Decoding where the law, constitutional courts stand on bulldozer demolitions

By, New Delhi
Apr 21, 2022 01:11 PM IST

While North MCD has maintained that Wednesday’s demolitions were part of an anti-encroachment drive, and, as such, required no prior notice to the alleged violators of the law, the fairness of the procedure and compliance with the due process are of significance.

The demolition drive by the North Delhi Municipal Corporation (North MCD) in the violence-hit Jahangirpuri area has thrown up some serious questions over the legality of actions by municipal authorities and the manner in which certain structures were razed to the ground using bulldozers.

A bulldozer demolishes the structure during the anti-encroachment drive following the violence between two groups during the Hanuman Jayanti procession on April 16, at Jahangirpuri, in New Delhi on Wednesday, April 20, 2022. (ANI Photo/Rahul Singh) PREMIUM
A bulldozer demolishes the structure during the anti-encroachment drive following the violence between two groups during the Hanuman Jayanti procession on April 16, at Jahangirpuri, in New Delhi on Wednesday, April 20, 2022. (ANI Photo/Rahul Singh)

A three-judge bench in the Supreme Court, headed by Chief Justice of India NV Ramana, stayed the demolition drive after a clutch of petitions were mentioned before it on Tuesday morning, and fixed the case for a detailed hearing on Wednesday.

While the corporation has maintained that Wednesday’s demolitions were part of an anti-encroachment drive, and, as such, required no prior notice to the alleged violators of the law, the fairness of the procedure and compliance with the due process are of significance.

A close look at the pertinent legal provisions and constitutional principles involved in issues related to coercive processes against unauthorised constructions and encroachments may help putting the entire controversy in the right perspective.

North MCD’s reliance on the Delhi Municipal Corporation (DMC) Act

As bulldozers swung in, the corporation raised sections 321 and 322 of the DMC Act to justify its action. According to a press release issued by the municipal body on Tuesday evening, such encroachment removal drives on public roads are done regularly in all wards and zones with or without notice under the relevant provisions of the DMC Act, with prior intimation to local police.

“The above action is an attempt to clear pedestrian walkways and roads from encroachments to ease the traffic and pedestrian movement,” stated the release; North Delhi mayor Raja Iqbal Singh said that the encroachment removal drive is a routine process of the municipal body.

Also Read | Razed and confused: An account of MCD’s demolition drive in Delhi’s Jahangirpuri

Section 321 prohibits putting up or erecting a temporary structure or objects on any street or public place that may obstruct movement or create an encroachment.

Section 322 empowers the MCD Commissioner to remove any encroachment and any article being hawked on public streets without notice.

Those familiar with the matter also cited Section 336, which holds that sanction of a building or a work shall be refused by the municipal body if it is an encroachment on government land or land vested in the corporation.

Section 343 of the DMC Act authorises the MCD Commissioner to issue orders for demolition of any ongoing construction or erected structure if it has come up against the provisions of the DMC Act. However, the provision makes it clear 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 order shall not be made.” Further, the demolition shall not be carried out within five days of issuance of such notice.

Sub-section 3 of Section 343 adds that where an appeal is preferred against an order of demolition, the Appellate Tribunal may stay the enforcement of that demolition order with respect to structures already erected. Sub-sections 4 and 5 of this provision also tend to give finality to the order passed by the MCD Commissioner as it states that no court shall ordinarily restrain the Commissioner from taking any action under Section 343.

Issue of unauthorised constructions and encroachments in the Capital in courts since 1985

In a PIL filed by environmentalist MC Mehta in 1985, the Supreme Court took note of rampant illegal constructions in Delhi and it has passed a spate of orders over the last three decades to check the menace.

Also Read | BJP at fault for religious tensions: Oppn flays Jahangirpuri demolition action

On March 24, 2006, the Supreme Court appointed a monitoring committee to take stock of unauthorised construction and misuse of premises in Delhi and report to it. The monitoring committee, comprising KJ Rao, former adviser to the election commissioner, Bhure Lal, chairman of the Environment Pollution (Prevention and Control) Authority, and major general Som Jhingan (retired), was given the power to seal unauthorised constructions.

However, in 2013, the Supreme Court sent all the matters relating to sealing of premises and unauthorised constructions to the Delhi high court. The powers of the monitoring committee were also put in abeyance. Dissatisfied with the progress of the cases before the high court, in December 2017, the top court called back all the matters and also restored the authority of the monitoring committee.

In a few subsequent hearings, the Supreme Court expressed concern over the lack of police protection to the members of the monitoring committee, prompting the central government to constitute a special task force (STF) on April 25, 2018. The government said that the STF would ensure the enforcement and implementation of laws concerning unauthorised construction and encroachment in Delhi. A 19-member STF, headed by the vice-chairman of the Delhi Development Authority (land owning agency in Delhi), and comprising commissioners of the three municipal corporations of Delhi (MCDs), chairperson of the New Delhi Municipal Council (NDMC) and the CEO of Delhi Jal Board (DJB) was thus created.

