New Delhi: The Allahabad High Court this week delivered a split verdict on whether courts can impose additional safeguards against demolition of property of an accused, setting the stage for a larger bench to decide the issue. The order came on a plea seeking protection against alleged punitive demolitions.
Monday’s split verdict arises when a two-judge or division bench delivers contrasting orders, requiring the case to go to a three-judge or larger bench for consideration.
One of the judges, Justice Atul Sreedharan, held that authorities should refrain from demolishing the property of an accused for two years from registration of FIR.
“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,” the judge said in his 51-page order.
The other judge on the bench, Justice Siddharth Nandan, in a 24-page ruling penned separately, disagreed and said that such safeguards would amount to “judicial activism”.
Both judges, however, reaffirmed the directions given by the Supreme Court in its landmark ruling against punitive demolitions in 2024.
The case pertained to a writ petition filed by three members of a family in Uttar Pradesh’s Hamirpur, who alleged that their property had been sealed and was under threat of demolition after an FIR was registered against one of their relatives.
The charges against their relative were of sexual assault on a minor, rape and unlawful conversion under provisions of the Protection of Children from Sexual Offences Act, Bharatiya Nyaya Sanhita, and UP Prohibition of Unlawful Conversion of Religion Act.
The petitioners, including one Faimuddeen who was later also charged in the case, stated that the accused neither resided with them nor had any ownership interest in the properties which involved their residential house, a sawmill and an “Indian Lodge”. The lodge was alleged to have been the place of assault on the minor and which the state said stood on irrigation department land.
Claiming that a mob, in tandem with the police, had attacked their house soon after their relative was booked, the petitioners approached the court for protection of their right to property under Article 300A of the Constitution. They also said their fundamental rights guaranteed under Articles 14, 19(1)(g) and 21, which deal with the right to equality, freedom of trade and life, were being violated.
The UP government submitted in court that that in 2021, following a PIL, the Allahabad High Court had directed the District Magistrate of Hamirpur to remove illegal encroachments which may be in conflict with municipal norms.
The government counsel said the Indian Lodge was constructed on land belonging to of the irrigation department and that the process of removal was being initiated only with respect to the “illegal encroachment”. The state also claimed the petitioners were giving a “colour” to the case with their submission.
Regarding the saw mill, the state said its licence had expired and that certain kinds of prohibited wood were found on its premises, leading to initiation of proceedings under the Forest Act. It underlined that the apprehensions of the petitioners were “absolutely baseless”, and everything was being done in accordance with the law.
Against their house, the petitioners had received notice for planning violations.
The two rulings
Citing Article 21, which deals with the protection of life and liberty, Justice Sreedharan said “no person shall be deprived of his life or personal liberty except according to procedure established by law”, and that where demolition proceedings follow an FIR, an accused’s property should ordinarily not be touched for two years.
Pointing to the state’s past actions of demolishing dwelling places without being sensitive to the human cost of the action, the judge said the petitioners’ apprehension of their property being bulldozed was a reasonable one in this case.
“Also, the fact that previous actions of the State in targeting largely the houses of Muslims accused of offence, there is reasonable apprehension that the petitioners are next,” the judge remarked.
Justice Sreedharan’s order further mentioned that “selective outrage results in selective injustice”, pointing out that in the bulldozer case before the SC, the Centre had argued that demolitions were only happening where there was violation of municipal or panchayat laws, and that it may have been sheer coincidence that in some cases, the properties which were in breach of municipal laws were owned by accused persons.
The judge also noted that “when a structure is chosen suddenly for demolition while the rest of the structures in the vicinity or the same neighbourhood are untouched, mala fide could loom large”.
Directing compliance with the SC’s directions in the bulldozer case, the judge said that if the dwellings of the petitioners are illegal and have to be removed, it must be ensured that the violator—who has stayed in the illegal structure for three years or more—is given notice one year before the procedure is initiated.
In his order, Justice Nandan said that although he was conscious of the rapid increase in unauthorised constructions, the same was attributable to an increase in population, and the insufficiency of the available land in urban areas. But this could not be used to justify illegal constructions.
At the same time, he added, “as such one-sided action to correct the measures, by way of the retributive exercise of the executive discretion, has also to be dealt with”.
Justice Nandan further noted that the Supreme Court and even the Allahabad High Court were “constantly flooded with writs, seeking protection from demolition, though in most of the cases, the admitted case of the petitioners’ has been that they are, in fact, in violation of norms but only seek protection for a limited period, so that they can find an alternative accommodation or a shelter”.
Further laying out the procedure if demolition has to be carried out, Justice Nandan said that unless notices were issued within 40 days prior to a proposed demolition, the development authority shall be required to issue a fresh notice with a brief statement of reasons prior to the demolition.
If removal is necessary in public interest and for a public purpose, such action may be permitted, by way of an exception, subject to compliance with directions given by the Supreme Court in the bulldozer case, the judge added.
Where judges disagreed
On two matters, the judges disagreed strongly. The first was whether a direction could be issued restricting the state from taking action under the UP Urban Planning and Development Act, 1973, for a period of two years from lodging of an FIR.
The second was whether before initiating a procedure under municipal laws, the authorities could be directed to give a notice of intent, which would signal that they are taking action, at least one year before initiating the demolition procedure for violation of statutory norms.
Justice Nandan noted that under the 1973 Act, there was no provision to give a notice of intent to initiate proceedings one year prior to actual procedure.
Justice Nandan thus placed the case before the Chief Justice of the Allahabad High Court for nominating it to one or more of the other judges to answer the questions of law disagreed upon.
(Edited by Nida Fatima Siddiqui)