Faimuddeen And 2 Others vs State Of U.P. And 7 Others
- Court
- Allahabad High Court
AFR
Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 2229 of 2026
Faimuddeen and 2 others
…..Petitioner(s)
Versus
State of U.P. and 7 others
…..Respondent(s)
Counsel for Petitioner(s) : Shamsuddin Khan, Syed Ahmed
Faizan, Zaheer Asghar
Counsel for Respondent(s) : C.S.C., Dileep Kumar Srivastava,
Sant Ram Sharma
Court No. - 42
HON'BLE ATUL SREEDHARAN, J.
HON'BLE SIDDHARTH NANDAN, J.
(Per: Hon’ble Atul Sreedharan, J)
لوگ و جات ی ایک گ ر بنان می
ں ے ھ ے ہ ں
ٹ
ٹ
تم ترس ن ی ک ات بستیی جالن می
ں ے ں ہ ں ھ ے
लोगटूटजातेएकघरबनानेमें
तुमतरसनहींखातेबस्ति यांजलानेमें
People face ruination in just making a home
and you feel no remorse setting ablaze entire settlements
….Bashir Badr (passed away on: 28/05/2026)
“…….. 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,
2
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
1
belonging….”
‘Home is where the heart and hearth is’, so it is said.
It is where a warm meal awaits a man when he returns from
a gruelling day’s work, it is where his wife (in the larger
Indian context even today) feels a sense of pride and
accomplishment as a sheet anchor of the family, holding it
together through trying times, it is where his children have a
stable and settled environment to study and progress in
knowledge and ability, to contribute to the family, society and
nation once they grow up, it is where his old parents rest
blissfully in the evening of their lives making peace with the
aches and pains only because of they have a home. A man
can absorb the uncertainties of life and bounce back if he has
a shelter over his head. Take that away abruptly without
giving him adequate time to re-settle himself elsewhere, and
you may have consigned, not just him, to the deepest abyss
of despair, but all those dependent on him, whose normal
rhythm of life was dictated by a sense of security of not
having to bother about a safe shelter.
2. The Supreme Court of India recently passed an epoch-
making judgement in “In re: Directions in the Matter of
2
Demolition of Structures” (hereinafter referred to as the
1
Supreme Court In re: Directions in the Matter of Demolition of Structures – (2025) 5 SCC 1 –
Paragraph 89.
2
(2025) 5 SCC 1
3
“bulldozer case”), to put an end to State action of razing the
houses of those accused of a crime. 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, on account of which
the State of Uttar Pradesh (and now several others), has
found it convenient to raze the dwelling place of citizens in
the name of irradicating “land mafia” and removing “illegal
encroachments”, a phrase substituting the word “criminals”
after the Supreme Court judgement against demolition of
dwelling places of persons accused of crime. This judgement
was followed up by the Supreme Court in Rajendra Kumar
Barjatya and Another Vs. U.P. Avas Evam Vikas Parishad and
3
Ors., and supplementary directions were passed. While the
bulldozer case was to prevent and regulate the demolishment
of dwelling place of the accused after the commission of an
offence, the judgment in Rajendra Kumar Barjatya issued
directions in paragraph 21 of far reaching consequences to
prevent the mushrooming of illegal dwelling places.
3. Two situations emerge for consideration before this Court.
The First relates to the demolition of dwelling places of
persons accused of a crime. The Second is demolition of
dwelling places (residence and/or place of business) which
have existed for long, under the pretext that they are illegal
encroachments on government land. However, the judgment
3
2024 SCC OnLine 3767
4
of the Supreme Court notwithstanding, the demolition of
structures continue at will, with the State running through the
mandatory directions of the Supreme Court in the case
abovementioned within a couple of months and then
demolishing the structure even before the affected citizen has
a fighting chance to approach the courts for succour. This
decision of the Supreme Court notwithstanding, the
executive continues with its actions of demolishing homes
4
across the country with impunity , and therefore this
judgement aims to curtail all demolitions of dwelling places
in the State of Uttar Pradesh by inter alia adopting all the
directions of the Supreme Court passed In re: Directions in
the Matter of Demolition of Structures and Rajendra Kumar
Barjatya and Another Vs. U.P. Avas Evam Vikas Parishad and
Ors., as direction of this Court and ensure that all future
demolitions of dwelling places in the State Uttar Pradesh are
strictly in accordance with the directions of Supreme Court,
passed in aforementioned judgements and the judgement of
this Court, and any violation of the same, the citizen so
affected can sustain a contempt petition before this Court
instead of approaching the Supreme Court.
4. There are three Petitioners in the case under judgement. They
reside at 386 Thokchand, Ward No. 11 Bharua Sumerpur in
District Hamirpur. Petitioners 1, 2 and 3 are son, father and
mother, respectively. According to the Petitioners, the
4
https://sabrangindia.in/razed-to-the-ground-taken-to-court-the-legal-and-social-fallout-of-
indias-demolition-drives/
5
residential house was purchased through an agreement to sell
dated 11/12/2001, and the Petitioner No. 2, by another sale
deed executed on 11/12/2001, purchased additional portion
of the property from the same seller and later, by a third sale
deed dated 27/01/2009, purchased the remaining part of the
property from the seller Maiya Deen, and on the basis of the
aforesaid sale deeds, the Petitioner No. 2 claims himself to
be the owner in possession of the residential property.
However, the title deeds of the house are presently inside the
house to which the Petitioners do not have access to.
5. An FIR bearing Crime No. 20/2026 came to be registered
against one Aafan Khan, S/o. Ainuddin @ Maulana Khan,
R/o. Kamlesh Tiraha, Kasbah and Thana Sumerpur, District
Hamirpur, u/ss. 64(1), 62/351(3), 61(2) of the BNS and s.
67(A) of the IT Act, s. 3 and 4 of the POCSO Act and s. 3
and 5(1) of the U.P Prohibition of Unlawful Religious
Conversion Act. The accused Aafan Khan is the cousin of
Petitioner No.1 and the nephew of Petitioner Nos. 2 and 3. It
is stated on behalf of the Petitioners that a mob targeted the
house of the Petitioners immediately after the incident,
allegedly in collusion with the police.
6. The case of the Petitioners appears to be (1) that though the
Petitioners are not co-accused in the FIR (subsequently, the
Petitioner No.1 was included as a co-accused during the
pendency of this petition), the Respondents have issued a
notice to the Petitioner No.2 who owns the residential house
6
in which they dwell, immediately after the commission of the
offence and registration of the FIR. (2) A commercial
property registered in the name of the Petitioner No.3 as
“Indian Lodge”, has been sealed by the Respondents, (3) a
saw mill, the license of which has been renewed in the name
of the Petitioner No.2 on 11/02/2025, has lapsed and its
renewal is pending, which too has been sealed by the
Respondents, and (4) an apprehension has been voiced by the
Petitioners that their properties are marked for destruction by
mechanical means (a euphemism for bull dozer action). The
prayer is for judicial intervention to prevent the anticipated
destruction of the properties.
7. The State on the other hand has argued for the dismissal of
the petition on the grounds that (1) the petition is premature
as no cause of action has arisen and the Petitioners have to
respond to the notices issued to them, (2) that the residence
and the lodge have not been sealed, (3) that the Petitioners
have not approached the Court with clean hands as they have
concealed the fact that the saw mill was sealed as prohibited
wood (neem and dhaak) were recovered from its premises,
and (4) an assurance has been given orally by Mr. Anoop
Trivedi, the Ld. Additional Advocate General that no
demolition would take place without adhering to the
procedure established by law and without giving a due
opportunity to the Petitioners to place their case before the
authorities concerned.
