorities cannot act as an unruly horse. Excessive discretion is the antithesis to article 14 and that is why, it is curbed by rule of proper hearing. As held in the Maneka Gandhi case, the most fundamental requirement of fair hearing is notice. Any action taking away the rights of a citizen without proper notice is deemed to be against the concept of fair hearing, and eventually the principle of natural justice.
Coming back to the statutes of UP, MP and Delhi, they all necessarily provide that proper notice should be given to the owner of building before demolition. The issuance of notice to the owner is not a mere formality of law, rather it is to be followed in letter and spirit. The objective of notice is to bring the subject matter in actual knowledge of owner so that he can defend himself and may exhaust available legal remedies. The notice should be given to the owner well in advance with a reasonable time to respond. What may be categorized as reasonable time is dependent on facts and circumstances of a case subject to given statute.
The Supreme Court in the case of Municipal Corporation of Ludhiana v. Inderjit Singh & Anr criticized the Ludhiana Municipal Corporation strongly after it failed to give proper notice to a house owner. The Court observed that the demolition was highly arbitrary as the statutorily required notice was not given to the owner. Had a proper and timely notice been served to the owner of building, he could have shown that the alleged violation of the statute was of negligible character, and did not require demolition.
Similarly, in the case of Municipal Corporation of Greater Bombay v. Sunbeam High Tech Developers Pvt Ltd, the apex court held that:
“The action of demolition without following the procedure established by law is illegal. The municipal corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and that should be recovered from the officers who acted in violation of law.”
Furthermore, the residential building that is removed by a bulldozer does not belong entirely to the culprit, if any. It belongs to all those who inhabit it. Under various provisions of law, the women and the old parents of the owner have rights to reside with him. If some minor violations of municipal laws are there and they can be rectified, then demolition of such structure should not be allowed. Allowing such demolition without the force of proper law amounts to extra-judicial punishment.
It can, therefore, be concluded that the state is sufficiently empowered to remove unauthorized buildings, but this power is to be used judiciously. The authorities should not demolish buildings, particularly residential houses, just to punish the owner. The objective of removal should be the welfare of state and not otherwise. It may be possible that only a portion of the building is made in violation of municipal law and, therefore, it should be dealt with accordingly instead of removing the entire building of a house. The owner of a building, who made it by investing his hard-earned money, should be protected against the illegal action of authorities. The authorities are bound to follow the proper and fair procedure. Otherwise, the Rule of Law shall be crushed under the unruly wheels of bulldozers.
Hari Mudgil is a Delhi-based lawyer.