Can Your Builder Book You For Protesting?

When home owners recently protested against a Noida builder for denial of services that were promised at the time of sale and for changing building plan without consulting them, they might not have expected to get a retaliatory response of this sort. Eleven residents of Great Value Sharnam project in Noida’s Sector 107 have been served cease and desist notices for staging a protest rally on September 2, 2018. The builder has charged the buyers with defamation, public nuisance, assault & conspiracy and harmful intent.

This brings us to the question, can a builder take legal action against a buyer for protesting? Weary homebuyers across the country are taking to streets to protest project delays. Are they doing anything illegal?

Before we move forward do note here that a cease and desist notice is sort of a legal warning, and not action as such, to recipient of the document that they have to stop the “illegal” action immediately, failing which action might be initiated attracting penalties. A developer can send a cease and desist notice to a buyer for breach of contract, defamation and harassment. In case buyers are not able to clarify their stand and the builder is able to prove the charges, further action might be initiated against protesters under Section 141 of the Indian Penal Code.

What does the law say about protests?

Our Constitution guarantees freedom of holding a protest as a fundamental right under Article 19. From time to time, the judiciary has been reiterating the same.

“A distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution”, the Supreme Court (SC) ruled in 2016.

Delivering the verdict in the Ramlila Maidan Incident versus Home Secretary, Union of India & Others case in 2012, the top court ruled: “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”

This clear our previous doubts ─ homebuyers are well within their rights to stage a dharna to protest any injustice done to them, albeit it must be ensured no public order is disturbed while doing so.

The state could stop a protest to maintain public order. Also, your right to protest should not breach someone else’s right to property.

The top court has also said that one’s right to assemble is subject to reasonable restrictions to guard the country’s sovereignty.  

"The fact that the citizens of this country have freedom to assemble peaceably does not mean that they can exercise that freedom in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes," the SC ruled in the Railway Board versus Niranjan Singh of 1969.

This is why taking the prior permission from the police is important before a public protest rally is held. At all times, such a protest should remain peaceful. A protest rally attended by more than five people would be termed an “unlawful assembly” under the IPC, if it

*Shows criminal force to a public servant

*Resists the execution of any law

*Commits a mischief or criminal trespass or other such offences

*Takes possession of property or deprive a person of the enjoyment of a right of way, use of water, etc.

*Compels someone to do what they are not legally bound to do

In case none of the above conditions are breached, protesters have all the right to demand justice through dharnas and rallies.