Demolition Of House Of Accused Or Criminal Is Illegal And Unconstitutional

It is certainly a matter of some solace that after a very long span of time and so many incidents of repeated demolition of house of accused or criminal most unabashedly especially in UP among other States, we finally see that Supreme Court has got its act together and has not hesitated in saying most unequivocally in a most learned, laudable, landmark, logical and latest judgment titled In Re: Directions in the Matter of Demolition of Structures in Writ Petition (Civil) No. 295 of 2022 With Writ Petition (Criminal) No. 162 of 2022 and Writ Petition (Civil) No. 328 of 2022 and cited in Neutral Citation No.: 2024 INSC 866 and also in 2024 LiveLaw (SC) 884 that was pronounced as recently as on November 13, 2024 that the executive cannot demolish the houses/properties of persons only on the ground that they are accused or convicted in a crime. It was held that permitting such action by the executive is contrary to the rule of law and also a violation of the principle of separation of powers, as it is for the judiciary to pronounce on the guilt of a person. It really pleases the innermost cockles of my heart to note that the Apex Court in this leading case most forcefully held while taking potshots at repeated demolitions that, "The executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. Only on the basis of the accusations, if the executive demolishes the property/properties of such an accused person without following the due process of law. It would strike at the basic principle of rule of law and is not permissible. The executive cannot become a judge and decide that a person is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits."

We had seen earlier that the Apex Court as an interim measure had banned authorities from demolishing properties of those suspected of criminal activities without first seeking the Court's permission. It must be also recalled that the Apex Court had then heard the matter and reserved its key verdict on October 1. It is worth noting that the top court had pronounced this landmark judgment in a batch of petitions that were filed by Jamiat Ulema-i-Hind and various other petitioners who were most pained by this ruthless bulldozing of houses due to which for one criminal act of a person his whole family was made to undergo worst punishment for no fault of theirs which definitely cannot be ever justified under any circumstances!

We must note that this notable judgment by Apex Court authored by Hon'ble Mr Justice BR Gavai for himself and Hon'ble Mr Justice KV Viswanathan begins with the famous adage that, "To have one's own home, one's own courtyard - this dream lives in every heart. It's a longing that never fades, to never lose the dream of a home." This is how the importance of shelter has been described by a famous Hindi poet 'Pradeep'. It is a dream of every person, every family to have a shelter above their heads. A house is an embodiment of the collective hopes of a family or individuals' stability and security."

It is very rightly pointed out in this most commendable judgment that, "The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where "might was right". In our constitution, which rests on the foundation of 'the rule of law', such high-handed and arbitrary actions have no place. Such excesses at the hands of the executive will have to be dealt with the heavy hand of the law. Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law."

It must be also mentioned that the Apex Court underscored that house demolition cannot be an action against a person convicted of an offence: "Such an action also cannot be done in respect of a person who is convicted of an offence. Even in the case of such a person the property/properties cannot be demolished without following the due process as prescribed by law. Such an action by the executive would be wholly arbitrary and would amount to an abuse of process of law. The executive in such a case would be guilty of taking the the law in his hand and giving a go-bye to the principle of the rule of law." The Court also held that the public officials who demolish the properties in such a manner should be held squarely accountable. While highlighting the importance of restitution, the Apex Court observed that, "Public officials who take law in their hands and act in such a high-handed manner must be fastened with accountability..." We need to also note that the Court also observed that such actions amount to imposing "collective punishment" on the family of the accused/convict. Further, when properties are selectively demolished, there is a presumption that it was a malafide action. It was also held that, "When a particular structure is chosen for demolition all of a sudden, and the rest of similar properties are not touched, the presumption could be that the real motive was not the illegal structure but the action of penalising without trial."

What really baffles me most is that why in big States like UP where we see maximum cases of bulldozer demolishing, why there is only one High Court Bench created 76 years ago in 1948 by Pandit Jawaharlal Nehru so close to Allahabad at Lucknow in Eastern UP alone and nowhere else even though UP tops the States list in having maximum number of pending cases and here too it is West UP which owes for majority of pending cases of UP as was acknowledged by Justice Jaswant Singh Commission headed by former Supreme Court Judge appointed by Centre itself about 50 years ago and it recommended permanent Bench for West UP at Agra yet not created and in States like Maharashtra which already had multiple High Court Benches at Nagpur and Panaji, one more was created at Aurangabad but not a single for UP even though maximum 3 Benches were recommended for undivided UP? Why incumbent CM Shri Yogi Adityanath in January 2024 presented a recommendation to Allahabad High Court for Bench in West UP but withdrew it the very next day? Why even Supreme Court never dares to order more High Court Benches in UP especially in West UP which is the crying need of the hour also as litigants have to travel whole night and half day till not even Lucknow but till Allahabad to seek justice which in itself is the biggest injustice and biggest betrayal of Constitution?

