BREAKING| 'Bulldozer Reminds Of Lawlessness' : Supreme Court Says Properties Can't Be Demolished Merely Because Of Criminal Accusations/Convictions

Sending a strong message against the trend of "bulldozer justice", the Supreme Court on Wednesday (November 13) held that the executive cannot demolish the houses/properties of persons only on the ground that they are accused or convicted in a crime.

Permitting such action by the executive is contrary to the rule of law and also a violation of the principle of separation of powers, as it is for the judiciary to pronounce on the guilt of a person.

"The executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. Only on the basis of the accusations, if the executive demolishes the property/properties of such an accused person without following the due process of law, it would strike at the basic principle of rule of law and is 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.

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. Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law," the Court pronounced.

The Court emphasised that house demolition cannot be an action against a person convicted of an offence:

"Such an action also cannot be done in respect of a person who is convicted of an offence. Even in the case of such a person the property/properties cannot be demolished without following the due process as prescribed by law.

Such an action by the executive would be wholly arbitrary and would amount to an abuse of process of law. The executive in such a case would be guilty of taking the law in his hand and giving a go-bye to the principle of the rule of law."

Officials taking part in illegal demolition to be held accountable

The Court also held that the public officials who demolish the properties in such a manner should be held accountable.

"Public officials who take law in their hands and act in such a high-handed manner must be fastened with accountability..." the Court observed while highlighting the importance of restitution.

The Court also observed that such actions amount to imposing "collective punishment" on the family of the accused/convict. Further, when properties are selectively demolished, there is a presumption that it was a malafide action.

"When a particular structure is chosen for demolition all of a sudden, and the rest of similar properties are not touched, the presumption could be that the real motive was not the illegal structure but the action of penalising without trial," the Court observed.

A bench of Justices BR Gavai and KV Viswanathan pronounced the judgment in a batch of petitions filed by Jamiat Ulema-i-Hind and various other petitioners seeking directions to stop the trend of "bulldozer justice".

Directions laid down by the Court

The Court issued a set of steps to be followed before demolition.

Even after the orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before the appropriate forum.

Even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to vacate.

"It is not a happy sight to see women, children and aged persons dragged to the street overnight. Heavens will not fall on the authorities if they hold their hands for some period," the Court observed.

The Court clarified that that these directions will not be applicable if there is any unauthorised structure in any public place such as road, street, footpath, abutting railway lines or any river body or water body and also in cases where there is an order passed by a Court of law.

Prior show-cause notice

No demolition should be carried out without prior show cause notice returnable either in accordance with the time provided in the local municipal laws or within 15 days time from the date of service, whichever is later.

The notice shall be served upon the owner by registered post. It shall also be affixed on the outer portion of the structure. The time of 15 days will start from the receipt of the said notice.

To prevent any allegations of ante-dating, the Court directed that as soon as notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate digitally by email and auto-generated reply acknowledging the receipt of the mail should also be issued by the office of the Collector/DM.

The DM shall designate a nodal officer and assign an email address and communicate the same to all officials in charge of building regulations within one month from today.

Notice shall contain the nature of the unauthorized construction, details of specific violations and grounds of demolition. Notice should also specify the date for personal hearing and the designated authority.

Every municipal authority should assign a designated digital portal within three months from the date of the judgment wherein details regarding service, pasting of notice, reply, show-cause notice, order passed are available.

Personal hearing and final order

The designated authority shall give an opportunity for a personal hearing to the party. The minutes of such a hearing shall be recorded. The final order of authority shall contain contentions of noticee, the findings of the authority and reasons, as to whether the unauthorised construction is compoundable, and whether the whole construction is to be demolished. The order should specify why the extreme step of demolition is the only option available.

Judicial scrutiny of the final order

If the statute provides for an appellate authority and time for filing the appeal, even if it does not do so, the demolition order will not be implemented for a period of 15 days from the receipt thereof. The order shall also be displayed on the digital portal.

An opportunity should be given to the owner to remove the unauthorised construction. Only after the expiry of 15 days and the owner/occupier has not removed the unauthorised construction or if the order has not been stayed by the appellate authority, the concerned authority shall take steps to demolish the same.

Demolition steps

Only that part of unauthorised construction, which is not compoundable, can be demolished.

Before demolition, a detailed inspection report must be prepared by the authority.

The proceedings of demolition shall be videographed and preserved. The demolition report, with the list of police and civil personnel present who participated in the process, should be forwarded to the Municipal Commissioner and shall also be displayed in the digital portal.

Violation of the directions would lead to the initiation of contempt proceedings in additon to prosecution.

If the demolition is found to be in violation of the orders of the Court, the officers responsible will be held liable for restitution of the demolished property at their personal cost in addition to payment of damages.

The copy of the judgment was directed to be circulated to the Chief Secretaries of all States/UTs and Registrar Generals of all High Courts. All State Governments shall issue circulars intimating the authorities about this judgment.

The Court recorded its appreciation for the suggestions given by Senior Advocates Dr Abhishek Manu Singhvi, CU Singh, MR Shamshad, Sanjay Hegde, Nitya Ramakrishnan, Advocates Prashant Bhushan, Mohammad Nizam Pasha, Fouzia Sheikh, Rashmi Singh etc. The Court also lauded the assistance of Senior Advocate Nachiketa Joshi for collating the suggestions and Solicitor General Tushar Mehta for presenting the case in an objective and dispassionate manner.

Background

To recap briefly, the orders in the matter were reserved on October 1, with the bench expressing in clear terms that bulldozer action cannot be taken even against the house of a convict, let alone a person merely accused of a criminal offense, as a punitive measure.

While the matter was being heard, the bench conveyed its intention to lay down pan-India guidelines, which would apply to everyone equally, to ensure that local laws providing for the demolition of unauthorized constructions are not misused.

A batch of petitions was filed before the Supreme Court in 2022, relating to the demolition drive scheduled for April, 2022 in Delhi's Jahangirpuri following violence during the Hanuman Jayanti procession. The drive was ultimately stayed, but the petitioners prayed for a declaration that authorities cannot resort to bulldozer actions as a form of punishment. Later, petitions were filed against the actions in the States of MP, UP, Gujarat etc.

Insofar as the contentions raised in its respect, the State of Uttar Pradesh averred that merely because a person is alleged to be part of an offence, it can't be ground for demolition. On facts of the cases mentioned by petitioners, it was said that notices for violations were sent, but since the concerned individuals did not respond, the unauthorized constructions were demolished following the process in municipal laws.

In response, the top Court expressed that house of a person cannot be demolished merely because he is accused of a crime. The Court also conveyed an intention to lay down pan-India guidelines to address concerns.

To this end, parties were asked to submit draft suggestions which could be considered by the Court. Following the order, Jamiat-Ulama-I-Hind submitted its suggestions for the Court's guidelines/directives.

On September 17, the Court, invoking its special powers under Article 142 of the Constitution, passed an interim order to the effect that no demolition shall take place in the country without its permission (except when there is encroachment on public roads, footpaths, railway lines, or waterbodies).

Recently, in the last uploaded judgment of former CJI DY Chandrachud, the Supreme Court observed that "bulldozer justice" cannot be accepted in a society governed by the rule of law.

Case Title: In Re: Directions in the matter of Demolition of Structures v. and Ors. | Writ Petition (Civil) No. 295 of 2022 (and connected case)

Citation : 2024 LiveLaw (SC) 884

Click here to read the judgment