Bhubaneswar: The country has witnessed an unprecedented rise in demolition of properties – residential or commercial – in the last few years. As per SC data, the number of properties – house or commercial establishments – demolished by the civic authorities stands at a whopping 4.45 lakh.
While leaders from Muslim community linked the demolition drive across the states like Uttar Pradesh, Madhya Pradesh, Rajasthan, Maharashtra et al to a particular community, the other petitioners raised objection at the Apex Court to the norm of demolishing properties owned by persons accused of some offence but not convicted by the court of law.
After hearing the arguments for and against the demolition of illegal structures, popularly known in public space as bulldozer justice, the two judge Bench Justices BR Gavai and K V Vishwanathan today passed an order detailing pan-India guidelines on demolition by so-called illegal structures.
HOW SC FRAMED ORDER?
The 2-judge bench has framed its order on the backdrop of following 6 basic pillars of the Indian constitution and 1 pillar of criminal jurisprudence. They are given below.
- RULE OF LAW: The court described it as a safeguard against the arbitrary use of the State power. And also obligation of State and its authority to keep a check on citizens breaking law and indulge in violence described as mob-violence. The State need to prevent such threats to protect rule of law.
- SEPARATION OF POWERS: Our Constitution has earmarked separate areas for exercise of powers and for discharge of duties to the three organs of the democracy, viz., the Executive, the Legislature, and the Judiciary. The Executive is entrusted with the powers and is expected to discharge its duties in accordance with the provisions of the Constitution and the laws as enacted by the competent Legislature. The adjudicatory function is entrusted to the Judiciary. Therefore, Executive cannot term anyone accused.
- DOCTRINE OF PUBLIC TRUST AND ACCOUNTABILITY: The executive actions must be consistent with maintaining public trust.
- RIGHTS OF THE ACCUSED: Court says, they have a right to dignity. The punishment awarded to such persons has to be in accordance with law. Such punishment cannot be inhuman or cruel.
- RIGHT TO SHELTER: the Bench said, “There is another angle to this problem. It is not only the accused who lives in such property or owns such property. If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime onthe basis of them being related to an alleged accused person?
- PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT: In our view, if demolition of a house is permitted wherein number of 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 in the crime, it will amount to inflicting a collective punishment on the entire family or the families residing in such structure. In our considered view, our constitutional scheme and the criminal jurisprudence would never permit the same.
- PRINCIPLES OF CRIMINAL LAW: is guided by the presumption of innocence and natural justice.
COURT ORDER ON ILLEGAL DEMOLITION PAN INDIA GUIDELINES
The bench said we find it necessary to issue certain directions in exercise of our power under Article 142 of the Constitution to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State.
BUT IT COMES WITH A CAVEAT: At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.
SALIENT POINTS OF ORDER
- NOTICE: At least 15 –days notice for demolition.
- The notice shall be served upon the owner/occupier by a registered post.
- Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question.
- 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.
NOTICE CONTENTS: Notices should contain details like
A) nature of the unauthorized construction.
B) 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
E) 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.
PERSONAL HEARING: The designated authority shall give an opportunity of personal hearing to the person concerned. The minutes of such a hearing shall also be recorded.
FINAL ORDER: Upon hearing, the designated authority shall pass a final order. The final order shall contain:
- the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;
- As to whether the unauthorized construction is compoundable (means compromise can be reached), if it is not so, the reasons therefore
- if the designated authority finds that only part of the construction is unauthorized/noncompoundable, then the details thereof.
- why the extreme step of demolition is the only option available.
OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER
- If the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof.
- An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same.
- It is only such construction which is found to be unauthorized and not compoundable shall be demolished.
WILL IT IMPACT UP GOVT BULLDOZER JUSTICE?
A glance at the SC order copy shows the following where the Apex court praised the Uttar Pradesh govt’s affidavit on illegal demolition or popularly known as ‘Bulldozer Justice'.
Moreover, the Solicitor General of India Tushar Mehta had highlighted in the Supreme Court what UP municipal law says
- Every municipal law also provides for situations where demolitions may be carried out without notice.
- For instance, Section 26C of the 22 Uttar Pradesh Urban Planning and Development Act, 1973 states:
- “Section 26-C. Authority may without notice remove anything erected or deposited in contraventions of Act
- The Authority or an officer authorised by it in this behalf may, without notice, cause to be removed- (a) Any wall, fence, rail, post. Step, booth or other structure whether fixed or movable and whether of a permanent or temporary nature or any fixture which shall be erected, or set in or upon or over any street or upon or over any open channel, drain. well or tank contrary to the provisions of this Act. (b) Any stall, chair, bench, box, ladder, bale, board or shelf of any other thing whatever placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act.”
- It is submitted that a perusal of the Chart of demolitions submitted by the Petitioners (at pp. 28 – 32 of the Compilation of Suggestions submitted by the Ld. Nodal Senior Counsel), itself 23 notes that the demolitions at S. nos. 3, 4, 5, 6, 7, 10, 16, 22) were all of structures that amounted to illegal encroachment in public places, which itself has been carved out of this Hon'ble Court’s Order dt. 17.09.2024.
- At best, the illegal encroachers on the said public land/public place, may be granted 48 hours to vacate such encroachment. This Hon'ble Court in the Delhi Ceiling cases (MC Mehta v. Union of India), has also endorsed a 48 hour notice period in certain cases.
The BOTTOMLINE tells that the Wednesday order of Supreme Court has a caveat in its order directing to have pan India guideline for illegal demolition of structures of the so-called accused persons. It seems the UP government drive may bear little impact.
