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How a Recent MP HC Order on an Unlawful Demolition Adds to Shelter Jurisprudence

The High Court stressed that demolition should be the last resort.

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It has become fashionable now for local administrations to demolish any house by drawing up proceedings without complying with the principles of Natural Justice, observed Justice Vivek Rusia of the Madhya Pradesh High Court, while awarding a compensation of Rs 1 lakh each to the petitioners whose houses were illegally demolished by the Ujjain Municipal Corporation (UMC).  

The Madhya Pradesh High Court was hearing a Writ Petition titled “Smt. Radha Langri and Anr vs. the Commissioner, Municipal Corporation Ujjain,” filed by two individuals, Radha Langri and Vimla Gurjar, who sought compensation from the UMC for the illegal demolition of their houses.

The contentions with regard to the serving of notice and the granting of time are illustrated below in table 1.0.

The High Court stressed that demolition should be the last resort.
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In this case, the Municipal Corporation submitted a reply, citing its powers to demolish under Sections 293 and 294 of the MP Municipal Corporation Act, 1956, and seeking protection from the obligation to pay compensation under Section 306 of the same Act. 

The High Court opined that while no one has the right to construct a house without proper permission or without adhering to the regulations, it stressed that demolition should be the last resort and only be carried out after providing the house owner with a fair chance to rectify the situation by obtaining regularisation:

"...demolition should be the last recourse to be followed that too after giving a proper opportunity to the owner of the house to get it regularized." 
Madhya Pradesh High Court

In addition to this, the High Court also questioned the UMC about the selective demolition of the houses in question. In this regard, the court held:

“As observed repeatedly by this court, it has become fashionable now for local administration and local bodies to demolish any house by drawing up proceedings without complying with the Principal of Natural Justice and publish it in the newspaper. It appears that in this case also the criminal case was registered against one of the family members of the petitioners and demolition activities were carried out. It is not the case of the respondent that in the entire area under the Municipal Corporation Ujjain, these are the only two houses that are constructed.” 

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The Khan, Who Never Was  

It is interesting to note that the court in its order observed that the Commissioner of the Municipal Corporation produced the sheets prepared for the demolition of houses number 466 and 467 as per the “mauka panchnama dated 11 October 2022, in which one Parvez Khan disclosed that he was the owner of the house which he purchased in the year 2016, and contrary to that, there is a registered sale-deed on record in the name of the petitioner.  

In this regard, the court said that the petitioner did not inform about the aforesaid sale to the Municipal Corporation by submitting a registered sale deed for mutation in their (petitioner’s) name as owner, but "had the Building Officer gone to the spot he would have been informed about the name of the petitioner about the ownership."  

The court held:

“There is no such person in the name of Parvez Khan, there is no such document to show that he purchased the property only, on the basis of this so-called oral information the panchnama was drawn and drastic action for demolition has been taken. It appears that Mouka Panchnama is a concocted document that was prepared in the house without going to the spot. Therefore, the demolition of house No.466 by serving a notice to a fictitious person Parvez Khan is a highly illegal and arbitrary action for which disciplinary action is liable to be taken against the concerned officers and employee.” 
Madhya Pradesh High Court

Hence, while allowing the Writ Petition, the High Court directed the Commissioner, Municipal Corporation to initiate disciplinary action against the officers who prepared the forged spot panchnama.  

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Rule of Wheels Over Rule of Law

There is a recent trend where the rule of wheels (bulldozers) has taken over the rule of law and such illegal demolitions have been carried out in many states.

A recent investigation/report by Amnesty International revealed that Between April and June 2022, authorities in five states, i.e., Assam, Gujarat, Madhya Pradesh, and Uttar Pradesh, and the Aam Aadmi Party (AAP) governed the state of Delhi, carried out demolitions as a ‘punishment’ following episodes of communal violence or protests against discrimination by those in authority against minorities.

