Bulldozer Justice: A Legal and Social Perspective

On, 1st, December, 2024 Today, we open our New Chamber in the name of The 3rd Generation of Legal Fraternity, on august day we thought to write an article which help the societies as well public officers at large, so we refer the recent case law of our Apex Court in reference  of Directions in the matter of Demolition of Structures  in WRIT PETITION (CIVIL) NO. 295 OF 2022 with WRIT PETITION (CRIMINAL) NO.162 OF 2022 along with WRIT PETITION (CIVIL) NO. 328 OF 2022 by Hon’ble Mr. Justice B.R.Gavai [Curom Justice B. R. GAVAI & Justice K. V. VISWANATHAN]. 

BACKGROUND

This Writ Petitions are filed under Article 32 of the Constitution of India seeks to raise the grievance on behalf of various citizens whose residential and commercial properties have been demolished by the state machinery, without following the due process of law, on the ground of them being involved as an accused in criminal offences. 

This judgment is started with Kavita written by Hindi famous peot Pradip 

"अपना घर हो, अपना आंगन हो, 
इस ख्वाब में हर कोई जीता है। 
इंसान के दिल की ये चाहतहै,
एक घर का सपना कभी नछूटे।"

(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.)

Point to determined

• whether the executive should be permitted to take away the shelter of a family or families as a measure for infliction of penalty on a person who is accused in a crime ? 
• whether the properties of the persons, who are accused of committing certain crimes or for that matter even convicted for commission of criminal offences, can be demolished without following the due process of law or not?

To this aspect Hon’ble Apex Court has refer to the following observation of Lord Denning in the case of Southam v. Smout

“‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail– its roof may shake the wind may blow through it–the storm may enter–the rain may enter– but the King of England cannot enter–all his force dares not cross the threshold of the ruined tenement.’ So be it –unless he has justification by law.”

Relief claimed

(1) The petitions inter alia seek a direction to the 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.

(2) Direction be issued for strict action to be taken against the official so the state machinery who have participated or participate in future in such an illegal exercise of demolition

For considering the said question, the Hon’ble Apex Court has to determined following legal concepts;

1. The Principle of the Rule of law.
2. The Separation of Powers.
3. The Doctrine of Public Trust in respect of government officials holding their offices.
4. Rights Guaranted under the Constitution.
5. Fairness in the Criminal Justice System. 
6. Right to shelter 

(1) RULE OF LAW

The rule of law has been succinctly conceptualized by AV Dicey (Introduction to the Study of the Law of the Constitution), with this context the essential purpose of the rule of law is to prevent the abuse of power has summarized by Apex Court as under :

• No one is above the law of the land that every body is equal before the law

• Under the constitutional framework there is no scope for arbitrariness by officials.

• No one can be punished or made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. 

• It is only the courts which are independent adjudicators of the rights of the parties and under the constitutional framework it is only they which can impose punishment.

• Government officials and citizens are bound by and have to abide by the law.

• There “must be mechanisms or institutions that enforce the legal rules if they are breached”. 

• Courts should be available to enforce the law and should employ fair procedures”. 

• The law must be just and fair, and “protect the human rights and dignity of all members of society”.. 

Rule of the law as per Lord Bingham

“Ministers and public offenders at all levels must exercise the powers conferred on them in good faith, fairly for the  purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonable”.

The rule of law has also been described as “an umbrella concept for a number of legal land institutional instruments to protect citizens against the power of the state”. Moreover, “Rule of law is integral to and necessary for democracy and good governance” because attempts to democratize without a functional legal system in place have resulted in social disorder”.

With this regard the Hon’ble Apex Court has observed

It can thus be seen that the law must be just and fair, and also protect the human rights and dignity of all members of society. At the same time, the essential purpose of the rule of law is to prevent the abuse of power. The rule of law is an umbrella concept to protect citizens against the power of the State. It is integral to and necessary for democracy and good governance

While we consider this aspect, we are of the view that the concept of rule of law needs to be considered broadly. The legal sanctity of practices in the past such as slavery in the United States, apartheid in South Africa, or untouchability in India would have to be considered as antitheses to the rule of law

Case law discussed on Rule Of Law

The relevance of the rule of law in our constitutional system has been considered by Apex Court in various judgments. 

