Bulldozer Actions | 'Will Clarify Demolition Can't Be Done Merely Because Someone Is Accused/Convict' : Supreme Court Reserves Judgment

The Supreme Court on Tuesday (October 1) reserved judgment on petitions against the demolition of houses of persons as a punitive measure, a practice popularly referred to as 'bulldozer justice' or 'bulldozer actions.'

A bench comprising Justices BR Gavai and KV Viswanathan elaborately heard the parties on the guidelines which can be issued to ensure that the local laws providing for the demolition of unauthorised constructions are not misused and that due process is followed.

The bench said that it would clarify that demolitions cannot be carried out merely because somebody is an accused or a convict in a crime. At the same time, the bench stated that it would ensure that unauthorized constructions and public encroachments are not protected.

The bench stated that it would issue "pan-India guidelines", which would apply to everyone equally, regardless of their community.

"Whatever directions we issue will be for pan India and apply to all equally. We are a secular country," Justice Gavai said.

On September 17, the Court had passed an interim order that no demolition should be carried out without obtaining its prior permission. However, this order was not applicable to encroachments in public spaces. Earlier, the Court had expressed the intention to lay down pan-India guidelines and allowed the parties to give their suggestions. Senior Advocate Nachiketa Joshi compiled the draft suggestions submitted by various parties and presented them to the Court.

The bench was primarily dealing with two petitions filed by Jamiat-Ulama-I-Hind, raising the issue of state governments demolishing houses of persons accused of crimes as a punitive measure.

Law against unauthorised constructions must apply to everyone equally : Court

The Court said that when certain unauthorised constructions are selectively demolished and it is found that the owner was facing an accusation in a criminal case, it was problematic.

"If there are two structures in violation and action is taken only against 1...and you find in the background there is a criminal offence, then what?Some solution has to be found for that...some judicial oversight", Justice Viswanathan observed.

"For unauthorised constructions, there has to be one law, not dependent on community," Justice Gavai said.

The bench reiterated that the mere existence of accusations in a criminal case or even conviction in a case cannot be a ground to demolish their homes. Solicitor General of India Tushar Mehta, representing the States of Uttar Pradesh,Madhya Pradesh and Gujarat, agreed that alleged involvement in a criminal case cannot be a ground to demolish someone's building. However, the SG expressed concerns about the September 17 restraint placed by the Court on demolitions, saying that it could hinder the removal of genuine encroachments. The SG said that the situations highlighted by the petitioners - the use of demolitions as a punitive measure - are "far and few between", accounting for less than 2% of the actual demolitions carried out in the country.

"For the benefit of few, for a few cases of alleged injustices, let undue advantage not be taken by big builders and others," SG said.

Court stresses need for Judicial oversight

During the hearing, the Court stressed the need for a "judicial oversight" on demolitions carried out by local authorities. The bench underscored that the notice for demolition must be sent through a registered post to the actual owner with acknowledgement due. It also suggested that notices and orders could be digitised and uploaded on an online portal to ensure more transparency.

The bench also added that there should be a window of time between the final demolition order and its implementation so that the affected persons can make alternative arrangements.

"We will clarify demolition can't be carried out merely because someone is an accused or convict. Also, consider, there should be a narrow window...even before orders for demolition are passed," Justice Gavai said. "Once an order is passed, you may protect them for 10-15 days...even if court entertains a grievance, question of stay will be decided within 1 month," the judge added.

The Solicitor General however expressed a concern that such a general direction may amount to the Court amending the provisions of various local laws.

"Even if it's not authorised...it's not a happy sight to see women and children on the road. Elders coming out on roads... suppose they want to make alternative arrangements.." Justice Viswanathan said in response.

Senior Advocate CU Singh, for the petitioner, submitted that there are several cases showing a pattern where the demolitions have taken place on the very next of filling of the FIR. "We understand that the State has a legitimate interest in protecting public land. But none of that obviates the need for people to be given notice. Very rarely is there a demolition of eminent emergency. There are several cases, where is FIR today, and demolition is on the next day. Demolitions have taken place even after your Lordships' order in Gujarat. 28 peoples' houses demolished," Singh said.