A report published by Amnesty International reads:

“Amnesty International investigated 63 of 128 documented demolitions in detail by interviewing more than a hundred survivors, legal experts, journalists and community leaders. At least 33 instances of the repeated use of JCB’s equipment were verified. The investigation also established that at least 617 people, including men, women, children and older persons, were rendered homeless or deprived of their livelihoods. These individuals were subjected to forced evictions, intimidation and unlawful force by the police and collective and arbitrary punishment, which undermined their rights to non-discrimination, adequate housing, and a fair trial.”
Amnesty International

This whole exercise not only defeats the idea of “due procedure” but also reverses the criminal jurisprudence which says trial first, punishment later, but here, it is punishment first and trial later.  

In the present case, the compensation of Rupees 1 lakh (each) is inadequate, but at the same time, this should be the norm in such cases where compensation should be granted to the person whose house/property/shop has been demolished without following due procedure. Not only this, but the court also pulled up and sought accountability from the officer concerned which is important, because in such cases, the Municipal Corporations try to swim away collectively, by taking refuge under the domestic or state act. 

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The Shelter Jurisprudence 

The term ‘shelter jurisprudence’ refers to the plethora of rights that are guaranteed under our constitutional scheme to protect everyone from unlawful eviction, and demolition, and which further guarantees that the right to shelter is an integral part of Article 21 of the Constitution. It is important to note here that the right to shelter has been recognized as one of the facets of Article 21 under the Indian Constitution. In Olga Tellis v. Bombay Municipal Corporation, the court observed that:

“An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. The motive force which people their desertion of their hearths and homes in the village s that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat.” 
Olga Tellis v. Bombay Municipal Corporation, Supreme Court of India

Similarly, it is possible to rebuild a house, but not a home, and in this case, if someone’s house has been demolished, then not only the four walls but also the right to shelter has been vandalised. In this regard, the Supreme Court in Shantistar Builders v. Narayan Khimalal Totame, held that the right to life would take within its sweep the right to food, the right to clothing, the right to a decent environment, and a reasonable accommodation to live in.

Significantly, the court remarked that “the difference between the need of an animal and human being for shelter has to be kept in view, as for the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect – physical, mental and intellectual.” 

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On a similar note, last year, the Punjab and Haryana High Court halted the demolitions carried out in Nuh (Gurugram) and flagged the demolitions as “ethnic cleansing”. In August 2023, in five days, 1,208 buildings and other structures — overwhelmingly Muslim-owned (37 sites. 72.1 acres), were razed/demolished by the local authorities.  

“Apparently, without any demolition orders and notices, the law and order problem is being used as a ruse to bring down buildings without following the procedure established by law. The issue also arises whether the buildings belonging to a particular community are being brought down under the guise of law and order problem and an exercise of ethnic cleansing is being conducted by the State," the court said while taking suo motu cognizance of the matter.

On this note, let us hope that the rule of wheels will be suppressed by the rule of law, and courts across the country resort to such jurisprudence where natural justice and the right to shelter are considered a primary factor to compensate the victims of illegal and unwanted demolitions. It is high time that the Supreme Court intervened and issued some guidelines that can be applicable to every state to prevent such incidents in the future.  

Similarly in Lucknow, Uttar Pradesh, a demolition drive was being carried out in the Akbar Nagar locality following which the Allahabad High Court (Lucknow Bench) halted the demolitions and Justice Pankaj Bhatia said that before such demolitions, the authorities should think about the resettlement of the residents. 

The court also went on to note that under the Constitution, it was the duty of the state to ensure adequate resettlement before it carried out evictions. The court, therefore, stayed the demolition and evictions and noted specifically that any demolitions could be undertaken only after resettlement or rehabilitation was done in accordance with the law. In other words, resettlement and rehabilitation were conditions precedent to evictions and demolitions, including for occupants and residents without a formal land title.

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He also writes on various legal and social issues. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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Topics:  Demolition 

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