7
8. This Court is a witness to several cases where the notice for
demolition is issued to persons occupying a dwelling place,
hard on the heels upon registration of an FIR and thereafter
demolished after the ostensible fulfilment of statutory
requirements. These demolitions have continued unabated,
notwithstanding the law laid down by the Supreme Court in
Re: Directions in the Matter of Demolition of Structures
(Writ C No. 295 of 2022 – (2025) 5 SCC 1) that punitive
demolition of structures is violative of the separation of
powers, as the authority to punish for an offence, vests
exclusively with the judiciary.
9. Therefore, bearing in mind the overarching nature of the case
spanning the right of the state to demolish a dwelling place
and the rights of its occupants under Article 14 and 21, and
how these demolitions continue in the State despite the
judgement of the Supreme Court which compelled this Court
to frame the following issues for consideration. (1) Is there
non-compliance of the judgement of the Supreme Court in
Re: Directions in the Matter of Demolition of Structures
(Writ C No. 295 of 2022 – (2025) 5 SCC 1) with specific
reference to paragraphs 85 and 86 of that judgement?, (2)
Does the authority to demolish, justify the act of demolishing
a structure or, is there a duty on the anvil of parens patriae
upon the State, not to demolish a dwelling place in the
absence of public need/purpose?, (3) Would steps taken in
the direction of demolishing a structure immediately
8
following the commission of an offence, be a colourable
exercise of executive discretion?, (4) how is the High Court
to balance the conflicting interests between the statutory
authority of the State to demolish a structure and the
fundamental right of the average citizen under article 21 and
14, to prevent it?, and (5) can “reasonable apprehension” of
demolition be a cause of action for a citizen to approach this
Court and if ‘yes’, what is the bare minimum for this Court
to hold the existence of such “reasonable apprehension”? All
these questions are answered together in this judgment
generally.
10. The parties have advanced oral arguments through their
respective Ld. Counsels and have placed on record their
written submissions in support of their arguments.
THE PETITIONER’S CASE
11. On behalf of the Petitioners, Mr. S.M.A. Naqvi, Ld. Sr.
Counsel, has argued that the Petitioners are law abiding
citizens and the sealing of their residential house, sawmill
and the lodge, without any notice and in disregard of the
procedural formalities prescribed under the law, renders the
state action unconstitutional and violative of the petitioners
rights under Article 14, 19(1)(g), 21 and 300-A of the
Constitution of India. It is further submitted that the
Petitioners are residing in the residential house since the year
2001 and till date no objection regarding the title,
construction or land use was ever raised by the authorities.
9
As regards the commercial establishments being the ‘Indian
Lodge’ and the ‘Saw Mill’, they are registered as per the
requirement of law and license has been granted by the
authorities concerned and has been in operation for more that
twenty-five years without any objection.
12. He has further submitted that on 16/01/2026, a criminal case
was registered against one Aafan Khan, S/o. Ainuddin @
Maulana Khan, a relative of the Petitioners, who is a resident
of Kamlesh Tiraha, Kasba and Thana Sumerpur, District
Hamirpur. The details of the FIR is already given in
paragraph 5 supra. Upon the registration of the
aforementioned FIR against the accused, who is not sharing
the same roof with the Petitioners, and neither has he any
concern in the business interests of the Petitioners in the
commercial establishments in question, the Respondent
authorities are threatening to demolish the residential house
of the Petitioners and have already sealed the ‘Indian Lodge’
and the ‘Saw Mill’. The Ld. Counsel for the Petitioners has
placed reliance on the judgment of the Supreme Court in Re;
Directions in the Matter of Demolition of Structures (Writ C
No. 295 of 2022, reported in 2025 5 SCC 1) to canvas the
proposition that the action of the Respondent authorities
violate the rule of law and the doctrine of ‘Separation of
Powers’ as the Petitioners have been condemned by the
executive without recourse to the prescribed procedure.
10
THE RESPONDENT’S CASE
13. Mr. Anoop Trivedi, Ld. Additional Advocate General has
submitted that the State has not yet sealed the residential
house of the Petitioners nor their commercial establishment
operating under the name and style of the “Indian Lodge”.
He has categorically stated that the demolition or sealing of
the said two properties shall not take place without adherence
to procedure established by law.
14. As regards the sealing of the sawmill, the Ld. Additional
Advocate General has stated that the same was done at the
behest of the Forest Department as wood (Neem and Dhaak)
whose possession is prohibited under the law, was recovered
from the premises of the Petitioner’s saw mill. In this regard,
he has placed on record instructions dated 20/01/2026,
received by his office from the Divisional Forest Officer,
District Hamirpur, annexing the recovery memo and the
seizure report disclosing that the saw mill which was licensed
in the name of the Petitioner No. 2, was being operated even
after the expiry of the license on 31/12/2025 and upon
inspection, the prohibited wood mentioned hereinabove was
recovered which resulted in the sealing of the saw mill and
the issuance of a show cause notice dated 20/01/2026 to the
Petitioner No. 2, which was not replied to till the date on
which this case was being heard. He has also submitted that
in the event the Petitioner No. 2 submits his reply, further
11
proceedings shall be undertaken as per Rule 8 of the Rules of
2018 after considering his reply.
15. The Ld. AAG has also brought on record, an FIR dated
18/01/2026 being Case Crime No. 22/2026, registered
against the Petitioner No. 2 under sections 69, 41, 42 and 77
of the Indian Forest Act, 1927 and section 3, 28 of the UP
Transit of Timber and Other Forest Produce Rules, 1978 (two
days after the registration of the FIR against Aafan Khan, the
nephew of the Petitioner No. 2 was registered on
16/01/2026).
16. For the sake of brevity, this Court is not diving deep into the
intricate facts of the case for the same is not essential for a
decision as, this case examines the province of ‘Executive
Discretion and Action’ in the backdrop of the rights of
citizen’s protected under the Constitution.
17. In the bulldozer case, the focus of the Supreme Court was on
the question if the dwelling place of a person accused of an
offence or even convicted, could be razed without following
the due process of law and how such individuals can be
protected from arbitrary State action? (paragraph 15 and 16
of that judgement)
18. The Supreme Court also held that it was only the justice
system that could adjudge the guilt of an accused and if so
found guilty, punish him for the same (paragraph 19 of that
judgement). It further emphasised the protection of human
rights and dignity and the enforcement of the rule of law to
12
prevent the abuse of power (paragraph 22 of that judgment).
Supreme Court laid down that the rule of law is a safeguard
against arbitrary State action and would ensure that
governance is based upon established legal principles rather
than arbitrary discretion (paragraph 32 of that judgement).
19. After emphasising the importance of governance by rule of
law, the Supreme Court spoke about the separation of powers
and referred to Indira Nehru Gandhi Vs. Raj Narain -1975
Supp SCC 1, and held that the separation of powers was a
part of the basic structure of the Constitution (paragraph 40
of that judgement) and State actions causing loss are
actionable under public law with the Courts as protectors of
civil liberties would safeguard the public from the
devastating result of State action (paragraph 51 of that
judgment). The Supreme Court emphasised the importance
of the “principles of public accountability” and held that the
said principle is applicable on the government officials and
that every officer in the hierarchy of the State being a public
officer or a public servant is accountable to the State and the
public and the same should be applied in the larger public
interest for proper governance (paragraph 52 of that
judgment).
20. The Supreme Court went on to hold that an accused or the
convict also have certain rights and safeguards and the
destruction of their house would be an act contrary to the
principles of the rule of law and the State acting as Judge,
13
would be violative of the concept of separation of powers and
those who take the law into their own hands must suffer the
just desserts for their actions (paragraph 56 of that
judgement). It also held that the accused have certain legal
and constitutional safeguards and that the State and its
servants cannot act arbitrarily against accused or convicts
without following the due process sanctioned by law and
where, the right of the accused or the convict has been
violated on account of illegal or arbitrary exercise of State
authority, compensation would be due to the affected person
and the public servant responsible shall be taken to task for
his indiscretion (paragraph 65 of that judgement).
