The demolition of a house solely because the person residing there is either an accused or convicted in a criminal case will amount to inflicting "collective punishment" on the entire family, the Supreme Court said on Wednesday.
A bench of Justices BR Gavai and KV Viswanathan made these observations in its significant judgement which laid down pan-India guidelines on the demolition of properties.
The apex court said when a particular structure is chosen all of a sudden for demolition and the rest of similarly situated structures in the same vicinity are not even being touched, "mala fide may loom large".
The bench noted that the construction of a house has an aspect of socio-economic rights and for an average citizen it is often the culmination of years of hard work, dreams and aspirations.
"In our view, if demolition of a house is permitted wherein a 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," the bench said.
It said the constitutional scheme and criminal jurisprudence would never permit the same.
Observing that the right to shelter is one of the facets of Article 21 (protection of life and personal liberty) of the Constitution, the apex court said 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," the bench said in its 95-page verdict.
It noted the arguments of Solicitor General Tushar Mehta, who had appeared for the Centre and some states, that in some cases it may be by sheer coincidence that properties that were in breach of local municipal laws governing them also happen to belong to accused persons.
"In such cases, where the authorities indulge in 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 penalising the accused without even trying him before the court of law," the bench said.
It said no doubt, such a presumption could be rebuttable but the authorities will have to satisfy the court that it did not intend to penalise a person accused by demolishing the structure.
It said the principle of the rule of law needs to be considered even with regard to the demolition of houses that are required to be razed for breach of local laws.
"There may be certain unauthorised constructions which could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed," it said.
The bench said in such cases, the extreme step of demolition of the property would be disproportionate.
It said if the persons are to be dishoused, then for taking such steps, the authorities concerned 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.
The top court delivered its verdict on pleas seeking the framing of guidelines on the demolition of properties in the country.
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