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ILLEGAL HOME DEMOLITION

Introduction

It seems like a developing trend, be it Khagone in Madhya Pradesh or Jahangirpuri in North West Delhi or Prayagraj, first, there would be a communal clash or some sort of protest, some persons would be accused of being responsible for this protest, their households would be declared as illegal construction then the people will be punished by bulldozer Justice i.e. by demolishing their house in the name of illegal encroachment by just giving them notice, that too before less than 24 hours. Therefore, a pattern is being followed in which anyone who is alleged to be directly or indirectly involved in protests or riots, the buildings, and properties belonging to them will be chosen for demolition. A home that sometimes takes hard work and sacrifice of several years is demolished in just less than a day. They are not just mortar-brick structures, they are the life of the people who live inside them. For some people their home is everything they had, they had spent their entire life income to make that structure. If someone demolishes their house, it is just not demolishing a structure, it demolishes their strength, their courage, and their confidence. It puts the families on the street who comes to cities in search of livelihood. Their aspirations, expectations, or dreams will come to nothing as the debris of their house. Strangely, State which should aspire to provide adequate housing or rather which is duty-bound to do so is responsible for the demolition of the house of the people in the name of justice.

Right to Housing

The right to housing is a fundamental right recognized under Article 21 of our Constitution.[1]Similarly, ICSECR(International Covenant on Social, Economic and Cultural rights), the International Human rights law framework, and ICCPR(International Covenant on Civil and Political Rights also recognize the Right to Housing as a Basic Human right and no one can be deprived abruptly of this Fundamental Right. Supreme Court also in the Olga Tellis[2] case described the Right to life under article 21 of the Constitution[3] as the Right to life with dignity, which includes access to livelihood and shelter. Furthermore, in U.P. Avas Evam Vikas Parishad vs Friends Coop. Housing Society Ltd[4] Hon’ble Supreme Court held that “The Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and the Right to life under Article 21 of the Constitution”.[5]

The legal procedure of removing illegal encroachment.

Article 300A of the Constitution states that “No person shall be deprived of his property save by authority of law.”[6] But, shockingly, the Government is justifying its action of illegal demolition even knowing the fact that such removal of encroachments or illegal constructions can only take place after following the due procedure established by law. It shouldn’t be shocking as well because every wrongdoer has its justification. The legal procedure for removing illegal encroachment may vary from place to place but every procedure requires a notice that too with sufficient period to respond to it. For Instance, rule 12 of Madhya Pradesh Bumi Vikas Rules[7] requires a notice of 10 days. Similarly, in Uttar Pradesh, according to Section 10 of the Uttar Pradesh (Regulation of Building Operations) Act, 1958, demolition of a building shall not be undertaken unless the affected person is given a reasonable opportunity of being heard.[8] Further, Section 27 of the Uttar Pradesh Urban Planning and Development Act,1973 also requires that the affected person be heard before proceeding with the demolition and be given at least 15 days’ notice.[9] Moreover, as per the Act, a person aggrieved with an order of demolition is entitled to appeal against it to the Chairman within 30 days of the order.[10]But no law prescribes the punishment of home demolition for the riot.

A closer study of different demolition cases makes it clear that some constructions were demolished even though the case was still pending in court, some were given notice a day before and some were even not notified. It is well established by the Apex Court in different cases that any demolition exercise of any kind must be carried out in full accordance with applicable regulations, and only after each affected individual has been given adequate notice and an opportunity to be heard.[11] However, the same is being blatantly disregarded by the government. It clearly shows that the government has adopted extra-legal measures which are in clear violation of the principles of natural justice. The most striking thing is that the government is presenting its action as stringent action against any riots or protests against it for political purposes and as removal of illegal construction for legal purposes.

Conclusion

By observing such a state of affairs in our country, some natural and obvious questions come to everyone’s mind. Is that the way a civil society works? Is that the way a democratic Country having the longest Constitution in the world works?

Protests are testimony to a healthy and vibrant society. No doubt, our Constitution does not authorize people to turn Violent during the protest, it just grants them a right to peaceful protest without arms.[12] But that does not mean that if a protest turns out to be violent then the protestor’s house would be demolished. Can the state justify its illegal transgression? It can’t by any sort of argument because in a democratic country like India even any unlawful activity has to be stopped only by a lawful act or by a legal procedure established by law. The very act of the state of silencing the dissenting opinion is in total disregard for the ethos of democracy. Strangely, the lawmakers are here lawbreakers. It is the time Apex Court of the Country, the custodian of our fundamental rights should take some steps. The hour demands to stop the abuse of power as well as protection of the rights of people.

Author(s) Name: Sakshi Gour & Neha Kumari (National Law Institute University, Bhopal)

References:

[1]Constitution of India, 1950, art.21

[2]Olga Tellis & Ors v Bombay Municipal Corporations & Ors., (1986), AIR 180

[3] Constitution of India, 1950, art.21

[4]U.P. Avas Evam Vikas Parishad v Friends Coop. Housing Society Ltd., (1996), AIR 114

[5]Ibid

[6] Constitution of India, 1950, art.300A

[7] Madhya Pradesh Bumi Vikas Rules, 2012, r 12

[8]Uttar Pradesh (Regulation of Building Operations) Act, 1958, s 10

[9]Uttar Pradesh Urban Planning and Development Act,1973, s 27

[10]Ibid

[11]Municipal Corporation, Ludhiyana v Inderjit Singh & Ors., (2008) 13 SCC 506

[12] Constitution of India, 1950, art.19(1)(b)