TaxTMI 
TaxTMI 
2024 (11) TMI 1414
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....ir, Adv. Mr. A D N Rao, Adv. Ms. Ankita Choudhary Rathi, Adv. Mr. Vinayak Sharma, Adv. Mr. Shiv Mangal Sharma, Adv. Mr. M.R. Shamshad,Sr.Adv. Mr. Farrukh Rasheed,AOR Mr. Arijit Sarkar,Adv. Ms. Z. Hasan,Adv. Mr. Salman Khurshid, Sr. Adv. Mr. Aftab Ali Khan, AOR Mr. Abdul Karim Ansari, Adv. Mr. Brahmjeet Singh, Adv. Ms. Azra Rehman, Adv. Mr. M. Z. Chaudhary, Adv. Mr. Ali Safeer Farooqi, Adv. Ms. Sidra Khan, Adv. Mr. Tanveer Ahmad Khan,Adv. Mr. Tauqeer Ahmad Khan,Adv. Ms. Seema,Adv. Mrs. Kumudini Priyadarshni,Adv. Mr. Saurabh Mishra, Sr. Adv. Mr. Bharat Singh, A.A.G. Mr. D.s. Parmar, A.A.G. Mr. Sarad Kumar Singhania, AOR Ms. Rashmi Singhania, Adv. Dr. Abhishek Manu Singhvi,Sr.Adv. Mr. Sarim Naved,Adv. Mr. Saurabh Sagar,Adv. Mr. Shahid Nadeem,Adv. Mr. Arif Ali,Adv. Mr. Mujahid Ahmed,Adv. Mr. Wasif Rehman,Adv. Ms. Sugandha Anand , AOR Mr. C.U. Singh, Sr. Adv. Mr. Ujjwal Singh, AOR Ms. Tasmiya Taleha, Adv. Ms. Bidya Mohanty, Adv. Mr. Abhishek Kalaiyarasan, Adv. Ms. Katyayani Suhrud, Adv. Mr. Sanjay Hegde,Sr.Adv. Mr. Anas Tanwir, AOR Ebad Ur Rahman,Adv. Mr. Masoom Raj Singh,Adv. Mr. Mohammad Asif Abbas,Adv. Mr. Zaid Raza,Adv. 2 Mr. Zainab Shaikh,Adv. Mr. Raghav Gupta,Adv. Mr. Mayank Surya....
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....very 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. An important question as to 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 under our constitutional scheme or not arises for consideration. Before we proceed with our judgment, we may gainfully refer to the following observation of Lord Denning in the case of Southam v. Smout (1964) 1 QB 308 at 320 : "'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." I. BACKGROUND 1. This batch of Writ Petitions 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, wit....
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....ructure 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". 7. Thereafter, we heard the matter at length on 1st October 2024. 8. We have heard Shri Abhishek Manu Singhvi, Shri M.R. Shamshad, Shri Sanjay Hegde, learned Senior Counsel appearing for the petitioners, Shri Tushar Mehta, learned Solicitor General of India ("SG" for short), appearing for the Union of India as well as for some of the States, Shri Nachiketa Joshi, learned Senior Counsel and Shri C.U. Singh, Smt. Nitya Ramakrishnan, learned Senior Counsel and Shri Mohd. Nizammudin Pasha, Smt. Fauzia Shakil and Smt. Rashmi Singh, learned counsel appearing for their respective applicant(s) seeking intervention/impleadment. 9. In pursuance to our order dated 2nd September 2024, various learned counsel had given their suggestions. 10. Shri Nachiketa Joshi, learned Senior Counsel has made a compilation of the suggestions given by different learned counsel on different points. The same are reproduced herein below: S.No. TOPIC/ ISSUE COUNSEL'S/ PARTY NAME SUMMARY OF ....