21. As per the Supreme Court, the executive has no right to
declare a person guilty of an offence as that was only through
a process of judicial scrutiny, and therefore it cannot
demolish the property of an accused as a punishment without
following the due process of law. (paragraph 74 of that
judgement). Would this mean that a person accused of crime
or convicted of a crime could have his house demolished
immediately after he was made an accused in a criminal case
only because the procedure established by law was followed?
The Supreme Court has in places said that the house cannot
be demolished if the intention was punitive and at places
stated that it cannot be demolished unless the due process of
law was adhered to. However, what the Supreme Court has
not taken into consideration in the bulldozer case is that
14
demolishment of the house of the convict is not a prescribed
punishment under the Bharatiya Nyaya Sanhita. The
demolition of a dwelling place is governed by municipal
laws, building code violations, unauthorised constructions,
structures declared as dangerous to human habitation and
violation of urban planning statutes. The Supreme Court
posed a question to itself if the house of a person accused or
convicted of a crime can be inflicted the punishment of
demolition of his house and holds that “The answer is an
emphatic “No”” (paragraph 78 of that judgement). However,
two paragraphs before, the Supreme Court holds that in the
case of a person accused or convicted of an offence, his
property/properties cannot be demolished without following
the due process of law prescribed by law (paragraph 76). This
is open to interpretation by the executive to mean that it has
the right to demolish the property belonging to an accused or
a convict after complying with the due process of law.
22. The bulldozer judgment also holds that right to shelter as one
of the facets of Article 21. The State argued that in all the
cases where removal of illegal construction was ordered, it
was merely a coincidence that one of the members living in
the house to be demolished was an accused in a criminal case.
Whereas the Petitioners argued that the proximity between
the offence and the proceedings for demolitions were so short
that the State action betrayed the motive as punitive.
Supreme Court considered the conflicting arguments of the
15
State and the Petitioners and held that at times it maybe a
coincidence as stated by the State. But, when a structure is
chosen suddenly for demolition while the rest of the
structures in the vicinity or the same neighbourhood are
untouched, mala fide could loom large and a presumption
could be drawn that the apparent reason could be the removal
of illegal construction while the actual reason could be to
punish the accused (paragraphs 79, 81-82, 84 of that
judgement).
THE INTERPLAY BETWEEN RIGHT TO LIFE, LIVELIHOOD
AND SHELTER
23. The fountainhead case examining the interplay between the
right to life and livelihood is the Constitution Bench
judgement of the Supreme Court in Olga Tellis Vs. Bombay
5
Municipal Corporation . The pavement and slum dwellers of
Mumbai approached the Supreme Court against the action of
the Bombay Municipal Corporation (hereinafter referred to
as the “BMC”). In that case, the Petitioner did not contend
that they have a right to live on the pavements but that they
had a right to live which would be illusory if they did not
have a right to livelihood. It was non-availability of the
means of employment at the place where they originally
hailed from that compelled them to flock to Mumbai, and that
this right can only be curtailed or taken away by a procedure
established by law that was “fair and reasonable and not
5
(1985) 3 SCC 545
16
fanciful or arbitrary such as prescribed by the Bombay
Municipal Corporation Act and the Bombay Police Act”
(paragraph 2). In Olga Tellis, the Petitioners had challenged
the proposed act of the Respondents to demolish the huts of
the Petitioners (paragraph 9). The argument of the Petitioners
was that their eviction from the pavements and slums will
lead to a vicious circle of deprivation of employment,
livelihood and therefore life itself (paragraph 21).
24. A contention was raised by the Respondents (in Olga Tellis)
that the Petitioners be estopped from projecting their
fundamental rights as a defence to the demolition of their
huts, to which the constitution Bench responded by holding
that “There can be no estoppel against the Constitution. The
Constitution is not only the paramount law of the land but, it
is the source and sustenance of all laws. Its provisions are
conceived in public interest and are intended to serve a public
6
purpose” . Poignant and powerful words from the Supreme
Court which are ever more relevant today than ever before
when houses are demolished across India, even after the
judgement of the Supreme Court in the bulldozer case.
25. The flagship argument of the Petitioners in Olga Tellis was
that the right to life protected by Article 21 is meaningless if
the right to livelihood is not read into it. They submitted that
they would be deprived of their livelihood if they are evicted
from their slum and pavement dwellings as they cannot find
6
Olga Tellis Vs. Bombay Municipal Corporation – (1985) 3 SCC 545 – paragraph 28 at page 569
17
meaningful work for themselves if they do not have a home
to live in, irrespective of the condition that it is in. The
Constitution Bench held “Upon that assumption, the question
which we have to consider is whether the right to life includes
the right to livelihood. We see only one answer to that
question, namely, that it does. The sweep of the right to life
conferred by Article 21 is wide and far-reaching. It does not
mean merely that life cannot be extinguished or taken away
as, for example, by the imposition and execution of the death
sentence, except according to procedure established by law.
That is but one aspect of the right to life. An equally
important facet of that right is the right to livelihood because,
no person can live without the means of living, that is, the
means of livelihood. If the right to livelihood is not treated as
a part of the constitutional right to life, the easiest way of
depriving a person of his right to life would be to deprive him
of his means of livelihood to the point of abrogation. Such
deprivation would not only denude the life of its effective
content and meaningfulness but it would make life
impossible to live. And yet, such deprivation would not have
to be in accordance with the procedure established by law if
the right to livelihood is not regarded as a part of the right to
life. That, which alone makes it possible to live, leave aside
what makes life livable, must be deemed to be an integral
component of the right to life. Deprive a person of his right
to livelihood and you shall have deprived him of his life.
18
Indeed, that explains the massive migration of the rural
population to big cities. They migrate because they have no
means of livelihood in the villages. The motive force which
propels their desertion of their hearths and homes in the
village is the struggle for survival, that is, the struggle for
life. So unimpeachable is the evidence of the nexus between
life and the means of livelihood. They have to eat to live:
only a handful can afford the luxury of living to eat. That they
can do, namely, eat, only if they have the means of
7
livelihood” . The observations of the Supreme Court
establish as an indelible proposition that right to life includes
the right to livelihood and that the suspension of the right to
livelihood even for a single day, without any compelling
cause would be a violation of the affected person’s right to
life itself.
26. Further, in the same judgement, the Supreme Court analyses
Art. 39(a), a Directive Principle of State Policy and reiterates
that the policy of the State shall be directed in securing its
citizens and adequate means of livelihood and within the
financial limitations of the State, endeavour for securing the
right to work of those who are unemployed, a required of the
State in Art 41. The Supreme Court held “…..That If there is
an obligation upon the State to secure to the citizens an
adequate means of livelihood and the right to work, it would
be sheer pedantry to exclude the right to livelihood from the
7
Olga Tellis Vs. Bombay Municipal Corporation – (1985) 3 SCC 545 – Paragraph 32 at page
571
19
content of the right to life. The State may not, by affirmative
action, be compellable to provide adequate means of
livelihood or work to the citizens. But, any person, who is
deprived of his right to livelihood except according to just
and fair procedure established by law, can challenge the
deprivation as offending the right to life conferred by Article
8
21” .
27. Interestingly, in the year 1985, when the judgement in Olga
Tellis was passed by the Supreme Court, the total population
9
of India was 772,648,000 or seven hundred and seventy two
million and six hundred and forty-eight thousand, or seventy
seven crores twenty six lakhs and forty eight thousand.
