Courtesy: Armaan Khanduja
The Supreme Court, in In Re: Directions in the matter of demolition of structures, issued directions, exercising powers vested in it by Article 142 of the Constitution of India, to regulate the demolition of structures by officers/officials of the state in the arbitrary exercise of their power.
The Court noted the distress caused by hasty demolitions, particularly to vulnerable groups such as women, children, and the elderly, and stated that demolitions must not occur without giving affected parties adequate time to challenge the order of demolition before an appropriate forum or to vacate and arrange their affairs. The Court stated that “Heavens would not fall on the authorities if they hold their hands for some period,” advocating for a humane and structured approach in demolition matters.
DIRECTIONS ISSUED:
- Show Cause Notice Before Demolition: No demolition can proceed without a prior show-cause notice served with at least a 15-day response time or as is provided as per municipal laws, whichever is later, and the same would start from the receipt of the said notice. The notice must be sent via registered post and also affixed conspicuously on the outer portion of the structure in question.
- Intimation to Collector: Since there have been multiple allegations of backdating, the Apex Court directed that as soon as the Show Cause Notice be served, an intimation must be sent to the Collector/ District Magistrate digitally by E-Mail, and the same shall be acknowledged by an Auto-generated Acknowledgement receipt from the Office of Collector/ District Magistrate. This E-Mail Address has to be assigned and communicated to all municipal authorities and other authorities in charge of building regulations within one month from the date of the judgment.
- Contents of the Notice: It should detail the nature of the alleged unauthorized construction, specific violations, grounds of demolition and documents required for the response. Furthermore, the notice must include the date fixed for the personal hearing and the authority before whom the Noticee must appear for a personal hearing.
- Personal Hearing: Authorities must provide the affected party a fair opportunity for a hearing. Minutes of the proceedings must be recorded, ensuring that the grievances of the affected party are adequately considered.
- Establishment of Digital Portal: The Court mandated that every municipal authority establish a digital portal within three months from the date of the judgment to host records of notices, replies, and demolition orders.
- Final Order and its contents: If a final order for demolition is issued, it should explicitly state the following:
- Contentions of the Noticee – Arguments or Grounds advanced by the Noticee,
- Whether or not construction is partially or wholly compoundable,
- Reasons as to why the construction is not compoundable, if any,
- If part of the construction is unauthorized/ non-compoundable, details of such part,
- the reasons for rejecting the arguments/ grounds,
- why demolition is the only viable option and why other options are not available
- Appeal and related provisions: The Court directed that no demolition orders be implemented for the duration of time provided for filing of appeal against the demolition order. In cases where there is no such appellate remedy provided, demolition orders should not be implemented for 15 days from the date of receipt. This window of time allows affected parties to challenge the decision or voluntarily comply by removing unauthorized structures. Even after this period, demolition must be limited to portions deemed non-compoundable.
- Opportunity to remove/ Demolish the Construction: An opportunity must be granted to the Occupier to remove the unauthorized construction/ demolish the same within a period of 15 days.
- Execution of Demolition: Authorities are required to prepare detailed inspection reports, signed by independent witnesses, before initiating action. The entire process must be recorded on video, with the footage and a demolition report submitted to the Municipal Commissioner and uploaded on the portal. The demolition report must contain a list of police officials and civic personnel who participated in the demolition process.
- Accountability and Contempt: The Court directed that violations of its directions would result in contempt proceedings against the concerned officer/officers. Additionally, if a demolition is found to contravene the Court’s orders, officers will be held responsible and will face personal liability, including the cost of restitution and damages.
These directions are not applicable in cases of unauthorized construction on public places such as roads, streets, footpaths, water bodies, river bodies, or abutting railway lines, and also in cases where there is an order for demolition made by a Court of law. The Supreme Court’s directives emphasize due process, transparency, and accountability in demolitions, ensuring rights of adverse parties are not violated. Moreover, the directions align with the Rule of Law, Principles of Natural Justice, doctrine of public trust and public accountability, and Principles of Criminal Justice.