Indian Law Research

SUPREME COURT OF INDIA

In Re: Directions in the Matter of Demolition of Structures

Decision date:

13 November 2024 · 2024 INSC 866

Due process before demolition and prohibition of collective punishment

Read summaryRead court textOriginal PDF · 95 pages
Source and extraction notes

Official source

Draft summary

AI-assisted historical explanation. Independently checked against the source by an AI reviewer. Not reviewed by a lawyer. This historical summary does not certify the current legal position.

In one sentence

Demolition cannot serve as executive punishment for an accusation, and covered cases require due process.

Question decided

What safeguards must precede demolition of an allegedly unauthorised structure?

Key holdings

Outcome

Nationwide procedural directions were issued and the petitions remained listed for further orders.

Source PDF pages: 87, 88, 89, 90, 91, 92, 93, 94, 95.

Plain-English explanation

The Court addressed the use of demolition against people accused of offences and the effects on others living in the property. Criminal accusations do not replace building-law procedures or authorise collective punishment. For the cases covered by its directions, the Court required notice, a hearing, a reasoned decision, consideration of less drastic alternatives, an opportunity for challenge and recorded demolition proceedings. Officials could face consequences for violating those directions. The judgment contains express exceptions, including specified unauthorised structures in public places and demolitions ordered by a court. It therefore cannot be reduced to an unconditional fifteen-day rule for every situation. Readers must examine the applicable local law, the type of structure and any judicial order, as well as later directions in the continuing case.

Relevant law

Opinions

Two-judge bench; Justice B.R. Gavai authored the judgment.

Research notes and limits

Preserve the exceptions in paragraph 91 and check later orders. Do not state that all unauthorised construction is protected from removal.

Judgment - source material

All pages of the downloaded court document follow, including separate opinions, annexures and any final joint order. This is machine-extracted original text, not an AI rewrite. Use the PDF to check exact wording.

Jump to a source page

1 · 2 · 3 · 4 · 5 · 6 · 7 · 8 · 9 · 10 · 11 · 12 · 13 · 14 · 15 · 16 · 17 · 18 · 19 · 20 · 21 · 22 · 23 · 24 · 25 · 26 · 27 · 28 · 29 · 30 · 31 · 32 · 33 · 34 · 35 · 36 · 37 · 38 · 39 · 40 · 41 · 42 · 43 · 44 · 45 · 46 · 47 · 48 · 49 · 50 · 51 · 52 · 53 · 54 · 55 · 56 · 57 · 58 · 59 · 60 · 61 · 62 · 63 · 64 · 65 · 66 · 67 · 68 · 69 · 70 · 71 · 72 · 73 · 74 · 75 · 76 · 77 · 78 · 79 · 80 · 81 · 82 · 83 · 84 · 85 · 86 · 87 · 88 · 89 · 90 · 91 · 92 · 93 · 94 · 95

Source PDF page 1

Open this page in the original PDF
2024 INSC 866
1 
 
REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CIVIL/CRIMINAL ORIGINAL JURISDICTION  
 
WRIT PETITION (CIVIL) NO.295 OF 2022  
 
In Re: Directions in the matter of demolition of structures  
 
 
WITH 
 
WRIT PETITION (CRIMINAL) NO. 162 OF 2022 
 
WRIT PETITION (CIVIL) NO. 328 OF 2022 
 
 
 
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

Source PDF page 2

Open this page in the original PDF
2 
 
J U D G M E N T 
 
B.R. GAVAI, J. 
"अपना घर हो, अपना आंगन हो, 
इस ख्वाब में हर कोई जीता है। 
इंसान के दिल की ये चाहत है, 
दक एक घर का सपना कभी न छ ू टे।" 
(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

Source PDF page 3

Open this page in the original PDF
3 
 
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. 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 
 
1 (1964) 1 QB 308 at 320

Source PDF page 4

Open this page in the original PDF
4 
 
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 State s 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.

Source PDF page 5

Open this page in the original PDF
5 
 
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 Ut tar 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 ‘Pan-India 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

Source PDF page 6

Open this page in the original PDF
6 
 
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 17 th 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 1 st 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

Source PDF page 7

Open this page in the original PDF
7 
 
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 2 nd 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 
 
 
 
 
 
 
 
 
 
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.);

Source PDF page 8

Open this page in the original PDF
8 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
 
 
 
 
 
 
 
 
 
 
SHOW 
CAUSE 
NOTICE 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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. 
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.

