Even as the Supreme Court is hearing the pleas against the demolitions in Jahangirpuri and the allegations of “bulldozer politics”, the North Delhi Municipal Corporation has claimed that it has the authority to remove encroachments from public roads and footpaths without any notice.
Citing sections 321 and 322 of Delhi Municipal Corporation Act, Solicitor General Tushar Mehta on Thursday said that the action undertaken by the municipal authorities was valid. We take a look at the legal provisions and the court orders regarding encroachments and their removal.
Under the Delhi Municipal Corporation Act, 1957, there are specific provisions that ban encroachments into public roads/ footpaths. These are:
320. Prohibition of structures or fixtures which cause obstruction in streets—(1) No person shall, except with the permission of the Commissioner granted in this behalf, erect or set up any wall, fence, rail, post, step, booth or other structure whether fixed or movable or whether of a permanent or temporary nature, or any fixture in or upon any street or upon or over any open channel, drain, well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy any portion of such street, channel, drain, well or tank. (2) Nothing in this section shall apply to any erection or thing to which clause (c) sub-section (1) of section 325 applies.
321. Prohibition of deposit of things in streets—(1) No person shall, except with the permission of the Commissioner and on payment of such fee as he in each case thinks fit, place or deposit upon any street, or upon any open channel, drain or well in any street or upon any public place any stall, chair, bench, box, ladder, bale or other thing whatsoever so as to form an obstruction thereto or encroachment thereon. (2) Nothing in sub-section (1) applies to building materials.
MCD in its statement has particularly relied on the provision regarding removal of obstructions on the roads.
322. Power to remove anything deposited or exposed for sale in contravention of this Act. The Commissioner may, without notice, cause to be removed (a) any stall, chair, bench, box, ladder, bale or other thing whatsoever, placed, deposited, projected, attached or suspended in, upon from or to any place in contravention of this Act; (b) any article whatsoever hawked or exposed for sale on any public street or in other public places in contravention of this Act and vehicle, package, box or any other thing in or on which such article is placed.
MCD has claimed that the action undertaken is solely for removal of such temporary structures from the footpaths and streets, and therefore does not need prior notice.
What is also relevant in the context of Jahangirpuri are sections 334 and 343 of the Act, since some of the structures that have been demolished are not temporary sheds but brick construction and extensions of buildings. The DMC Act provides that sanction for extension/modification of a building has to be taken from the Corporation.
343. Order of demolition and stoppage of buildings and works in certain cases and appeal– allows for the municipal commissioner to pass orders for demolition of the structure. However, the provision specifies that the Commissioner must pass an order “directing that such erection or work shall be demolished by the person who is the owner of the property, and the notice of demolition has to give minimum 5 and maximum 15 days time to the property owner to demolish such a structure.
The section also mandates that “no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made.”
This provision also allows for an appeal process against the show cause notice. Delhi Laws (Special Provisions) Second Act, 2011 also gives protection against demolition without rehabilitation to jhuggi dwellers.
Further, Delhi Urban Shelter Improvement Board Act 2010, under which the Delhi Slum and JJ Rehabilitation and Relocation Policy was notified in 2017, also states that removal of jhuggis even when encroachment is on government land cannot be done without a rehabilitation policy in place.
With regard to the Jahangirpuri issue, the residents and the government will have to clarify what exactly was demolished by the MCD. The viral videos show both kinds of structures– brick structures, sheds and walls, as well as temporary tin and bamboo sheds.
A look at the judgments passed by the Supreme court and High Courts regarding removal of encroachments also shows that courts have called for due process, through notices and rehabilitation schemes, for removal of encroachments, even from public lands.
SC ORDERS ON DEMOLITION
In the 1985 Olga Tellis case, which is considered the backbone of the jurisprudence on right to livelihood and rights of slum dwellers, SC had noted that right to livelihood is a part of right to life. The apex court in this judgment has also noted that under the Bombay Municipal Corporation Act, while the Commissioner has been granted power to take action without notice, due process of notice should be followed except in exceptional circumstances.
“It enables the Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice,” the court had said.
In Saudan Singh vs NDMC in 1989, the Supreme court held that “hawking on roadsides fell within the expression “occupation, trade or business” in Article 19(1)(g). It was also held that all pucca streets and roads vest in the state, but the state holds them as trustees on behalf of the public and the members of the public are beneficiaries entitled to use them as a matter of right.
This verdict held that the Municipality has full authority to permit “hawkers and squatters” on the sidewalks wherever the Municipality considers it practicable and convenient, under the provisions of the Punjab Municipal Act, 1911 (or Delhi Municipal Corporation Act, 1957).
The court however clarified that “Hawkers cannot be permitted to squat on every road”. Following this verdict, the NDMC had framed rules for grant of tehbazari licenses in Delhi.
In 1996, the Supreme Court again considered the issue of long term squatters and their rights in the Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan case.
The bench in this judgment noted that “if the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no not has a right to encroach upon public property and claim the procedure of opportunity of hearing which would be tedious and time-consuming.”
“On the other hand,” the court held that “if the corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to see, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. “
A similar order was passed in the 1995 judgment in the municipal committee, Karnal, vs Nirmala Devi. court again said that “every street which is a public street vests in the Municipal Committee.”
The Supreme court noted that “if unauthorised construction is made by encroaching on it, after issuing the notice for demolition and service thereof, if the encroacher does not remove the same within the specified time, in addition to laying prosecution for contravention of the provisions of the Act, the Municipal Committee has power to have the unauthorised encroachments and construction removed and the to recover the costs thereof from him.”
In several other cases, including the recent orders in the MC Mehta case, wherein the SC had set up a Special Taskforce to look into the issue of unauthorised construction and commercial use of residential property, the Apex court has said that show cause notice for removal of encroachments was necessary, and the municipal authorities must give time to the encroachers to remove the encroachments, before taking action against them.
In the MC Mehta case, SC had also noted that “Municipal Authorities, NDMC and DDA are lax in the performance of their duty with respect to unauthorised construction and encroachment on public/ govt. land. The public at large is violating the laid down orders i.e. Building Bye Laws and Master Plan etc”, after a report filed by the monitoring committee and the STF showed the huge area cleared in Delhi after multiple anti-encroachment drives between 2013-2016.
“On perusal of the report, we find that the total area cleared from encroachment by the STF under permanent structures is as high as 10,71,838 sq mts. The area under temporary structures that has been cleared from encroachment is 16,99,858 sq mts. In addition, about 3,202 sq mts of roads/streets/footpaths have been cleared on both sides. This confirms the severe problems being faced by Delhi due to unauthorized construction and encroachments and the magnitude of the problem,” the court had noted in its verdict.
In August 2020, the apex court passed orders for the removal of over 48,000 jhuggis from railway land, in Delhi NCR. It also stated that removal will not be done till the policy for rehabilitation of the slum dwellers is created.
These judicial pronouncements indicate that the MCD will have to clearly justify its actions, and show whether notices as per process had been issued to the residents who were running shops and living in the extended buildings for several years.
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