Supreme Court: Demolition Of House For Crime Of One Person Amounts To 'Collective Punishment' On Entire Family Which Is Impermissible

VIII. PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT

87. Right to life is a fundamental right. As already discussed herein above, with the expanded scope of law, the right to shelter has also been considered as one of the facets of Article 21 of the Constitution. In one structure, various people or maybe even a few families could reside. The question that is required to be considered is, as to whether if only one of the residents of such a structure is an Accused or convicted in a crime, could the authorities be permitted to demolish the entire structure thereby removing the shelter from the heads of the persons who are not directly or indirectly related with the commission of crime.

88. It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent till he is held guilty. 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.

89. In this respect, it will be apposite to refer to the following observations of Justice Krishna Iyer in the case of Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor Sabha and Ors.   MANU/SC/0369/1979 : 1979:INSC:244 : (1980) 2 SCC 593:

111. The cardinal distinction in our punitive jurisprudence between a commission of enquiry and a court of adjudication, between the cumulative causes of a calamity and the specific guilt of a particular person, is that speaking generally, we have rejected, as a nation, the theory of community guilt and collective punishment and instead that no man shall be punished except for his own guilt. Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency. Blanket attainder of a bulk of citizens on any vicarious theory for the gross sins of some only, is easy to apply but obnoxious in principle.

 IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

Read full Judgment here: Click here.

Print Page

Supreme Court: Right To Shelter A Facet Of Article 21; State Must Satisfy Why Entire Property Needs To Be Demolished

 VII. RIGHT TO SHELTER

76. 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 only on the basis of them being related to an alleged Accused person? What is their mistake if their relative is arrayed as an Accused in some complaint or F.I.R.? As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution.

78. The right to shelter is one of the facets of Article 21. Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional.

81. The position is disputed by the learned Counsels appearing on behalf of the Petitioners/applicants. It is stated that the chain of events clearly depicts that the demolition of the houses was an immediate reflection of the persons being implicated in crimes. It was submitted that the time gap between the person being named as an Accused and demolition of his property/properties made it apparent that the punishment of demolition was inflicted by the executive on such person being arrayed as an Accused. It was also submitted that in case of demolition of the property of an alleged Accused, it is difficult to believe that only a single construction belonging to an Accused is unauthorized construction, whereas all other structures in the vicinity are legal and authorized as per local laws.

82. Though the learned SG may be right in submitting that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the Accused persons, however, 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 fide may loom large. In such cases, where the authorities indulge into arbitrary pick and choose of the structures and it is 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 penalizing the Accused without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalize a person Accused by demolishing the structure.

83. While considering the issue with regard to the demolition of the houses which are required to be demolished for breach of the local laws, we find that the principle of the Rule of law needs to be considered even in the municipal laws. There may be certain unauthorized constructions which could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed. In such cases, the extreme step of demolition of the property/house property would, in our view, be disproportionate.

84. As already discussed herein above, the right to shelter is one of the facets of Article 21 of the Constitution. If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available. 

86. It is also to be noted that the construction of a house has an aspect of socio-economic rights. For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one's head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

Read full Judgment here: Click here.

Print Page

Supreme Court guidelines regarding demolition of construction by public Authorities- Bulldozer justice

IX. DIRECTIONS

90. 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 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. 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.

91. 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.

A. NOTICE

i. 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' time from the date of service of such notice, whichever is later.

ii. 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.

iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.

iv. 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.

v. The notice shall contain the details regarding:

a. the nature of the unauthorized construction.

b. the 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;

vi. 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.

B. PERSONAL HEARING

i. The designated authority shall give an opportunity of personal hearing to the person concerned.

ii. The minutes of such a hearing shall also be recorded.

C. FINAL ORDER

i. Upon hearing, the designated authority shall pass a final order.

ii. The final order shall contain:

a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;

b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor;

c. if the designated authority finds that only part of the construction is unauthorized/non- compoundable, then the details thereof.

d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available.

D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER.

i. We further direct that 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. The order shall also be displayed on the digital portal as stated above.

ii. 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.

iii. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas.

E. PROCEEDINGS OF DEMOLITION

i. 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.

ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal.

92. Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us.

93. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution.

94. The officials should also be informed that if the demolition is found to be in violation of 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.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

Print Page