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....d building/development exists, a show cause notice must be served to both the owner and occupier before any action is taken. * The notice must also be pasted on the property and published in three newspapers with over one lakh circulation-one each in Hindi, English, and a third language designated by the state. * The newspaper notice only needs to include the owner's and occupier's names, property address, and a link to a website with the full notice and timestamp. Content of the Notice: The notice must specify the legal provisions under which it is issued, the violations identified, and the specific portion and extent of the building/structure that is deemed illegal. Time for Response: The notice must provide a response period of no less than 45 days and no more than 60 days for the owner/occupier to justify why the structure should not be demolished. Notice to Family Members: If the owner or occupier cannot be found, the notice may be served to a member of their immediate family, with additional time for response granted in such cases Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs A.Publication of notice of demolition in at least 10 d....
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....age an Advocate/Counsel and may also be allowed to appear in- person. 2. To present evidence that the construction is legal. 3. The opportunity to compound the offence, that is, to make modifications to comply with the regulations. 3. PROPOSED ACTION SHOULD BE PROPORTIONAL TO THE VIOLATION Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. The authority shall in the meanwhile also consider the nature and extent of unauthorized construction, if the unauthorized construction can be regularized or compounded on payment of fee/penalty under applicable law. If yes, then the owner shall be intimated of such avenue and provided some reasonable time, not being less than 4 weeks, to avail the option. In case the breaches are technical and inconsequential in character, and the house/commercial establishment can be saved by removing the offending part, the owner may be permitted to remove the encroachment and save the building. The administrative action should be proportional to the alleged breach and demolition should be the last option. 4. ORDER/ NOTICE OF DEMOLITION &nbs....
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....al officer is required before proceeding with the demolition. Mr. M.R. Shamshad, Sr. Adv. Survey of the Neighborhood: If an officer believes a dwelling unit, house, or shop is subject to demolition, they must first conduct a neighborhood survey to determine how many properties in the area are also liable for demolition based on municipal law. Preparation of Demolition List: After completing the neighborhood survey, the officer shall prepare a list of all houses or units deemed fully or partially liable for demolition. Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs Order of demolition must record reasons therefor inter alia including the following: I. Documents relied upon by owner to prove ownership/validity of property; II. Relevant provisions under which property is illegal/encroachment; III. Alternative rehabilitation or compensation provided to owner; IV. Time given to owner to move belongings etc. from property sought to be demolished; No order of demolition ought to be passed till sufficient time has been granted to the owner of property to take recourse to effective legal remedies including appeal/challenge agai....
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.... 7. MALFEA SANCE OF ERRING OFFICERS AND ACCOUNTABILITY Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. I. If the proposed action of demolition was in bad faith and actuated by malice, disciplinary proceeding may be initiated against the erring officers under their applicable service rules. II. In case any demolition is carried out in violation of the guidelines, the erring officers and the head of the department that has carried out the demolition shall be personally liable. In addition, proceedings for contempt against the erring officers may be initiated. The compensation to be paid to the owner shall also be recoverable from the salary of the erring officers including the head of the department. III. The erring officers shall also be liable for prosecution u/s 198,324,326(f), 326(g),56,59 BNS Ms. Nitya Ramakrishnan, Sr. Adv. Government officers, Ministers, Member of Legislative assembly, Member of Parliament of the Union or the State government shall not make any statement endorsing illegal and unconstitutional penal measures and that if the such statements are made the same shall be a cause for criminal prosecution as well as tortio....
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....achment etc. * Violation of this guideline shall attract penal consequences against the erring Officers and the aggrieved person shall be adequately compensated for consequential effect of the violation. In addition to this the violation of this guideline shall also amount to contempt of this Court on the lines of violation of the guidelines in terms of the judgment of this Hon'ble Court in D.K. Basu v. State of W.B., (1997) 1 SCC 416 8. COMPEN SATORY DAMAGE S TO OWNER NI CASE OF MALICIOUS OR ILLEGAL DEMOLITION COMPEN SATORY DAMAGES TO OWNER NI CASE OF MALICIOUS OR ILLEGAL DEMOLIT ION Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. Damages for Set-Aside Demolition: If the proposed demolition is set aside, the owner is entitled to damages for mental agony, harassment, and litigation costs. Compensatory Damages for Illegal Demolition: * If the demolition is carried out in violation of guidelines or declared illegal by the court, the owner is entitled to compensatory damages, which include: o Cost of reconstruction of the demolished structure o Loss of belongings o Loss of rep....
