# 2024 INSC 866

- **Citation:** 2024 INSC 866
- **Court:** Supreme Court of India
- **Decided:** 2024-11-13
- **Bench:** B.R. Gavai, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2024-insc-866-37264
- **Pages:** 64

## Headnote

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. In other words,
whether properties of 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.
Headnotes†
Demolition of property - Demolition of property of a person
by the State machinery merely because he is an accused or
a convict, that too without following due process prescribed
by law, is totally unconstitutional:
Held: 1. 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' - In such matters the public officials, who
take the law in their hands, should be made accountable for such
high-handed actions - For the executive to act in a transparent
manner so as to avoid the vice of arbitrariness, certain binding
directives need to be formulated - This will ensure that public
officials do not act in a high-handed, arbitrary, and discriminatory
manner - Further, if they indulge in such acts, accountability must
be fastened upon them. [Paras 53, 54]
2. 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, it will be totally
unconstitutional for more than one reason - Firstly, the executive
* Author
[2024] 11 S.C.R.
723
In Re: Directions in The Matter of Demolition of Structures
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. [Para 71]
3.1. 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 - 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. [Paras 72, 73, 74]
3.2. Even in the cases consisting of imposition of a death sentence,
it is always a discretion available to the courts as to whether to
award such an extreme punishment or not - There is even an
institutional safeguard in the cases of such punishment to the effect
that the decision of the trial court inflicting death penalty cannot
be executed unless it is confirmed by the High Court - Even in
the cases of convicts for the commission of most extreme and
heinous offences, the p

## Text

_Characters 0–39,975 of 132,873. This is a partial read: ask again with offset=39975 for what follows._

[2024] 11 S.C.R. 722 : 2024 INSC 866
In Re: Directions in The Matter of Demolition of Structures
Writ Petition (Civil) No. 295 of 2022
13 November 2024
[B.R. Gavai* and K.V. Viswanathan, JJ.]
Issue for Consideration
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. In other words,
whether properties of 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.
Headnotes†
Demolition of property - Demolition of property of a person
by the State machinery merely because he is an accused or
a convict, that too without following due process prescribed
by law, is totally unconstitutional:
Held: 1. 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' - In such matters the public officials, who
take the law in their hands, should be made accountable for such
high-handed actions - For the executive to act in a transparent
manner so as to avoid the vice of arbitrariness, certain binding
directives need to be formulated - This will ensure that public
officials do not act in a high-handed, arbitrary, and discriminatory
manner - Further, if they indulge in such acts, accountability must
be fastened upon them. [Paras 53, 54]
2. 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, it will be totally
unconstitutional for more than one reason - Firstly, the executive
* Author
[2024] 11 S.C.R.
723
In Re: Directions in The Matter of Demolition of Structures
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. [Para 71]
3.1. 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 - 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. [Paras 72, 73, 74]
3.2. Even in the cases consisting of imposition of a death sentence,
it is always a discretion available to the courts as to whether to
award such an extreme punishment or not - There is even an
institutional safeguard in the cases of such punishment to the effect
that the decision of the trial court inflicting death penalty cannot
be executed unless it is confirmed by the High Court - Even in
the cases of convicts for the commission of most extreme and
heinous offences, the punishment cannot be imposed without
following the mandatory requirements under the statute - In
that light, can it be said that a person who is only accused of
committing some crime or even convicted can be inflicted the
punishment of demolition of his property/properties? The answer
is an emphatic 'No'. [Para 75]
724
[2024] 11 S.C.R.
Digital Supreme Court Reports
4. There is another angle to this problem - 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, would be wholly
unconstitutional. [Paras 76, 78]
5. Though in some cases it may be by sheer coincidence that the
properties which were in breach of local municipal laws governing
them also happen to belong to the accused persons, however,
when a particular structure is chosen all of a sudden for demolition
and the rest of the similarly situated structures in the same vicinity
are not even being touched, mala fide may loom large - In such
cases, where the authorities indulge into arbitrary pick and choose
of the structures and it is established that soon before initiation
of such an action an occupant of the structure was found to be
involved in a criminal case, a presumption could be drawn that
the real motive for such demolition proceedings was not the illegal
structure but an action of penalizing the accused without even
trying him before the court of law - No doubt, such a presumption
could be rebuttable, however, the authorities will have to satisfy
the court that it did not intend to penalize a person accused by
demolishing the structure. [Para 82]
Demolition of property - Must be the only option available -
Right to shelter - A facet of Art.21 of the Constitution:
Held: 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
[2024] 11 S.C.R.