In its order on December 5, 2018, the Supreme Court noted that the total area cleared from encroachment by the STF under permanent structures was 1,071,838 sq m. The area under temporary structures that was cleared was 1,699,858 sq m. In addition, about 3,202 sq m of public roads and footpaths were cleared. “This confirms the severe problems being faced by Delhi due to unauthorised construction and encroachments and the magnitude of the problem,” noted the court, asking the STF to protect and preserve the land retrieved from the unauthorised encroachments.

However, the press release, issued by the corporation on the demolition drive in Jahangirpuri, has not stated that its actions were guided by a recommendation or a report by the STF.

Supreme Court rulings on removal of unauthorised constructions and encroachments:

There has been a long line of cases underlining the significance of due process and adherence to the principle of natural justice where people are deprived of their rights to shelter or to earn a livelihood. The Supreme Court has remained emphatic that illegal encroachments must be removed since they lead to lawlessness and affect the rights of other citizens. At the same time, it has reminded the authorities of their duty to follow due process and resort to a fair and reasonable procedure.

In Ahmedabad Municipal Corporation Vs Nawabkhan Gulabkhan and others (1977), the top court dealt with the subject of encroachments and categorically held that while a notice may not be required in cases of encroachment of recent origin, if a municipal body allows settlement of encroachers for a long time, it must give a notice of reasonable time to such settlers.

“If the corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to see, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary,” held the court.

If the encroachment is not removed within the specified time, it added, the competent authority would be at liberty to have it removed. “That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers,” added the court.

In Olga Tellis Vs Bombay Municipal Corporation (1985) – the landmark verdict that acknowledged the right to shelter and the right to earn livelihood as forming part of right to life under Article 21 of the Constitution – the Supreme Court emphasised that, “which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life.”

The apex court rejected the plea of BMC that no notice need be given to slum dwellers since slums were sheer encroachments on public lands. According to the Supreme Court, this betrayed “a misunderstanding of the rule of hearing, which is an important element of the principles of natural justice”. In discussing this aspect, the court highlighted that eviction of the pavement or slum dweller not only means his removal from the house but the destruction of the house itself. “And the destruction of a dwelling house is the end of all that one holds dear in life. Humbler the dwelling, greater the suffering and more intense the sense of loss,” it said.

In MC Mehta (2006), the Supreme Court was dealing with sealing of properties in Delhi on account of unauthorised use of properties (residential properties being used for commercial purposes) and directed that the MCD would first issue public notices in leading newspapers, asking violators to stop misuse of properties within the period of 30 days.

In case the misuse continues, the court directed in this case, sealing of the premises shall commence after 30 days from the date of the public notice, thereby giving sufficient time to the violators to conform to the municipal by-laws. The court also highlighted that such illegalities could not have happened without the active connivance of the MCD officials. “It is not merely a case of only lack of will to take action, it appears to be a case of predominance of extraneous considerations,” it lamented.

In KT Plantation Pvt Ltd Vs State of Karnataka (2011), the apex court said: “Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature.”

The Supreme Court, in Delhi Airtech Services (P) Ltd & Anr Vs State of Uttar Pradesh & Anr (2011) held that planning laws are expropriatory (about taking back a property) and should be strictly construed and any ambiguity should lean in favour of the property owner. “Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted,” maintained the judgment.

Again, in Municipal Corporation of Greater Mumbai Vs Sunbeam High Tech Developers Private Ltd (2019), the Supreme Court underlined the importance of following due process before a municipal body could establish its authority to demolish structures that violate the laws and have been built without any building plans or in violation of the laws. “The exercise of this power which affects the property of the citizens of this country must be exercised in an absolutely fair and transparent manner. Rules in this regard must be followed,” held the court.

In that case from Maharashtra, the court also issued a slew of directives regarding the manner in which demolition can be carried out in the state. The guidelines included a mandatory seven-day notice for an unauthorised construction, and if a reply is given to the notice, the municipal authority in Maharashtra must pass a reasoned order after taking into account the response. “In case the reply is not found satisfactory then the order shall be communicated to the owner/occupier/builder/contractor etc giving him further 15 days’ notice before demolition of the property,” ordered the bench. The court relied on the provisions of the Bombay Municipal Corporation Act and the Bombay Provincial Municipal Corporations Act while issuing the guidelines.

The raft of case laws juxtaposed with the legal provisions make it clear that while municipal authorities may have the power to deprive citizens of their property, this can’t happen without the sanction of law or following due procedure, for the damages are irreparable. Further, it is a settled rule of interpretation of statutes that when power is given under a law to do a certain thing in a certain way, the thing must be done in that way or not at all.

The sanctity of North MCD’s actions in Jahangirpuri and the question of due process are bound to be scrutinised closely on Thursday when the case come up before the Supreme Court.

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