Strangely, the State, for some inexplicable and convoluted
reasoning, takes pride in confessing that it today feeds, free
of charge, more than 800,000,000, eight hundred million or
more than eighty crore citizens each month, which is more
than the entire population of India as it stood in the year 1985,
and more than 50% of its entire population today which is
approximately 1400,000,000 one thousand four hundred
million or one hundred and forty crores or one billion and
four hundred million people, who would otherwise perish
from starvation, being incapable of generating sufficient
wealth to afford two square meals a day.
8
Olga Tellis Vs. Bombay Municipal Corporation – (1985) 3 SCC 545 – Paragraph 33 at page
572
9
https://www.populationpyramid.net/india/1985/
20
28. There is a nexus between poverty, unemployment and
migration of citizens from rural areas and semi urban areas
of the country to the larger cities which leads to creation of
unauthorised colonies and ghettos which get marked for
demolition one fine day after decades of their existence. This
problem was red flagged by the Constitution Bench of the
Supreme Court in Olga Tellis, forty-six years ago, at
paragraph 32 of that judgment.
29. The increasing population of the country is directly
proportional to the reduction of resources with the most
valuable resource being land. The area of land that India had
in the year 1985 is the same area that it has in 2026. However,
the population which requires land for habitation has
increased about 100% in these forty-six years. The density of
population in the State of Uttar Pradesh is 829/sqkm (eight
hundred and twenty nine persons per square kilometre) as per
the census of 2011 which is more than double the national
average of 364/sqkm (three hundred and sixty four persons
per square kilometre) thus, land is a premium commodity and
compels those who cannot afford legitimate housing to move
to areas where housing is cheaper but its legitimacy is
dubious. The residents of these unauthorised colonies are the
les miserables of our people, poor, lower middle class and
at some places, the middle class. This is not to say that the
rich in India live in houses and gated communities that are
fully legitimate, but they remain largely untouchable on
21
account of their influence through wealth and/or bureaucratic
and political patronage and the ubiquitous and all pervasive
culture of corruption that has been normalised and
institutionalised in India.
30. Generation of wealth in any society is by way of employment
(by self-employment or working for another or a company).
10
In an article published in an online magazine “Mint” on
27/03/2024, drawing data from the “Indian Employment
Report 2024”, jointly published by the International Labour
Organisation and the Institute of Human Development. It
reflects that the percentage of youth possessing at least a
secondary education amongst the total unemployed youth
doubled from 35.2% in 2000 to 65.7 percent to 2022. This
coupled with India’s GDP per capita for the year 2025 was
11
$2523.4 which roughly translates to 2,41,422.29. Which
₹
amounts to a little more than 20,000/month. The per capita
₹
income in the State of Uttar Pradesh for the year 2024-2025
was 1,09,000/- (rupees one lakh and nine thousand) which
₹
is about 9083/- (rupees nine thousand and eighty three) per
₹
month, which is less than 50% of the national average,
making the State, the second poorest State in India after
12
Bihar .
31. Human experience of the ground reality which this Court
must draw upon, is that it is almost impossible for a person
10
https://www.livemint.com/news/india/unemployment-crisis-83-of-jobless-indians-are-youth-
says-international-labour-organisation-report-11711517084127.html
11
https://data.worldbank.org/indicator/NY.GDP.PCAP.KD?locations=IN
12
https://statisticstimes.com/economy/india/uttar-pradesh-economy.php
22
earning just about 9,083/month to own a dwelling place in
₹
a gated community, built on a land acquired legitimately with
all State clearances. Thus, while the constitution law
acknowledges the right to shelter as a fundamental right of
even a person who earns only 9,083/- a month, he falls foul
₹
of the municipal laws while fulfilling his fundamental right
as he is unable to possess a home that is compliant of the
intricate requirement of the municipal laws because of his
pathetic financial condition, thus making his home a
vulnerable target for demolition, maybe decades later.
32. The irony of this picture is that while the Constitution Courts
acknowledge that a citizen’s right to shelter is a fundamental
right, it can still be demolished for being violative of the
municipal laws. There however is a limitation upon all
fundamental rights which the Courts have consistently held
as reasonable for rights are not absolute and can be curtailed
or extinguished as per procedure established by law. Thus,
the fundamental right to shelter can be trumped (no pun
intended) if the property is not compliant of the municipal
laws.
33. The Supreme Court held that right to life includes the right
to livelihood and that if the pavement dwellers were evicted,
they will be deprived of their right to livelihood. Thereafter,
it held that the constitution does not put an absolute
restriction on the deprivation of life which is in accordance
with procedure established by law (paragraph 37 of Olga
23
Tellis). But it also held that the procedure prescribed by law
for depriving a person of his fundamental right must conform
to the broad principles of justice and fair play as procedure
that is unjust or unfair would be unreasonable thereby
vitiating the law and the action taken under it. It held “Any
action taken by a public authority which is invested with
statutory powers has, therefore, to be tested by the
application of two standards : the action must be within the
scope of the authority conferred by law and secondly, it must
be reasonable. If any action, within the scope of the authority
conferred by law, is found to be unreasonable, it must mean
that the procedure established by law under which that action
is taken is itself unreasonable. The substance of the law
cannot be divorced from the procedure which it prescribes
for, how reasonable the law is, depends upon how fair is the
13
procedure prescribed by it” .
34. While in Olga Tellis, the Supreme Court examined the
intersection between the right to life and right to livelihood
and how the right to life can be rendered meaningless without
acknowledging the right to livelihood and laid down how a
dwelling place, be it on a pavement or in a slum, was an
integral part of the right to livelihood of a citizen.
35. As regards the right to shelter, the Supreme Court in Chameli
Singh Vs. State of U.P held that “…Shelter for a human
being, therefore, is not a mere protection of his life and limb.
13
Olga Tellis Vs. Bombay Municipal Corporation – (1985) 3 SCC 545 – Paragraph 40 at page
577
24
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
14
guaranteed as a fundamental right” . The Supreme Court has
clearly emphasised and laid down that the right to life does
not mean the right to live an animal existence but includes
the right to shelter which is essential for the overall and
wholesome development of the human being as a human
being. In Shiv Sagar Tiwari Vs. Union of India, the Supreme
Court took cognizance of its earlier judgement in Olga Tellis
and held “May we also observe that life, livelihood and
shelter are so mixed, mingled and fused that it is difficult to
separate them. To take away life, it would be enough to take
away livelihood; and to earn livelihood, which in urban areas
is ordinarily at places away from one's own home and hearth,
shelter would be necessary — be it a house or even a
15
pavement” .
14
Chameli Singh Vs. State of U.P – (1996) 2 SCC 549 – Paragraph 8 at page 555
15
Shiv Sagar Tiwari Vs. Union of India – (1997) 1 SCC 444 – paragraph 3 at page 447
25
36. Most recently, the Supreme Court in Mansi Brar Fernandes
Vs. Shubha Sharma observed that “This Court has, in a
catena of decisions, consistently held and reaffirmed that the
Right to Shelter is an integral part of the right to life under
Article 21 of the Constitution. This recognition casts a
corresponding duty on the State to ensure access to adequate
16
housing, particularly for weaker sections” .
37. Likewise, the Supreme Court in Zulfiquar Haider and
17
Another Vs. State of Uttar Pradesh and Ors., while
examining a case where the property of the Petitioners were
razed to the ground without adhering to the procedure
mandated by the Supreme Court in the bulldozer case, the
Supreme Court expressed its angst on the manner in which
the demolitions were undertaken by observing that “these
cases shock our conscience” (paragraph 3) as the demolition
was carried out close on the heels of the judgment of the
Supreme Court in the bulldozer case. As regards the right to
shelter being a right to life, the Supreme Court held “The
authorities, especially the development authority, must
remember that the right to shelter is also an integral part of
Article 21 of the Constitution of India. This right can be taken
away only by following due process of law. Moreover, our
country is governed by the rule of law, which is an integral
part of the basic structure of the Constitution. The residential
16
Mansi Brar Fernandes Vs. Shubha Sharma – (2026) 4 SCC 1972 – paragraph 54 at page 304
17
2025 SCC OnLine 766
26
structures of citizens cannot be demolished in such a
summary manner without following the principles of natural
18
justice…” . The Supreme Court was sensitive to the loss of
the Petitioners in that case and awarded a compensation of
₹
10,00,000/- to each of the Petitioners.
