More Stories

Informist, Wednesday, Nov. 13, 2024

 

--SC: Unlawful for state to demolish property of person accused of crime

--SC:Officials ordering accused's property demolition to be held accountable

--SC: No demolition of crime accused's properties without showcause notice

 

NEW DELHI – The Supreme Court on Wednesday said it is unlawful and unconstitutional if the government and its authorities demolish the property of a person on the basis that they were accused or convicted in a case. The top court said the executive cannot become a judge, and such an act would be called transgression of limits. The rule of law, rights of citizens, and principles of natural justice are essential conditions for the determination of such matters, the court said, adding that the power to determine a person's guilt remains with the judiciary.

 

"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'," the Bench said, adding that in the 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 by a heavy hand of the law, the court said. "Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law," it added.

 

The top court said that the demolition of a house of a person also affects the Right to Shelter under Article 21 of the Constitution, relating to the Right to Life. The demolition becomes a collective punishment against the family members of the accused person, the court said. The construction of a house is an aspect of socioeconomic aspiration and is just not a property, but symbolises years of struggle, and it gives a sense of dignity, and if this right is taken away, the authority has to satisfy that such a measure was the only last resort available, the court said.

 

Depriving innocent people of the Right to Shelter is wholly unconstitutional, the top court said. "...however, 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," the court said. "In such cases, where the authorities indulge into arbitrary pick-and-choose of the structures, and it is established that soon before initiation of such an action an occupant of the structure was found to be involved in a criminal case, a presumption could be drawn that the real motive for such proceedings was not the illegal structure but an action of penalising the accused without even trying him before the court of law," the court said, adding that authorities will have to convince the court that they did not intend to penalise an accused person by demolishing the structure.  

 

Further, the top court laid down certain guidelines on demolitions to allay fears in the minds of citizens regarding the arbitrary exercise of power by officials of the State. "We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time, so as to challenge the order of demolition before an appropriate forum," the court said. Even in cases involving persons who do not wish to contest the demolition order, sufficient time needs to be given to vacate and arrange their affairs, the court said. "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," the court said. However, the top court clarified that its directions won't be applicable if there is any unauthorised structure in a public place such as a road, street, footpath, or abutting a railway line and water body, and also in cases where there is an order for demolition passed by a court of law. 

 

In its directions, the apex court said that no demolition should be carried out without a prior show-cause notice returnable either in accordance with the time provided by local municipal laws or within 15 days from the date of service of such notice, whichever is later. The notice shall be served to the owner or occupier by a registered post AD (acknowledgement due). Additionally, the notice should also be affixed conspicuously on the outer portion of the structure in question, the court said. The time period of 15 days should start from the date of receipt of the said notice, it added.

 

To prevent any allegation of backdating, the Supreme Court directed that as soon as the show-cause notice is duly served, an intimation should be sent to the office of collector or district magistrate of the district digitally by email, and an auto-generated reply acknowledging receipt of the mail should also be issued from their office. The collector or district magistrate should 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 judgement, the court said. 

 

The top court said that the show-cause notice should contain the details regarding the nature of the unauthorised construction, the details of the specific violation, and the grounds for demolition. It should also include a list of documents that the noticee is required to furnish along with his reply. The notice should specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place, the court said.

 

The apex court further said that, within three months from Wednesday, every municipal or local authority should assign a designated digital portal, wherein details regarding service or pasting of the notice, the reply, the show-cause notice, and the order passed thereon should be available.

 

The designated authority should give an opportunity of personal hearing to the person concerned, the court said. The minutes of such a hearing should also be recorded, it added. Upon hearing, the designated authority shall pass a final order. The designated authority's order should contain the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof as well. The order should state whether the unauthorised construction is compoundable, and if it is not, the reasons for it as well, the court said. If the designated authority finds that only part of the construction is unauthorised or non-compoundable, the details thereof should also be there. The authority should tell why the extreme step of demolition is the only option available and other options such as compounding and demolishing only part of the property are not available, said the court.

 

The apex court said that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not, the final order will not be implemented for a period of 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal as stated, said the court. An opportunity should be given to the owner or occupier to remove the unauthorised construction or demolish the same within a period of 15 days, it said. Only after the period of 15 days from the date of receipt of the notice has expired, and the owner has not removed the unauthorised construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same, said the court. Only such construction which is found to be unauthorised and not compoundable will be demolished, it added.

 

The top court said that the proceedings of demolition shall be videographed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel who participated in the demolition process. Video recording is to be duly preserved, said the court. The violation of any of the directions would lead to the initiation of contempt proceedings in addition to prosecution against the officers, said the court. "The officials should also be informed that if the demolition is found to be in violation of the orders of this 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,” said the court.

 

The apex court was hearing petitions against demolitions by state and local authorities without prior notice as a form of retribution. Some of the petitioners said several houses in Delhi were demolished after the riots in Jahangirpuri in 2022 on allegations that those people instigated the riots. One petition from Rajasthan said a person's house was demolished in Udaipur because the tenant's son was accused of a crime.  End

 

Reported by Surya Tripathi

Edited by Namrata Rao

 

For users of real-time market data terminals, Informist news is available exclusively on the NSE Cogencis WorkStation.

 

Cogencis news is now Informist news. This follows the acquisition of Cogencis Information Services Ltd by NSE Data & Analytics Ltd, a 100% subsidiary of the National Stock Exchange of India Ltd. As a part of the transaction, the news department of Cogencis has been sold to Informist Media Pvt Ltd.

 

Informist Media Tel +91 (11) 4220-1000

Send comments to feedback@informistmedia.com

 

© Informist Media Pvt. Ltd. 2024. All rights reserved.