It is most horrifying to see that the most populated State of India with maximum pending cases has just one Bench and smaller States have multiple High Court Benches but Supreme Court also what to talk about others never dares to speak up on this worst injustice perpetrated most ruthlessly due to which hilly areas of undivided UP for which two Benches were recommended at Dehradun and Nainital yet not one created and so they agitated with many of them even sacrificing their lives and ultimately it was given separate High Court and separate Statehood so that more Benches are created as was recommended even by 230th Report of the Law Commission of India more than 15 years ago! This is the darkest chapter in the history of the Supreme Court that it refused to take suo motu cognizance of such an urgent matter! Why Allahabad High Court is biggest High Court in whole world with maximum members in all courts among all the States and yet has just one Bench only? It is a settled proposition of law that tolerance of injustice in any form is a threat to justice in all forms in society still we see that this Bench issue has not been addressed or resolved even though lawyers of West UP have gone on strike for 6 months in 2001 and 2014-15 and strike every Saturday since last 43 years apart from so many other agitations and even hunger strikes yet no one has cared the least in such a compelling case! Why Supreme Court in last 78 years has never sought to address it is truly incomprehensible and everything is left to Centre as we saw when Apex Court in November 2018 dismissed a PIL on High Court Bench in West UP while conceding there is genuine need but said that it was for Centre to decide which has done just absolutely nothing on it and most fraudulently implemented Justice Jaswant Singh Commission's landmark recommendations only in few elite States which already had High Court Benches but not a single for UP for which maximum Benches were commended! This is the real tragedy and real rub! Will Supreme Court keep waiting till 100 years for Centre to act knowing fully well that for Lucknow so near to Alllahabad not even one year after independence was taken but on this we see most unfortunately that even the Apex Court chooses to maintain a deafening silence while not lagging behind in taking note of even cheating in Mayor election as we saw some time back in Chandigarh! It is high time and Supreme Court must order multiple High Court Benches in Uttar Pradesh which has just one just like Rajasthan and lawless Bihar has none yet no one ever bothers to even spare a food of thought on this! This is what pinches me most!

Directions to curb Bulldozer Justice

Coming back to core issue, the Apex Court gave the following directions to curb such "raw bulldozer justice":-

1. If order of demolition is passed then time has to be given to appeal this order.

2. No demolition is permissible without show cause notice. The notice is to be sent by registered post to the building owner and pasted outside the structure that is proposed to be demolished. At least 15 days from the date of notice and 7 days after the notice is served must be given before any further action is given.

3. The notice shall contain details of the nature of violations that led the authorities to propose demolition, the date on which a personal hearing for the affect party is fixed and before whom (which authority) it is fixed.

4. After the notice is served, intimation of the proposed action is to be sent to the Collector and District Magistrate (DM).

5. The Collector and DM are to appoint nodal officers in charge of demolition, etc. of municipal buildings.

6. A designated digital portal is to be provided where details of such notice and the order passed is made available

7. After personal hearing before the concerned authority, minutes shall be recorded. Once a final order is passed thereafter, it should answer if offence of constructing the unauthorised structure is compoundable. If only a part of the structure construction is found non-compoundable, it has to be examined why the extreme step of demolition is the only answer.

8. Orders passed (on determining whether demolition is required) shall be displayed on digital portal.

9. Opportunity must be given to the owner to demolish or remove the unauthorised structure within 15 days of the order and only if appellate body has not stayed the order, the steps of demolition shall take place

10. Demolition proceedings are to be videographed. The video recording is to be preserved.

11. A demolition report is also to be forwarded to the concerned municipal commissioner by email and shall also be displayed on the digital portal.

In sum, it is high time and all the State Governments especially UP must pay heed to what the Apex Court has held in this leading case and desist from demolishing houses and should instead most promptly work in creating more High Court Benches especially in West UP and so also in Gorakhpur which is in Purvanchal for whom incumbent CM Shri Yogi Adityanath thundered in Parliament 25 years ago for Bench and in 2015 even presented a Private Member Bill in Parliament and still even in his second term we see that nothing has materialized so far! I still earnestly hope that more High Court Benches are created in UP so that the job of the judiciary is done by the judiciary only and not the executive as the Apex Court has itself noted in this leading case so very succinctly, sincerely and suavely in this leading case! It is high time and Supreme Court must at least now take suo motu cognizance of this most pressing issue also which will end the strike by lawyers of West UP every Saturday that has been going on since May 1981 till date! The earlier this is resolved, the better it shall be in the interest of litigants for whom lawyers are agitating as it is the litigants who have to travel so far till Allahabad to seek justice which is just not done!