725
In Re: Directions in The Matter of Demolition of Structures
including compounding and demolition of only part of the house
property are not available - Also, 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. [Paras 84, 86]
Demolition of property - Collective punishment, if permissible:
Held: 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 - Our constitutional scheme and the criminal jurisprudence
would never permit the same. [Para 88]
Constitution of India - Art.142 - Demolition of properties of
persons accused of criminal offences - Directions issued
to allay fears with regard to arbitrary exercise of power by
officers / officials of the State:
Held: 1. 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 - Further, 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. [Para 90]
2.1. It is necessary to issue the following directions in exercise
of power under Article 142 of the Constitution - These directions
however will not be applicable if there is an unauthorized 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.
[Paras 90, 91]
726
[2024] 11 S.C.R.
Digital Supreme Court Reports
2.2. 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 - 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 - 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 wherein details regarding service/
pasting of the notice, the reply, the show cause notice and the
order passed thereon would be available.
2.3. 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.
2.4. Final Order: Upon hearing, the designated authority shall pass
a final order - The final order shall contain: a. the contentions of
the noticee, and if the designated authority disagrees with the
same, the reasons thereof; b. as to whether the unauthorized
construction is compoundable, if it is not so, the reasons therefor;
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.
2.5. Opportunity of appellate and judicial scrutiny of the final
order: 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 - An opportunity should be given to the owner/occupier to
remove the unauthorized construction or demolish the same within
a period of 15 days.
[2024] 11 S.C.R.
727
In Re: Directions in The Matter of Demolition of Structures
2.6. Proceedings of demolition: 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 - The said demolition report should be forwarded to
the Municipal Commissioner by email and shall also be displayed
on the digital portal. [Para 91]
3. The authorities hereinafter shall strictly comply with the aforesaid
directions - Violation of any of the directions would lead to initiation
of contempt proceedings in addition to the prosecution - 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. [Paras 92, 93, 94]
Rule of law - Relevance of - Very foundation of democratic
governance - Essential purpose of the rule of law is to prevent
the abuse of power:
Held: 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 - 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. [Paras 19, 30, 33]
Doctrines / Principles - Doctrine of separation of powers, as
envisaged in our Constitution:
Held: Executive cannot replace the judiciary in performing its core
functions. [Para 44]
Doctrines/Principles - Doctrine of Public Trust and Public
Accountability:
Held: Executive exercises its powers as a 'trustee' of the citizens
and therefore, executive actions must be consistent with maintaining
public trust - When executive acts in breach of principles of 'rule
728
[2024] 11 S.C.R.
Digital Supreme Court Reports
of law' and 'separation of powers', doctrine of public trust and
accountability would come into play. [Paras 45, 46]
Rights of accused - Protection from arbitrary State action -
Institutional accountability:
Held: 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. [Para 62]
Criminal Law - Fairness in criminal justice system -
Presumption of innocence and natural justice:
Held: The principle, that the criminal justice process is also to
be in accordance with the principle of the rule of law, is very well
enshrined in the Constitution - The principle, that "an accused is
not guilty unless proven so in a court of law" is foundational to
any legal system - It reflects the presumption of innocence, which
means that every person accused of a crime is considered innocent
until proven guilty beyond a reasonable doubt by a court of law -
This principle ensures that individuals are not unfairly punished or
stigmatized based solely on accusations or suspicions - 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 - 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. [Paras 63, 64, 66]
Case Law Cited
Smt. Indira Nehru Gandhi v. Shri Raj Narain [1976] 2 SCR 347 :
(1975) 2 SCC 159; National Human Rights Commission v. State
of Arunachal Pradesh and Another, 1996 INSC 38 : [1996] 1
[2024] 11 S.C.R.