Source PDF page 9

Open this page in the original PDF
9 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
 
 
 
 
 
 
 
 
 
 
TIME TO FILE REPLY:  Minimum 2 months-
time 
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. 
• 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

Source PDF page 10

Open this page in the original PDF
10 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
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. 
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

Source PDF page 11

Open this page in the original PDF
11 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
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.  CONSIDE
RATION 
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. 
3.  PROPOS
ED 
ACTION 
SHOULD 
BE 
PROPOR
TIONAL 
TO THE 
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

Source PDF page 12

Open this page in the original PDF
12 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
VIOLATIO
N 
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 
DEMOLIT
ION 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ORDER/ 
NOTICE 
OF 
DEMOLIT
ION 
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.

Source PDF page 13

Open this page in the original PDF
13 
 
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. 
Order of demolition must record reasons 
therefor inter alia including the following: 
I. Documents relied upon by owner to prove 
ownership/validity of property;

Source PDF page 14

Open this page in the original PDF
14 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
Rashmi Singh, 
Advs. 
 
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 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.  CHALLEN
GE TO 
THE 
ORDER 
OF 
DEMOLIT
ION 
Mr. C.U. Singh, 
Sr. Adv. and Ms. 
Fauzia Shakil, 
Adv. 
Judicial Examination of Demolition Orders: 
Courts must assess whether the proposed 
demolition is motivated by malice or bad faith. 
Presumption of Malice in Law: 
(a) If the demolition is triggered by the owner's 
or a family member's involvement in a criminal 
case, it will be presumed punitive and illegal, 
making the action malicious. 
(b) If the authority acts with undue haste after 
the owner or family member becomes involved 
in a criminal case, malafide intent will be 
presumed. 
(c) If the authority selectively targets a property 
while ignoring neighbouring properties with 
similar violations, this "pick and choose" action 
will also be presumed malicious. 
Mr. M.R. 
Shamshad, Sr. 
Adv. 
4. After service of notice as per the procedure 
set out above, the aggrieved person shall take 
appropriate remedy within fifteen days and the 
appropriate authority, after giving opportunity

Source PDF page 15

Open this page in the original PDF
15 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
of personal hearing shall decide the same within 
fifteen days thereafter and the order of disposal 
shall be communicated to the aggrieved person 
on WhatsApp, email etc. as provided on the 
application challenging the notice. Further, the 
order disposing the  appeal shall also be 
uploaded on the respective Municipal 
Corporation Website. 
5. In case the Appellate remedy is provided and 
appeal is filed, the demolition shall not be 
carried out till disposal of the said appeal. In 
case of dismissal of appeal, the Appellate 
Authority shall give at least ten days to the 
residents, occupants to v acate the premises. 
The order of disposal shall be served on the 
appellant through electronic modes and 
immediately uploaded on the website. 
6.  ACT OF 
DEMOLIT
ION 
Mr. C.U. Singh, 
Sr. Adv. and Ms. 
Fauzia Shakil, 
Adv. 
No demolitions should be carried out in the 
early morning and late night. Video recording of 
the same shall be carried out under the orders 
of the said authority. No persons or their 
movable property, shall be subject to any direct 
or indirect harm. 
7.  MALFEA
SANCE 
OF 
ERRING 
OFFICER
S AND 
ACCOUN
TABILITY 
 
 
 
 
 
 
 
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.

Source PDF page 16

Open this page in the original PDF
16 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
 
 
 
 
 
 
MALFEA
SANCE 
OF 
ERRING 
OFFICER
S AND 
ACCOUN
TABILITY 
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 
tortious liability on part of the persons or class 
of persons who have suffered from such 
unconstitutional penal measures. 
Mr. Mohd. 
Nizammudin 
Pasha & Ms. 
Rashmi Singh, 
Advs. 
 
