Karnataka High Court
Ashpak Choudhari vs The Government Of Karnataka And Ors on 18 December, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC-K:9850
WP No. 203259 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 203259 OF 2024 (LB-RES)
BETWEEN:
SMT. SAIRABANU MAHIBOOB HUNDEKAR
AGE ABOUT 65 YEARS,
OCC. HOUSE WIFE
R/O ADARSH NAGAR,
INDI ROAD, ALMEL ROAD, TQ.ALMEL.
DISTRICT VIJAYAPUR - 586 202.
...PETITIONER
(BY SRI. S.S. HALALLI, ADVOCATE)
AND:
1. THE GOVERNMENT OF KARNATAKA
DEPARTMENT URBAN DEVELOPMENT,
Digitally signed M.S.BUILDING, BENGALURU - 560 001.
by SUMITRA REPRESENTED BY ITS PRINCIPAL SECRETARY.
SHERIGAR
Location:
HIGH COURT 2. THE DEPUTY COMMISSIONER
OF VIJAYPUR, DISTRICT VIJAYAPUR - 586 202.
KARNATAKA
3. THE CHIEF OFFICER
PATTANA PANCHAYAT ALMEL,
TQ.ALMEL, DISTRICT VIJAYAPUR - 586 202.
4. THE POLICE SUB-INSPECTOR
ALMEL POLICE STATION ALMEL,
TQ.ALMEL, DISTRICT VIJAYAPUR - 586 202.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R-1, R-2 & R-4
SRI. CHAITANYA KUMAR C.M, ADVOCATE FOR R-3)
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NC: 2024:KHC-K:9850
WP No. 203259 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF MANDAMUS OR ANY OTHER ORDER IN THE LIKE NATURE,
DIRECTING THE RESPONDENT AUTHORITIES NOT TO
DEMOLITION THE BUILDING OF THE PETITIONER ON THE PLOT
BEARING NO.44 IN LAND BEARING SY.NO.802/A AND 803 WITH
PROPERTY BEARING NO.44/2035 MEASURING EAST-EST 9
METERS, SOUTH-NORTH 3 METERS SITUATED AT ALMEL TOWN IN
WARD NO.5 WITHOUT DUE PROCESS OF LAW IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR) In this petition, the petitioner seeks the following reliefs:
"A) Issue a writ of mandamus or any other order in the like nature, directing the respondent authorities not to demolition the building of the petitioner on the plot bearing No. 44 in land bearing Sy No. 802/A and 803 with property bearing No. 44/2035 measuring East-west 9 meters, South North 3 meters situated at Almel Town in Ward No.5 without due process of law, in the interest of justice and equity.
B) Or pass any other order as this Hon'ble court deems fit under the facts and circumstances of the case in the interest of justice and equity."-3-
NC: 2024:KHC-K:9850 WP No. 203259 of 2024
2. Heard learned counsel for the petitioner, learned counsel for respondent Nos.1, 2 and 4 and learned counsel for respondent No.3 and perused the material on record.
3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that the action of the respondents in demolishing/attempting to demolish the subject properties of the petitioner without following due process of law is illegal, arbitrary, high handed and contrary to the directions issued by the Hon'ble Supreme Court In Re: Direction in the matter of demolition of structures - 2024 SCC OnLine SC 3291.
4. It is submitted that the present petition may be disposed of issuing appropriate direction to the respondents.
5. Per contra, learned counsel for the respondents submits that the respondents would take necessary steps against the petitioner and the subject properties only by following due process of law.
6. In aforesaid decision of the Apex Court regarding matter of demolition of structures, it is held as under:
-4-NC: 2024:KHC-K:9850 WP No. 203259 of 2024 "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.
77. This Court in the case of Chameli Singh v. State of U.P.41 though was considering an issue in the context of land acquisition, it had elaborately discussed on the right to shelter. It will be apt to refer to the following observations of this Court:
"7. In State of Karnataka v. Narasimhamurthy [(1995) 5 SCC 524 : JT (1995) 6 SC 375] (SCC p. 526, para 7 :
JT at p. 378, para 7), this Court held that right to shelter is a fundamental right under Article 19(1) of the Constitution. To make the right meaningful to the poor, the State has to provide facilities and opportunity to build houses. Acquisition of the land to provide house sites to the poor houseless is a public purpose as it is the constitutional duty of the State to provide house sites to the poor.-5-
NC: 2024:KHC-K:9850 WP No. 203259 of 2024
8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter.
