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Bulldozer Justice: In-depth Analysis

Nowadays, the word "Bulldozer Justice" is on the tongue of everyone in India.  Many questions have been raised on the actions of the government on the minority of the country. Many Indian peace bodies and Human Rights Organizations are opposing such actions by the Government of India violating fundamental rights given in the sacred Constitution of India.

If we look into the Article - 14 of the Constitution of India, it states "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." But, minorities have alleged that this "Bulldozer" actions are only being taken on them not on the people of the other communities.

Also, In the Landmark case of Bachan Singh versus State of Punjab, the Supreme Court explained the new dimensions of equality under Article 14. Justice Bhagwati held that the rule of law pervades the complete fabric of the Indian Constitution and Article 14 helps in excluding arbitrariness of any shape or form. The Court also held in this case that whenever there is any arbitrariness there is also a denial of rule of law.

The Court also held that rule of law and equality before law is one of the strongest provisions of a democratic country. In the judgment the Court also held that every action by the state shall be free from arbitrariness otherwise if the court finds it arbitrary it will strike the act as unconstitutional.

According to the people of minorities, The Government has also violated their fundamental right given in the Article 15(1) of the Constitution of India, which states that "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." Article 15 directs that the State will not oppress any subject on grounds only on religion, race, caste, sex, and place of birth or any of them. Any law separating or discriminating on at least one on these grounds would be void. As per the news reports and no. of political debates, it is very clear    that a large no. of Muslims are being targeted by this new "Bulldozer Justice System".

If we look further, the Article 21 of the Constitution of India, says:
"No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India."

In India, a liberal interpretation is made by the judiciary after 1978 and it has tried to make the term 'Procedure established by law' as synonymous with 'Due process' when it comes to protecting individual rights.

In Maneka Gandhi versus Union of India case (1978) Supreme Court held that - 'procedure established by law' within the meaning of Article 21 must be 'right and just and fair' and 'not arbitrary, fanciful or oppressive' otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
 
So the main question arises here:
"Whether the demolition which is being taken place by the Government of Uttar Pradesh is violation of the Fundamental rights given by the constitution of India?"

On June 16th, 2022 the vacation bench of Justice AS Bopanna and Vikram Nath considered an application, in the matter Jamiat Ulma I Hind versus North Delhi Municipal Corporation & Others seeking directions to the State of Uttar Pradesh to ensure that no further demolition were carried out in the State without following due process.

The application was filed in the apex court with regard to earlier petition concerning against the demolition drive in Delhi's Jhangirpuri, the court has given notice on 21st April and directed status quo against the demolition drive launched by the North Delhi Municipal Corporation (NDMC) in the riot-hit Jhangirpuri area. Advocate CU Singh, the counsel for the petitioner I an application alleged that demolitions in Prayagraj and Kanpur are in violation of the rule of law and the municipal laws enacted by the State of Uttar Pradesh. Advocate CU Singh has also stated that according to Section 27 of the UP Urban Planning Act, a notice of not less than a period of 15 days is to be given to the person responsible or the owner to themselves.

However, Senior Advocate Harish Salve, appearing on behalf of Uttar Pradesh government stated that "There are three instances. In Praygraj, notice was issued in May, much before the riots. On 25 May, demolition order was passed."

The Supreme Court asked the Uttar Pradesh government not to carry out demolition activities except in accordance with the procedure established by law. It has also granted three days' time to the State, to demonstrate how recent demolitions were in compliance with the procedural and municipal laws and regulations. "Action will only be in accordance of law," court stated.

Demolition in accordance with the "Due process of Law"
A few look in to broader perspective and go into the depth of the subject matter of Demolition. The government can demolish a private property under specific circumstances. These include unauthorized or unapproved constructions on government land, building that encroach on someone else's property, or structures that violates any regulations of state government. Municipal Corporation of each state across country are empowered by the law to demolish such structures, but different states have different rules regarding the procedure that must be complied with.  

Section 343 of the Delhi Municipal Corporation Act 1975 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 of Municipal Corporation, according to this section can order the owner or occupant to demolish the building within five days to 15 days. Failing to this, the commissioner may himself order the demolition of the structure.

The rules specify that "no order of demolition shall be made unless the person has been given by names of a notice served in such manner as the commissioner may think fit, a reasonable opportunity of showing cause why such order shall not to be made". It also stated that anybody aggrieved by the commissioner's order can file an appeal in the appellate tribunal within a period specified in the demolition order. The saying of the aggrieved people of minorities is that no notices were ever served to them and the Government has taken the demolition action directly.

In the matter Bal Kishan Das versus Municipal Corporation of Delhi (2010), Delhi High Court stated, the serving of a show-cause notice to the concerned party as a "mandatory requirement". The court said "If 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 mandate." The Supreme Court has also stated the importance of issuing a notice before conducting demolitions.

In the matter of Municipal Corporation, Ludiana versus Inderjit Singh and Anr. (2008), whereby the apex court emphasized 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."

In the matter Municipal Corporation of Greater Mumbai and Ors. versus Sunbeam High Tech Developers Private Ltd. (2019), Supreme Court underlined the need to follow the right procedure for such demolitions. The apex court in this case, which involved Municipal Corporation in Maharashtra made it clear that if a structure was illegal and if the authorities don't follow the procedure to demolish it, some compensation would 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 asserted. In the matter of Sh. Ashok Sikka versus South Delhi Municipal Corporation (2017), South District Saket District Court, New Delhi had lambasted MCD officials for "demonstrating colorful misuse of power" by illegally demolishing one Ashok Sikka's house in Sainik Farms.

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.

On 16th June, 2022, in the matter Jamiat Ulma I Hind versus North Delhi Municipal Corporation & Others, the apex court observed that demolitions can't take place without following a due process. However, the State government of Uttar Pradesh, during the hearing, underlined There was no case of targeting any community, notices were given and due process was followed in all cases of demolitions in Prayagraj and Kanpur.

In contrast, counsel for petitioner CU Singh alleging the state government stated "disregard of the principles of natural justice" and violation of municipal laws that require advance notice and opportunity of hearing to persons whose properties are sought to be demolished. With two contrary statements by both counsels, court has asked the state government to put record on affidavit and given them 3 days' time.

Next hearing will be held by the Supreme Court on Tuesday i.e. 21st June.
So it has been cleared by the District Court and the Supreme Court through its various judgements that it is mandatory for any Municipal Corporation or authority of each state to send a notice prior to 15 days before the demolition of illegal construction and always follow a due process in regard of that which was duly followed.

Written By: Deepak Chauhan

E-mail: [email protected]

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