The Supreme Court said on Wednesday that when a structure is suddenly demolished while others remain, a presumption could be drawn that the motive was not to bring down the illegal structure but to penalise the accused before trial.
Pronouncing a verdict on a cluster of petitions that alleged demolitions had been carried out by various state authorities without adequate notice, the bench headed by Justice BR Gavai went to the extent of saying in its judgment that the executive cannot declare a person guilty just on the basis of accusations.
It will be wholly unjust if the state authorities demolish properties of the accused without following due process of law, added the Bench, also comprising Justice KV Viswanathan.
The apex court said that even an accused has some rights under the Constitution, and state officials cannot take arbitrary action against an accused or a convict without following the due process of law.
It exercised its extraordinary powers under Article 142 to lay down a series of pan-India directives. The Supreme Court said no demolition shall be carried out without at least serving a prior notice of 15 days; the court added, "The notice shall be served upon the owner by registered post. It shall also be fixed on the conspicuous portion of the structure.".
It cleared that this policy does not apply if there's unauthorised construction on public land or demolition at the behest of a court of law.
However, earlier yesterday, an interim order issued on September 17 by a Bench headed by Justice Sunil Gavai stayed all demolition proceedings across the country except with its permission.
Saying that it was frowning upon "glorification" and "grandstanding" over bulldozer action, the top court said unauthorised structures may be demolished following the due procedure but under no circumstances, property be demolished for "extraneous reasons".
It clarified that its interim order was not meant to protect any unauthorised construction on public roads, streets, footpaths, railway lines, or public places.
It had clarified that even unauthorized construction has to be brought down in "accordance with law" and state authorities cannot resort to the demolition of the property of the accused as a punishment.
During the course of the hearing, Solicitor General Tushar Mehta suggested service of notice should be given through a registered post. However if in case the registered post is not accepted, then notice can be served through alternative means also, including affixing on walls of the property in question, SG Mehta said.
He flags that pan-India guidelines issued by the highest court of the land are based on a few instances alleging that one particular community is being targeted.
At this, the apex court said: "We are a secular country. Whatever directions will be passed, will apply pan-India irrespective of the religion. We do not intend to protect encroachments on public roads, footpaths, railway lines, etc. If there is any religious structure in the middle of the road, be it gurudwara, dargah or temple, it cannot obstruct the public. Public interest and safety is paramount."
"What we are loudly thinking is that protect the property (alleged unauthorised structure) after demolition order is passed, say 10-15 days to allow exercise of appellate remedy and in case, a court entertains the grievance, the question of stay should be decided within a month," it added.
If constructed contrary to statutory regulations, illegal structures will have to be demolished, the Supreme Court re-emphasised. "We will see that our order does not assist an encroacher," the apex court said.
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