Allahabad High Court judges deliver split verdict on 2-year freeze on demolishing house of accused person

A Division Bench of the Allahabad High Court has delivered a split verdict on the need for additional measures to prevent punitive demolitions of properties linked to accused persons.

While Justice Atul Sreedharan directed that no action may be taken to demolish his house of an accused for a period of two years from the date of registration of the FIR, Justice Siddharth Nandan said such direction cannot be given.

In a separate ruling passed on July 20, Justice Sreedharan said:

“Rushing to demolish the dwelling place of a person accused of an offence under the garb of the same being violative of municipal laws, is impermissible the same being a retributive exercise of executive discretion and so, no action may be taken to demolish his house for a period of two years from the date of registration of the FIR.”

However, Justice Nandan said that there is always a presumption that the government will only proceed in accordance with law and adhering to the principles of natural justice. The judge also said that it was always open for aggrieved person to approach the High Court.

"In my humble opinion no fixed time period can be put, for as a matter of fact, it would result in keeping the operation of an enactment in abeyance, for the said period," Justice Nandan said.

Considering the dissent, the Court referred the matter to the Chief Justice for decision by a third judge for their opinion on the following issues:

1. Whether in exercise of powers under Article 226 of the Constitution of India, a direction be issued in rem, for a period of 2 years or likewise, where the State may be restrained to take any action under the U.P. Urban Planning and Development Act, 1973, though subject to some exceptions; and

2. Whether before initiating a procedure under the municipal laws, can a direction be given to the authorities to give a ‘notice of intent’; 1 year prior to the initiation of the said procedure, for the alleged violation of the statutory norm?.

In February, the Court had called out the Uttar Pradesh government for continuing with the punitive demolitions of properties linked to accused persons despite Supreme Court's directions to refrain from taking such actions. The Court had then examined the issue in detail.

It was dealing with a plea filed by three members of a family who alleged that a mob targeted their house in collusion with the police, immediately after one of their relatives was booked in a case under Protection of Children from Sexual Offences Act (POCSO Act) and UP Prohibition of Unlawful Religious Conversion Act.  

In a detailed but separate ruling, Justice Sreedharan said the Court is a witness to several cases where the notice for demolition is issued to persons occupying a dwelling place on the heels of registration of an FIR and thereafter demolition is carried out with ostensible fulfilment of statutory requirements. 

These demolitions have continued unabated, notwithstanding the law laid down by the Supreme Court, the judge said.

“The continuation of the bulldozer actions by the State as is attempted in the case of the Petitioners herein, has compelled this Court to carve out a Specie of Retributive Exercise of Executive Discretion as the Vilest Specie of the Genus Colourable Exercise of Executive Discretion,” Justice Sreedharan added.

In his separate ruling, Justice Nandan said that the Court is conscious of the fact that the rapid increase in the unauthorized constructions is partly also attributable to the increase in the population but the same cannot justify illegal constructions coming up.

The judge thus called for fixing accountability in such matters.

“In case notices are issued for the violation of the construction norms, the same shall only be valid, if simultaneous proceedings are also initiated against the erring officers and the same shall also be required to brought to its logical end, adhering to the procedures prescribed within a reasonable time and in any case not later than 6 months,” the judge said.

He also said that the State action must not be only against one individual and not similar violations in the vicinity.

"If such will be the case, the aggrieved person, shall be at liberty to approach this Court, alleging ‘retributive exercise of executive discretion’ and violation of the fundamental rights," the judge directed.

Advocated Shamsuddin Khan, Syed Ahmed Faizan and Zaheer Asghar represented the petitioner

Additional Advocate General Anoop Trivedi represented the State.

[Read Judgments]