New Delhi: In what looks to be a developing trend, two communal clashes — one in Khargone, Madhya Pradesh, and the other in Jahangirpuri, Delhi — have each been followed by a demolition drive in the affected areas.
On Wednesday morning, in the riot-hit area of Jahangirpuri in northwest Delhi, officials of the North Delhi Municipal Corporation oversaw the bulldozing of shops, temporary structures, and the external gate of a mosque.
The move came after Delhi BJP chief Adesh Gupta wrote to North Delhi Mayor Raja Iqbal Singh Tuesday, asking him to identify “illegal encroachments” and constructions by those arrested after communal violence broke out in Jahangirpuri during a Hanuman Jayanti rally Saturday.
While North MCD mayor Raja Iqbal Singh called the demolition drive “normal routine work”, senior advocate Dushyant Dave described it as “completely unconstitutional and illegal” while taking up the matter before the Supreme Court, which then ordered ‘status quo’ in the matter. The case will come up for hearing before the court Thursday.
Earlier this month, too, a communal clash during a Ram Navami procession in Khargone, MP, was also followed by the bulldozing of “illegal encroachments” in the vicinity, with the district administration claiming that the drive was intended to “send a message to the rioters and the people who were affected”.
But what is the correct procedure for removing illegal encroachments, and are such demolition drives an appropriate response to riots? ThePrint explains the legal provisions for demolitions.
What is the process to remove illegal encroachments?
The government can demolish someone’s private property under certain conditions. These include unauthorised constructions on government land, buildings that encroach on someone else’s property, or structures that violate regulations.
While municipal corporations across the country are empowered to demolish such structures, different states have different rules regarding the procedure that must be followed.
For instance, in Madhya Pradesh — where Khargone saw “illegal encroachments” being bulldozed in the wake of the Ram Navami clashes — Rule 12 of the Madhya Pradesh Bhumi Vikas Rules 1984 specifies that a notice needs to be sent to any person whose property violates rules. The recipient of the notice must also be given 10 days to either leave or make the building comply with the rules.
Notably, while officials in the Khargone district administration said that those whose houses and businesses were razed were given prior notices, reports have claimed that this was not the case.
Similarly, Section 343 of the Delhi Municipal Corporation Act 1957 also provides for a notice to be served ahead of demolishing any building that has been constructed illegally, without sanction, or in violation of building bylaws.
The commissioner, according to this section, can order the owner or occupant to demolish the building within five to 15 days. Failing this, the commissioner may himself order the demolition of the structure.
The rules, however, specify 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”.
It also says that anybody aggrieved by the commissioner’s order can file an appeal in the appellate tribunal within the period specified in the demolition order. When such an appeal is filed, the tribunal can also stay the enforcement of the order.
What about vendors?
The rules for demolition are different for vendors. Section 322 of the 1957 Act says that the commissioner can, without notice, order the removal of anything illegally put out for sale on any public street or a public place. This could include any stall, chair, bench, box, ladder, vehicle, package box, or any other thing on which things are being sold.
However, a Constitution bench of the Supreme Court in 1989 ruled that the right to hawk on the streets of Delhi qualifies as a fundamental right under Article 19(1)(g) of the Constutution, namely the right to freedom to practice any profession, or to carry on any occupation, trade or business — but such right is not absolute and is subject to reasonable restrictions under Article 19(6). Therefore, a law can impose reasonable restrictions on a citizen’s fundamental right to carry on hawking.
In 2010, the Supreme Court had also directed the government to come up with a law on this. In 2013, another Supreme Court bench referred to the National Policy on Urban Street Vendors 2009 to assert that such traders should be given notices before they are physically evicted. It said that even in a no-vending zone, vendors need to be given at least a few hours to clear the space.
Soon after this verdict, the Centre came up with the Street vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. This law allowed the respective state governments to form a scheme for street vendors.
The Delhi Street Vendors (Protection of Livelihood and Regulation of Street Vending) Scheme 2019 was notified in April 2019. It says that a street vendor who does not have a certificate of vending and vends without such a certificate may be given a 30-day notice to vacate the site, with an additional reminder notice on the 15th day.
In case no response is received after the two notices, a notice is to be pasted conspicuously in the place of vending. The notice for eviction must contain the justification for eviction as well as the procedure to appeal against it.
The Town Vending Committee is then required to consider the oral submissions of these vendors before deciding on their eviction. In case of a decision to evict, the vendor is to be asked to vacate the site by removing any goods within 15 days. The scheme also lays down the procedure for demolition of the structure made by the vendor: the demolition may take place only after the vendor fails to vacate the site after expiry of the notice period, and following a further three-day notice to safely remove the structure.
What have the courts said about notices not being served?
In a 2010 judgment, the Delhi High Court described the serving of a show-cause notice to the concerned party as a “mandatory requirement”.
“[B]efore the department i.e. the MCD passes a demolition order against a party the service of the show-cause notice on the concerned person is mandated,” the court had noted.
The Supreme Court, too, has underscored importance of issuing a notice before conducting demolitions.
In a 2008 judgment, for instance, the apex court emphasised on the need for such a notice by municipal corporations. Referring to the requirement of a show-cause notice in the Punjab Civil Municipal Corporation Act, which is similar to Section 343 of the DMC Act, the court observed, “The proviso appended to Section 269 of the Act in no uncertain terms provides for an opportunity of hearing before an order of demolition is passed. It is imperative in character but the said provision had not been complied with.”
It then asserted, “Had a proper show cause notice been served upon the first respondent, he could have shown that the alleged violation of the provisions of the Act is of negligible character which did not warrant an order of demolition.”
In another judgment passed in 2019, the Supreme Court underlined the need to follow the right procedure for such demolitions.
In this case, which involved municipal corporations in Maharashtra, the court made it clear that if a structure was illegal, if the authorities don’t follow the procedure to demolish it, some compensation could be awarded.
“The exercise of the power of demolition 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,” the court had asserted.
In another judgment in 2017, a district court in Delhi had lambasted MCD officials for “demonstrating colourful misuse of power” by illegally demolishing one Ashok Sikka’s house in Sainik Farms. The court had then directed them to build a quality home for him or pay him Rs 1.5 crore within a month.
It had also asked the South Delhi Municipal Corporation (SDMC) to pay the owner Rs 50 lakh compensation for the loss of “reputation, accommodation and valuables”.
The court had observed that “no notice to vacate the premises” was given to the complainant “even though the issuance of such a notice under section 343 of DMC Act, 1957 is a standard procedure adopted by the MCD” with regard to demolitions of occupied properties.
Is it lawful to demolish properties of those accused in riots?
There is no law that allows for the demolition of the property of those who stand accused of rioting or damaging public or private property.
The 2009 judgment had noted that since there was no law to recover damages for losses caused by violence, the high courts can take cognisance of such incidents of mass damage to public property on their own and set up a machinery to investigate and award compensation.
The guidelines had said that a sitting or retired high court judge may then be appointed as a ‘claims commissioner’ to estimate the damages and investigate liability.
Earlier this week, the Mumbai-based Islamic organisation Jamiat Ulama-i-Hind also filed a petition in the Supreme Court against the bulldozing of residential or commercial properties as a punitive measure.
“Resorting to such means of destroying the properties of alleged wrongdoers is clearly against our constitutional ethos and the criminal justice system, as also in violation of the rights of accused persons,” the petition says.