729
In Re: Directions in The Matter of Demolition of Structures
SCR 278 : (1996) 1 SCC 742; Justice K.S. Puttaswamy (Retd.)
& Anr. v. Union of India & Ors. [2018] 8 SCR 1 : (2019) 1 SCC 1
Rojer Mathew v. South Indian Bank Ltd. & Ors. [2019] 16 SCR 1
: (2020) 6 SCC 1; Bilkis Yakub Rasool v. Union of India & Others
[2024] 1 SCR 743 : (2024) 5 SCC 481; Rai Sahib Ram Jawaya
Kapur and others v. State of Punjab [1955] 2 SCR 225 : AIR 1955
SC 549; I.R. Coelho (Dead) by LRs. v. State of T.N. [2007] 1 SCR
706 : (2007) 2 SCC 1; State of U.P. and others v. Jeet S. Bisht and
another [2007] 7 SCR 705 : (2007) 6 SCC 586; Kalpana Mehta
and Others v. Union of India and Others [2018] 4 SCR 1 : (2018)
7 SCC 1; Delhi Airtech Services Private Limited and Another v.
State of Uttar Pradesh and Another [2011] 12 SCR 191 : (2011)
9 SCC 354; Centre for Public Interest Litigation and Another v.
Union of India and another [2003] Supp. 3 SCR 746 : (2005) 8
SCC 202; Express Newspapers Pvt. Ltd. and Others v. Union of
India and Others [1985] Supp. 3 SCR 382 : (1986) 1 SCC 133;
Nilabati Behera v. State of Orissa and Others [1993] 2 SCR 581 :
(1993) 2 SCC 746; Common Cause, a registered society v. Union
of India and Others [1999] 3 SCR 1279 : (1999) 6 SCC 667; Sunil
Batra (I) v. Delhi Administration and Others [1979] 1 SCR 392 :
(1978) 4 SCC 494; Charles Sobraj v. Supdt., Central Jail, Tihar,
New Delhi [1979] 1 SCR 512 : (1978) 4 SCC 104; Sunil Batra
(II) v. Delhi Administration [1980] 2 SCR 557 : (1980) 3 SCC 488;
Sukanya Shantha v. Union of India & Ors., 2024 INSC 753 : [2024]
10 SCR 493; Rudul Sah v. State of Bihar and Another, 1983 INSC
85 : [1983] 3 SCR 508; Ankush Maruti Shinde and others v. State
of Maharashtra, 2019 INSC 305 : [2019] 4 SCR 709; Himanshu
Singh Sabharwal v. State of Madhya Pradesh and Others [2008] 4
SCR 783 : AIR 2008 SC 1943; State of Maharashtra v. Champalal
Punjaji Shah [1982] 1 SCR 299; Chameli Singh and Others v. State
of U.P. and Another [1995] Supp. 6 SCR 827 : (1996) 2 SCC 549;
Modern Dental College and Research Centre and Others v. State
of Madhya Pradesh and Others [2016] 3 SCR 575 : (2016) 7 SCC
353; K.S. Puttaswamy and Another v. Union of India and Others
[2017] 10 SCR 569 : (2017) 10 SCC 1; Vivek Narayan Sharma
and Others v. Union of India and Others [2023] 1 SCR 1 : (2023)
3 SCC 1; (Demonetization Case-5J); Gujarat Steel Tubes Ltd. and
Others v. Gujarat Steel Tubes Mazdoor Sabha and Others [1980]
2 SCR 146 : (1980) 2 SCC 593 - referred to.
Southam v. Smout (1964) 1 QB 308 and John v Rees (1970)
Ch 345 - referred to.
730
[2024] 11 S.C.R.
Digital Supreme Court Reports
Books and Periodicals Cited
AV Dicey, Introduction to the Study of the Law of the Constitution,
Macmilan and Co. Ltd. (1952), pp. 183-205; Tamanaha, Brian Z.