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....vision must be made for immediate interim rehabilitation and/or compensation Pasha & Ms. Rashmi Singh, Advs. to persons who are found prima facie to have been victims of punitive extra-judicial demolitions; * Payment of compensation for loss of movable/immovable property damaged or destroyed and restoration of the underlying land to persons found upon final adjudication to have been victims of punitive extra-judicial demolitions. 9. DISSEMI NATION & COMPLIA NCES OF THE GUIDELI NES Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. The guidelines should be translated in local language and widely disseminated including publication in local newspapers and should also be uploaded on the official website of the municipal authorities. Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs. Nodal officers must be appointed by the State Governments to perform the following functions: i) to ensure strict compliance of guidelines issued by this Hon'ble Court; ii) to provide information to owners as to legal provisions under which their dwellings etc are illegal, legal remedies available etc.; The Nodal Officers so appointed shall be made personally liable in case....
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....ver any open channel, drain. well or tank contrary to the provisions of this Act. (b) Any stall, chair, bench, box, ladder, bale, board or shelf of any other thing whatever placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act. 3. It is submitted that a perusal of the Chart of demolitions submitted by the Petitioners (at pp. 28 - 32 of the Compilation of Suggestions submitted by the Ld. Nodal Senior Counsel), itself notes that the demolitions at S. Nos. 3, 4, 5, 6, 7, 10, 16, 22) were all of structures that amounted to illegal encroachment in public places, which itself has been carved out of this Hon'ble Court's Order dt. 17.09.2024. Therefore, it is submitted that the SoP framed by this Hon'ble Court may not allow for notice in case of encroachment on public land, if the relevant municipal law allows for such demolition without notice. At best, the illegal encroachers on the said public land/public place, may be granted 48 hours to vacate such encroachment. This Hon'ble Court in the Delhi Ceiling cases (MC Mehta v. Union of India), has also endorsed a 48 hour notice period in certain cases....
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....pportunity, reasonable period of 48 hours - 72 hours may be read into the statute to allow the noticee to either rectify/demolish or vacate the property before the Authority undertakes demolition. However, it is submitted that any further period to challenge such action may not be read into the statute if such period is not provided. This is because any writ challenges to demolition action are in any event treated as urgent by the Constitutional Courts, and 72 hours is sufficient time for the aggrieved persons to approach the courts. 7. It is again reiterated that at the first instance, the municipal laws must be strictly followed qua the requirements of notice, service of notice, procedure of hearing, and final order of demolition. The suggestions above are merely meant to supplement the municipal law where the same is warranted on account of lacunae in the said laws. Furthermore, it is submitted that such guidelines should not allow for illegal encroachments on public places, waterways etc to continue with impunity when the relevant statute itself does not provide for notice in such cases. 12. The scope of the present petitions is limited. The question that will have ....
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....courts which are independent adjudicators of the rights of the parties and under the constitutional framework it is only they which can impose punishment. 17. Though the basic principle, as conceptualized by Dicey, largely remains the same, the concept of 'rule of law' has been discussed subsequently by various scholars. It has been described to mean that "government officials and citizens are bound by and have to abide by the law" and that there "must be mechanisms or institutions that enforce the legal Rules if they are breached" Tamanaha, Brian Z. "The history and elements of the rule of law." Singapore Journal of Legal Studies (2012): 232-247.. It ensures that "courts should be available to enforce the law and should employ fair procedures" Fallon Jr, Richard H. "The rule of law as a concept in constitutional discourse." Colum. L. Rev. 97 (1997): 1.. The law must be just and fair, and "protect the human rights and dignity of all members of society" Stein, Robert. "Rule of law: what does it mean." Minn. J. Int'l L. 18 (2009): 293.. Above all, "the essential purpose of the Rule of law is to prevent the abuse of power" Raitio, Juha. "The Concept of the Rule of Law -....
