New Delhi: Mandatory 15-day notice period, an opportunity of personal hearing to the person served notice, a detailed final order, and accountability of officials who do not follow the law are among elaborate guidelines laid down Wednesday by the Supreme Court to be followed for demolitions.
In doing so, the top court reiterated the “rule of law” principle as it castigated state governments for carrying out “bulldozer justice” against persons accused of or convicted of a crime.
The bench of Justices B.R. Gavai and K.V. Viswanathan invoked Article 142 of the Constitution that vests it with extraordinary powers to issue such directions. This, the judges said, was necessary to “allay the fears in the minds of citizens with regard to arbitrary exercise of power by the officers” of the State.
However, the bench clarified that its directions would not be applicable if there was an unauthorised structure in any public place such as road, street, footpath, abutting a railway line or river body or water bodies and also in cases where there was an order for demolition made by a court of law.
The bench’s 95-page judgement delineated key areas related to the “rule of law” and affirmed that state actions must adhere to due process. Besides adding a layer of scrutiny to the demolition process, the judgement holds officers issuing demolition orders accountable for their acts and warns of contempt proceedings in the event of non-compliance of the judicial direction.
The court fastened liability over officers, who violated the judgement. Such officers would be held responsible for restitution of an illegally demolished property at their personal cost, in addition to payment of damages.
More importantly, the guidelines add an element of transparency in the demolition exercise, given that it has ordered all such notices, their replies and final order, accepting or rejecting the explanation provided by the person who is served with the notice, to be uploaded on a digital portal to be maintained by every municipal as well as local authority.
“It is not a happy sight to see women, children and aged persons dragged to the street overnight. Heavens would not fall on the authorities if they hold their hands for some period,” the judgment authored by Justice Gavai states.
The guidelines aimed at curbing “bulldozer justice” have come on a batch of petitions raising grievances against central and state governments razing homes and shops of accused in criminal proceedings. The petitioners termed the actions as an extra-legal punitive measure.
In an interim order, the SC in September halted all authorities from carrying out demolition of properties of those allegedly involved in criminal activities, without seeking the court’s permission.
‘Accused is innocent till proven guilty’
The SC’s judgement postulated the separation of power doctrine, reminding the executive that it cannot assume judicial powers. “Bulldozer justice” is illegal and would amount to the executive taking the law into their own hands, it said.
Since presumption of innocence is recognised as a right of an individual, an extreme act of punishment without affording an opportunity to be heard is a violation of this right, the apex court reiterated.
Stressing the significance of housing as a fundamental right, the bench highlighted the safeguards available to citizens against state reprisals and postulated the constitutional protections against arbitrary actions.
Fairness and transparency are facets of natural justice, it emphasised, while warning against contempt action against any officer who is found responsible for wrongful demolitions.
“Construction of a house is an aspect of socio-economic aspirations and is not just a property but symbolises years of struggle and gives a sense of dignity, and if this right is taken away, then the authority has to satisfy that such a measure was the only last resort available. The settled principle of criminal jurisprudence is that an accused is innocent till proven guilty and if the structure is demolished, then it is collective punishment on all family members which cannot be allowed under the Constitution,” the bench said.
The bench’s directions include that no demolition shall be carried out without a prior show-cause notice that would give 15 days or the time mentioned in the local municipal laws to the person who is served with it to respond to the allegations of unauthorised construction.
While a notice shall be served upon the owner/occupier by registered post, it, the court directed, shall also be “affixed conspicuously on the outer portion of the structure in question”. The 15-day time period or deadline under the local bye-law to respond to the notice shall start from the date of receipt of the notice.
The demolition notice, the court said, shall contain details regarding the nature of unauthorised construction and details of the specific violation and the grounds of demolition. The notice should specify the list of documents which the recipient is required to furnish along with the reply and also mention the particular date fixed to have a personal hearing of the recipient before the designated authority.
To avoid allegation of backdating of demolition notices, the court directed that immediate intimation must be sent to the office of the Collector or District Magistrate (DM) digitally by email, and an auto-generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/DM.
The Collector/DM shall designate a nodal officer and also assign an email address and communicate it to the local municipal offices and other authorities that are in-charge of building regulations and demolition within a month from today, the court ordered.
The court said the authorities must give at least 15 days to the alleged encroacher to rectify the structure and remove the unauthorised construction on their own. A similar timeline should also be given in case they want to challenge the demolition notice before an appellate authority, unless the local bye-laws stipulate a time period to take legal recourse.
“Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorised 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,” the bench said.
Every municipal or local authority shall assign a designated digital portal, within three months from today, on which details regarding service/pasting of the notice, the reply, the show-cause notice and the final order passed would be available.
Apart from giving a personal hearing to the notice recipient, the court has made it compulsory for the designated authority to record the minutes of the hearing.
A final order shall be passed only after an opportunity of hearing is provided to know the response of the person accused of unauthorised construction. It must state with clarity as to whether the authority had exhausted other remedies before initiating the extreme step of demolition.
‘Demolition proceedings to be video-graphed’
The judgement also highlighted the points that should be kept in mind by the designated authority at the time of dictating the final order.
The bench said the contentions given in response to the demolition notice must find a place in the final order and the designated authority should give reasons for agreeing or disagreeing with it.
Considering some unauthorised constructions are compoundable (can be legalised), it said the final order rejecting the explanation must record whether the portion of the structure sought to be demolished can be regularised upon payment of fee. If not, then the order must furnish reasons for arriving at such a conclusion.
Reasons must be mentioned even if the designated authority finds that only part of the construction is unauthorised and non-compoundable.
The final order must explain why demolition “is the only option available and other options like compounding and demolishing only part of the property are not available”.
Only that portion shall be demolished that is found to be unauthorised and not compoundable, the court said. Before the action, it mandated, the authority concerned shall prepare a detailed inspection report of the site and get is signed by two witnesses.
The entire demolition proceedings should be video-graphed and the authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process.
Video recordings are to be preserved, the bench said, as it ordered preparation of a demolition report, which in terms of the direction would be mailed to the municipal commissioner.
(Edited by Nida Fatima Siddiqui)