New Delhi: Whether a person who is only accused of committing some crime or even convicted can be inflicted the punishment of demolition of his property/properties? The Supreme Court on Wednesday said the answer is an emphatic ‘no’.
The apex court said it is a "chilling sight “when a bulldozer is used to hand out one of the harshest punishments, demolition of private property or homes of the accused person, and emphasised that illegal demolitions, which also impacts the family, is "nothing but an anarchy" and "lawless state of affairs, where might was right".
The apex court held that victims’ of illegal demolition must get compensation and issued a slew of guidelines for following due process before demolitions.
A bench comprising Justices B R Gavai and K V Viswanathan opened the judgment citing the importance of shelter described by a famous Hindi poet 'Pradeep'. The bench said it is a dream of every person, every family to have a shelter above their heads and a house is an embodiment of the collective hopes of a family or individuals' stability and security.
On September 17, the top court stayed illegal demolitions across the country in an order and assured that it would lay down guidelines to protect even convicted criminals from the punitive demolition of their property by authorities.
Justice Gavai, who authored the 95-page verdict on behalf of the bench, said it is not only the accused who lives in such property or owns such property and if his spouse, children, parents live in the same house or co-own the same property, can they be penalised by demolishing the property?
"As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in 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", said Justice Gavai, adding that it will amount to inflicting a collective punishment on the entire family or the families residing in such structure.
The bench said the right to shelter is one of the facets of Article 21. "Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional," it said.
During the hearing, Solicitor General Tushar Mehta had contended that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the accused persons.
"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.…..," noted the bench.
Justice Gavai said 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 without even trying him before a court of law.
The bench said while considering the issue with regard to the demolition of the houses which are required to be demolished for breach of the local laws, we find that the principle of the rule of law needs to be considered even in the municipal laws.
The bench said, for an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations, and a house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. "It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available," said the bench.
Justice Gavai said illegal demolitions strike a blow at the rule of law and are not permissible. "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," said the bench.
The bench said the chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where "might was right".
"In our constitution, which rests on the foundation of 'the 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 the heavy hand of the law," said the bench.
The apex court said the protection given in its judgment would not extend to encroachments on public land or unauthorised structures.
The top court said illegal demolitions would be wholly impermissible in our constitutional set up, and "the executive cannot replace the judiciary in performing its core functions".
The bench said 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 the 'rule of law'.
"If the executive acts as a judge and inflicts a penalty of demolition on a citizen on the ground that he is an accused, it violates the principle of 'separation of powers'. We are of the view that in such matters the public officials, who take the law in their hands, should be made accountable for such high-handed actions," said the bench.
The apex court said even the accused or the convicts have certain rights and safeguards in the form of constitutional provisions and criminal law. It added, secondly, the state and its officials cannot take arbitrary and excessive measures against the accused or for that matter even against the convicts without following the due process as sanctioned by law.
The bench said if any of the officers of the state has abused his powers or acted in a totally arbitrary or mala fide manner, he cannot be spared for such an illegal, arbitrary, mala fide exercise of power.
The apex court, using its power under Article 142 of Constitution, issued a slew of guidelines for following due process before demolitions of unauthorised structures, which included 15 days’ notice for the residents' on the property to find another place to live in.
The notice shall contain the details regarding: (a). the nature of the unauthorised construction. (b). the details of the specific violation and the grounds of demolition. (c). a list of documents that the noticee is required to furnish along with his reply. (d). The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place.
"Even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. 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," said Justice Gavai.
The bench said the designated authority shall give an opportunity of personal hearing to the person concerned and the demolition should be video-graphed, so that it can be produced as evidence in case there is a challenge to demolition. The guidelines laid down also include prior notice should be served on the house owner by registered post.
The bench said the demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal.
Also Read
