Prayagraj: A division bench of the Allahabad high court delivered a split verdict on whether additional judicial safeguards are needed to prevent punitive demolitions of properties linked to accused persons.Hearing a plea filed by a Hamirpur petitioner, Justice Atul Sreedharan and Justice Siddharth Nandan came out with separate orders on Monday. While the two judges unanimously held that demolishing homes to punish an accused is an illegal and retributive abuse of power, they differed on whether the state can be barred from taking any action to demolish the house of an accused for a period of two years from the date of registration of an FIR.While Justice Sreedharan held that an accused person’s house should not be demolished for two years from the registration of an FIR, Justice Nandan disagreed, saying no such blanket protection could be granted.Considering the dissent, the court referred the matter to the Chief Justice of the Allahabad HC for a decision by a third judge on the issue.Starting his order with a couplet from noted poet Bashir Badr, ‘Log toot jaate hain ek ghar banane mein, tum taras nahin khaate bastiyan jalaane mein’ (People go broke in just making a house , and you feel no remorse setting ablaze entire settlements), Justice Sreedharan said: “This action by the state is largely to satiate the perceived blood lust of a society fed on a staple diet of bulldozer justice over the electronic media, social media and messaging platforms…”Justice Sreedharan further said in his order, “Rushing to demolish the dwelling place of a person accused of an offence under the garb of the same being violative of municipal laws is impermissible, the same being a retributive exercise of executive discretion and so, no action may be taken to demolish his house for a period of two years from the date of registration of the FIR.”On the other hand, Justice Nandan said there is always a presumption that the govt will proceed only in accordance with the law and while adhering to the principles of natural justice. He added it is always open to an aggrieved person to approach the high court.“In my opinion, no fixed time period can be prescribed, for as a matter of fact, it would result in keeping the operation of an enactment in abeyance for the said period,” Justice Nandan added.The first issue referred to the Chief Justice is whether, in the exercise of powers under Article 226 (writ jurisdiction) of the Constitution, a general direction can be issued restraining the state, for a period of two years or otherwise, from taking any action under the UP Urban Planning and Development Act, 1973, subject to certain exceptions.The other issue is whether, before initiating proceedings under the municipal laws, a direction can be issued to the authorities to give a “notice of intent” one year prior to initiating such proceedings for the alleged violation of statutory norms.In the present case, the HC was dealing with a plea filed by Faimuddeen and two other members of his family, who alleged that a mob targeted their house in collusion with the police immediately after one of their relatives was booked under the Protection of Children from Sexual Offences (Pocso) Act and the UP Prohibition of Unlawful Religious Conversion Act at Sumerpur police station in Hamirpur district. Later, Faimuddeen was also made an accused in the case. The petitioners approached the HC apprehending the demolition of their house, claiming that their properties had been marked for demolition.However, the state’s stand was that the petition was premature, as no cause of action had arisen and the petitioners were required to respond to the notices issued to them.In his order, Justice Sreedharan said the court had witnessed several cases in which demolition notices were issued to persons occupying dwelling houses immediately after the registration of an FIR, following which demolition was carried out under the ostensible fulfilment of statutory requirements.The judge said such demolitions had continued unabated notwithstanding the law laid down by the Supreme Court. “The continuation of the bulldozer actions by the state, as is attempted in the case of the petitioners herein, has compelled this court to carve out a specie of retributive exercise of executive discretion as the vilest specie of the genus colourable exercise of executive discretion,” Justice Sreedharan added.However, Justice Nandan said the court was conscious of the fact that the rapid increase in unauthorised constructions was partly attributable to population growth, but that could not justify illegal constructions. The judge called for fixing accountability in such matters.“In case notices are issued for the violation of construction norms, the same shall be valid only if simultaneous proceedings are also initiated against the erring officers. Such proceedings shall also be brought to their logical conclusion, adhering to the prescribed procedure within a reasonable time and, in any case, not later than six months,” the judge said.He also said that state action must not be directed against only one individual while ignoring similar violations in the vicinity.“If such is the case, the aggrieved person shall be at liberty to approach this court alleging a retributive exercise of executive discretion and violation of fundamental rights,” the judge directed.