Strict Action Against Officials Involved in 
Demolitions: 
• Ministers: Ministers who publicly justify or 
support demolitions immediately following 
accusations against the victim, whether 
before or after the demolition, must face 
strict action. 
• Municipal Officers : Municipal officers 
responsible for carrying out such 
demolitions should be held accountable. 
• Police Officers : Police officers who order, 
aid, or assist in the execution of illegal 
demolitions, especially when linked to 
accusations of an offence, must also face 
consequences. 
Court-Monitored Inquiry: The Court should 
order a monitored inquiry into demolitions 
linked to accusations of offences, as 
highlighted in the Applicant’s IA 
No.19164/2024, Paragraph 5. 
Immediate Suspension and Departmental 
Action: Immediate suspension and 
departmental action should be taken against all 
officers involved in executing extrajudicial 
demolition orders. 
Criminal Proceedings Under IPC:

Source PDF page 17

Open this page in the original PDF
17 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
• Criminal proceedings under Section 326(g) 
of the Indian Penal Code (2023) should be 
initiated against officers involved in 
extrajudicial demolitions. 
• This action should not be considered as 
performed in an official capacity, and the 
officers should be tried as private 
individuals for causing the destruction of 
human dwellings or unlawful arrest of the 
aggrieved persons. 
Mr. M.R. 
Shamshad, Sr. 
Adv. 
• While undertaking the process of demolition, 
the authorities or nominated officers shall 
not consider demolition of 
unauthorized/illegal houses by targeting one 
house or few houses in a particular 
neighborhood or the town. 
• In case the Appropriate authority is of the 
opinion that a house or a set of particular 
houses are liable to be demolished, to ensure 
fairness and non-discriminatory act of 
appropriate authorities, the Municipal 
authority or Appropriate authority shall 
undertake the overall exercise of identifying 
illegal constructions and fix the timeline for 
removal of the encroachment/demolition. 
• Under no circumstances, one or two houses 
shall be demolished in a particular 
neighborhood until the authority is of the 
opinion that no other house has illegal 
construction/encroachment 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

Source PDF page 18

Open this page in the original PDF
18 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
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 
MALICIO
US OR 
ILLEGAL 
DEMOLIT
ION 
 
 
 
 
 
COMPEN
SATORY 
DAMAGE
S TO 
OWNER 
NI CASE 
OF 
MALICIO
US 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 reputation 
o Rent paid for alternate 
accommodation 
• The court may also direct the authorities to 
rebuild the structure and award punitive 
damages. 
Ms. Nitya 
Ramakrishnan, 
Sr. Adv. 
Appointment of Claim Commissioner: 
• Any judicial officer may be appointed as a 
Claim Commissioner, empowered to grant 
compensation or restitution to persons 
whose buildings or structures have been 
demolished illegally or arbitrarily by the 
authority. 
• Orders for compensation by the Claim 
Commissioner shall be treated as decrees 
of a Civil Court and executed accordingly. 
Personal Liability of Officers: 
• If an officer willfully or negligently fails to 
comply with Supreme Court guidelines, 
causing damage or loss, they will be 
personally liable for recovery of damages. 
• Recovery may occur through salary 
deductions, forfeiture of entitlements, or 
other lawful means, subject to a proper

Source PDF page 19

Open this page in the original PDF
19 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
inquiry where the officer will be given an 
opportunity to be heard by the Claim 
Commissioner. 
State Compensation Scheme for Illegal 
Demolition: 
• The State must establish a scheme to 
provide relief, restitution, and 
compensation to persons whose property 
has been illegally demolished. 
• The scheme will cover financial assistance, 
rehabilitation support, and restoration of 
property rights for the aggrieved persons 
and their family members. 
Documentation Requirements : All actions, 
steps, and procedures taken by the authority or 
Claim Commissioner must be fully and 
accurately documented, including: 
o Issuance of orders, notices, and details of 
responsible officers. 
o Records of inquiry processes, including 
complaints, responses, findings, and 
recommendations. 
o Recovery steps from erring officers, including 
calculations and methods. 
o Copies of communications with concerned 
persons, including notices, final 
determinations, and acknowledgments of 
receipt. 
Online Portal for Documentation : An online 
portal shall be established for preserving and 
documenting all actions and communications 
related to demolition and recovery. This portal 
will be available for audit, review, or inspection 
by authorized authorities and will house all 
records in cluding notices, orders, and 
communications, ensuring transparency and 
accessibility. 
Mr. Mohd. 
Nizammudin 
• Provision must be made for immediate 
interim rehabilitation and/or compensation

Source PDF page 20

Open this page in the original PDF
20 
 
S.No. TOPIC/ 
ISSUE 
COUNSEL’S/ 
PARTY NAME 
SUMMARY OF SUGGESTIONS 
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 of violation or non -
compliance of guidelines issued by this Hon’ble 
Court. 
Mr. M.R. 
Shamshad, Sr. 
Adv. 
Appropriate authorities/Municipal authorities 
shall nominate group of officers who shall be 
answerable to courts/administration as and 
when the issue relating to demolition of houses, 
structure, shops etc. are questioned in courts of 
law or any other forum. The said N ominated 
Officer shall report to the Divisional 
Commissioner / equivalent officer thereto. 
 
