The Supreme Court in a laudable and landmark judgment titled “In Re: Manoj Tibrewal Akash in Writ Petition (Civil) No. 1294 of 2020 pronounced on 6 November has sharply criticised the growing trend of punitive demolition of constructions in the country. Mincing no words, the court held “Justice through bulldozers is unknown to any civilized system of jurisprudence and simply unacceptable under the rule of law.”

The top court has explicitly barred authorities from using bulldozers to demolish encroachments or illegal constructions for road projects across India without following due process, which includes serving prior notice, conducting adjudication, and awaiting court decisions.

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The Bench headed by the CJI Dr DY Chandrachud and comprising  Justice JB Pardiwala and Justice Manoj Misra said, “The days of announcing the removal of encroachments or illegal structures with drumbeaters or loudspeakers are over.”

This was held while lashing out at the Uttar Pradesh Government for high-handedness after the Maharajganj Collector had demolished a house to widen NH-703. The court firmly pointed out, “Private properties need some protection and there has to be some accountability fixed for those resorting to demolitions using state power.”

The Apex Court said: “There is a grave danger that if high handed and unlawful behaviour is permitted by any wing or officer of the state, demolition of citizens’ properties will take place as a selective reprisal for extraneous reasons. Citizens’ voices cannot be throttled by a threat of destroying their properties and homesteads. The ultimate security which a human being possesses is to the homestead.”

The case stemmed from a senior journalist writing a letter to the top court in 2019 complaining that his ancestral residential house was demolished without notice by authorities in Uttar Pradesh.

The Court awarded an interim compensation of Rs 25 lakh to the person whose house was demolished. The Bench also directed the UP Chief Secretary to initiate inquiry into the illegal demolitions that were carried out by the Collector, other officials and the contractor in 2019.

Senior advocate Siddharth Bhatnagar told the Court that the National Human Rights Commission’s directions for initiation of proceedings against wrongdoers has not yet been complied with and no compensation made to the petitioner – Manoj Tibrewal Akash for illegal demolition of his ancestral house. The petitioner had written to the Apex Court on 4 October 2019 about the rampant incidents of illegal demolitions.

What must definitely attract attention is that while dusting off this case file nearly four years later, the Bench was aghast to note that no relevant material had been provided by the UP Government about 123 affected houses, including that of the complainant for road widening project. While terming it “very high handed”, Mr Justice Pardiwala said, “You can’t come with bulldozers and demolish houses overnight. You don’t give time to the family to vacate. What about the household articles? There has to be due process followed.”

On the alleged encroachment by the petitioner, it was observed: “You say that he was an encroacher of 3.7 square metres. We take it. We are not giving him a certificate for it. But how can you start demolishing people’s houses like that? This is lawlessness…walking into somebody’s house and demolishing it without notice.” Besides rapping the UP government on the knuckles, the Court ordered that its directions be complied with within a month!

The Bench noted, “When the petitioner moved the NHRC by a letter dated 04 October 2019, a detailed enquiry ensued. The enquiry culminated in a report dated 3 February 2020, whereby the NHRC concluded that:

(i) No notice was given prior to the demolition, save and except for a public announcement through loudspeakers;

(ii) The house of the petitioner who was the complainant before the NHRC was constructed on land purchased by his grandfather in 1960 and 1964;

(iii) The spot inspections and measurements done by Revenue Department officials in the presence of the NHRC enquiry team revealed that the extent of the encroachment on Government land was about 3.70 meters in length and demolition of that limited extent was justified because the land was falling under a 16-meter-wide road;

(iv)  However, the house was demolished beyond the extent of the encroachment of 3.70 meters and the actual demolition was in fact between 5 to 8 meters;

(v)  No compensation has been tendered for the demolition of the property;

(vi)  The demolition action commenced on 7 July 2019 and on 13 September 2019, the house, which was 16 meters from the centre of the road was demolished; and

(vii)   The video clip provided by the officials of NH-PWD revealed that household goods, as alleged by the complainant, were still in the house before the work of demolition commenced.”

The Court noted: “In this backdrop, the findings of the NHRC indicate that at the highest, demolition to the limited extent of 3.70 meters may have been justified on the ground of encroachment but there was no justification for the demolition beyond the 3.70 meters. The NHRC concluded that the government agency had failed to provide any documents to support that the road in front of the petitioner’s house was 32 meters (16 meters on each side from the centre of the road). The revenue records and the NH-PWD records revealed that the road width in front of the house was only 16 meters (8 meters on each side from the centre of the road). However, the District administration and officers demolished properties beyond the permissible extent, up to 32 meters (16 meters from the centre of the road on both sides) without authority of law.”

It went on to say: “The following position emerges from the narration of facts :

(i) The State of Uttar Pradesh has produced no document to establish the original width of the State Highway which was notified as NH 730, a National Highway;

(ii) No material has been produced by the State of Uttar Pradesh to indicate whether any enquiry or demarcation was carried to earmark the encroachments;

(iii)  There is no material to indicate that the land had been acquired before the work of demolition was carried out beyond a statement on affidavit that there was ‘encroachment’;

(iv)  The State has failed to disclose (a) The precise extent of the encroachment; (b) The width of the existing road; (c) The width of the notified highway; (d) The extent of the property of the petitioner which actually fell within the notified width; and (e) Any justification for why the demolition was required to be carried out beyond even the area of alleged encroachment as the report which has been submitted by the NHRC would indicate that the demolition was far in excess of the alleged encroachment which was to the extent of 3.70 meters.”

The Court has summed up the cornerstore of the state’s action by noting, “The petitioner has alleged that the demolition was a reprisal for a newspaper report which contained allegations of wrongdoing in relation to the construction of the road in question. We need not engage with this aspect, save and except to the extent that it supplies the background to the grievance of the petitioner. In any case, such high-handed and unilateral action by the State Government cannot be countenanced. Justice through bulldozers is unknown to any civilized system of jurisprudence. There is a grave danger that if high handed and unlawful behaviour is permitted by any wing or officer of the state, demolition of citizens’ properties will take place as a selective reprisal for extraneous reasons. Citizens’ voices cannot be throttled by a threat of destroying their properties and homesteads. The ultimate security which a human being possesses is to the homestead. The law does not undoubtedly condone unlawful occupation of public property and encroachments. There are municipal laws and town-planning legislation which contain adequate provisions for dealing with illegal encroachments. Where such legislation exists the safeguards which are provided in it must be observed.”

It held: “We propose to lay down certain minimum thresholds of procedural safeguards which must be fulfilled before taking action against properties of citizens. The state must follow due process of law before taking action to remove illegal encroachments or unlawfully constructed structures. Bulldozer justice is simply unacceptable under the rule of law. If it were to be permitted the constitutional recognition of the right to property under Article 300A would be reduced to a dead letter. Officials of the state who carry out or sanction such unlawful action must be proceeded against for disciplinary action. Their infractions of law must invite criminal sanctions. Public accountability for public officials must be the norm. Any action in respect of public or private property must be backed by due process of law.”

Finally, the Court directed: “The Registrar (Judicial) shall circulate a copy of this judgment to the Chief Secretaries of all the States/Union Territories to ensure compliance with the directions which have been issued in regard to the procedure to be followed for the purpose of road widening in general.”

It is a settled proposition of law that tolerance of injustice in any form is a threat to justice in all forms. The top court has made it indubitably clear that it will no longer take demolitions by bulldozers lying down and will hold accountable all those at whose behest the demolition took place.

(The writer is a Meerut-based advocate.)