In the case of Smt. Indira Nehru Gandhi v. Shri Raj Narain , has held the rule of law to be part of the basic structure of the Constitution. (1976) 2 SCR 347.

In the case of National Human Rights Commission v. State of Arunachal Pradesh and another, has observed thus

“No State Government worth the name can tolerate such threats by one group of person to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law.

In case of Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., [2018] 8 S.C.R. 1, while dealing with the constitutionality of the Aadhaar Act, 2016, this Court held:

“As the interpreter of the constitution, its the duty of this court to be vigilant against state action that threatens to upset the fine balance between the power of the state and rights of citizens and to safeguard the liberties that in here in our citizens.’’

“The rule of law is the cornerstone of modern democratic societies and protects the foundational values of a democracy. When the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary State power.

In case of Rojer Mathew v. SouthI ndian Bank Ltd. & Ors. reported in [2019] 16 S.C.R. 1 has held:

If Rule of law is absent, there is no accountability, there is abuse of power and corruption. When the Rule of law disappears, we are ruled not by laws but by the idiosyncrasies and whims of those in power.

In case of Bilkis Yakub Rasool v. Union of India & Others, reported in [2024] 1 S.C.R. 743 the concept of the rule of law was  discussed in detail. It was held:

Rule of law means wherever and whenever the state fail stop perform its duties, the Court would step in to ensure that the Rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, in action or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes. Breach of the Rule of law, amounts to negation of equality under Article 14 of the Constitution.

The concept of Rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts. Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of Rule of law. There can be no Rule of law if there is no equality before the law; and Rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would lose their significance if the courts don’t step in to enforce the Rule of law. Thus, the judiciary is the guardian of the Rule of law and the central pillar of a democratic State. Therefore, the judiciary has to perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it.

Further, in a democracy where Rule of law is its essence, it has to be preserved and enforced particularly by courts of law. Compassion and sympathy have no role to play where Rule of law is required to be enforced. If the Rule of law has to be preserved as the essence of democracy, it is the duty of the courts to enforce the same without fear or favour, affection or ill-will.”

With this regard the Hon’ble Apex Court has observed

• It is thus well settled that the rule of law has been described as a safeguard against the arbitrary use of the State power. It ensures that the actions of the Government and its authorities are governed by established legal principles, rather than arbitrary discretion. Whenever the citizens in the form of mobs have broken the law to vandalize or to declare threats, the Court has cast an obligation on the State to prevent such threats or assaults. This obligation underscores the State’s responsibility to maintain law and order and protect citizens from unlawful actions that undermine the rule of law itself.
• It is not necessary to state that failure to uphold these obligations can erode public confidence in the justice system, leading to an environment where the rule of law is compromised by lawlessness. Ensuring the preservation of the principle of rule of law and the protection of the civil rights and liberties of citizens is essential for protecting the constitutional democracy.
• The concept of the rule of law is not an abstract principle but is reflected in the substantive content of various legal domains. In this regard, it would be apt to refer to the following articulation of the rule of laws
• It has been emphasized that the rule of law provides a frame work and value system to rein in the arbitrary exercise of state power and to prevent the abuse of power, to ensure predictability and stability, to make sure that individuals know that their lives, their liberty, their property will not be taken away from them arbitrarily and abusively.
• It can thus be said that the processes enshrined in constitutional law, criminal law and procedure are facets of the rule of law and thus serve to regulate the exercise of executive power

(2) SEPARATION OF POWERS. (Observation)

       The doctrine of separation of powers, as envisaged in our Constitution. Our Constitution has earmarked separate areas for exercise of powers and for discharge of duties to the three organs of the democracy, viz., the Executive, the Legislature, and the Judiciary. The Legislature is empowered to enact the laws within the framework of the Constitution; the Executive is entrusted with the powers and is expected to discharge its duties in accordance with the provisions of the Constitution and the laws as enacted by the competent Legislature. The adjudicatory function is entrusted to the Judiciary. 

Case Law Discussed on the principle governing the Separation Of Powers.

In case of Rai Sahib Ram Jawaya Kapur and others v. State of Punjab, reported in AIR1955 SC 549 constitution Bench of Hon’ble Apex Court observed thus:

“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.