11. Shri Tushar Mehta, learned SG, has also given his 
suggestions. The same are reproduced herein below:

Source PDF page 21

Open this page in the original PDF
21 
 
“In view of the legal position exposited above, 
the following suggestions are put forth by the 
Ld. Solicitor General on behalf of the 
Respondents: 
1. The specific requirements of notice as 
provided in the relevant municipal 
law must be strictly followed. Further, 
the notice must clearly state the alleged 
violation for which demolition action is 
proposed. Where such notice period is 
not specifically provided, and the case 
does not fall within the exception noted 
in paras 2 and 3 below, a reasonable 
notice period of one week to 10 days may 
be read into the relevant statute. 
2. Exception: It is also pertinent to note 
that this Hon'ble Court has itself, in 
Order dt. 17.09.2024, carved an 
exception in case of “unauthorised 
structure[s] in any public place such 
as a road, street, footpath, abutting 
railway line or any river body or water 
bodies and also to cases where there 
is an order of demolition made by a 
Court of law.” Therefore, it is submitted 
that any guidelines/SoP framed by this 
Hon'ble Court may not provide for notice 
in such cases, in case the relevant 
municipal law does not specifically 
provide for the same. Every  municipal 
law also provides for situations where 
demolitions may be carried out without 
notice. For instance, Section 26C of the

Source PDF page 22

Open this page in the original PDF
22 
 
Uttar Pradesh Urban Planning and 
Development Act, 1973 states: 
“Section 26 -C. Authority may 
without notice remove 
anything erected or deposited 
in contraventions of Act.- 
The Authority or an officer 
authorised by it in this behalf may, 
without notice, cause to be 
removed- 
(a) Any wall, fence, rail, post. 
Step, booth or other structure 
whether fixed or movable and 
whether of a permanent or 
temporary nature or any fixture 
which shall be erected, or set in 
or upon or over any street or 
upon or over 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

Source PDF page 23

Open this page in the original PDF
23 
 
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. 
4. Manner of Service of Notice: It is 
submitted that most municipal laws 
provide for the manner of service of 
notice. For instance, Section 43 of the 
Uttar Pradesh Urban Planning and 
Development Act, 1973 provides for the 
service of notice, either to be handed 
over in person, or if such person cannot 
be found, then by affixation on some 
conspicuous part of his last known place 
of residence or business o r on some 
conspicuous part of land or building to 
which it relates, or by registered post. It 
is therefore su bmitted that (i) the 
manner of service specified in the

Source PDF page 24

Open this page in the original PDF
24 
 
relevant municipal law must be 
strictly followed; (ii) if the relevant 
statute is silent on the issue of service 
of notice, then it must be sent 
through registered post, and if such 
post is returned unserved/refused, 
then it must be affixed on some 
conspicuous part of the building/ 
property against which the action is 
proposed; and (iii) in all cases, where 
practicable, the relevant municipal 
authority must also upload such 
proposed action on its portal. 
5. Procedure to be followed after service 
of notice: It is submitted that most 
municipal laws have a specific procedure 
to be followed after service of notice – 
such as an opportunity for hearing, 
before a final demolition order is passed. 
Further, the affected party in most cases 
also has a right to appeal to the 
Appellant Authority designated by the 
statute. It is submitted that the 
procedure for hearing and appeal as 
provided in the relevant statute must 
be strictly adhered to. Where there is 
no such procedure prescribed (and the 
case does not fall within the 
exceptions outlined in paras 2 and 3 
above where demolition without 
notice is authorised), natural justice 
requirements of a hearing must be 
read into the statute – with the notice 
fixing a reasonable t ime of a week to

