2024 Supreme(SC) 1033

SUPREME COURT OF INDIA
B.R. GAVAI, K.V. VISWANATHAN, JJ.
In Re: Directions in the matter of Demolition of Structures – Appellant
Writ Petition (Civil) No. 295 of 2022, Writ Petition (Civil) No. 328 of 2022, Writ Petition (Criminal) No. 162 of 2022
Decided On : 13-11-2024

IMPORTANT POINTS
(1) Demolition of residential and commercial properties by State machinery – No demolition should be carried out without a prior show cause notice returnable either in accordance with time provided by local municipal laws or within 15 days’ time from date of service of such notice, whichever is later.
(2) Rights of accused – Right to shelter is one of facets of Article 21 – Even incarcerated individuals, whether accused, undertrial, or convicts, have certain rights, as any other citizen – They have right to dignity and cannot be subjected to any cruel or inhuman treatment.
(3) Executive cannot replace Judiciary in performing its core functions.
(4) It is a dream of every person, every family to have a shelter above their heads.

Headnote:

(A) Constitution of India – Article 32 – Demolition of residential and commercial properties by State machinery – It is a dream of every person, every family to have a shelter above their heads – House is an embodiment of collective hopes of a family or individuals’ stability and security – No one is above law of land; everybody is equal before law – Under constitutional framework there is no scope for arbitrariness by officials – It is only courts which are independent adjudicators of rights of parties and under constitutional framework it is only they which can impose punishment – Law must be just and fair and also protect human rights and dignity of all members of society – At the same time, essential purpose of rule of law is to prevent abuse of power – Rule of law is an umbrella concept to protect citizens against power of State – It is integral to and necessary for democracy and good governance. (Paras 15, 16 and 19)

(B) Constitution of India – Article 32 – [Section 26C of Uttar Pradesh Urban Planning and Development Act, 1973] – Demolition of residential and commercial properties by State machinery – Rule of law has been described as a safeguard against arbitrary use of State power – It ensures that actions of Government and its authorities are governed by established legal principles, rather than arbitrary discretion – Concept of rule of law is not an abstract principle but is reflected in substantive content of various legal domains – Processes enshrined in constitutional law, criminal law and procedure are facets of rule of law and serve to regulate exercise of executive power – If executive acts as a Judge and inflicts penalty of demolition on a citizen on the ground that he is an accused, it violates principle of ‘separation of powers’ – In such matters public officials, who take law in their hands, should be made accountable for such high-handed actions – For executive to act in a transparent manner so as to avoid vice of arbitrariness, certain binding directives need to be formulated – 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 crime, it will amount to inflicting a collective punishment on entire family or families residing in such structure – Our constitutional scheme and criminal jurisprudence would never permit the same. (Paras 29, 31, 33, 53 and 54)

(C) Constitutional Law – Doctrine of Separation of Powers – Our Constitution has earmarked separate areas for exercise of powers and for discharge of duties to three organs of democracy, viz., Executive, Legislature, and Judiciary – Adjudicatory function is entrusted to Judiciary – Principle of separation of power is a part of basic structure – Our Constitution does not contemplate assumption, by one organ or part of State, of functions that essentially belong to another – Rights would be meaningless if violation was not subject to judicial review – Executive cannot replace Judiciary in performing its core functions – Executive actions must be consistent with maintaining public trust – When executive acts in breach of principles of ‘rule of law’ and ‘separation of powers’, doctrine of public trust and accountability would come into play. (Paras 34, 36, 37, 40, 44, 45 and 46)

(D) Constitution of India – Article 21 – Rights of accused – Right to shelter is one of facets of Article 21 – Even incarcerated individuals, whether accused, undertrial, or convicts, have certain rights, as any other citizen – They have right to dignity and cannot be subjected to any cruel or inhuman treatment – Punishment awarded to such persons has to be in accordance with law – Such punishment cannot be inhuman or cruel – No one can take away fundamental rights of prisoners or accused – State and its officials cannot take arbitrary and excessive measures against accused – One of measures for redressing grievance for violation of a right would be to grant compensation – At the same time, if any of officers of State has abused his powers or acted in a totally arbitrary or mala fide manner, he cannot be spared for such an illegal, arbitrary, mala fide exercise of power – Right to fair trial is essential in upholding rule of law and protecting individual liberties – Trial must be fair and open, but not prejudiced by public clamour – Precepts of natural justice are to ensure that legal order will be impartially and regularly maintained – Accused cannot be declared guilty unless proven so beyond reasonable doubt before a court of law – Executive cannot declare a person guilty, as this process is fundamental aspect of judicial review – Only on the basis of accusations, if executive demolishes property/properties of such an accused person without following due process of law, it would strike at basic principle of rule of law and is not permissible. (Paras 55, 60, 62, 64, 66, 71, 78 and 88)

(E) Constitution of India – Article 142 – Demolition of residential and commercial properties by State machinery – In order to allay fears in minds of citizens with regard to arbitrary exercise of power by officers/officials of State, it is necessary to issue certain directions in exercise of power under Article 142 of Constitution – No demolition should be carried out without a prior show cause notice returnable either in accordance with time provided by local municipal laws or within 15 days’ time from date of service of such notice, whichever is later – Designated authority shall give opportunity of personal hearing to person concerned – Upon hearing, designated authority shall pass a final order – Opportunity should be given to owner/occupier to remove unauthorized construction or demolish the same within a period of 15 days – It is only such construction which is found to be unauthorized and not compoundable shall be demolished – Proceedings of demolition shall be video-graphed – Elaborate directions issued. (Paras 90 and 91)

Facts of the case:

This batch of Writ Petitions filed under Article 32 of the Constitution of India seeks to raise grievance on behalf of various citizens whose residential and commercial properties have been demolished by State machinery, without following the due process of law, on the ground of them being involved as an accused in criminal offences. Petitions seek a direction to Union of India and the concerned States directing them that no precipitative action be taken in respect of residential or commercial properties of any accused in any criminal proceedings. It has also been prayed that a direction be issued for strict action to be taken against officials of State machinery who have participated or participate in future in such an illegal exercise of demolition.

Question that will have to be considered is, as to whether properties of persons, who are accused of committing certain crimes or for that matter even convicted for commission of criminal offences, can be demolished without following due process of law or not?

Findings of Court:

Registrar (Judicial) directed to circulate copy of this Judgment to Chief Secretaries of all States/Union Territories and Registrar Generals of all High Courts. All State Governments shall issue circulars to all District Magistrates and local authorities intimating them about directions issued by this Court.

Result : Guidelines issued.