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....sions of the Constitution. In other words, "the Rule of law means the regulative role of certain institutions and their associated legal and judicial practices" John Rawls, Samuel Freeman (ed.), Collected Papers (Harvard University Press, 2021). It has been beautifully observed: That is the law. And no Spartan, subject or citizen, man or woman, slave or king, is above the law. Where-ever law ends, tyranny begins Id. at 306. 22. This Court in the case of Smt. Indira Nehru Gandhi v. Shri Raj Narain (1976) 2 SCR 347, has held the Rule of law to be part of the basic structure of the Constitution. It will be apt to refer to the following observations of Justice Mathew: 341...I cannot conceive of Rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the Rule of law... 23. The relevance of the Rule of law in our constitutional system has been considered by this Court in various judgments. In the case of National Human Rights Commission v. State of Arunachal Pradesh and An....
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....ivate citizens and public officials alike. 27. This sentiment was echoed in Rojer Mathew v. South Indian Bank Ltd. and Ors. [2019] 16 S.C.R. 1, where this Court 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. 28. Again, earlier this year, in Bilkis Yakub Rasool v. Union of India and Ors. [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 fails to 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, inaction 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....
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....g articulation of the Rule of law: The Rule of law provides a framework and value system in which institutions, principles, and Rules are implemented to 'reign (sic) 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 is from this core of understanding that constitutional law, criminal law, criminal procedure, due process, equal protection, international law, the laws of war, and human rights law find their moral, ethical, philosophical, and political justification in controlling the actions of executive power Arthur H. Garrison, "The Rule of Law and the Rise of Control of Executive Power", 18(2) Texas Review of Law & Politics 303-355 (2014). (emphasis added) 32. It has been emphasized that the Rule of law provides a framework 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 pro....
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....tion of powers is now widely recognized though a satisfactory definition of the three functions is difficult to evolve. But the function of the Parliament is to make laws, not to decide cases. The British Parliament in its unquestioned supremacy could enact a legislation for the settlement of a dispute or it could, with impunity, legislate for the boiling of the Bishop of Rochester's cook. The Indian Parliament will not direct that an Accused in a pending case shall stand acquitted or that a suit shall stand decreed... The reason of this restraint is not that the Indian Constitution recognizes any rigid separation of powers. Plainly, it does not. The reason is that the concentration of powers in any one organ may, by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged. 38. 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 obse....
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..... But in 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. (emphasis added) 42. While expanding the contours of the doctrine of separation of powers, the Constitution Bench of this Court in the case of Kalpana Mehta and Ors. v. Union of India and Ors. (2018) 7 SCC 1 observed thus: ... the concept of 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....
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....as compared to the cases where the power is executively exercised in discharge of its regular business. Thus, all administrative norms and principles of fair performance are applicable to them with equal force, as they are to the government department, if not with a greater rigour. 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. 214. In State of Bihar v. Subhash Singh [(1997) 4 SCC 430], this Court, in exercise of the powers of judicial review, stated 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. 215. The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In Centre for Public Interest Litigation v. Union of India [(2005) 8 SCC 202: (2006) 1 SCC (Cri) 23], this Court declared the ....
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.... 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. 47. 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. 48. This Court referring to its earlier decision in the case of Centre for Public Interest Litigation and Anr. v. Union of India and Anr. (2005) 8 SCC 202 held that the State actions causing loss are actionable under public law. The courts, which are the protectors of civil liberties of the citizens, would ensure protection against devastating results of State action. The principles of public accountability and transparency in State actions are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also do not lack bona fides. The Cour....
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....e 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title "Freedom under the Law" Lord Denning in his own style warned: No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winn....
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....Plaintiff is in consequence deprived of a benefit or suffers other loss. 92. De Smith further says as under: A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Where misfeasance is alleged against a decision- making body, it is sufficient to show that a majority of its members present had made the decision with the object of damaging the Plaintiff. Often there may be no direct evidence of the existence of malice, and in these circumstances the court may make adverse inferences, e.g. from the fact that a decision was unreasonable, that it could only be explained by the presence of such a motive. A court will not entertain allegation of bad faith or malice made against the repository of a power unless it has been expressly pleaded and properly particularised. 53. 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 v....