Source PDF page 25

Open this page in the original PDF
25 
 
appear before the concerned 
authority for the personal hearing.  
6. Final order of demolition: The final 
order of demolition should be passed 
after hearing the noticee (unless the 
case falls within the exception 
outlined in paras 2 – 3 above) and 
must specify clearly the violations on 
account of which it is being passed. In 
most municipal laws, the statute itself 
provides the noticee himself the 
opportunity to undertake the 
demolition/rectify the violations prior to 
demolition being undertaken by the 
authority. Where the law does not 
provide such opportunity, 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

Source PDF page 26

Open this page in the original PDF
26 
 
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 to be considered is, as to whether the properties of 
the 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 or 
not? 
13. For considering the said question, we will be required to 
consider the principle of the rule of law, which is the very 
foundation of democratic governance. We will also have to 
consider the rights guaranteed under the Constitution that

Source PDF page 27

Open this page in the original PDF
27 
 
provide protection to individuals from arbitrary state action. We 
will also have to consider in this case the issue with regard to 
fairness in the criminal justice system, which mandates that the 
legal process should not prejudge the guilt of the accused. We 
will also have to touch upon the concept of separation of powers 
and the doctrine of public trust in respect of government officials 
holding their offices. 
II. RULE OF LAW 
14. The rule of law has been succinctly conceptualized by AV 
Dicey2, which can be summarized into three postulates:  
(1) “no man is punishable or can be lawfully 
made to suffer in body or goods except for 
a distinct breach of law established in the 
ordinary legal manner before the ordinary 
courts of the land”, as contrasted to the 
“the exercise by persons in authority of 
wide, arbitrary, or discretionary powers of 
constraint”;  
 
(2) “no man is above the law”, and that “every 
man, whatever be his rank or condition, is 
 
2 AV Dicey, Introduction to the Study of the Law of the Constitution, Macmilan and Co. Ltd. 
(1952), pp. 183-205.

Source PDF page 28

Open this page in the original PDF
28 
 
subject to the ordinary law of the realm 
and amenable to the jurisdiction of the 
ordinary tribunals”; and  
 
(3) “the predominance of the legal spirit” or 
that “the general principles of the 
constitution… are with us the result of 
judicial decisions determining the rights of 
private persons in particular cases 
brought before the courts”.  
 
15. There can be no doubt with the principle that, no one is 
above the law of the land; that everybody is equal before the law.   
16. There can also be no doubt with the principle that, under 
the constitutional framework there is no scope for arbitrariness 
by officials, and that no one can be punished or made to suffer 
in body or goods except for a distinct breach of law established 
in the ordinary legal manner before the ordinary courts of the 
land. It is only the courts which are independent adjudicators of 
the rights of the parties and under the constitutional framework 
it is only they which can impose punishment.

Source PDF page 29

Open this page in the original PDF
29 
 
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”3. It ensures that “courts should be available to enforce 
the law and should employ fair procedures” 4. The law must be 
just and fair, and “protect the human rights and dignity of all 
members of society”5. Above all, “the essential purpose of the rule 
of law is to prevent the abuse of power”6. Lord Bingham sets out 
as one of the facets of the rule of the law, the following7:  
“(4) Ministers and public officers at all 
levels must exercise the powers conferred 
on them in good faith, fairly, for the 
 
3 Tamanaha, Brian Z. "The history and elements of the rule of law." Singapore Journal of 
Legal Studies (2012): 232-247. 
4 Fallon Jr, Richard H. "The rule of law as a concept in constitutional discourse." Colum. L. 
Rev. 97 (1997): 1. 
5 Stein, Robert. "Rule of law: what does it mean." Minn. J. Int'l L. 18 (2009): 293. 
6 Raitio, Juha. "The Concept of the Rule of Law - Just a Political Ideal, or a Binding 
Principle?." Giornale di Storia Costituzionale, 45, 2023, pp. 37-46. HeinOnline.  
7 Bingham, Tom. The Rule of Law, p.60.

Source PDF page 30

Open this page in the original PDF
30 
 
purpose for which the powers were 
conferred, without exceeding the limits of 
such powers and not unreasonably.” 
 
18. The rule of law has also been described as “an umbrella 
concept for a number of legal and institutional instruments to 
protect citizens against the power of the state” 8. Moreover, “Rule 
of law is integral to and necessary for democracy and good 
governance”, because “attempts to democratize without a 
functional legal system in place have resulted in social disorder”9.  
19. It can thus be seen that 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.   
 