In the case of Indira Nehru Gandhi v. Raj Narain and another  reiterating the position that the principle of separation of power is a part of the basic structure.

In the case of I.R. Coelho (Dead) by Lrs.  v. Stateof T.N. ( 9 judge) the doctrine of the Separation of Powers as a system of “check and balances”. The Hon’ble Apex Court observed thus:

“Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.

In the case of State of U.P. and others v. Jeet S. Bishtandan others (2007) 6 SCC 586 The Apex Court was held;

“If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. Butin today’s world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.”

In the case of Kalpana Mehta and others v. Union of India and others, the Constitution Bench of Hon’ble Apex Court has held

“…the concept of the constitutional limitation is a facet of the doctrine of separation of powers. At this stage, we may clearly state that there can really be no straitjacket approach in the sphere of separation of powers when issues involve democracy, the essential morality that flows from the Constitution, interest of the citizens in certain spheres like environment, sustenance of social interest, etc. and empowering the populace with the right to information or right to know in matters relating to candidates contesting election. There can be many an example where this Court has issued directions to the executive and also formulated guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualisation and fructification of statutory rights.”

With this regard the Hon’ble Apex Court has observed

• The Constitution Bench of this Court though admits that the Indian Constitution does not recognize any rigid separation of powers, yet holds that, by upsetting the fine balance between the three organs, the fundamental premises of a democratic government to which we have pledged, will be destroyed. The Court observed that the Indian Parliament will not direct that an accused in a pending case shall stand acquitted or that a suit shall stand decreed. 
• It could thus be seen that the Constitution Bench of this Court has held that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.
• This Court reiterated that equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. It has been held that there can be no rule of law if there is no equality before the law. It observed that rights would be meaningless if the violation was not subject to the judicial review. The Court records the danger of legislative, executive and judicial powers being vested in one organ and, therefore, held that the duty to decide whether the limits have been transgressed has been placed on the judiciary. 
• The aforesaid decision would lead to a question, as to whether when the adjudicatory functions are entrusted to the judiciary, can the officers of the State Government take upon themselves the adjudicatory function and without a person under going a trial be inflicted with a punishment of demolition of his properties. In our view, such a situation would be wholly impermissible in our constitutional set up. The executive cannot replace the judiciary in performing its core functions.

(3)  DOCTRINE OF PUBLIC TRUST AND PUBLIC ACCOUNTABILITY

It was held by Hon’ble Apex Court thus;

• When we are considering the issue with regards to Rule of law and Separation of power we will also have to take in to effect the matters where the executive transgresses its power and act as a Judge and demolished the structures of the persons without following the procedure prescribed by law. Though the doctrine of public trust has been largely applied by this Court in environmental matters, it cannot be disputed that the executive exercises its powers as a ‘trustee’ of the citizens. Therefore, the executive actions must be consistent with maintaining public trust.
• Conversely, when the executive acts in breach of the principles of Rule of Law and Separation of Powers the Doctrine of Public Trust and Accountability would come in to play. 

In case of Centre for Public Interest Litigation v. Union of India reported in  [(2005) 8SCC 202, the Hon’ble Apex Court declared has held;

That state actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bonafides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied.

It was held by Apex Court on this aspect thus;

The doctrine of “full faith and credit” applies to the acts done by the officers. There is a presumptive evidence of regularity in official acts, done or performed, and there should be faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed. Avoidance and delay in decision-making process in government hierarchy is a matter of growing concern. Sometimes delayed decisions can cause prejudice to the rights of the parties besides there being violation of the statutory rule.

Principles of public accountability are applicable to such officers/officials with all their rigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, which are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects, not only in the decision-making process but in the final decision as well. Every officer in the hierarchy of the State, by virtue of his being “public officer” or “public servant”, is accountable for his decisions to the public as well as to the State. This concept of dual responsibility should be applied with its rigours in the larger public interest and for proper governance.

This Court held that the well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. It has been held that the doctrine of “full faith and credit” applies to the acts done by the officers in the  hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.