"The history and elements of the rule of law." Singapore Journal of
Legal Studies (2012) : 232-247; Fallon Jr, Richard H. "The rule of law
as a concept in constitutional discourse." Colum. L. Rev. 97 (1997):
1; Stein, Robert. "Rule of law: what does it mean." Minn. J. Int'l
L. 18 (2009): 293; Raitio, Juha. "The Concept of the Rule of LawJust a Political Ideal, or a Binding Principle?." Giornale di Storia
Costituzionale, 45, 2023, pp. 37-46. HeinOnline; Bingham, Tom.
The Rule of Law, p.60; Bedner, Adriaan. "An elementary approach
to the rule of law." Hague Journal on the rule of law 2.1 (2010) :
48-74; Peerenboom, Randall. "Human rights and rule of law :
What's the relationship." Geo. J. Int'l L. 36 (2004) : 809; Rosenfeld,
Michel. "The rule of law and the legitimacy of constitutional
democracy." S. Cal. L. Rev. 74 (2000): 1307; John Rawls, Samuel
Freeman (ed.), Collected Papers (Harvard University Press,
2021); John Rawls, A Theory of Justice (Revised Edition) (The
Belknap Press of Harvard University Press, Cambridge, 1999); and
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) - referred to.
List of Acts
Constitution of India.
List of Keywords
Demolition of property of accused / convict; Rule of law; Separation
of powers; Public officials; Due process prescribed by law;
Unconstitutional; Bulldozer demolishing a building; Right to shelter;
Right to life; Presumption; Socio-economic rights; Collective
punishment; Directions; Arbitrary exercise of power; Notice;
Personal hearing; Appellate and judicial scrutiny; Proceedings of
demolition; Democratic governance; Abuse of power; Doctrine of
Public Trust and Public Accountability; Rights of accused; Protection
from arbitrary State action; Institutional accountability; Fairness in
criminal justice system; Presumption of innocence; Natural justice;
Fair trial.
[2024] 11 S.C.R.
731
In Re: Directions in The Matter of Demolition of Structures
Case Arising From
CIVIL/CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 295 of 2022
(Under Article 32 of The Constitution of India)
With
Writ Petition (Criminal) No. 162 of 2022 And Writ Petition (Civil)
No. 328 of 2022
Appearances for Parties
Nachiketa Joshi, Sr. Adv./Amicus Curiae.
M. R. Shamshad, Abhishek Manu Singhvi, Gaurav Agarwal, Sanjay
Hegde, Sr. Advs., Ms. Karishma Rajput, Alabhya Dhamija, Farrukh
Rasheed, Arijit Sarkar, Ms. Zeb Hasan, Sarim Naved, Daniyal Khan,
Uday Bhatia, Shahid Nadeem, Aarif Ali, Mujahid Ahmed, Wasif
Rehman Khan, Ms. Sugandha Anand, Anas Tanwari, Ebad Ur.
Rahman, Ankit Tiwari, Ms. Anusha Soni, Advs. for the Petitioner.
Tushar Mehta, Solicitor General, K.M. Nataraj, A.S.G., Ms. Garima
Prashad, Sr. A.A.G., Bharat Singh, D.S. Parmar, Shiv Mangal
Sharma, A.A.Gs., Saurabh Mishra, Sanjiv Sen, C.U. Singh,
Salman Khurshid, Sr. Advs., Kanu Agarwal, Rajat Nair, Sanjay
Kumar Tyagi, Amit Sharma B, Mayank Pandey, Varun Chugh,
Arvind Kumar Sharma, Ms. Ruchira Goel, Ms. Shagun Parashar,
Sharanya Sinha, Mukesh Kumar Maroria, A D N Rao, Ms. Ankita
Choudhary Rathi, Vinayak Sharma, Shiv Mangal Sharma, Sarad
Kumar Singhania, Abhimanyu Singh Ga, Ms. Rashmi Singhania,
Ms. Deepanwita Priyanka, Praveen Swarup, Ameet Siingh, Devesh
Maurya, Sukhamrit Singh, Amogh Bansal, Ms. Nidhi Jaswal, Ms.
