Supreme Court: Right To Shelter A Facet Of Article 21; State Must Satisfy Why Entire Property Needs To Be Demolished

 VII. RIGHT TO SHELTER

76. There is another angle to this problem. It is not only the Accused who lives in such property or owns such property. If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged Accused person? What is their mistake if their relative is arrayed as an Accused in some complaint or F.I.R.? As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution.

78. The right to shelter is one of the facets of Article 21. Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional.

81. The position is disputed by the learned Counsels appearing on behalf of the Petitioners/applicants. It is stated that the chain of events clearly depicts that the demolition of the houses was an immediate reflection of the persons being implicated in crimes. It was submitted that the time gap between the person being named as an Accused and demolition of his property/properties made it apparent that the punishment of demolition was inflicted by the executive on such person being arrayed as an Accused. It was also submitted that in case of demolition of the property of an alleged Accused, it is difficult to believe that only a single construction belonging to an Accused is unauthorized construction, whereas all other structures in the vicinity are legal and authorized as per local laws.

82. Though the learned SG may be right in submitting that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the Accused persons, however, when a particular structure is chosen all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity are not even being touched, mala fide may loom large. In such cases, where the authorities indulge into arbitrary pick and choose of the structures and it is established that soon before initiation of such an action an occupant of the structure was found to be involved in a criminal case, a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure but an action of penalizing the Accused without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalize a person Accused by demolishing the structure.

83. While considering the issue with regard to the demolition of the houses which are required to be demolished for breach of the local laws, we find that the principle of the Rule of law needs to be considered even in the municipal laws. There may be certain unauthorized constructions which could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed. In such cases, the extreme step of demolition of the property/house property would, in our view, be disproportionate.

84. As already discussed herein above, the right to shelter is one of the facets of Article 21 of the Constitution. If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available. 

86. It is also to be noted that the construction of a house has an aspect of socio-economic rights. For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one's head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

Read full Judgment here: Click here.

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Whether unauthorized construction of a person is compounded if offence as per Compounding Byelaws is compounded?

The Act of 1973 does not contain any provision for compounding of constructions. However, there is a provision for composition of offences under Section 32 of the Act 1973 which reads as follows:-

“32. Composition of Offences.- (1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded-by ¹[the Vice-Chairman (or any officer authorised by him in that behalf by General or Special order)] on such terms, including any terms as regards payment of a composition fee, as ²[the Vice-Chairman] (or such officer) may think fit.

(2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded.” {Para 24}

27. Therefore, the offences which can be compounded are the offences of prosecution/fine and there is no provision, under which, unauthorized constructions can be compounded at least under the Act. However, at the same time, the effect of Compounding Bye-laws would also be examined but one thing is clear that even in the Bye-laws of 2009 relied upon by the Development Authority as quoted hereinabove, the word “constructions” has not been mentioned, rather the word “अपराध ” (“offence”) has been used, meaning thereby, that even the Bye-laws speak of composition of “offences” and not compounding of “constructions”.

28. This Court finds that there is no provision under the Act, 1973 which entitles the Authority to go for profiteering on an illegal act of encroachment or unauthorized construction in the name of compounding. The compounding contemplated in Section 32 is certainly in respect to offences punishable under the Act. It nowhere provides that once an offence is compounded, an act, which is in violation of Plan, shall also stand regularized or become valid. The effect of compounding is provided in Sub-section (2) of Section 32 that an offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect to the "offence" compounded. This is with regard to the criminal liability fastened upon the person for committing an offence under the Act, 1973. But the prohibition contained in the Act and statutory obligation upon Authorities to set right a person who has faulted/breached such provision by taking appropriate action, e.g. demolition of building by exercising power under Section 27 has not been made un-operated when an offence is compounded. The proceeding prevented as a result of compounding an "offence" relates to offence and illegality/irregularity so prohibited/controlled under another provision. It may also be noticed that by U.P. Act No. 3 of 1997 (hereinafter referred to as "Act, 1997"), certain other offences have been provided vide Sections 26D and 28A. However, removal of any construction raised in contravention of Plan and removal of encroachment etc. are governed by a different procedure and steps which would remain uneffected by such compounding. In other words, the compounding under the Act, 1973 is to avoid the criminal liability and punishment on conviction but not to regularize a construction prohibited under the Act for which no relaxation is permissible except when the plan is amended in accordance with Section 13 of the Act.