38. Thus, the discussion on the judgements hereinabove, is
merely an elucidation of the law laid down over decades of
judicial pronouncements that the right to life, include the
right to livelihood and the right to shelter without which, the
right to life itself would be rendered meaningless and
animalistic. However, these judgements of the Supreme
Court notwithstanding, the demolitions continue with
impunity as though these judgments do not exist, or the State
is certain that the defiance towards the law laid down by the
highest Court of the land shall not visit them with any adverse
consequences.
39. In an article by the online site sabrangindia.in titled “When
the Rule of the Bulldozer Outpaces the Rule of Law: One
19
year after this landmark judgment” , where instances of
bulldozing dwelling places without complying with the
procedure given in the bulldozer case, have been
documented, and the first case mentioned in the article was
of the March 2025 from Prayagraj in Uttar Pradesh, where
the Supreme Court awarded compensation of 10,00,000/-
₹
18
Zulfiquar Haider and Another Vs. State of Uttar Pradesh and Ors., - 2025 SCC OnLine 766 –
paragraph 12
19
https://sabrangindia.in/when-the-rule-of-the-bulldozer-outpaces-the-rule-of-law-one-year-
after-this-landmark-judgment/
27
20
to each of the six Petitioners in that case . Therefore, the
question arises with regard to the cause for such demolitions
by the State, which already as stated by this Court in
paragraph 2 supra, is an act by the State under the perception
that it is satiating the bloodlust of a society that is intolerant
to due process of law or the procedure established by law and
wants immediate redressal of grievance by bulldozing the
house of the accused even before the criminal justice system
has found the accused guilty as charged. The State is certain
that that the society suffers from collective schadenfreude
and shall applaud the State for dispensing vigilante style
summary justice, without adhering to the procedure
established by law and secures pleasure from the misfortune
of the other person suffering loss. In such a situation, it is for
the Constitution Courts to evolve a jurisprudence that is
Constitutionally and legally valid.
RETRIBUTIVE EXERCISE OF EXECUTIVE DISCRETION: THE
PRESSING NEED TO CARVE A NEW SPECIE FROM THE GENUS
OF COLOURABLE EXERCISE OF EXECUTIVE DISCRETION.
40. Colourable Exercise of Executive Discretion can render an
otherwise lawful act, unlawful. Simply stated, it means that
where the entrusted power or authority is exercised for a
reason other than which the power was intended, and the
resultant effect is adverse upon another, that action, though
otherwise legitimate under the law, is rendered unlawful on
account of malice in law.
20
Zulfiquar Haider and Another Vs. State of Uttar Pradesh and Ors., - 2025 SCC OnLine 766
28
41. 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. In bulldozing
the house of a person accused of an offence, the State is not
acting with the avowed aims of enforcing the Statement of
Objects and Reasons of the municipal laws but to punish the
accused and his entire family staying in that house, while
projecting the action as one of removing an illegal
construction.
42. A dilemma that has dogged the courts since time immemorial
is the choice between enforcing the legislative will as it is or
doing justice. Though they are cognate concepts the
distinction between them is real and palpable. While Laws
generally, are the enforceable will of the sovereign and in a
democracy like ours, the will of “we the people of India”,
enacted through the legislature by elected representatives,
resulting in codified rights and liabilities. Justice on the other
hand, is the enforcement of constitutional rights of citizens
by the courts with the preamble as its north star, while
adhering to constitutional values and imperatives for the
fulfilment of the constitutional ideal of securing a welfare
state and enforcing the rule of law.
43. The vexatious question before this court in such cases is
whether the will of the legislature should be enforced as it is
29
without any consideration for the consequences that may
follow for the citizen? The legislature being elected by the
people, unquestionably legislates for the larger good of the
society. It is also undeniable that the legislature acts in good
faith and that must always be the presumption. However, the
operation of the laws may not have the effect desired by the
legislature, for at times the road to hell is paved with good
intentions.
44. The enforcement of the statute ‘as it is’, can at times result in
grave injustice. Illustratively, the courts have seen at times
the injustice resulting from the application of the provisions
of the POCSO where minors from the rural landscape,
economically backward, Illiterate or semi-literate, elope, stay
together, work as manual labourers, get married and have
children and upon their return to their village, the husband is
arrested, tried and convicted and imprisoned for a minimum
of ten years only because of his wife being a minor on the
date on which they eloped. Courts have grappled with the
question as to how is justice served by imprisoning the
husband, the sole bread winner and exposing the wife and
children to destitution as they find no support from their
respective families? So is the case with the enforcement of
municipal laws which at times is not for the bonafide purpose
of securing the ends of the municipal laws, but to punish the
accused and his entire family which includes women, the old
and children, by demolishing his house for an offence he is
30
alleged to have committed, resulting in them be rendered
homeless overnight and suffer destitution till they find an
alternate shelter.
45. In the context of the present case under judgment, the chapter
on directive principles of State policy, is the conscience
governing State action. It amplifies the desire of the
constitution to secure a welfare state with prevalence of the
rule of law and making the state aware that is actions must
be towards that end alone. Though well settled it is, that this
chapter is non justiciable, yet the same remains a guide to the
State while it performs its executive functions, and the
judiciary to examine if State action, though legal under
statute, is just?
46. Thus, where the motive behind a state action, apparent or
actual, is for purposes other than the Statement of Objects
and Reasons of the municipal laws, then it would be
reasonable to infer malice on the part of the State for acting
in contravention of Art. 39(a) by creating a circumstance
where the right to livelihood of the citizen is put to sword
while Art. 39(a) of the Constitution demands that State policy
must be directed to create livelihood for the citizen.
Therefore, where the State, instead of creating an
environment where the citizen can fulfil his right to
livelihood, acts in contravention to the Statement of Objects
and Reasons of the municipal laws and extinguishes the right
to livelihood of a citizen by violating his right to shelter, the
31
Courts may infer malice in law, as the act would a Retributive
Exercise of Executive Discretion.
47. In the present era, where there is rampant violations of
building norms and it is also a well-known fact that most of
the buildings, including at times build by the development
authority itself, is not complying with the norms; and as such
one sided action to correct the measures, by way of the
retributive exercise of the executive discretion, has also to be
dealt with; or else this Court will be failing in its
constitutional obligation itself. The Court must adapt to the
changing times and understand the dynamics of the times and
accordingly mould the law in order to fit the times without
doing violence to the just scriptum. In the words of the
eminent jurist and constitutionalist V. Sudhish Pai “The Need
for adapting the law to meet the new urges in society, i.e.,
demanded the readjustment of legal norms by a changed
social context in a changing society, brings home the truth of
the Holmesian aphorism that the life of the law has not been
logic, but experience and that law is forever adopting new
principles from life at one end and sloughing off old ones at
the other. As in life, so in law, things are not static. Fresh
vistas and horizons may reveal themselves as a result of the
impact of new ideas and developments in different fields of
life. Law, if it has to satisfy human needs and to meet the
problems of life, which indeed it should, must adapt itself to
cope with new situations. The Court must understand the
32
purpose of law in society and help law to achieve that
purpose. Sometimes change in law precedes societal change
and is even intended to stimulate it. In most cases, however,
21
a change in law is the result of a change in social reality” .
