Reiterating that “merely because somebody is an accused or a convict cannot be a ground for demolition”, the court reserved its order on petitions seeking guidelines against demolitions being carried out as a “crime-fighting measure”. THE SUPREME Court on Tuesday said it would lay down pan-India guidelines on demolition of properties, but made it clear that it would not come in the way of removal of unauthorised constructions and encroachments on public land.

Reiterating that “merely because somebody is an accused or a convict cannot be a ground for demolition”, the court reserved its order on petitions seeking guidelines against demolitions being carried out as a “crime-fighting measure”. “Whatever we are laying down, we are a secular country. It would be for the whole country,” Justice B R Gavai, presiding over a two-judge bench which included Justice K V Viswanathan, said. “There cannot be a different law for a particular religion. If unauthorised construction is of a person belonging to any community, then it has to go, irrespective of his or her religion, belief… Whether it is a temple or a dargah (on public land), it has to go… public safety is paramount,” he said. “We are going to make it clear that merely because somebody is an accused or convict, cannot be a ground for demolition… Unless there is violation of any of the municipal laws or panchayat laws, preceded by notice, a proper opportunity of hearing…,” Justice Gavai said. He underlined that notice should be issued before action is taken. “We will clarify (that) wherever there is statutory prohibition for any construction, that construction will have to go… But firstly, there has to be a valid service (of notice). There has to be a notice served by a registered post AD (acknowledgement due). This pasting of notice business would go. In addition to that, there should be a digital record of notice. That will be helpful for both (sides). The officer (issuing notice) is also saved,” he said.

“If you proceed against one and not proceed against the other and the proceeding is triggered by some event… that will be the crux of the problem… that has to be somehow addressed and some solution found for that, some kind of a judicial oversight provided,” Justice Viswanathan said. Justice Gavai said the bench was also considering providing a window even after a demolition order is passed. “Once order is passed, you may protect them for 10-15 days… even if the court entertains a grievance, the question of stay will be decided within one month,” he said.

But Solicitor General Tushar Mehta, appearing for the states of Rajasthan, Uttar Pradesh and Madhya Pradesh, asked whether giving such a window to a specific category of cases would not result in amending local laws. “For example, eviction cases. Let there be judicial oversight. But to give time for particular type of cases by judicial order may not be the best solution,” he said.

“We are only talking of providing access to remedies already available in law. Encroachment on public streets, we are not touching,” Justice Gavai said. Mehta said that 98 per cent of demolition cases are linked to illegal encroachments or unauthorised constructions, and, by providing further remedy, they would be encouraged to file suits. “Suit will be barred under many provisions of municipal corporations. What happens is there may be an appellate remedy provided in the statute,” said Justice Viswanathan. The Judge said the remaining demolitions are not just 2 per cent. “It appears that the figure… is in the range of 4.5 lakhs. These are official figures…. four lakhs fourty-five thousand is the consistent figure given about the number of demolitions that have happened in the last few years… So it’s not 2 per cent,” he said. “When I said 2 per cent, I meant 2 per cent of the total demolitions are because of an offence being committed, or immediate justice as we read in the newspapers,” Mehta clarified. “Bulldozer justice,” Justice Gavai responded. “I am only saying that any law which is laid down keeping 2-3 per cent of maybe 10 per cent aberrations in mind may not help the remaining genuine actions against undisputed encroachers or undisputed unauthorised constructions,” Mehta said. “I am only worried about the potential misuse of giving any further remedy which would allow the illegal encroachers to approach courts, give them more time… That would derail genuine encroachments being removed throughout the country, which is not your Lordships’ intention. Sometimes, exceptional cases lay down a law unintentionally which helps non-genuine litigants,” he said. The bench, meanwhile, refused to allow intervention by a United Nations rapporteur who claimed to be an expert in housing. “This doesn’t have anything to do with adequate housing. We are concerned with unauthorised construction here. We have sufficient experts from India,” Justice Gavai said. “The petitioners are not seeking anything except this narrow focus (on) using it as a crime-fighting measure. We are not looking for a larger issue on housing etc,” Senior Advocate C U Singh, appearing for some of the petitioners, said.