Fauzia Shakil, M. Huzaifa, Ujjwal Singh, Tasmiya Taleha, Ms. Bidya
Mohanty, Abhishek Kalaiyarasan, Ms. Katyayani Suhrud, Nizam
Pasha, Ms. Rashmi Singh, Ms. Astwika Das, Ms. Pinky Behera,
Lzafeer Ahmad B. F., Aslam Ahmed Jamal, Ms. Shabiesta Nabi,
Raees Ahmad, Mohd Ashaab, Abhishek Dwivedi, Zeeshan Haider,
Satyapal Singh, Arun Kumar Arunachal, Rakesh Dahiya, Aditya
Dahiya, R.N. Mahlawat, Vikram Gulia, Rishabh Sharma, Prashant
Bhushan, Anurag Tiwary, Ms. Cheryl D'Souza, Ms. Vrinda Grover,
Soutik Banerjee, Ms. Devika Tulsiani, Aakarsh Kamra, Aftab Ali
Khan, S. Shahid Hussain Rizvi, Ms. Azra Rehman, Brahmjeet
Singh, Abdul Karim Ansari, Ms. Sipra Khan, Mrs. Latika Chouhan,
Ali Safeer Farooqi, Advs. for the Respondent.
732
[2024] 11 S.C.R.
Digital Supreme Court Reports
Judgment / Order of the Supreme Court
Judgment
B.R. Gavai, J.
INDEX*
I.
BACKGROUND
Paras 1 to 13
II.
RULE OF LAW
Paras 14 to 33
III
SEPARATION OF POWERS
Paras 34 to 44
IV.
DOCTRINE OF PUBLIC TRUST AND
PUBLIC ACCOUNTABILITY
Paras 45 to 54
V.
RIGHTS OF THE ACCUSED UNDER THE
CONSTITUTION
Paras 55 to 62
VI.
PRINCIPLES OF CRIMINAL LAW:
PRESUMPTION OF INNOCENCE AND
NATURAL JUSTICE
Paras 63 to 75
VII.
RIGHT TO SHELTER
Paras 76 to 86
VIII.
PERMISSIBILITY OF THE COLLECTIVE
PUNISHMENT
Para 87 to 89
IX.
DIRECTIONS
Paras 90 to 99
(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.
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
* Ed. Note: Pagination as per the original Judgment.
[2024] 11 S.C.R.
733
In Re: Directions in The Matter of Demolition of Structures
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.
Smout1:
"'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, without following the due process of law, on
the ground of them being involved as an accused in criminal offences.
2.
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.
3.
It has also been prayed that a direction be issued for strict action
to be taken against the officials of the state machinery who have
participated or participate in future in such an illegal exercise of
demolition.
4.
We have heard the matter from time to time.
5.
When the matter was listed on 2nd September 2024, this Court
passed the following order:
"UPON hearing the counsel the Court
made the following
O R D E R
1.
IA. Nos.194520, 195057, 194619, 188144 and
186082 of 2024 are allowed.
1
(1964) 1 QB 308 at 320
734
[2024] 11 S.C.R.
Digital Supreme Court Reports
2.
The present batch of petitions raise a grievance that
the properties of persons who are accused of some
crime are being demolished.
3.
The position is disputed by the State of Uttar Pradesh
and an affidavit has been filed that the immovable
properties can be demolished only in accordance
with the procedure prescribed by law. An affidavit
has also been filed on behalf of the State of Uttar
Pradesh by Special Secretary, Home Department,
Government of Uttar Pradesh.
4.
We appreciate the stand taken by the State of Uttar
Pradesh in the affidavit filed by it.
5.
We propose to lay down certain guidelines on 'PanIndia Basis' so that the concerns with regard to the
issues raised are taken care of.
6.
We find that it will be appropriate that the learned
counsel for the parties give their suggestions so that
the Court can frame appropriate guidelines, which
will be applicable on 'Pan-India Basis'.
7.
We request all the parties to also supply a copy of
their suggestions to Shri Nachiketa Joshi, learned
Additional Advocate General for the State of
Madhya Pradesh, on his Email ID which is sr.adv.
nachiketajoshi@gmail.com, who is requested to
collate the same.
8.
List on 17.09.2024."
6.
Vide order dated 17th September 2024, we directed that, "there shall
be no demolition anywhere across the country without seeking leave
of this Court". However, we clarified that, "our order would not be
applicable if there is an unauthorized 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".
7.