48. In the case of K. Ramadas Shenoy v. Town Municipal
22
Council, Udipi , the Apex Court observed that when the
municipality acts in excess of the powers conferred by the
Act or abuses the powers, then in those cases as a matter of
fact it is usurping powers which it does not possess; and if
under pretext of any authority, which the law does not give
to the municipality, it goes beyond the limits of its authority,
and infringes or violates the rights of others, it becomes like
all other individuals, amenable to the jurisdiction of the
court.
49. This however is not to mean that the citizen has a right to
shelter by violating the municipal laws, but only states that
where such violation occurs, the endeavour of the State must
be to assist the citizen by rectifying the wrong through
compounding where possible, else assist him by giving him
reasonable time to resettle himself and thereafter demolish
the offending structure. But a pedantic application of the
municipal law and running through its requirements within
three to six months and thereafter demolish his dwelling
where he may have been residing for decades, would not be
the hallmark of a welfare State. It has to be borne in mind by
21
V. Sudhish Pai - Constitutional Supremacy – A Revisit – Page 26
22
1974 2 SCC 506
33
the State, that the Supreme Court in the bulldozer case has
mandated that the final order of demolition of a dwelling
place shall mandatorily spell out whether the violation of
municipal law was compoundable and if not, the reasons why
it cannot be compounded and the extreme step of demolition
23
is the only available option . The spirit of the Supreme Court
judgment is that the option of demolishing a dwelling place
should be the last and the State must explore options of
avoiding such an eventuality, and where there is no option
other than demolishing it entirely, cogent reasons have to be
recorded disclosing why the State has no option but to
demolish the entire structure as regularisation/compounding
was an impossibility. If the State order does not disclose this
in the order of demolishment, and the Structure is
demolished, the State would be in gross contempt of the
Supreme Court order, and now of this Court, it having
adopted the same by this judgement.
50. Though, the state action may seem to be in consonance with
the municipal laws as far as fairness of procedure is
concerned, the action would still be ultra vires of the statute
on account of the contrived motive behind the State action.
Whether the motive was in accordance with the statute or the
same was malicious, can reasonable be inferred from the
attending circumstances specific to every case which may
23
(2025) 5 SCC 1 – paragraph 94.10 (b, c and d)
34
suggest that the state action is bad on account of malice in
law.
51. In this regard, it would be relevant to refer to to the objects
behind “Utter Pradesh Urban Planning and Development
Act, 1973”; which is to provide for the development of
certain areas of Uttar Pradesh, according to plan and for
matters ancillary thereto. Under Chapter II of the Act, 1973,
the objects of the development authority have been clearly
spelled out. For ready reference Section 7 of the Act, 1973 is
reproduced below:
“7. Objects of the Authority - The objects of the
[local development authority]1 shall be to
promote and secure the development of the
development area according to plan and for that
purpose the Authority shall have the power to
acquire, hold, manage and dispose of land and
other property, to carry out building, engineering,
mining and other operations, to execute works in
connection with the supply of water and
electricity to dispose of sewage and to provide
and maintain other services and amenities and
generally to do anything necessary or expedient
for purposes of such development and for
purposes incidental thereto Provided that save as
provided in this Act nothing contained in this Act
shall be construed as authorizing the disregard by
the Authority of any law for the time being in
force”.
52. Thereafter Chapter III of the Act, 1973 deals with the Master
Plan and Zonal Development Plan; and lays down the
procedure to be followed in the preparation and approval of
35
the plan; and thereafter under Chapter V, Section 16 of the
Act, 1973, provides that no person shall use or permit to use
any land or building in the zone, otherwise than in
conformity with the Master Plan/Zonal Plan. For ready
reference, Section 16 of the Act, 1973 is reproduced below:
“16. Uses of land and buildings in contravention
of plans - After the coming into operation of any
of the plans in a zone no person shall use or
permit to be used any land or building in that
zone otherwise than in conformity with such plan
:
Provided that it shall be lawful to continue to use
upon such terms and conditions as may be
prescribed by bye-laws made in that behalf, any
land or building for the purpose and to the extent
for and to which it is being used upon the date on
which such plan comes into force”.
53. The State cannot be compelled to fulfil its obligations under
Part IV, but acting contrary to the same and thereby violating
any right in Part III, would raise a reasonable presumption
that such State action is motivated by malice.
54. Part IV of the constitution is not a garnishing on the surface
of a dish to make it presentable, but an important ingredient
that makes the dish itself edible and palatable. It is what the
State must strive for to justify its existence by establishing a
welfare state, run in accordance with the rule of law, guided
by the preamble to secure for its citizens inter alia, Justice.
55. Article 39(a) particularly obliges the State to direct its
policies to secure adequate means of livelihood for its
36
citizens within its financial limitations. The right to
livelihood and shelter have been equated with right to life
itself in the light of judicial pronouncements discussed herein
above. Thus, where the State uses the municipal laws to
punish an accused for an offence by demolishing his house
in order to satiate the collective schadenfreude of the people,
that the State has taken vengeance on their behalf, the same
would be a Retributive Exercise of Executive Discretion and
an act most viciously malicious in law which ought to be
prevented by the Courts from taking place or compensation
in favour of the affected can be ordered, where the impugned
action has already taken place, as was done by the Supreme
Court in Zulfiquar Haider’s case at paragraph 38 supra.
56. During arguments, it was submitted on behalf of the
Respondent State that the petition be dismissed as it is
premature. As per Respondent, the State has only issued
notice to the Petitioners and that they have the right to place
their case before the Respondent authority and if after
hearing the Petitioners, any order of demolition was passed
against the properties of the Petitioners, they could have then
approached this Court under Art. 226 of the Constitution. The
question raised by the said argument was as to when was the
right stage for the Petitioners to have approached this Court
to protect their right under Art. 21?
57. This issue in no longer res integra and has been settled by the
Supreme Court in S.M.D. Kiran Pasha Vs. Government of
37
24
A.P where the Supreme Court held “….. Article 21 giving
protection of life and personal liberty provides that no person
shall be deprived of his life or personal liberty except
according to procedure established by law. For enforcement
of one's right to life and personal liberty resort to Article
226(1) has thus been provided for….. The right to life and
personal liberty has been guaranteed as a fundamental right
and for its enforcement one could resort to Article 226 of the
Constitution for issuance of appropriate writ, order or
direction. Precisely at what stage resort to Article 226 has
been envisaged in the Constitution? When a right is so
guaranteed, it has to be understood in relation to its orbit and
its infringement….. The question is at what stage the right
can be enforced? Does a citizen have to wait till the right is
infringed? Is there no way of enforcement of the right before
it is actually infringed? Can the obligation or compulsion on
the part of the State to observe the right be made effective
only after the right is violated or in other words can there be
enforcement of a right to life and personal liberty before it is
actually infringed? What remedy will be left to a person
when his right to life is violated? When a right is yet to be
violated, but is threatened with violation can the citizen move
the court for protection of the right? The protection of the
right is to be distinguished from its restoration or remedy
after violation. When right to personal liberty is guaranteed
24
S.M.D. Kiran Pasha Vs. Government of A.P – (1990) 1 SCC 328
38
and the rest of the society, including the State, is compelled
or obligated not to violate that right, and if someone has
threatened to violate it or its violation is imminent, and the
person whose right is so threatened or its violation so
imminent resorts to Article 226 of the Constitution, could not
the court protect observance of his right by restraining those
who threatened to violate it until the court examines the
legality of the action? Resort to Article 226 after the right to
personal liberty is already violated is different from the pre-
violation protection. Post-violation resort to Article 226 is for
remedy against violation and for restoration of the right,
while pre-violation protection is by compelling observance
of the obligation or compulsion under law not to infringe the
right by all those who are so obligated or compelled….. The
question may arise what precisely may amount to threat or
imminence of violation. Law surely cannot take action for
internal thoughts but can act only after overt acts. If overt
acts towards violation have already been done and the same
has come to the knowledge of the person threatened with that
violation and he approaches the court under Article 226
giving sufficient particulars of proximate actions as would
imminently lead to violation of right, should not the court
call upon those alleged to have taken those steps to appear
and show cause why they should not be restrained from
violating that right? Instead of doing so would it be the proper
course to be adopted to tell the petitioner that the court cannot
39
take any action towards preventive justice until his right is
actually violated….. If a threatened invasion of a right is
removed by restraining the potential violator from taking any
steps towards violation, the rights remain protected and the
compulsion against its violation is enforced. If the right has
already been violated, what is left is the remedy against such
25
violation and for restoration of the right” .
