The Supreme Court on Wednesday in a detailed verdict has laid down detailed framework and pan-India guidelines for state government and its officers in order to curb the "Bulldozer justice" where houses of persons accused or convicted in a crime are demolished by the governments.
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, the top court issued certain directions in exercise of its 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," the top court stated in its verdict laying down stringent guidelines to carry out demolition pan-India.
The court however clarified that these directions will not be applicable if there is an unauthorised 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.
Following are the Supreme Court guidelines states have to follow in carrying out demolition of properties:
A. Notice
1. 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.
2. 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.
3. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.
4. 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.
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5. The notice shall contain the details regarding:
a. The nature of the unauthorised construction;
b. The details of the specific violation and the grounds of demolition.
c. A list of documents that the notice 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;
6. 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 notice, and if the designated authority disagrees with the same, the reasons thereof;
b. as to whether the unauthorised construction is compoundable, if it is not so, the reasons therefore;
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 unauthorised 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 unauthorised 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.
Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution.
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.