Served A Demolition Notice? Here’s What You Could Do
In the past few months, many instances of demolition of unauthorised properties have been reported. Such demolitions are studied and then planned, with the property owner being notified beforehand with the reason, and date of demolition. The owners are sent demolition notice to ensure that all the occupants of such a property are informed and made to leave before the set demolition date.
Have you or your housing society been served with a demolition notice? Here’s what you could expect.
Pre-conditions for a demolition
Before an authority starts the demolition process, certain permits need to be attained, and certain documents need to be submitted which include the disconnection of utilities such as electricity and water, safety and precaution related documentation and rodenticide certificate. Depending on the geographical features, size and quality of the material used in the building and other qualitative characteristics, the authority may choose to bring down the structure through implosion, high-reach arm, with crane and ball, or selective demolition. The authority also needs to get a right to easement, which could be temporary/permanent depending on the nature of work related to a structure. However, it is a non-possessory right covered under the Indian Easement Act, 1882. If your property is to undergo a demolition, check whether the authority has these permissions in place.
For instance, in the national capital, the Delhi Development Authority (DDA) can serve a notice for demolition of a construction under Section 12 of the Delhi Development Act. Demolition may be inevitable if a structure has not been developed in accordance with the master plan and has failed to get an approval. A competent authority may progress with the demolition or it may also direct the owner of the property to do so, failing which the authority may choose to take up the task. However, in either of the cases, the expenses are borne by the property owner.
If you have been served a demolition notice, note that the authority will also give you ample time to show why such an order shouldn’t be made.
In the case of development authorities, any person who is unhappy with the direction of a Lieutenant Governor (in case of Delhi), can make an appeal to the Centre within 30 days. The Central government will allow an opportunity to express but may allow or reject the appeal or make slight alterations. This decision is final and cannot be challenged.
Can I appeal against a demolition notice in Delhi?
Yes, you can appeal if you have been served a demolition notice. The Appellate Tribunal constituted under the Delhi Municipal Corporation Act, 1957 will decide on appeals that come under Section 31C, 347A and 347C of the Delhi Municipal Corporation Act.
On grounds of sympathy, the Supreme Court (SC) had ruled that temporary injunctions should not be denied as it would amount to illegality. Also, occupants of such a property will always be informed about the timeline by which they should vacate the premises with bag and baggage. Once the notice is served, the occupant has time to go to court to seek a stay order and the court will give enough time to show cause.
How can I obtain a stay order?
A temporary suspension of a proceeding mandated by the court requires a stay order. A court will give a stay order if it thinks that the rights of a party (occupants) are threatened.
Hyderabad-based advocate, Sameer Hussain says, “If you have strong grounds, facts and evidence, a stay order can be obtained from the competent court ordering government authority to stop the demolition. Don’t wait till the last hour. Contact a competent advocate in your area to file stay petition.”
Advocate B Srikiran adves, “You can take a stay order which is a mandatory injunction and ad-interim injunction against the intended demolition from the jurisdictional civil court where the property is situated. You can also file a writ petition in high court seeking an explanation from the government on what basis they are trying to demolish your building and a direction to the government to stall the demolition proceedings till the writ petition disposes.”
“For construction expenses recovery through civil court, you need to have the proof of the expenses incurred. Then file a money recovery suit and claim the amount. For this you need to pay court fees according to your claim amount,” he adds.