8 Bedner, Adriaan. "An elementary approach to the rule of law." Hague Journal on the rule 
of law 2.1 (2010): 48-74. 
9 Peerenboom, Randall. "Human rights and rule of law: What's the relationship." Geo. J. 
Int'l L. 36 (2004): 809.

Source PDF page 31

Open this page in the original PDF
31 
 
20. While we consider this aspect, we are of the view that the 
concept of rule of law needs to be considered broadly. The legal 
sanctity of practices in the past such as slavery in the United 
States, apartheid in South Africa, or untouchability in India 
would have to be considered as antitheses to the rule of law apart 
from being a serious affront to human dignity.   
21. In this respect, we may refer to the work of various scholars 
in the field. Thus, “for the rule of law to measure up to the 
requirements of a legitimate constitutional democracy, it must be 
more than the rule of law in the narrow sense” 10. In the modern 
constitutional framework, “the rule of law would seem to need 
democratic accountability, procedural fairness, and even 
perhaps substantive grounding” 11, such as in the provisions of 
the Constitution. In other words, “the rule of law means the 
 
10 Rosenfeld, Michel. "The rule of law and the legitimacy of constitutional democracy." S. 
Cal. L. Rev. 74 (2000): 1307. 
11 Ibid

Source PDF page 32

Open this page in the original PDF
32 
 
regulative role of certain institutions and their associated legal 
and judicial practices”12. 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”13. 
 
22. This Court in the case of Smt. Indira Nehru Gandhi v. 
Shri Raj Narain14, 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...” 
 
 
12 John Rawls, Samuel Freeman (ed.), Collected Papers (Harvard University Press, 2021). 
13 Id. at 306. 
14 (1976) 2 SCR 347

Source PDF page 33

Open this page in the original PDF
33 
 
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 another15, this Court was considering 
the plight of Chakma community in the State of Arunachal 
Pradesh. This Court observed thus:  
“No State Government worth the name 
can tolerate such threats by one group of 
person to another group of persons; it is 
duty bound to protect the threatened 
group from such assaults and if it fails to 
do so, it will fail to perform its 
Constitutional as well as statutory 
obligations. Those giving such threats 
would be liable to be dealt with in 
accordance with law. The State 
Government must act impartially and 
carry out its legal obligations to safeguard 
the life, health and well -being of 
Chakmas residing in the State without 
being inhibited by local politics.” 
 
24. This Court in unequivocal terms held that no State 
Government worth the name can tolerate threats by one group of 
 
15 1996 INSC 38=(1996) 1 SCC 742

Source PDF page 34

Open this page in the original PDF
34 
 
person to another group of persons . It has been held that the 
State is duty bound to protect the group from such assaults and 
if it fails to do so, it will fail to perform its Constitutional as well 
as statutory obligations . It has been held that the State 
Government must act impartially and carry out its legal 
obligations to safeguard the life, health and well -being of 
Chakmas residing in the State without being inhibited by local 
politics.  
25. In Justice K.S. Puttaswamy  (Retd.) & Anr.  v. Union of 
India & Ors. 16, while dealing with the constitutionality of the 
Aadhaar Act, 2016, this Court held: 
“As the interpreter of the Constitution, it is 
the duty of this Court to be vigilant against 
State action that threatens to upset the fine 
balance between the power of the state and 
rights of citizens and to safeguard the 
liberties that inhere in our citizens.” 
 
 
16 [2018] 8 S.C.R. 1

Source PDF page 35

Open this page in the original PDF
35 
 
26. In his dissenting opinion, Dr. Justice D.Y. Chandrachud (as 
His Lordship then was) described the principle of the rule of law 
as under: 
“The rule of law is the cornerstone of modern 
democratic societies and protects the 
foundational values of a democracy. When 
the rule of law is interpreted as a principle of 
constitutionalism, it assumes a division of 
governmental powers or functions that 
inhibits the exercise of arbitrary State power. 
It also assumes the generality of law: the 
individual’s protection from arbitrary power 
consists in the fact that her personal dealings 
with the State are regulated by general rules, 
binding on private citizens and public 
officials alike.” 
27. This sentiment was echoed in Rojer Mathew v. South 
Indian Bank Ltd. & Ors.17, 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.” 
 
