Supreme Court questions bulldozer justice, will lay down ‘pan-India’ norms for due process

“We propose to lay down certain guidelines on a pan-India basis so that the concerns with regard to the issues raised are taken care of,” said the bench, which included Justice K V Viswanathan. The bench also invited suggestions from the concerned parties for the proposed guidelines.

The bench, however, made it clear that it would not protect unauthorised constructions. “Every municipal law has a provision for demolition of unauthorised construction… we are not going to protect any unauthorised construction or encroachment on public roads, not even the temples on the public road,” said Justice Gavai.

The court was hearing a plea against the demolition drive in Delhi’s Jahangirpuri area soon after the 2022 riots. The petitioners pointed out that many state governments were increasingly resorting to the use of bulldozers to demolish properties of people accused in crimes.

Appearing for the Uttar Pradesh government, Solicitor General Tushar Mehta said all demolitions carried out in the state strictly followed procedure, but the petitioners were trying to project it in a different way.

He referred to an affidavit filed by the state on August 9, 2022, which said: “Merely because a person is alleged to have been a part of some offence can never be a ground based upon which his immovable property can be demolished. The demolition of an immovable property can take place only for violation of, and in accordance with, the procedure prescribed in the respective, applicable municipal law or law governing development authorities of the area. In other words, no immovable property can be demolished solely on the ground that the owner or occupant of such property is involved in a criminal offence. Demolition, whether in part on full, can take place only on the grounds mentioned in the municipal law, governing legal construction, and after following the procedure therein”.

Senior Advocate Dushyant Dave, appearing for the petitioners, then said: “Let a statement be recorded that bulldozer justice will not be meted out to people. Every state is now indulging in this”.

“You are accepting this position (as stated in the affidavit),” the bench asked the SG, to which Mehta responded in the affirmative. “We will record and issue guidelines to all the states,” the bench then said.

Agreeing, Mehta said other states could also file their affidavits.

Taking note of the SG’s submission, Justice Viswanathan said: “Why can’t some guidelines… not be laid down? Notice, time period, response, reply, order, time for legal remedy, avoid backdating, some communication with central secretariat, the nodal agency, automated reply so that there is no fear. And in taking off from what you have fairly and in a non-adversarial manner said, so that it’s put in position across the states, and directions issued.”

Justice Gavai then remarked that the court would not protect any unauthorised constructions, “not even temples on public road”.

Interjecting, Mehta said, “any religious place on public road”.

“What you have said… is very correct, (it) has to operate in practice. And that will only operate in practice if something is streamlined,” Justice Viswanathan told the SG.

“Though this is the position of law, it is seen that it is followed more in breach,” Justice Gavai said.

Denying this, Mehta said he could show that in each case of demolition, the rules were followed. “They have projected it as if somebody committed an offence and his house was demolished. But we have been able to show from affidavits that he was independently issued notice long back, notice was repeated, since he did not appear etc etc, (subsequent actions were carried out),” he said.

“Don’t get into the facts. We just have some guidelines so that tomorrow there is no bulldozer… And so that it is documented and checked, so that neither of them can take advantage — people who are having unauthorised constructions, nor the authorities,” Justice Viswanathan told the SG.

Responding to this, Mehta said only “bulldozer not in accordance with law” should not happen. “Suppose I am already facing a notice, I would also know my construction is unauthorised. Then, merely because I have taken part in some crime, it would not absolve me of the inevitable consequences of demolition,” he said.

“If the construction is unauthorised as per municipal law… Suppose it’s in the margin in the area, if somebody is required to give 10 feet margin in the front and 5 feet on each side… but then even such construction has to be demolished in accordance with the law,” Justice Gavai said.

“Certainly. Your lordships have very rightly and very pertinently (said) even after conviction it cannot be done,” the SG said.

“As they say, a pious father can have a recalcitrant son and vice versa, but this is no way to go about it,” remarked Justice Viswanathan.

Mehta, however, maintained: “It is not the way it is projected. From past instances also, I can show that notices were issued. They happened to be involved in some crime. Otherwise, the entire procedure was followed”.

Dave said the Delhi demolition drive was initiated after the VHP and Bajrang Dal were denied police permission to carry out a procession. “Is this the unauthorised construction,” he asked.

“That is why if you pin the authorities — who, according to you, are acting in breach — to a documentation procedure which will be impregnable, including digital proof… we can ensure… that is the immediate requirement now. So if you can give suggestions… we will fine-tune it,” Justice Viswanathan said.

Mehta said “some third party Jamiat”, which was not affected personally, had approached the court while those whose illegal constructions had been demolished had not done so as they knew that the procedure was followed.

Senior Advocate C U Singh, meanwhile, said he was filing applications on behalf of some people who were affected by the demolitions.

The bench posted the matter for further hearing on September 17.