Thereafter, we heard the matter at length on 1st October 2024.
[2024] 11 S.C.R.
735
In Re: Directions in The Matter of Demolition of Structures
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 SUGGESTIONS
1.
SHOW CAUSE
NOTICE
SHOW CAUSE
NOTICE
Mr. C.U. Singh,
Sr. Adv. and
Ms. Fauzia
Shakil, Adv.
RELEVANT DETAILS IN SHOW CAUSE
NOTICE:
a) Specific grounds on the basis of which
the violation is alleged and the demolition
is proposed;
b) Description of building/structure proposed
to be demolished and the extent of
unauthorized construction, if any;
c) Details of relevant applicable provisions
and laws alleged to have been breached
(municipal laws, forest laws etc.);
d) If the alleged violation can be
compounded or regularized on payment
of a fee/penalty;
e) Time period within which the owner has
to reply; and
f) Documents that the owner has to furnish.
SERVICE OF SHOW CAUSE NOTICE:
1. Delivery Method: Serve the Show
Cause Notice by hand to the owner of
the dwelling/commercial establishment
slated for demolition.
2. Witness Requirement: A neighbour of the
owner must be present as a witness during
the notice service and sign the notice.
736
[2024] 11 S.C.R.
Digital Supreme Court Reports
S.No.
TOPIC/ ISSUE
COUNSEL'S/
PARTY NAME
SUMMARY OF SUGGESTIONS
3. Report of Service: The officer serving
the notice must prepare a report detailing
the service.
4. Alternate Delivery: If the owner is not
residing in the district, the notice can be
sent via Registered Post/Speed Post AD.
SERVICE OF NOTICE TO OCCUPIER:
1. Occupier Notification: If the property
is occupied by someone other than the
owner, serve the notice to the occupier
in the same manner.
2. Direction to Occupier: The notice must
include a directive for the occupier to
inform the owner about the notice.
3. Affixing Notice: The notice should
be affixed to the gate/door or another
conspicuous part of the property
proposed for demolition.
UPLOADING NOTICE ON THE WEBSITE:
Copy of notice and service report should also
be uploaded on the website of the municipal
corporation or concerned authority.
TIME TO FILE REPLY: Minimum 2 monthstime
REPLY TO SHOW CAUSE NOTICE: The
owner shall file its reply to the show cause
notice within the time prescribed, along with
relevant supporting material. A receiving
or acknowledgment of the reply should be
provided to the owner.
Ms. Nitya
Ramakrishnan,
Sr. Adv.
Issuance of Show Cause Notice:
 •
If the authority believes an unauthorized
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.
[2024] 11 S.C.R.
737
In Re: Directions in The Matter of Demolition of Structures
S.No.
TOPIC/ ISSUE
COUNSEL'S/
PARTY NAME
SUMMARY OF SUGGESTIONS
 •
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 days in advance in local
newspapers in addition to personal
service of notice on the owner of the
property sought to be demolished;
B. Personal hearing of owner of property;
Mr. M.R.
Shamshad, Sr.
Adv.
Service of Notice: Once the list is prepared,
the officer must serve written notice at least
60 days before the proposed demolition. The
notice must contain:
a. Reason for Proposed Demolition: A
brief explanation of why the demolition
is proposed.
b. Personal Service of Notice (Dasti): The
notice must be served in-person with two
neighborhood witnesses, as well as by
registered post (acknowledgment due),
in line with procedures laid down by High
Courts and the Supreme Court for service
of notices or summons.
c. Online Upload: The notice must be
uploaded on the Municipal authority's
website.
738
[2024] 11 S.C.R.
Digital Supreme Court Reports
S.No.
TOPIC/ ISSUE
COUNSEL'S/
PARTY NAME
SUMMARY OF SUGGESTIONS
d. Vernacular Language: The notice must
be provided in the vernacular language(s)
prevalent in the area where the property
is located.
e. Affidavit of Compliance: The officer
must swear an affidavit 10 days before
the demolition, confirming compliance
with all notice-serving procedures, and
submit it to the Divisional Commissioner
or equivalent officer.
f. Notice to Owner in Custody: If the owner
is in custody, the notice must be served via
the concerned Judicial Magistrate at least
60 days before the proposed demolition.
