Supreme Court: In a batch of petitions challenging the ‘bulldozer actions’ against properties of persons accused of some crime, the Division Bench of BR Gavai and KV Viswanathan, JJ. condemning the bulldozer actions held that the properties/ houses of the houses of accused persons cannot be demolished by the State machinery only on the ground that they are accused or convicted of a crime.
The Court laid down stringent norms to curb these bulldozer actions. The Court said that if such actions take place without following the process of law, the family of the accused/ convict will be entitled to compensation and the officers violating any of the directions laid down by the Court would face initiation of contempt proceedings in addition to the prosecution.
The Court also clarified that if the demolition violates the orders of the Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages.
“If the executive in an arbitrary manner demolishes the houses of citizens only on the ground that they are accused of a crime, then it acts contrary to the principles of ‘rule of law’. If the executive acts as a judge and inflicts penalty of demolition on a citizen on the ground that he is an accused, it violates the principle of ‘separation of powers’.”
Analysis and Decision
Principles of criminal law: presumption of innocence and natural justice
The Court said that the principle- “an accused is not guilty unless proven so in a court of law”, is the foundation of any legal system. The Court maintained that the trial must be fair and open, but not prejudiced by public clamor. Hence, considering the grievances of the petitioners in light of these principles, the Court viewed that- “If a citizen’s house is demolished merely because he is an accused or even for that matter a convict, that too without following the due process as prescribed by law, it will be unconstitutional for more than one reason.”
The Court ruled that the executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. If the executive demolishes the property/properties of accused only on the basis of accusations, without following the due process of law, it would attack the basic principle of rule of law and is not permissible.
The Court stated that, “the executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits.” Condemning the bulldozer actions demolishing a building, without following the basic principles of natural justice and without adhering to the principle of due process, depicts the lawless state of affairs, where “might was right”.
The Court observed that in our Constitution, resting on the foundation of ‘rule of law’, such high-handed and arbitrary actions have no place. Such excesses at the hands of the executive will have to be dealt with by the heavy hand of the law.
The Court also clarified that demolition of property cannot be done in respect of a person who is convicted of an offence without following the due process as prescribed by law. The Court termed that such an action by the executive would be wholly ‘arbitrary’ and would amount to an ‘abuse of process of law’.
Right to Shelter
Considering that ‘right to shelter’ is one of the facets of Article 21, the Court observed that punishing persons who have no connection with the crime by demolishing the house where they live or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution.
“It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period.”
Reiterating that a person is presumed to be innocent till he is held guilty, the Court viewed that- if demolition of a house is permitted wherein the number of persons of a family or a few families reside only on the ground that one person residing in such a house is either an accused or convicted in the crime, it will amount to inflicting collective punishment on the entire family or the families residing in such structure. Our constitutional scheme and the criminal jurisprudence would never permit the same.
Directions
The Court gave the following directions:
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No demolition is permissible without show cause notice, returnable either in accordance with the time provided by the local municipal laws or within 15 days’ time from the date of service of such notice, whichever is later.
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Adequate time to be granted to respond to and challenge the demolition notices. The Court viewed that if the notice is not contested, sufficient time should be granted to vacate and arrange the affairs.
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The demolition notice shall be served upon the owner/occupier by a registered post A.D. and affixed on the outer portion of the structure.
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To prevent any allegation of backdating, as the show cause notice is duly served, intimation thereof shall be sent to the Collector/District Magistrate of the district digitally by email and an auto-generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate. The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from the date of judgment.
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The Notice shall contain the following details-
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the nature of the unauthorized construction;
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the details of the specific violation and the grounds for demolition;
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a list of documents that the noticee is required to furnish along with his reply; and
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specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place.
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Every municipal/local authority shall assign a designated digital portal, within 3 months from the date of judgment wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available.
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The designated authority shall give an opportunity of personal hearing to the person concerned and the minutes of such a hearing shall also be recorded.
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The final order passed by the designated authority shall contain:
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the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;
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as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor;
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if the designated authority finds that only part of the construction is unauthorized/non-compoundable, then the details thereof;
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as to why the extreme step of demolition is the last resort available and other options like compounding and demolishing only part of the property are not available.
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If the statute provides for an appellate opportunity and time for filing the same, or even if it does not do so, the final order of the authority concerned will not be implemented for 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal.
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An opportunity should be provided to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. If the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a Court, the authority concerned shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished.
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Before demolition, a detailed inspection report shall be prepared by the authority concerned and signed by two Panchas.
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The demolition should be videographed and the authority concerned shall prepare a demolition report giving the list of police officials and civil personnel who participated in the demolition process. The video recording shall be duly preserved.
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The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal.
The Court clarified that these directions would not be applicable on an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.
Previously the Court said that guidelines on ‘Pan-India Basis’ would be laid down, so that the concerns regarding the demolishing of properties of accused persons are taken care of. The Bench, hence, sought suggestions from all the parties in order to frame appropriate guidelines. According to reports,
The genesis of the petitions lies in distinct facts. In 2022, concerns were raised against trend of demolishing the homes of people accused persons. It was emphasized that right to a home was a facet of the right to life under Article 21 of the Constitution. Petitions were filed against 2022 demolition drive in Delhi’s Jahangirpuri. It was submitted that such demolition drives against the properties of the accused persons cannot be taken as an extra-punitive measure.
[In Re: Directions in the matter of Demolition of Structures, Writ Petition (Civil) No. 295 of 2022]
Source: press