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....enjoyed by prisoners Under Articles 14, 19 and 21, though limited, are not static and will rise to human heights when challenging situations arise. 58. In Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488, the Court highlighted Article 21 protects the prisoners against several inflictions. It was held: Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied. 59. This Court recently in the case of Sukanya Shantha v. Union of India and Ors. 2024:INSC:753, reiterated the constitutional rights of the Accused in the following words: The right to live with dignity extends even to the incarcerated. Not providing dignity to prisoners is a relic of the colonizers and pre-colonial mechanisms, whe....
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....ave recourse against those officers. 61. Again in the case of Ankush Maruti Shinde and Ors. v. State of Maharashtra 2019:INSC:305, this Court has granted compensation to the Accused, who spent 16 years in jail on false implication by the authorities. 62. From the above discussion, the position that would emerge is that, firstly, even the Accused or the convicts have certain rights and safeguards in the form of constitutional provisions and criminal law. Secondly, 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. The third principle that would emerge is that 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 mala fide manner,....
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....uidelines intended to preserve the integrity of the judicial process. If laws are directives addressed to rational persons for their guidance, courts must be concerned to apply and to enforce these Rules in an appropriate way. A conscientious effort must be made to determine whether an infraction has taken place and to impose the correct penalty. Thus, a legal system must make provisions for conducting orderly trials and hearings; it must contain Rules of evidence that guarantee rational procedures of inquiry. While there are variations in these procedures, the Rule of law requires some form of due process: that is, a process reasonably designed to ascertain the truth, in ways consistent with the other ends of the legal system, as to whether a violation has taken place and under what circumstances. For example, judges must be independent and impartial, and no man may judge his own case. Trials must be fair and open, but not prejudiced by public clamor. The precepts of natural justice are to insure that the legal order will be impartially and regularly maintained. Id. at 209-210. 66. It is thus required that the trial must be fair and open, but not prejudiced by public clamo....
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....on, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events. 70. In the light of the aforesaid, we will have to consider the grievance as sought to be espoused in the present Writ Petitions. 71. As discussed hereinabove, 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 la....
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....n, 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. 77. This Court in the case of Chameli Singh and Ors. v. State of U.P. and Anr. (1996) 2 SCC 549 though was considering an issue in the context of land acquisition, it had elaborately discussed on the right to shelter. It will be apt to refer to the following observations of this Court: 7. In State of Karnataka v. Narasimhamurthy [(1995) 5 SCC 524: JT (1995) 6 SC 375] (SCC p. 526, para 7: JT at p. 378, para 7), this Court held that right to shelter is a fundamental right Under Article 19(1) of the Constitution. To make the right meaning....
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....red being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. 78. 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. 79. It was sought to be urged by the learned SG that most of the houses which were demolished were demolished since the constructions were found to be in breach of the local municipal laws. It was submitted that the houses were demolished since they are found to be in violation of either the provisions of municipal law governing them or the Panchayat laws governing such construction. 80. The learned SG submitted that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them a....
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....tructions 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. 84. 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. This Court in catena of cases including the Constitution Bench cases of Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Os. (2016) 7 SCC 353, K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1 (Privacy 9-J) and Vivek Narayan Sharma and Ors. v. Union of India and Ors. (2023) 3 SCC 1 (Demonetization Case-5J) has laid emphasis on the four-pronged test of proportionality. 85. In the case of Modern Dental College and Research Centre and Ors. (supra), this Court observed thus: 60. .......Thus, while examining as to whether the impugned provision....
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....re, 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. 88. It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent till he is held guilty. In our view, 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 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 the criminal jurisprudence would never permit the same. 89. In this respect, it will be apposite to refer to the following observations of Justice Krishna Iyer in the case of Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Maz....
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....e date of receipt of the said notice. iv. 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. v. The notice shall contain the details regarding: a. the nature of the unauthorized construction. b. the details of the specific violation and the grounds of demolition. c. a list of documents that the noticee 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; vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from to....