Singh, clarifying that people from all communities have faced the brunt of such actions, highlighted that the concern is with respect to the misuse of municipal laws as a crime-fighting measure.

"The reason we are seeking an increased notice period and additional safeguards is that the demolitions are carried out while the people are picked up and incarcerated," he said. Flagging the issue of politicians using bulldozer actions to gain popular appeal, Singh said, "There can't be grandstanding on this basis. People are seeking votes on this basis." Senior Advocate Dr Abhishek Manu Singhvi also supplemented the arguments.

Senior Advocate MR Shamshad suggested that there should be a longer notice period before demolition. He further suggested that the officers prepare reports affirming compliance with the provisions so that accountability can be enforced. He also flagged the issue of selective picking of houses to be demolished. It cannot be that only one house in a particular mohalla is an encroachment, he said, suggesting that before carrying out the demolition, a survey of the entire locality be done and uniform actions are taken.

Senior Advocate Sanjay Hegde appeared for a person named Ganesh Gupta whose juice shop in Delhi's Jahangirpuri was demolished in the demolition drive carried out by the Municipal authorities in the aftermath of the Hanuman Jayanti violence in 2022. Hegde said that the demolition drive was widely announced by politicians beforehand and was carried out as a "media spectacle". Hegde said that his client never received any prior notice and the notice that the authorities claimed to have sent was addressed to one Shakuntala, who is unknown to him. The bench said that it would clarify that the notice has to be sent to the registered owner.

The bench expressed disinclination to hear an intervention application filed by the United Nations Special Rapporteur on Adequate Housing and certain others, saying that it has already heard directly affected parties. Solicitor General vehemently objected to the intervention by the UN expert, saying that the assistance of "outsiders" are not necessary. The bench told UN Expert's counsel Advocate Vrinda Grover that she could give her suggestions in her personal capacity.

In the same vein, the bench refused to entertain the submissions made by Advocates Prashant Bhushan and Nizam Pasha for intervenors. Pasha submitted that the Court had earlier allowed the intervention application filed by his client National Federation of Indian Women(NFIW) and that nodal counsel has included their suggestions also in the compilation.

Background

A batch of petitions were filed before the Supreme Court in 2022, relating to the demolition drive scheduled for April, 2022 in Delhi's Jahangirpuri. The drive was ultimately stayed, but the petitioners prayed for a declaration that authorities cannot resort to bulldozer actions as a form of punishment.

Recently, two applications seeking urgent relief against bulldozer/demolition action by authorities in Madhya Pradesh and Rajasthan were filed before the Court. One of these related to a case from Udaipur where a person's house was demolished because his tenant's son was accused of a crime.

Insofar as the contentions raised in its respect, State of Uttar Pradesh averred that merely because a person is alleged to be part of an offence, it can't be ground for demolition. On facts of the cases mentioned by petitioners, it was said that notices for violations were sent, but since the concerned individuals did not respond, the unauthorised constructions were demolished following the process in municipal laws.

In response, the top Court expressed that house of a person cannot be demolished merely because he is accused of a crime. "It can't be demolished even if he's a convict...the demolition can be carried out [only] as per the procedure in accordance with law", said Justice Gavai. The Court also conveyed an intention to lay down pan-India guidelines to address concerns.

To this end, parties were asked to submit draft suggestions which could be considered by the Court. Following the order, Jamiat-Ulama-I-Hind submitted its suggestions for the Court's guidelines/directives.

On September 17, the Court, invoking its special powers under Article 142 of the Constitution, passed an interim order to the effect that no demolition shall take place in the country without its permission (except when there is encroachment on public roads, footpaths, railway lines, or waterbodies).

Shortly after passing of this order, about 47 Assam residents filed a contempt petition alleging violation of the Court's order dated 17 September. Yesterday, the Court issued notice on this contempt petition and ordered that status quo be maintained.

Case Title: Jamiat Ulama I Hind v. North Delhi Municipal Corporation | Writ Petition (Civil) No. 295 of 2022 (and connected case)