17 [2019] 16 S.C.R. 1

Source PDF page 36

Open this page in the original PDF
36 
 
28. Again, earlier this year, in Bilkis Yakub Rasool v. Union 
of India & Others18, 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 consequences of 
decisions taken by courts. Therefore, the 
judiciary has to carry out its obligations 
effectively and true to the spirit with which it 
is sacredly entrusted the task and always in 
favour of Rule of law. There can be no Rule of 
law if there is no equality before the law; and 
Rule of law and equality before the law would 
be empty words if their violation is not a 
matter of judicial scrutiny or  judicial review 
and relief and all these features would lose 
their significance if the courts don’t step in to 
 
18 [2024] 1 S.C.R. 743

Source PDF page 37

Open this page in the original PDF
37 
 
enforce the Rule of law. Thus, the judiciary is 
the guardian of the Rule of law and the 
central pillar of a democratic State. 
Therefore, the judiciary has to perform its 
duties and function effectively and remain 
true to the spirit with which they are sacredly 
entrusted to it. 
Further, in a democracy where Rule of law is 
its essence, it has to be preserved and 
enforced particularly by courts of law. 
Compassion and sympathy have no role to 
play where Rule of law is required to be 
enforced. If the Rule of law has to be 
preserved as the essence of democracy, it is 
the duty of the courts to enforce the same 
without fear or favour, affection or ill-will.” 
29. It is thus well settled that the rule of law has been described 
as a safeguard against the arbitrary use of the State power. It 
ensures that the actions of the Government and its authorities 
are governed by established legal principles, rather than 
arbitrary discretion. Whenever the citizens in the form of mobs 
have broken the law to vandalize or to declare threats, the Court 
has cast an obligation on the State to prevent such threats or 
assaults. This obligation underscores the State’s responsibility to

Source PDF page 38

Open this page in the original PDF
38 
 
maintain law and order and protect citizens from unlawful 
actions that undermine the rule of law itself. 
30. It is not necessary to state that failure to uphold these 
obligations can erode public confidence in the justice system, 
leading to an environment where the rule of law is compromised 
by lawlessness. Ensuring the preservation of the principle of rule 
of law and the protection of the civil rights and liberties of citizens 
is essential for protecting the constitutional democracy.   
31. The concept of the rule of law is not an abstract principle 
but is reflected in the substantive content of various legal 
domains. In this regard, it would be apt to refer to the following 
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

Source PDF page 39

Open this page in the original PDF
39 
 
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”19.      
(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 property will not be taken away 
from them arbitrarily and abusively’. 
33. It can thus be said that 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. 
 
19 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).

Source PDF page 40

Open this page in the original PDF
40 
 
III. SEPARATION OF POWERS 
34. Another important aspect that needs to be addressed in the 
present matter is with regard to the doctrine of separation of 
powers, as envisaged in our Constitution.  Our Constitution has 
earmarked separate areas for exercise of powers and for 
discharge of duties to the three organs of the democracy, viz., the 
Executive, the Legislature, and the Judiciary.  The Legislature is 
empowered to enact the laws within the framework of the 
Constitution; the Executive is entrusted with the powers and is 
expected to discharge its duties in accordance with the provisions 
of the Constitution and the laws as enacted by the competent 
Legislature. The adjudicatory function is entrusted to the 
Judiciary. In several judgments, this Court has reiterated the 
principle governing the separation of powers.

Source PDF page 41

Open this page in the original PDF
41 
 
35. In the case of In Rai Sahib Ram Jawaya Kapur  and 
others v. State of Punjab,20 a Constitution Bench of this Court 
observed thus: 
“It may not be possible to frame an exhaustive 
definition of what executive function means 
and implies. Ordinarily the executive power 
connotes the residue of governmental 
functions that remain after legislative and 
judicial functions are taken away. The Indian 
Constitution has not indeed recognised the 
doctrine of separation of powers in its 
absolute rigidity but the functions of the 
different parts or branches of the Government 
have been sufficiently differentiated and 
consequently it can very well be said that our 
Constitution does not contemplate 
assumption, by one organ or part of the State, 
of functions that essentially belong to 
another.” 
36. It could thus be seen that the Constitution Bench of this 
Court has held that our Constitution does not contemplate 
assumption, by one organ or part of the State, of functions that 
essentially belong to another.   
 