56. There is another contention that since compounding charges have been paid and therefore, construction whatsoever raised by petitioners must be taken to be valid construction, also has no force for the same reason that petitioners have no right over the land at all. Even otherwise, we are of the view that unauthorized construction would not stand regularized on payment of compounding charges, since concept of compounding charges is not to regularize unauthorized construction but to compound an offence so that otherwise punishment in the Court of law in a trial may not be inflicted.

 ALLAHABAD HIGH COURT

Case :- WRIT - C No. - 6183 of 2016

 D.B. Kauser Vs  State Of U.P. And 4 Others

Coram: Hon'ble Kshitij Shailendra,J.

Delivered on 10.05.2023.

Neutral Citation No.-2023:AHC:102783

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Whether MHADA can be directed to regularize unauthorized construction?

The Appellate Authority has recorded the submissions of the Appellant that he had made encroachment and also made construction as mentioned in the charge-sheet. The Appellant further pleaded that he is ready to pay the charges for regularization of the construction and for the allotment of encroached land made by him. The Appellate Authority found that the Appellant has committed breach of the conditions of the allotment by making additions and alteration, and encroached on the land, which was not allotted to him and in view of the factual position, the Appellate Authority recorded that the charges framed against the Appellants are proved and accordingly, the Appellate Authority confirmed the order passed by the Competent Authority. Upon careful perusal of the reasons recorded by the Competent Authority, which are confirmed by the Appellate Authority, it is abundantly clear that the Petitioner clearly admitted before the Appellate Authority that he has made encroachment and alterations and prayed for regularization of the said encroachment. Therefore, in the aforesaid background, this Court is not inclined to entertain this writ petition. If the Petitioner's prayer is entertained, the same may amount to adding premium on illegal and dishonest acts of the Petitioner who has encroached on MHADA's land and also made the alterations contrary to the Rules and Regulations. The extra-ordinary writ jurisdiction cannot be invoked so as to exercise the discretion in favour of the person, who has committed illegality and irregularity. Therefore, this Court is not inclined to entertain the prayer of the Petitioner's either to remand the matter back to the Competent Authority or to accept his prayer for regularization of the encroachment. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9019 of 2011

Decided On: 10.09.2013

Maniram Satyanarayan Chaudhari Vs.  Estate Manager, Aurangabad

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2014 (1) AllMR 340

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Whether court should grant temporary injunction if no relevant material is on record?

 Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is 'no material', or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on 'no material' (similar to 'no evidence'), we refer not only to cases where there are total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was 'no material' to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction granted by the trial court.
The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.

Supreme Court of India

Seema Arshad Zaheer & Ors vs Municipal Corporation Of Greater ..

. on 5 May, 2006

DATE OF JUDGMENT: 05/05/2006

Citation:(2006) 5 SCC 282

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When High court should not issue a mandamus for the demolition of the unauthorized construction?

 Mere departure from the authorized plan or putting up of a construction without sanction does not ipso fact and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorized construction and some are amenable to compounding and some may not be. According to learned counsel for the first respondent, the appellants have constructed the temple without obtaining any sanction whatsoever. There is serious breach of the licensing provisions or building regulations which may call for extreme step of demolition. In our view, these are matters for the Municipal Commissioner to consider at the appropriate time.
The power under Section 351 of the Act, in our opinion, has to be exercised only by the Municipal Commissioner and it is left to the Municipal Commissioner under the provisions of Section 351(2) either to order or not to order the demolition of the alleged unauthorized temple. In fact, respondent No.1 by himself through his advocate's letter dated 16.04.2005 (annexed to his counter affidavit) requested the Municipal Authorities to take action under Section 351 of the Act. At the time of admission of this special leave petition, the provision of Section 351 of the Act was pointed out by the learned senior counsel to show that the Municipal Commissioner had only been conferred the power under the said provisions to demolish or not to demolish unauthorized structure and, therefore, the High Court ought not to have issued a mandamus for demolition of the temple before any order was passed by the Commissioner on the question of demolition.

Supreme Court of India

Muni Suvrat-Swami Jain S.M.P. ... vs Arun Nathuram Gaikwad & Ors on 11 October, 2006

Author: . A Lakshmanan

Citation: AIR2007(SC) 38: 2006(8) SCC590

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