Explanation:
The 60-day period begins from the date of
delivery of the notice to the affected persons.
2.
CONSIDERATION
OF THE REPLY
TO SHOW
CAUSE
Mr. C.U. Singh,
Sr. Adv. and
Ms. Fauzia
Shakil, Adv.
1. Review of Owner's Reply: Authorities
shall consider the reply and supporting
material provided by the owner.
2. Request for Additional Information:
If additional explanations/material are
needed, the authority will inform the owner
in writing. The owner will have 4 weeks to
furnish the requested information.
3. Personal Hearing: The authority will issue
an intimation to the owner specifying the
date and time for a personal hearing. The
personal hearing for the occupier will not
replace the need for a hearing with the
owner or authorized representative.
Ms. Nitya
Ramakrishnan,
Sr. Adv.
The person(s) in response to the notice shall
have the following rights:
1. The concerned person in receipt of the
above-mentioned Notice shall have the
right to engage 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.
[2024] 11 S.C.R.
739
In Re: Directions in The Matter of Demolition of Structures
S.No.
TOPIC/ ISSUE
COUNSEL'S/
PARTY NAME
SUMMARY OF SUGGESTIONS
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
ORDER/
NOTICE OF
DEMOLITION
Mr. C.U. Singh,
Sr. Adv. and
Ms. Fauzia
Shakil, Adv.
Authority's Satisfaction and Demolition
Order: After considering the owner's reply,
written explanation, and physical hearing,
if the authority is satisfied that there are
violations beyond condonable limits or cannot
be regularized, an order for demolition may
be made.
Relevant Details in the Demolition Order:

●
The demolition order must state reasons
for the proposed action and mention the
proposed demolition date. A minimum of
8 weeks must be given from the service
of the order, allowing the owner time to
approach the courts, remove belongings,
and arrange alternate accommodation.

●
The head of the authority's department
must record satisfaction, certify
compliance with guidelines, and ensure
the action is taken in good faith.
Service of Demolition Order: The service of
the demolition order should follow the same
procedure as the show cause notice.
Ms. Nitya
Ramakrishnan,
Sr. Adv.
If, after the abovementioned inquiry, the
appropriate authority decides that the
demolition of the offending part or the whole
of the building/ development/ structure it will
issue an order affording the owner/occupier
to demolish the offending portions within
30 (thirty) days failing which it will issue a
notice of demolition in the manner explained
hereunder.
740
[2024] 11 S.C.R.
Digital Supreme Court Reports
S.No.
TOPIC/ ISSUE
COUNSEL'S/
PARTY NAME
SUMMARY OF SUGGESTIONS
Personal Service of Demolition Notice:
The demolition notice must be served
personally on the owner/occupier by a Nodal
officer, appointed in each state for serving
and implementing such orders, ensuring
adherence to timelines.
Period for Appeal and Legal Recourse:
The notice must state a period for appeal
and legal recourse, which shall not be less
than 60 days.
Additional Publication Requirements: The
demolition notice must also be pasted on the
property and published in three newspapers
(Hindi, English, and a third language). The
newspaper notice needs to include only the
owner's/occupier's name, property address,
and a link to a website where the full notice
with a timestamp is uploaded.
Scope of Demolition: No demolition shall
extend beyond the portion deemed illegal. Any
excess demolition will require compensation
as per Part C of these guidelines.
Special Permission for Demolition: If
the owner or occupier is not found, special
permission from the Nodal 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;
[2024] 11 S.C.R.
741
In Re: Directions in The Matter of Demolition of Structures
S.No.
TOPIC/ ISSUE
COUNSEL'S/
PARTY NAME
SUMMARY OF SUGGESTIONS
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 against
the order of demolition. In any proceedings
where demolition is challenged on the ground
of the same being
punitive, the fact that the aggrieved person has
been singled out for action and no action has
been taken against similarly situated persons
in the vicinity must be a valid consideration
for grant of relief;
5.
CHALLENGE TO
THE ORDER OF
DEMOLITION
Mr. C.U. Singh,
Sr. Adv. and
Ms.