These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person -6- NC: 2024:KHC-K:9850 WP No. 203259 of 2024 and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights."
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.
79. It was sought to be urged by the learned SG that most of the houses which were demolished were demolished since the constructions were found to be in breach of the local municipal laws. It was submitted that the houses were demolished since they are found to be in violation of either the provisions of municipal law governing them or the Panchayat laws governing such construction.
80. The learned SG submitted 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 accused persons. He, however, reiterated that it was the stand of various States that such properties can be demolished only in accordance with the procedure prescribed by law.
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 -7- NC: 2024:KHC-K:9850 WP No. 203259 of 2024 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 -8- NC: 2024:KHC-K:9850 WP No. 203259 of 2024 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. This Court in catena of cases including the Constitution Bench cases of Modern Dental College and Research Centre v. State of Madhya Pradesh42 , K.S. Puttaswamy v. Union of India43 (Privacy 9-J) and Vivek Narayan Sharma v. Union of India44 (Demonetization Case- 5J) has laid emphasis on the four-pronged test of proportionality.
85. In the case of Modern Dental College and Research Centre (supra), this Court observed thus:
"60. .......Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as "doctrine of proportionality".
Jurisprudentially, "proportionality" can be defined as the -9- NC: 2024:KHC-K:9850 WP No. 203259 of 2024 set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub- components of proportionality which need to be satisfied [Aharon Barak, Proportionality : Constitutional Rights and Their Limitation (Cambridge University Press 2012).], a limitation of a constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation ("proportionality stricto sensu" or "balancing") between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right."
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.
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NC: 2024:KHC-K:9850 WP No. 203259 of 2024 IX. DIRECTIONS
90. In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in exercise of our power under Article 142 of the Constitution. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. We are further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period.
91. At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.
A. NOTICE i. No demolition should be carried out without a prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days' time from the date of service of such notice, whichever is later.
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NC: 2024:KHC-K:9850 WP No. 203259 of 2024 ii. The notice shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question.
iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.
iv. To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate. The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from today.
v. The notice shall contain the details regarding:
a. the nature of the unauthorized construction.
b. the details of the specific violation and the grounds of demolition.
c. a list of documents that the noticee is required to furnish along with his reply.
d. The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place; vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of
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NC: 2024:KHC-K:9850 WP No. 203259 of 2024 the notice, the reply, the show cause notice and the order passed thereon would be available.
B. PERSONAL HEARING i. The designated authority shall give an opportunity of personal hearing to the person concerned.
ii. The minutes of such a hearing shall also be recorded.
C. FINAL ORDER i. Upon hearing, the designated authority shall pass a final order.
ii. The final order shall contain:
a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;
b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefore;
c. if the designated authority finds that only part of the construction is unauthorized/noncompoundable, then the details thereof. d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available.
D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER.
i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof. The
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NC: 2024:KHC-K:9850 WP No. 203259 of 2024 order shall also be displayed on the digital portal as stated above.
ii. An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished.
iii. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas.
E. PROCEEDINGS OF DEMOLITION i. The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved.
ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal.
92. Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us.
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93. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution.
94. The officials should also be informed that if the demolition is found to be in violation of the orders of this Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages."
7. In view of the aforesaid facts and circumstances and the judgment of the Apex Court supra, I deem it just and appropriate to dispose of this writ petition directing the respondents not to take any steps to demolish the property/subject property of the petitioner except after following due process of law and in accordance with the direction issued by the Apex Court in In Re:
Direction in the matter of demolition of structures - 2024 SCC OnLine SC 3291 supra, after providing sufficient and reasonable opportunity to the petitioner and hearing the petitioner, in accordance with law. It is further directed that till the respondents take necessary steps against the petitioner in respect of the subject properties as stated supra, the respondents shall not take any precipitative steps/coercive steps in respect of the subject
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NC: 2024:KHC-K:9850 WP No. 203259 of 2024 properties. Liberty is also reserved in favour of the petitioner to take recourse to such remedies as available in law.
8. Subject to the aforesaid observations and directions, the petition stands disposed of.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE BMC List No.: 1 Sl No.: 49