The court also issued guidelines to be followed before demolition, violation of which would lead to the initiation of contempt proceedings and prosecution
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 thus sending a strong message against the trend of "bulldozer justice",
It said that 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.
A bench of Justice BR Gavai and Justice KV Viswanathan delivered its judgment on petitions challenging bulldozer action against people accused of crimes.
"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, Live Law reported.
The Court emphasised that house demolition cannot be an action against a person convicted of an offence:
Guidelines laid down by the court
The court issued a set of guidelines 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.
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.
Judicial scrutiny of the final order
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. Violation of the directions would lead to the initiation of contempt proceedings in addition to prosecution.
