Bulldozer action: Taking a tough stand on the issue of 'demolition of properties,' the Supreme Court on Wednesday said that the executive cannot replace the Judiciary, emphasising that "the legal process should not prejudge the guilt of an accused." The court is pronouncing its verdict today on pleas seeking the framing of guidelines on the demolition of properties in the country. A bench headed by Justices B R Gavai and KV Vishwanathan is giving the verdict.
The bench said that it will be "totally unconstitutional" if houses of people are demolished merely because they are accused or even convicts.
What did court say?
Justice Gavai said, "Having a home is a longing that never fades...it is a dream of every family to have a house...an important question whether the executive should be permitted to take away shelter as a major infliction of penalty..." The apex court said that the rule of law is the foundation of democratic govt and the issue regards fairness in the criminal justice system, which mandates that legal process should not prejudge the guilt of the accused.
The Supreme Court said that we are issuing the order after hearing all the parties. While issuing the decision, many decisions of the Supreme Court have also been considered. "We have considered the rights guaranteed under the Constitution that provide protection to individuals from arbitrary state action. Rule of law provides a framework to make sure individuals know the property will not be taken away arbitrarily," the court said.
"State and its officials can't take arbitrary and excessive measures. When right of accused/convict is violated by State on account of arbitrariness, etc...there has to be restitution. If any officer of the State has abused his power. or acted in total arbitrary or malafide manner, he cannot be spared.
The executive can't declare a person guilty. If based only on the allegation, it demolishes his house, it would strike at the basic principle of the Rule of Law. The executive can't become a judge and decide to demolish an accused's property.
Excesses at the hands of the executive will have to be dealt with the heavy hand of the law. Our constitutional ethos do not permit any such abuse of power...cannot be tolerated by the Court of Law.
In such cases, the executive would be guilty of taking the law in its hand and giving a go-by to principles of Rule of Law. Right to shelter, tracing it to Article 19, has been held to be a fundamental right," the court said.
SC lays down pan-India guidelines
Pronouncing the verdict, Justice Gavai said it is not a happy sight to see women and children on streets overnight.
The bench directed that no demolition be carried out without prior show cause notice and within 15 days from the date of the notice being served.
It directed that proceedings of demolition shall be videographed. The bench made it clear that its directions will not be applicable if there is unauthorised construction on public land or an order of demolition by the court of law.
It said accused and convicts have certain rights and safeguards in light of the Constitution and the criminal law. The top court delivered its verdict on pleas seeking framing of guidelines on demolition of properties in the country.
Supreme Court issues directions under Article 142
- Even after the order is passed, the aggrieved party should be given time to challenge that order.
- The Supreme Court said that it is not a pleasant sight to see women and children on the road at night.
- Sufficient time should be given to vacate the house.
- No demolition should be done without a show cause notice, which should be answered as per the time given in the local municipal laws or within 15 days from the date of notice, whichever is later.
- A show cause notice will be sent by the Collector to stop demolition based on any kind of allegations from the previous date.
- The DM will appoint a nodal officer to deal with the demolition of structures within a month from today
- The notice will mention the nature of violation, date of personal hearing and before whom the hearing is fixed, will be made available on specified digital portal where details of notice and order passed therein will be available
- Authority will conduct personal hearing and all minutes will be recorded and thereafter final order will be passed/ This should answer whether the illegal construction is negotiable, and if only a part is found not negotiable and to find out what is the purpose of demolition.
- The court said that the demolition proceedings should be videographed. The demolition report should be displayed on the digital portal.
- These instructions will not apply to places where there is any unauthorised construction on public land, as well as where there is a demolition order by the court.
- Violation of any direction would lead to 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.
- If the designated authority finds that only part of the construction is unauthorized, it must state why the extreme step of demolition is the only option, instead of compounding demolishing only part of property.
- To prevent any allegations of notice back-dating, as soon as show cause notice is duly served on the owner/occupier, intimation shall be sent to office of Collector, District Magistrate. Automated acknowledgment to be should by their office.
- Every municipal local authority shall assign a designated digital portal within 3 months from today, wherein details regarding service, pasting of notice, the reply, and order passed should be available.
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