58. When the aforementioned judgement is seen in the context
of the facts and circumstances of the present case, it is
undisputed that the notice has been issued to the Petitioners
with regards to their structures. This coupled with the past
actions of the Government of Uttar Pradesh in demolishing
dwelling places without being sensitive to the human cost of
the actions, the apprehension of the Petitioners in this case is
reasonable that the Sword of Damocles hangs heavy over
their heads and that their dwelling places may fall to the
bulldozers after the State runs through the formality of
procedural compliance. Also, the fact that previous actions of
the State in targeting largely the houses of muslims accused
of offence, there is reasonable apprehension that the
Petitioners are next.
59. Selective outrage results in selective injustice. The Ld.
Solicitor General who argued on behalf of the UOI in the
bulldozer case submitted before the Supreme Court that the
houses that were being demolished were found to be in
25
S.M.D. Kiran Pasha Vs. Government of A.P – (1990) 1 SCC 328 – paragraph 14 at page 337
40
violation of the municipal laws or the panchayat laws
governing them and in some cases, it may have been sheer
coincidence that properties which were in breach of
municipal laws may have been owned by persons accused of
26
an offence . This postulate put forth by the Ld. Solicitor
General was disputed by the Petitioner side which disclosed
that the proximity between the alleged offence being
committed and the razing of the accused’s house was so short
that the inference of the house being razed to the ground on
account of the allegation against the accused person, was not
27
merely apparent but glaringly evident .
60. The Supreme Court, analysing the arguments of both the
sides very rightly held “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 penalising the accused
28
without even trying him before the court of law” . Thus, the
26
(2025) 5 SCC 1 – paragraph 82 and 83 on page 47
27
(2025) 5 SCC 1 – paragraph 84 on page 47
28
(2025) 5 SCC 1 – paragraph 85 on page 47
41
devil is in the details. If the intention of the State is to remove
illegal construction, it cannot be restricted only to a single
house but to all those houses which are in the vicinity and are
also violative of the municipal or panchayat laws. Selectively
demolishing a house belonging to an accused immediately
after the registration of the FIR, is downright malicious.
61. Selective action against dwelling premises is gaining
currency in other parts of the country also with which, this
Court is however not concerned as it lacks the jurisdiction.
However, in order to illustrate similar selective action which
led to selective discrimination and injustice, this Court refers
to an interim order passed by the Ld. Single Bench of the
High Court of Jammu and Kashmir and Ladakh at Jammu,
in OWP No. 122/2002 – Adm. Jammu Municipality and Anr
29
Vs. Surat Singh and Anr. , took cognizance of the
discrimination against the Respondent No. 1 (owner of a
commercial property) who was being subjected to a “…
discriminatory exercise of statutory powers” by the
municipal authorities while other similarly situated hotels,
banquet halls, coaching centres and other commercial
establishments, suffering the same identical defects as that of
the Respondent No. 1’s property or even more serious,
continued to operate without any meaningful action against
them. Wherever the law is applied selectively and
29
https://www.livelaw.in/high-court/jammu-kashmir/jammu-and-kashmir-high-court-orders-
jmc-to-survey-hotels-coaching-centres-commercial-establishments-for-building-parking-
fire-safety-violations-539910
42
discriminatively, without any intelligible differentia, it
results in injustice. Denying the existence of selective
outrage resulting in selective bulldozer action, is to applaud
the emperor’s new clothes.
DWELLING PLACES IN CONFLICT WITH MUNICIPAL LAWS
62. The bulldozer judgement was followed by the Supreme
Court in Rajendra Kumar Barjatya and Another Vs. U.P. Avas
30
Evam Vikas Parishad and Others . In that case, the
Respondent No. 5 was the original allottee of the land sold
by the Respondent No.1. Respondent No. 1 carried out
construction contrary to the norms, terms and conditions and
sold it to the Petitioner before the Supreme Court.
Respondent No.1’s case is that it gave several notices to the
Respondent No.5 to compound the defects or remove the
same. As it got no response from the Respondent No.5, and
as the police was not giving the Respondent No.1 any
protection to carry out the demolition and so, the Respondent
No.1 approached this Court in a Writ Petition and sought
police protection to demolish the structure of the Respondent
No.5. The Petitioner (before the Supreme Court) was not a
party before this Court. This Court directed the police to
assist the Respondent No.1 to carry out the demolition. The
Supreme Court dismisses the appeal and gives further
directions to supplement the directions given earlier in the
bulldozer case.
30
2024 SCC OnLine SC 3767
43
63. In Rajendra Kumar Barjatya’s case, the Supreme Court
recognised the power of the State to remove illegal
construction, the long occupancy by the affected party
notwithstanding. Referring to precedents, the Supreme Court
held that unauthorised construction cannot be perpetuated
and if the construction made was contrary to the rules it
would be illegal and amenable to be demolished. Inaction by
the officers of the State is no protection for illegal
construction (paragraph 19). There is no difficulty with the
observation of the Supreme Court and indeed, illegal
construction must not be condoned and where necessary,
must be brought down.
64. The law has traditionally always held in favour of the larger
public good as opposed to the rights of the individual, which
must give way to the comfort of the majority. Thus,
demolition of dwelling places for the purpose of widening
the road or reclaiming State land for development purposes
has been given impetus to by the courts which in such
circumstances have held against the individual. This is more
so in cases where the structure is unauthorised. Though there
is no official data as to what percentage of dwelling places
are unauthorised in India, but it would be reasonable to find
that a sizable number of the houses in India may be falling
foul of the municipal laws. By no stretch of imagination can
protection be accorded to such construction and they must be
removed if the need occurred and the Supreme Court is right
44
when it holds that prolonged stay does not perfect a right. But
the question is whether it would be just and proper to bear in
mind the right to shelter of the person living in such a
dwelling place, only for the limited purpose of giving him
reasonable and sufficient time to resettle himself and his
family elsewhere, rather than be forced on to the pavement
in the dead of night or go to a night shelter.
65. The Constitution also stands by the rights of the “little man”
of this country who may have no prominence in society on
account of his minimal financial status and not being a person
of means. In removing dwelling places found non-compliant
with the municipal laws, the Benthamite utilitarian approach
of summarily evicting the few for the larger good of the
many, would be a square peg in a round hole in the Indian
context. The Constitution is an inorganic being with its life
infused by the aspirations of the people it serves. Such
aspirations change with time which the constitution
accommodates without doing violence to its basic structure.
So the question is in what manner should this Gordian knot
of balancing equities of the State on one hand and that of the
individual be managed?
66. No dwelling place comes up overnight. The authorities who
have the duty to ensure that such structures do not come up,
close their eyes deliberately on account of political or
bureaucratic support that the builder has or out of dishonesty.
