IN a significant ruling, the Supreme Court has ruled that government officers overseeing the illegal demolition of houses and properties belonging to accused or convicted persons will be personally responsible for restitution and damages.
A Bench comprising Justices B.R. Gavai and K.V. Viswanathan held that if the government arbitrarily demolishes houses of citizens only on the ground that they are accused of a crime, it acts contrary to the principles of the ‘rule of law’.
The court has thus raised hopes of putting a spanner in the works of the punitive demolition juggernaut that has been on a rampage in a few states.
The Bench observed that it is not a happy sight to see women, children and the aged forced into the streets overnight. In such cases, heavens would not fall if the authorities held their hands for some period, the Bench averred.
The Bench also observed that a house is not just a property, but embodies the collective hopes of a family or individuals for stability, security and a future.
“Having a house or a roof over one’s head gives satisfaction to any person. 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,” the Bench added.
The Bench also dealt with the notion of collective punishment inherent in such demolitions. It ruled that if punitive demolition of a house is permitted, wherein several persons of a family or a few families reside, only on the ground that one person residing in such a house is either an accused or convicted of a crime, it would amount to inflicting collective punishment on the entire family or families residing in such structure.
Explaining this point, the Bench put a question to itself: Whether the spouse of the accused, their children and parents living in the same house or co-owning the same property can be penalised by demolishing their property without them even being involved in any crime only on the basis of them being related to an alleged accused person?
The Bench said punishing persons who have no connection with the crime by demolishing the house where they live or properties owned by them is nothing but anarchy and would amount to a violation of the right to life guaranteed under the Constitution.
The Bench found the punitive demolition of the home only on the grounds of allegations that an accused has committed certain crimes against the rule of law, separation of power and the fundamental principles of innocence until proven guilty.
“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 ‘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,” the Bench ruled.
The Bench has laid down mandatory guidelines to be followed by all state governments while undertaking the exercise of demolition having regard to due procedure.
The entire exercise will involve four stages. First, the notice stage. Second, the personal hearing. Third, the final Order of demolition. Fourth, an opportunity to challenge the final Order of demolition.
The Bench also observed that 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,” the Bench ruled.
At the stage of notice
The Bench ruled that no punitive demolitions must be carried out without giving a show cause notice to the owner of the house or property either in accordance with the time provided by the local municipal laws or within 15 days from the date of service of such notice, whichever is later.
The notice, the Bench said, must contain details such as 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.
The Bench made it clear that the notice must be served upon the owner or occupier by registered post. Additionally, the notice should also be affixed conspicuously on the outer portion of the structure in question.
The Bench clarified that the time of 15 days to respond to the notice would begin from the date of the receipt of the notice by the owner of the property.
The Bench also directed that as soon as the show cause notice is duly served, intimation of the same should be sent to the office of the 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 the office of the collector or district magistrate. The Bench said this would prevent any allegation of backdating.
The Bench directed all district magistrates to designate a nodal officer and also assign an email address and communicate the same to all municipal and other authorities in charge of building regulations and punitive demolition within one month.
In addition, the Bench directed that every municipal or local authority should assign a designated digital portal within three months from today wherein details regarding service or pasting of the notice, the reply, the show cause notice and the Order passed thereon would be available.
To ensure that natural justice is followed, the Bench directed that the designated authority must give an opportunity of personal hearing to the person concerned. The minutes of such a hearing would also be recorded.
The Bench directed that the final Order must reflect the contentions of the notice and if the designated authority disagrees with the same, the reasons must also be reflected in the final Order.
The final Order must also clarify whether the unauthorised construction is compoundable and if it is not so, the reasons for the same.
The Bench also directed that if the designated authority finds that only part of the construction is unauthorised or it is non-compoundable, then the details of the same must be shown in the Order.
The Bench said the final Order must contain the reason as to why the extreme step of punitive demolition is the only option available and other options like compounding and demolishing only part of the property are not available.
The Bench Order seeks to ensure that sufficient breathing time is provided to the affected person to challenge the Order of the punitive demolition. It directed that if the statute provides an appellate opportunity and time for filing the same, or even if it does not do so, the Order will not be implemented for 15 days from the date of receipt of the final Order of demolition.
The Order shall also be displayed on the digital portal as stated above. The Bench said an opportunity should be given to the owner or occupier to remove the unauthorised construction or demolish the same within 15 days.
Only after 15 days from the date of receipt of the notice have expired and the owner or occupier has not removed or demolished the unauthorised construction, and if the same is not stayed by any appellate authority or a court, the concerned authority would take steps to demolish the same.
The Bench added that only construction found to be unauthorised and non-compoundable should be demolished.
“Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two panchas,” the Bench added.
The Bench has made it clear that the proceedings of the punitive demolition must be videographed and the concerned authority is required to prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process.
It added that the video recording was to be duly preserved and said the demolition report should be forwarded to the municipal commissioner by email and shall also be displayed on a digital portal.
The Bench has also made it clear that violation of its guidelines would also amount to contempt of court in addition to leading to criminal prosecution.
The Bench has also fixed personal accountability of erring officials. It said concerned officials would be held responsible for restitution of the demolished property at their personal cost in addition to payment of damages.
It has directed its registry to circulate a copy of the judgment to the chief secretaries of all states and Union territories and the registrar generals of all the high courts.
The Order mandates all state governments to issue circulars to all district magistrates and local authorities, intimating them about the directions issued by the court.
The Bench has clarified that its directions would not be applicable if there is an unauthorised structure in any public place such as a road, street, footpath, abutting railway line or any river body or water body and also to cases where an Order for demolition has been issued by a court of law.
An Amnesty International report has highlighted the punitive demolitions of 128 properties in Assam, Delhi, Gujarat, Madhya Pradesh and Uttar Pradesh following episodes of communal violence and protests between April and June 2022. It said the targeted demolitions were instigated by senior political leaders and government officials and impacted at least 617 people.
“Almost two years later, Muslim families and business owners in the five states await compensation for losing their homes, businesses and places of worship.
“The Indian government’s de facto policy of punitively demolishing Muslim properties for protesting discriminatory laws and practices is an ongoing phenomenon.
“This amounts to forced eviction and collective and arbitrary punishment under international law and must be immediately investigated,” the Amnesty International report reads.
In its Order, the Supreme Court Bench has also observed that when a particular structure is chosen all of a sudden for punitive demolition and the rest of similarly situated structures in the same vicinity are not even being touched, mala fide may loom large.