Demolition drives need to comply with the rule of law

Adv Moses Pinto | APRIL 14, 2024, 12:57 AM IST

According to Qouta et. al (1998), in their research article entitled: House Demolition and Mental Health: Victims and Witnesses published in the Journal of Social Distress and the Homeless:

“When a family is witness to the destruction of its own home by enemy soldiers, the psychological effect is immense. The home is not only a shelter, but also the heart of family life. There are memories of joy and pain as well as attachment to familiar objects. Home is associated with feelings of security and consolation.”

“A great deal of psychological research on organized political violence has focused on the relationship between exposure to traumatic events and mental health.”

“The results showed that adults who were exposed to house demolition showed a higher level of anxiety, depression, and paranoiac symptoms than the witness and control groups.”

“The article reports the mental health findings of adults and children who lost their own homes by demolition, those who witnessed other people’s home demolitions, and people who neither lost their homes nor witnessed the demolitions. The results showed that both adults and children who lost their homes suffered more severely from psychological symptoms than the witness and control groups.”

“The witness group differed from the control group only in their higher level of depression. In fact, only women in the witness group expressed more depression than the controls. It is sometimes argued that witnessing violence is as traumatic as being its victim.” 

In CIVIL APPEAL NO.7627 OF 2019, before the Supreme Court of India in 


“2. The exercise of the power of demolition which affects the property of the citizens of this country must be exercised in an absolutely fair and transparent manner. Rules in this regard must be followed...Rule of law comprises not only of the principles of natural justice but also provides that the procedure prescribed by law must be followed...”

“3. Before we refer to the statutory provisions, we may make reference to a judgment of the Bombay High Court which appears to be the locus classicus  on this subject, as far as the Bombay High Court is concerned. In Sopan Maruti Thopte and Another vs Pune Municipal Corporation and  Another AIR 1996 Bom 304, Bombay High Court referred to various provisions of law...”

“9. At this juncture it would be necessary to point out that when Sopan’s case (supra) was decided there was no provision fixing a time line for filing a reply to the notice.  Now, 7 days have been fixed to file the reply in terms of Section 351 subsection (1A), and, therefore, the first direction in Sopan’s case (supra) is no longer operative...”

“10. The main dispute is with regard to the 2nd direction in Sopan’s case (supra) which provided   that demolition of the building structure can be done only after giving 15 days’ notice to the affected person.”

“11. Shri Atmaram N Nadkarni, learned Additional Solicitor General, appearing for the appellants submits that by making an amendment to Section 351, providing a period of 7 days for notice to be given, the first direction in Sopan’s  case (supra) is no longer valid.”

“12. However, as pointed out by Mr Bharat Zaveri, learned counsel appearing on behalf of the respondents that the second direction in Sopan’s case (supra) requiring 15 days’ notice to be given to the affected person before demolition of the structure, is still valid and, therefore, 2 notices are required to be given viz.,

(i) a show cause notice of 7 days in terms of Section 351 (1A) and;

(ii) notice of 15 days in terms of  Sopan’s  case (supra).

The learned counsel also submits that the judgment in Sopan’s case (supra) holds the field till date, and we agree with the counsel that in terms of direction no.2 in Sopan’s case (supra), 15 days’ notice has to be given before demolishing the structure. We are not oblivious to the fact that Sub­section (2) of Section 351 does not lay down any timeline in this regard. It was in this context that when no timelines were laid down either for show cause notice or for demolition that the Bombay High Court in Sopan’s case (supra), fixed two timelines of 15 days each for issuing show cause notice and, thereafter, to take action of demolition.”

“13. Admittedly, in both the cases the second notice does not comply with the direction given in  Sopan’s case (supra). Therefore, there is no manner of doubt that the requirement with regard to the second notice has not been complied with in either of the cases. As such, the action of demolition without following the procedure prescribed by law is illegal.”

“16. We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing   the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law...”

“19. Times have changed. Technology has advanced.  However, the legal fraternity continues to live in a state of  status quo. Sopan’s case (supra) was decided on 09.02.1996.  More than two decades have elapsed. The Courts must not be hidebound by old decisions and the law must develop in accordance with changing times.”

“22. All over the country we find that when people raise illegal constructions it is claimed that the said construction has been existing for long. The answer is to get Geomapping done. The relevant technology is Geographic Information System (GIS). If on Google Maps one can get a road view, we see no reason as to why this technology cannot be used...”

In Jose Da Costa & Another vs Bascora Sadashiva Sinai Narcornim & Anr on 7 April, 1976, before the Hon’ble Supreme Court of India, before the bench of GOSWAMI, PK KHANNA, HANS Raj, on deciding the point of:

“Ownership by prescription or adverse possession-Knowledge of possession-Possession for a long time-Peaceful-Permissible possession whether sufficient.”

 It was held by the Apex Court:

- According  to Art. 474 of the Portuguese Civil Code possession is  defined as holding or fruition of anything or right.

- The  acts  done by licence  or permission do not constitute possession. According to  Article 505 things and rights are acquired  by virtue of possession, just as obligations are extinguished by  reason  of  not demanding their fulfillment.  

- The law lays down conditions and the period of time that are  necessary for one as well as for the other thing and that  is called  prescription. 

- Under  Article 528 of the

Portuguese Code in the absence of registration of possession or  title of acquisition  prescription  with respect to immovable property  or rights  to immovable  will operate by virtue of  possession for 15 years. 

- Under Art. 529 when the

possession of  immovable property or rights to immovable property has lasted fora period  of 30 years prescription will operate. Under the Portuguese law  what appears to be clear is that permissive possession is  not sufficient to prescribe title of the owner of the land.

- The origin of ownership of land being dipped  in  the  misty  past  what  emerges  from the evidence in  the absence  of proof of lease or permission by the respondents’  own ancestors is that the appellants have been in long and open possession of the land over which they have constructed  their house  for a  period long enough for that possession to ripen into ownership. The appellants have acquired title to the said land by prescription.

The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences

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