Guest Post: The Illegality of the Khargone Demolitions

[This is a guest post by M. Jannani.]


Recently, it was reported that homes and shops were allegedly demolished in Khargone, Madhya Pradesh following the Ram Navami violence, with neither a reasonable notice nor hearing by the district administration. Soon after, the district collector admitted that the demolitions were carried out within 5 kilometers from where the alleged Ram Navami violence took place “in order to teacher rioters a lesson”. Some news reports that reported on this demolitions have alleged that it has disparately affected Muslims in the particular region.  However, the SDO (Revenue) through an RTI reply mentioned that such action was taken against illegal encroachments under the MP Bhu-Rajasva Sanhita 1959 and section 248 of the amended act, 2018.

In Puttaswamy v. Union of India, the opinion authored by Justice Chandrachud laid down the test of proportionality to be followed in the case a state action invades the right to life or personal liberty. The following is the relevant extract of the judgment:

“An invasion of life or personal liberty must meet the threefold requirement of legality, which postulates the existence of law; need, defined in terms of a legitimate State aim; and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.“ (emphasis supplied)

In this piece, I aim to argue that the Khargone demolitions violate the above mentioned test of proportionality. In the first part of the essay, I justify the use of the proportionality test in the present case. I will then proceed to explain how, in my limited opinion, the different prongs of the proportionality test are violated by the Khargone demolitions.

An infringement of the right to life

In the previous post on this blog, Rishika Sahgal had explained in detail about the procedural safeguards and requirements of adequate notice, reasonable opportunity to be heard and access to rehabilitation facilities that have been interpreted into article 21 by various High Courts and the Supreme Court. The post explained how the judgment in Olga Tellis specifically affirmed that the right to life under article 21 of the Constitution encompassed the right to housing and livelihood, which included the right to hearing and the provision of a notice in the case of evictions. It is also made a very pertinent observation about how the procedural requirements pertaining to demolitions that were laid down in Sudama Singh – notice, hearing, meaningful engagement and rehabilitation – have been crytallized by the Supreme Court through subsequent decisions. Such requirements, the essay argued, have to be met by authorities across the country if they seek to initiate demolitions.

In the case of Khargone, it was alleged by certain persons affected by the demolition that they were neither provided a proper notice nor a reasonable opportunity of being heard before their property was demolished. Thereby, it flies in the face of the precedents discussed above as the demolitions infringe the right to life guaranteed under article 21 of the Constitution of India by violating procedural safeguards. Hence, it justifies the use of the test laid down in Puttaswamy.

Demolitions and section 248 of the Madhya Pradesh Land Revenue Code, 1956

As mentioned earlier, the authorities have justified the demolitions on the ground that the structures violate section 248 of the MP Land Revenue Code. Even though the provision empowers the tahsildar to “summarily eject” in the case of encroachment, it was held in various decisions that such powers contained in the provision are necessarily subject to a reasonable opportunity of being heard offered to the persons against whom the adverse action will be taken against. In Arun Bharti v. Madhya Pradesh, the Madhya Pradesh High Court looked into unauthorized occupations and section 248 of the Code. The court held that section 248 of the Code is a penal provision which inherently contained the “necessity of compliance of the principle of natural justice of audi alteram partem by affording reasonable opportunity of hearing”.

In Turabali v. State of Madhya Pradesh, the Madhya Pradesh HC looked into writ petitions challenging notices issued under section 248 of the Code. In this case, a time period of 3 days was given by the authorities for the removal of an encroachment. The High Court while stating that the time period provided for removal was “absolutely insufficient” also held that:

“Even if they were encroachers, then, it was for the competent authority to give them proper notice, applying proper law and providing them a reasonable time to file reply and also an opportunity of hearing. From the notices it appears that this was not intended.” (Emphasis mine)

It can therefore be observed that section 248 of code inherently allows for a reasonable opportunity of hearing and notice to be provided to persons against whom the coercive action is taken. However, such an opportunity was alleged to have not been provided to the persons against whom the coercive action was taken in the present case. Thereby, the Khargone demolitions are not backed by legality.

Collective punishment

Various ministers of the state cabinet and the district collector justified the demolitions on the ground that it was done in response to the violence that endured during the Ram Navami procession on 10th of April. But later, the action was justified on the ground that the demolitions were done against illegal encroachment and hence the state proceeded under section 248 of the code. However, it is to be noted (as had been discussed above) that the demolitions were alleged to have been done without adherence to natural justice principles. The state action in this case also suffers from over-inclusion since certain properties that did not fall within the category of illegal encroachments were also demolished and persons who owned such property were not afforded an opportunity to present their case just because such the properties were located in a particular area.  

In the case of Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi , the Delhi High Court observed that all shopkeepers and allottees of chabutras could not be characterized as trespassers or encroachers. It also observed that when the state undertakes coercive action which have an effect of causing adverse consequences to persons, there exists a duty for the state to apply its mind with respect to the facts of the particular case. On the aspect of mass action against a class of persons the court held that:

“It is not enough to take precipitate action against a class of persons, with the allegation that all of them are guilty, and tainted. Even if mass action is required, principles of fairness demand that the authority apply its mind to the materials regarding individual cases.” (emphasis supplied)

Thereby, when demolitions are initiated against the properties of a class of persons, it can be observed that by merely asserting the allegation that they are guilty or tainted will not justify the “need” for such an action to be taken by the state.

Means employed is in excess of object that is sought to be achieved

In the context of mass action against a class of persons in violation of the principles of fairness, it is important to note that the Delhi High Court in Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi  referred to the Supreme Court decision in UOI v. Rajesh. The Apex Court in Rajesh held that an adverse action which has an effect of unfairly punishing innocent persons and overlooks contextual considerations, would amount to “throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation”. The Supreme Court further mentioned that such action which is excessive and not in keeping with the gravity of the offence could have the consequence of “virtually rendering such a decision to be irrational”.

Thereby, the means employed in the case of the Khargone demolitions i.e., mass action against persons with disregard to procedural safeguards and factual considerations is in excess of the object the authorities sought to achieve.

For the above mentioned reasons, in my opinion, the Khargone demolitions violate the test of proportionality.

3 thoughts on “Guest Post: The Illegality of the Khargone Demolitions

  1. You have made well-reasoned, concise and unassailable points. What the judiciary actually rules remains to be seen.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s