If the executive in an arbitrary manner demolishes the houses of citizens only on the ground that they are accused of a crime, then it acts contrary to the principles of ‘rule of law’. If the executive acts as a judge and inflicts penalty of demolition on a citizen on the ground that he is an accused, it violates the principle of ‘separation of powers’. We are of the view that in such matters the public officials, who take the law in their hands, should be made accountable for such high-handed actions.

(4) RIGHTS OF THE ACCUSED UNDER THE CONSTITUTION

It was held by Apex Court on this aspect thus;

While we consider the issue in this case, we will have to reiterate that even the incarcerated individuals, whether accused, under trial, or convicts, have certain rights, as any other citizen. They have a right to dignity and cannot be subjected to any cruel or inhuman treatment. The punishment awarded to such persons has to be in accordance with law. 

Accused or the convicts have certain rights and safeguards in the form of constitutional provisions and criminal law. The State and its officials cannot take arbitrary and excessive measures against the accused or for that matter even against the convicts without following the due process as sanctioned by law. When the right of an accused or a convict is violated on account of illegal or arbitrary exercise of power by the State or its officials or on account of their negligence, inaction, or arbitrary action, there has to be an institutional accountability. One of the measures for redressing the grievance for violation of a right would be to grant compensation. At the same time, if any of the officers of the State has abused his powers or acted in a totally arbitrary or malafide manner, he cannot be spared for such an illegal, arbitrary, malafide exercise of power.

(5) Fairness in the Criminal Justice System.

It was held by Apex Court on this aspect thus;

The right to a fair trial is essential in upholding the rule of law and protecting individual liberties. It ensures that the principles of natural justice and fair process are being strictly followed.

It is thus required that the trial must be fair and open, but not prejudiced by public clamor. The precepts of natural justice are to ensure that the legal order will be impartially and regularly maintained. An accused cannot be declared guilty, unless proven so beyond reasonable doubt before a court of law. They cannot be declared guilty, unless there is a fair trial.

In this regard, the Hon’ble Apex Court in the case of Himanshu Singh Sabharwal v. State of Madhya Pradesh and others, where it was held:

“Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunities to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and part is an trial…

The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.”

In the case of State of Maharashtra v. Champalal Punjaji Shah, that the right to a fair and speedy trial is enshrined under the right to life guaranteed under the Constitution. 

As discussed here in above, the rule of law, the rights of the citizens guaranteed under the Constitution, and the principles of natural justice would be essential requirements. If a citizen’s house is demolished merely because he is an accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason. Firstly, 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 accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits.

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.

As we have already said, 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 law in his hand and giving a go-bye to the principle of the rule of law.

(6) RIGHT TO SHELTER

It was held by Apex Court on this aspect thus;

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. 

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.

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.

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.

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.

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.

It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent he is held guilty. In our view, if demolition of house is permitted wherein number of persons of a family or a few families resides 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 criminal jurisprudence would never permit the same.

DIRECTIONS

The Hon’ble Apex Court has frame guideline and direction to this effects. But these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, a butting 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

• 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 notice, 
• 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.
• The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.
• To prevent any allegation of back dating, 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 ane mail address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from today.
• The notice shall contain the details regarding:
  1. the nature of the unauthorized construction.
  2. the details of the specific violation and the grounds of demolition.
  3. A list of documents that the noticee is required to furnish along with his reply.
  4. 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;
• 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

• The designated authority shall give an opportunity of personal hearing to the person concerned.
• The minutes of such a hearing shall also be recorded.

 (C).    FINAL ORDER

• Upon hearing, the designated authority shall pass a final order.
• The final order shall contain:
  1. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;
  2. as to whether the unauthorized construction is compoundable, if it is not so, the reasons there for;
  3. if the designated authority finds that only partof the construction is unauthorized/ non- compoundable, then the details thereof.
  4. 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.

1. 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 there of. The order shall also be displayed on the digital portal as stated above.
2. 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.
3. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas.

(E). PROCEEDINGS OF DEMOLITION

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

The Hon’ble Apex further directed thus;

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.

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Prepared By :

Adv. Shahezad Shaikh (Gujarat High Court) +91 9574599713
Adv. Hasnain Shaikh (Gujarat High Court) +91 9998826259

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