“If a property is demolished only because a person is accused, it is wholly unconstitutional. Executive cannot determine who is guilty and cannot become a judge to decide if he is guilty or not and such an act will be a transgression of limits,” a Bench led by Justice BR Gavai said.
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,” it said.
The top court, however, said, “We clarify that these directions will not be applicable if there is any unauthorized structure in any public place such as 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.”
“The chilling side of bulldozer reminds us that constitutional values and ethos do not allow such abuse of power. Such an action also cannot be against someone who is convicted of a crime since such an action by executive will be illegal and executive shall be then guilty of taking law into their own hands,” said the Bench which also included Justice KV Viswanathan.
Exercising its powers under Article 142 of the Constitution, the Bench laid down detailed guidelines on demolition of properties. It said no demolition should be carried out without a 15-day prior show cause notice and without giving a hearing to the affected persons.
It said the affected party needed to be given some time to challenge the order of demolition before an appropriate forum. “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 added.
The Bench said, “The State cannot replace the Judiciary in performing core functions and will be wholly unjust if the State demolishes such properties without following due process of law. If the Executive in an arbitrary manner demolishes property of a person only on the basis that person is accused of crime it violates separation of powers,” it said.
“When a particular structure is chosen all of a sudden for demolition, and the rest of the similarly situated structures in the same vicinity are not even being touched, mala fides may loom large.
“In such cases where the authorities indulge in arbitrary pick and choose of the structures and it’s established that soon before initiation of such an action an occupant of the structure was found to be involved in a criminal case a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure but an action of penalising the accused without even trying him before the court of law,” it said, adding such a presumption was rebuttable.
The top court said that violation of any of the directions would lead to initiation of contempt proceedings, in addition to prosecution and if a demolition was found to be in violation of the its orders, the officers concerned will be held responsible for restitution of the demolished property.
“The Registrar Judicial is directed to circulate a copy of this judgment to the Chief Secretaries of all the states, union territories and 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 Bench said.
