Breaking| "Executive Cannot Become A Judge": Apex Court Lays Down Pan India Guidelines On Demolition Of Properties
The Supreme Court today pronounced Judgment in Writ Petitions challenging bulldozer actions allegedly taken by authorities across the country against houses of accused persons as a punitive measure.
The Bench of Justice BR Gavai and Justice KV Viswanathan observed that an executive cannot become a judge.
"Such high-handed arbitrariness cannot be permitted....Executive cannot determine who is guilty and cannot become a judge to decide if he is guilty or not, and such an act will be transgressions of limits," the Court said.
At the outset, Justice Gavai said, "It is the dream of every family to have a home/shelter. Can the executive take away shelter from a person who is accused of a crime is the question before us."
The Court said, "Whether the properties of persons accused of committing crimes or even convicted can be demolished without following the due process of law. We have considered issues of fairness in the criminal justice system, and that case of the accused cannot be prejudged. We have also considered the doctrine of separation of powers."
The Bench stated that the rule of law provides a framework to make sure individuals know property will not be taken away arbitrarily. It held, "If the executive in an arbitrary manner demolishes property of a person only on the basis that person is accused of crime, it violates separation of powers; public officials who take law into their hands should be made accountable of highhandedness; thus, it is illegal. We have laid down binding guidelines that shall be followed by state officials in such cases. We have noted that even accused have certain rights and safeguards; the state and officials cannot take arbitrary action against accused or convicts without following due process of law. When an official is held liable for arbitrary action, there has to be an institutional mechanism to deal with it; one could be compensation; such an official cannot be spared for mala fide exercise of power."
While referring to the right to shelter, the Court said that Articles 19 and 20 are fundamental rights. "Right to shelter and depriving innocents of such a right will be wholly unconstitutional. When a structure is suddenly selected for demolition while others remain, then mala fide is Writ large and presumption could be drawn that action was not to bring down an illegal structure but to penalise the person before a court of law does so," the Court said.
While issuing directions, the Bench clarified, "These directions will not be applicable if there is any unauthorized construction on public land or where there is a demolition order by the court of law."
"No demolition should be carried out without prior show cause notice returnable either in accordance with the time provided in local municipal laws or within 15 days from the date of service, whichever is later. The notice shall be served upon the owner by registered post. It shall also be fixed on the outer portion of the structure. Notice shall contain nature of unauthorized construction, details of specific violation, and grounds of demolition," the Court directed.
Additionally, the Court directed that the proceeding of demolition shall be video recorded, and the same shall be submitted to the municipal corporation and shall also be published on the portal as well. "Violation of any direction would lead to the initiation of contempt proceedings. Officers should be informed that if demolition is found to be in violation, they will be held responsible for restitution of demolished property. Officials will be held responsible at their personal cost, in addition to payment of damages," the Court held.
"Registrar Judicial is directed to supply a copy of this Judgment to all chief secretaries of States/UTs," the Court directed.
It is to be noted on October 1, the Court had reserved verdict in the case, after taking suggestions from both parties, and extended the interim order of stay on demolitions without its permission.
Pertinently, on September 2, the Bench had orally remarked that authorities cannot demolish a house only because he is an accused or even if he is a convict without following the procedure step by step. The Court had clarified that it will not protect unauthorised constructions. It had also said that it would frame guidelines applicable to Pan India against the demolition drives happening in the country.
The Apex Court, on April 21, 2022, had extended the order of status quo regarding the demolition drive. The Court had issued notice in all cases and has directed parties to file pleadings regarding whether or not notices were served before demolition. Dave had argued that a particular section of the society is being targeted through the demolition drive and that Jahangirpuri was picked despite there being 731 unauthorised colonies in Delhi. Dave relied upon Section 343 of the Delhi Municipal Corporation Act, 1957, to argue that notice should have been given before the demolition of structures.
The NDMC had halted the demolition drive it was carrying out in the Jahangirpuri area after the Supreme Court directed its Secretary-General to convey the order to stop demolition to the NDMC Mayor and the Delhi Police Commissioner immediately. The matter was mentioned by Senior Advocate Dushyant Dave once again since the NDMC continued the demolition driving stating that it did not receive a copy of the interim order passed by the Court.
The NDMC in its counter-affidavit before the Supreme Court, had said that as per the Delhi Municipal Corporation Act, 1957, it can remove unauthorized projections on public land and unauthorized temporary structures beyond the boundary of houses and shops, without serving notice. It has also said that for the removal of such structures, bulldozers are required. "When a road or footpath is cleared, the process goes on from one end to another without any distinction of the religion or owner/occupier who has unauthorizedly occupied footpath or public road", the NDMC had said while denying the allegation of targeting any particular community.
In June 2022, the Court had also sought response from the Uttar Pradesh Government while refusing to stay the demolition drive in the Kanpur and Prayagraj districts of Uttar Pradesh. Jamiat had also, through a new affidavit, sought a writ of Mandamus to the Union of India and the State Government so that no lasting precipitative action is taken against any accused in any criminal proceeding. Jamiat had in its affidavit referred to the protest and the ensuing scuffle that happened in Kanpur District of Uttar Pradesh and stated that several persons of authority, including the Chief Minister of Uttar Pradesh, have given statements in the media that the houses and properties of the perpetrators would be razed using bulldozers.
The Jamiat Ulama-i-Hind had also moved the Supreme Court, seeking a direction to the Centre and some states, including Madhya Pradesh and Uttar Pradesh, that "precipitative actions" like razing buildings in criminal proceedings be not taken. The plea had assumed significance because of recent actions taken by authorities in Madhya Pradesh to use bulldozers to raze the properties of those accused of rioting during the Ram Navami celebrations. Jamiat Ulama-I-Hind, in its petition, had said that the action like razing the house in a criminal proceeding as a punishment is unknown to criminal law.
Cause Title: In Re: Directions In The Matter Of Demolition Of Structures [W.P.(C) No. 295/2022]
Click here to read/download the Judgment