What is the due process of law that should be followed in demolitions?

With the Supreme court on Thursday asking the Uttar Pradesh government to follow the due process of law as far as demolitions are concerned, India Today takes a look at what the provisions are and what the apex court has said in its rulings in the past.

WHAT IS THE PROCESS TO REMOVE ILLEGAL ENCROACHMENTS?

Under the statute of municipal corporation, which are different for different states, government can demolish someone’s private property if the property is an unauthorised construction on government land, buildings that encroach on someone else’s property, or structures that violate regulations.

WHAT DOES UP STATE CORPORATION RULES SAY?

Uttar Pradesh authorities carry out demolition under Section 27(1) of the UP Urban Planning and Development Act, 1973. The Act states that “Where any development has been commenced or is being carried on or has been completed in contravention of the Master Plan or without the permission approval or sanction, the Vice-Chairman may make an order directing that such development shall be removed by demolition within such period not being less than 15 days and more than 40 days from the date on which a copy of the order of removal was issued.”

(2) Any person aggrieved by an order may appeal to the Chairman against that order within thirty days. The decision of the chairman on the appeal, shall be final and shall not be questioned in any Court.

WHAT IS THE RULE IN MP?

Rule 12 of the Madhya Pradesh Bhumi Vikas Rules 1984 specifies that a notice needs to be sent to any person whose property violates the rules. The recipient of the notice must also be given 10 days to either leave or to make the building comply with the rules.

WHAT IS THE RULE IN DELHI?

Section 343 of the Delhi Municipal Corporation Act 1957 also 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. Commissioner can order the owner or occupant to demolish the building within five to 15 days. Failing this, the Commissioner may himself order the demolition of the structure.

The rule also makes it clear that anybody aggrieved by the Commissioner’s order can file an appeal in the Appellate Tribunal within the period specified in the demolition order. When such an appeal is filed, the tribunal can also stay the enforcement of the order.

WHAT ARE THE COURT RULINGS IN PAST?

In its 2008 judgment, the Supreme court had passed an judgement while emphasising on the need for such a notice by municipal corporations and said, “The provision 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. Had a proper show cause notice been served upon the first respondent, he could have shown that the alleged violation of the provisions of the Act is of negligible character which did not warrant an order of demolition.”

In 2010 judgment, the Delhi High Court described the serving of a show-cause notice to the concerned party as a mandatory requirement and said, “Before the department passes a demolition order against a party the service of the show-cause notice on the concerned person is mandated.”

Similarly in another judgment passed in 2019, the Supreme Court had underlined the need to follow the right procedure for such demolitions.

“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 had asserted.

Recently, Allahabad HC in a case had observed that the state authorities cannot demolish a property before the statutory period of the appeal came to an end.

“The state authorities, wherever demolition orders are passed in respect of constructions raised on the private properties under the two acts, should wait before taking any action for actual demolition till the statutory period of the appeal comes to an end.”

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