45
67. Over decades, the average Indian has normalised corruption.
It is no longer wrong as long as one does not get caught. Even
in the rankings of Transparency Internation 2025 report,
India ranks at 91 amongst 182 nations, but even that does not
shame us. The recent controversy relating to the theft of
donations at the Ram Temple is the proverbial last straw on
the camel’s back. Nothing can shame a people who remain
unfazed by the theft at the Ram Temple which epitomises the
nadir of the Indian’s integrity. The collective absence of
integrity affects every institution including the municipal
authorities and other such authorities whose dishonesty
enabled the individual to construct a house which was non-
compliant, inter alia of the municipal laws. This was
facilitated by those who take bribes from builders and close
their eyes to the illegalities and violations being committed
by the builders who sell it off to the buyer who then suffers
the enforcement of the law a couple of decades later and finds
himself on the streets within six months of the start of the
eviction procedure and his house razed to the ground.
Rampant corruption in the country would lead to the illicit
concentration of wealth in the hand of a few widening the
chasm between the haves and the have nots and lays down
the script for a civil unrest in days to come. If the State is
serious, actually serious, about curtailing corruption and
retrieving India from the abject morass of dishonesty and
complete lack of integrity, it should consider amending the
46
Prevention of Corruption Act, 1988 to include the death
penalty for those convicted of corruption.
68. This Court has already held hereinabove that it is not in
favour of persons violating buildings regulations but it is also
imperative that while undoing the mischief, which would
require demolition of the unauthorized constructions, the
delinquent officers are also to be punished in accordance with
law; and this Court’s view is also fortified by a decision of
31
the Apex Court in the G.N. Khajuria Vs. D.D.A
69. In a meaningful democracy, the right of the individual must
be protected, if the need arises, from the might of the State.
A former President of the Supreme Court of Israel observed
“Democracy is not satisfied merely by abiding by proper
elections and legislative supremacy. Democracy has its own
internal morality based on the dignity and equality of all
human beings. Thus, in addition to formal requirements
(elections and the rule of the majority), there are also
substantive requirements. These are reflected in the
supremacy of such underlying democratic values and
principles as separation of powers, the rule of law, and
independence of the judiciary. They are based on such
fundamental values as tolerance, good faith, justice,
reasonableness, and public order. Above all, democracy
cannot exist without the protection of individual human
31
1995 5 SCC 762
47
rights-rights so essential that they must be insulated from the
32
power of the majority” (emphasis added).
70. V. Sudhish Pai, wrote that “…The Constitution, apart from
being a legal document is also, and even more, a political and
social testament created to secure the goals set out in the
Preamble-justice, liberty, equality, and fraternity. The
individual lies at the core of the constitutional focus and the
ideals envisioned in the Preamble animate the vision of
33
securing a dignified existence to the individual” (emphasis
added).
71. When the opinion of the two jurists are juxtaposed with the
facts of the case, it is seen that the person, whose dwelling
place is to be demolished, and who has been in occupation of
the same for decades, but never had a clear right to the land
on which the house stood, also must be given a reasonable
time, with the assistance of the State to resettle him
elsewhere, as the State was just as complicit through its
corrupt agents (the bureaucracy) in the illegal occupation of
the land by the proposed evictee. Though the occupation of
State land by the evictee cannot be clothed with legality, at
the same time, the dishonesty of the State must not be
condoned either.
32
The Judge in a Democracy – Aharon Barak – page 33
33
Constitutional Supremacy-A Revisit – V. Sudhish Pai – page 25
48
DIRECTIONS
72. This Court adopts the directions given in paragraphs 94, 94.1
to 94.15 and 95 to 97, by the Supreme Court In re, Directions
in the Matter of Demolition of Structures – (2025) 5 SCC 1.
73. This Court also adopts the direction given in paragraph 21 by
the Supreme Court in Rajendra Kumar Barjatya and Another
Vs. U.P. Avas Evam Vikas Parishad and Others – 2024 SCC
OnLine 3767.
74. As it has been held by this Court that 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 and during the hiatus of two years, as
the immediate action, rather than to reclaim State land, is to
satiate the presumable public anger immediately following
the offence which would dissipate with the passage of time,
and the State may no longer feel the necessity to destroy the
property. After two years, the State can examine, as the
Supreme Court has mandated in the bulldozer case, that the
final order must reflect the reasons whether compounding of
the deviations is possible the property and if compounding is
not possible, then it shall abide by the direction of the
Supreme Court in the bulldozer case which has been adopted
by this Court as part of this order at paragraph 73 supra.
49
75. If however, the removal is necessary for reclaiming the land
for public purpose and such action it is not restricted to the
house of accused alone, then it permissible, subject to
compliance with direction given by the Supreme Court in the
bulldozer case (paragraph 73 supra), to move for demolition
in accordance with law, in which case the hiatus of two years
before taking action, shall not be binding.
76. As regards removal of dwelling places which are illegal
constructions, the State shall follow the direction of the
Supreme Court in the bulldozer case in paragraph 67 supra
with one additional condition – that where the violater has
stayed in the illegal structure for three years or more, the
authority shall intimate the violater one year before the
initiation of procedure under the municipal law and the
dispatch of intimation through notice shall be as directed by
the Supreme Court in the bulldozer case. This is essential so
as to give reasonable notice of intent on the part of the State
so as to enable the violater a full one year to resettle himself
elsewhere, however, the prior intimation of one year’s notice
before initiating procedure under the municipal law may be
waived where there is “compelling urgency” of larger public
need to be justified by the State. This is necessary as the State
is particeps criminis by assisting the violater through
“connivance” (as has been held by the Supreme Court in the
two judgments mentioned hereinabove which is a
euphemism for blatant corruption) to build the offending
50
structure, give electricity and water supply which even today
is largely a sovereign function.
77. Additionally, In case notices are issued for the violation of
the construction norms, the same shall only be valid if
simultaneous proceedings are also initiated against the erring
officers inter alia under the relevant provisions of the
Prevention of Corruption Act, 1988. The disciplinary action
against the erring officer shall also be initiated and the same
shall also be required to brought to its logical end, adhering
to the procedures prescribed within a reasonable time and in
any case not later than 6 months, from the date of initiation
of the proceedings/issuance of notice for the violation of the
construction norms; needless to say that for demolishing the
construction, it shall abide by the directions of the Apex
Court in the Bulldozer case, which this Court has also
adopted, as part of this order at Paragraph No.73 (supra).
78. The action of the development authority, shall not reflect in
any manner that it is only against an individual, while
ignoring a similar violation in the vicinity, with respect to the
other constructions; and if such will be the case, the
aggrieved person, shall be at liberty to approach this Court,
alleging ‘retributive exercise of executive discretion’ and
violation of the fundamental rights
79. As regards the Petitioners in the present case, proceedings
for demolishment of their Residence and Lodge stand
quashed as the said proceedings are hit by retributive
51
exercise of executive discretion, and no proceedings shall be
initiated for two years from the date of registration of the FIR
relevant in this case. In the event, there is need for removing
these structures before two years for proved public purpose
(not beyond reasonable doubt, but on the basis of documents
and affidavits), then the same may be done by complying
with the directions in paragraph 75 supra.
80. As regards the proceedings against the Petitioners under the
Forest Act in relation to the sealing of their saw mill on
account of recovering wood of protected trees, the same shall
continue unaffected by this order.
81. This order shall be communicated to the Chief Secretary of
the State for onward dispatch to all the relevant offices in the
districts for strict compliance.
82. Any violation of the direction herein, would result in
contempt proceedings against the officer concerned which
may be filed before this Court.
83. Accordingly, the writ petition is disposed of.
(Siddharth Nandan,J.) (Atul Sreedharan,J.)
July 20, 2026
Noman
Digitally signed by :-
NOMAN AHMAD
High Court of Judicature at Allahabad