Bulldozer Action | Personal Liability Of Officers Violating Law, Ministers To Not Endorse Demolitions : Suggestions For Supreme Court’s Guidelines

Pursuant to the Supreme Court’s order dated September 2, 2024, Jamiat Ulama I Hind has filed its suggestions for the framing of pan-India guidelines to address the issue of demolition/bulldozer actions against houses of persons accused of crimes.

Debby Jain

To recap, a bench comprising Justices BR Gavai and KV Viswanathan is hearing a batch of petitions challenging the “bulldozer actions” in various States. On September 2, it had asked the parties to submit draft suggestions which can be considered by the Court to frame pan-India guidelines.

The suggestions given by Jamiat Ulama I Hind are as follows:

(A) Show Cause Notice

The petitioner suggests that before an appropriate authority takes action against an unauthorised building/development/structure built, it shall issue a show cause notice to the owners as well as occupiers. The said notice shall be pasted on the property and pertinent details shall also be published in three newspapers.

It is stated that the notice shall specify the legal provisions under which it has been issued, the violations as well as the specific portion and extent of the building/structure/construction which, in the opinion of the authority, is illegal.

It shall be served within a time period not less than 45 days and not exceeding 60 days. In cases where owner/occupier can’t be found, notice shall be served on immediate family members. Additional time for response shall be given in such a case.

The petitioner adds that the person(s) to whom notice is issued shall have the following rights:

1. Right to engage an Advocate/Counsel and to appear in- person.
2. To present evidence that the construction is legal.
3. The opportunity to compound the offence, that is, to make modifications to comply with the regulations.

It is suggested that if after the above enquiry, the authority still deems demolition necessary, it shall issue an order affording the owner/occupier a chance to demolish the offending portions within 30 days.

 (B) Notice of Demolition

The petitioner suggests that a notice of demolition shall be served personally on the owner/occupier through a designated Nodal officer. It shall state the period for appeal and for legal recourse (not less than 60 days). Besides personal service, the notice shall be pasted on the property and pertinent details shall also be published in three newspapers.

Further, it is recommended that no demolition shall be carried out beyond the specified portion which has been alleged to be illegal. If any other part of the building, exceeding such specified portion is demolished, then the same shall be compensated for.

Additionally, if the owner/occupier of an illegal structure is not found, then a special permission shall be required from the Nodal officer before carrying out the demolition.

(C) Claim Commissioner and Compensation

The petitioner suggests appointment of a judicial officer as a Claim Commissioner, whose office shall have the power to grant compensation or restitution to the aggrieved persons, whose buildings/developments/structures have been demolished illegally or arbitrarily by the appropriate authority.

“Every order of the Claim Commissioner for payment of any compensation for restitution of building/development/structure shall be deemed to be decree of a Civil Court and shall be executable as such,” says the petitioner.

Further, it is recommended that any officer who fails to comply with the Court’s guidelines and causes damage or liability to an aggrieved party, shall be personally liable. “The recovery may be affected by way of salary deductions, forfeiture of entitlements, or any other lawful means, subject to a proper inquiry”, the petitioner adds.

Another important suggestion given is that the State shall establish and provide for a scheme for the benefit of concerned persons whose property has been unlawfully demolished. “This scheme shall be designed to offer immediate and comprehensive relief, restitution, and compensation to concerned persons and their family members, including but not limited to financial assistance, rehabilitation support, and restoration of property rights. Any concerned person or family whose property has been subject to illegal demolition by concerned authority shall be eligible for the said Scheme”, the petitioner says.

(D) Documentation

The petitioner recommends that all actions, steps, and procedures undertaken in the enforcement, compliance, or adjudication by the appropriate authority and Claim Commissioner shall be fully documented in a detailed and accurate manner.

“An online portal shall be made to facilitate preservation and documentation and it shall be made available for audit, review, or inspection by any authorized authority from the conclusion of the process. All copies of orders, notices and instructions and other records including any communication for demolition or recovery shall be made available online on the portal.”

(E) Prohibition of Speech Facilitating Illegal Penal Measures

It is suggested that a direction may be issued to government officers, Ministers, Member of Legislative assembly, Member of Parliament of the Union or the State government that they shall not make any statement endorsing illegal and unconstitutional penal measures. Further, if such statements are made, the same shall be a cause for criminal prosecution as well as tortious liability on part of the persons who have suffered from such unconstitutional penal measures.

Common features of demolition incidents

Notably, the petitioner claims that a number of demolitions carried out coincided with announcements by political personalities and holders of public office, that treated the incidents of demolition as a valid penalty for alleged offences committed by persons who owned, occupied or otherwise benefited from the property.

It points out the following common features of the demolition incidents:

1. i) If a person is accused of a crime or is deemed to have violated some law, their house is demolished leaving them and their families homeless.
2. ii) In many such cases it has been found that persons whose properties have been demolished state that they were not served any notice of any irregularities in their properties.

iii) The benefit of an opportunity to compound violations of municipal law was not afforded to them.

1. iv) There are allegations that in certain cases alleged notices have been backdated.
2. v) Demolitions have been carried out in a manner so that there is no time available for affected individuals to seek legal recourse.
3. vi) Whole houses are demolished without regard to the actual infraction, that is, the extent of unauthorised construction.

vii) Lack of compensation and legal recourse for those who have suffered due to illegal demolitions.

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.

One of these petitions was by former Rajya Sabha MP and CPI(M) leader Brinda Karat, challenging the demolitions done by the erstwhile North Delhi Municipal Corporation in Jahangirpuri area after the communal violence during the Shobha Yatra processions in April.

When the matter was heard in September, 2023, Senior Advocate Dave (appearing for some of the petitioners) voiced concerns about the rising trend of state governments demolishing the homes of people accused of crimes, emphatically stressing that the right to a home was a facet of the right to life under Article 21 of the Constitution. He also urged that the Court should order the reconstruction of the houses demolished.

Case Title: Jamiat Ulama I Hind v. North Delhi Municipal Corporation | W.P. (Crl.) No.- 162/2022 (and connected matters)

Courtesy : Live Law

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