New Delhi [India], November 13 : The Supreme Court on Wednesday directed that no demolition should be carried out without a prior 15-day show cause notice to the owner of the property and without following the statutory guidelines. The top court also said that the executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his property.
"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," said a judgement delivered by a bench of justices BR Gavai and KV Vishwanathan.
The top court said, "If a citizen's house is demolished merely because he is an accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason."
"Firstly, 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 the 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 top court said.
"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 top court added.
"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 by 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 apex court said.
The top court in its guidelines said that no demolition should be carried out without a prior show cause notice returnable 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 shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question," the Supreme Court added.
The top court made it clear that the time of 15 days shall start from the date of receipt of the said notice. "To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/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/District Magistrate. The Collector/DM shall 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 today," as per the Supreme Court.
The top court underlined that the notice shall contain the details regarding the nature of the unauthorized construction, details of the specific violation and the grounds of demolition among others.
Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available, the top court said.
The top court also directed that the designated authority shall give an opportunity of personal hearing to the person concerned and the minutes of such a hearing shall also be recorded. Upon hearing, the designated authority shall pass a final order which shall contain the contentions of the notice, and if the designated authority disagrees with the same, the reasons thereof among others.
The top court further directs that if the statute provides for 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 thereof. The order shall also be displayed on the digital portal.
The top court said that before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas. The top court further directed that the proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal, the top court said.
"Violation of any of the directions would lead to the initiation of contempt proceedings in addition to the prosecution. The officials should also be informed that if the demolition is found to violate 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," the top court said.
The top court said that the Registrar (Judicial) is directed to circulate a copy of this judgment to the Chief Secretaries of all the States/Union Territories and the Registrar Generals of all the High Courts. All State Governments shall issue circulars to all the District Magistrates and local authorities intimating them about the directions issued by this Court, the top court said.
"In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in the exercise of our power under Article 142 of the Constitution. 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 top court said.
"We are further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. 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 top court said.
Before giving the direction, the top court clarified that these directions would not be applicable if there is an unauthorized 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 there is an order for demolition made by a Court of law.