20 AIR 1955 SC 549

Source PDF page 42

Open this page in the original PDF
42 
 
37. In the case of Indira Nehru Gandhi v. Raj Narain  and 
another (supra) reiterating the position that the principle of 
separation of power is a part of the basic structure, a 
Constitution Bench of this Court held thus: 
“The political usefulness of the doctrine of 
separation 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

Source PDF page 43

Open this page in the original PDF
43 
 
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 observed that the Indian Parliament will not direct that an 
accused in a pending case shall stand acquitted or that a suit 
shall stand decreed.   
39. A Nine-Judge Bench of this Court in the case of I.R. Coelho 
(Dead) by LRs. v. State of T.N.21 recognized the doctrine of the 
separation of powers as a system of “check and balance”. The 
Court observed that the separation of powers leads to “prevention 
of tyranny”. The Court while emphasizing on the 
interconnectedness between judicial review, rule of law, and the 
separation of power observed thus: 
“Equality, rule of law, judicial review and 
separation of powers form parts of the basic 
structure of the Constitution. Each of these 
concepts are intimately connected. There can 
be no rule of law, if there is no equality before 
the law. These would be mea ningless if the 
 
21 (2007) 2 SCC 1

Source PDF page 44

Open this page in the original PDF
44 
 
violation was not subject to the judicial 
review. All these would be redundant if the 
legislative, executive and judicial powers are 
vested in one organ. Therefore, the duty to 
decide whether the limits have been 
transgressed has been placed on the 
judiciary. 
Judicial review is justified by combination of 
“the principle of separation of powers, rule of 
law, the principle of constitutionality and the 
reach of judicial review” ( Democracy Through 
Law by Lord Styen, p. 131).” 
 
40. This Court reiterated that equality, rule of law, judicial 
review and separation of powers form parts of the basic structure 
of the Constitution. Each of these concepts are intimately 
connected. It has been held that t here can be no rule of law if 
there is no equality before the law. It observed that rights would 
be meaningless if the violation was not subject to the  judicial 
review. The Court records the danger of legislative, executive and 
judicial powers being vested in one organ and, therefore, held 
that the duty to decide whether the limits have been transgressed 
has been placed on the judiciary.

Source PDF page 45

Open this page in the original PDF
45 
 
41. While considering the importance of the doctrine of 
separation of powers in today’s world of positive rights and 
justifiable social and economic entitlements, this Court in the 
case of State of U.P. and others v. Jeet S. Bisht and another22 
observed thus:  
“If we notice the evolution of separation of 
powers doctrine, traditionally the checks and 
balances dimension was only associated with 
governmental excesses and violations. 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 che cks 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) 
 
 
22 (2007) 6 SCC 586

Source PDF page 46

Open this page in the original PDF
46 
 
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 others v. Union of India  and others,23 
observed thus: 
“… the concept of constituti onal 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, et c. and 
empowering the populace with the right to 
information or right to know in matters 
relating to candidates contesting election. 
There can be many an example where this 
Court has issued directions to the executive 
and also formulated guidelines for facilitation 
and in furtherance of fundamental rights and 
sometimes for the actualisation and 
fructification of statutory rights.” 
 
43. This Court, therefore, observed that this Court can issue a 
direction to the executive and also formulate guidelines for 
 
23 (2018) 7 SCC 1

Source PDF page 47

Open this page in the original PDF
47 
 
facilitation and in furtherance of fundamental rights and 
sometimes for the actualization and fructification of statutory 
rights.   
44. The aforesaid decision would lead to a question, as to 
whether when the adjudicatory functions are entrusted to the 
judiciary, can the officers of the State Government take upon 
themselves the adjudicatory function and without a person 
undergoing a trial be inflicted with a punishment of demolition of 
his properties. In our view, such a situation would be wholly 
impermissible in our constitutional set up.  The executive cannot 
replace the judiciary in performing its core functions.  
IV. DOCTRINE OF PUBLIC TRUST AND PUBLIC 
ACCOUNTABILITY 
45. When we are considering the issue with regard to ‘Rule of 
Law’ and ‘Separation of Powers’, we will also have to take into 
effect the matters where the executive transgresses its power and 
acts as a Judge and demolishes the structures of the persons

Source PDF page 48

Open this page in the original PDF
48 
 
without following the procedure prescribed by law. Though the 
doctrine of public trust has been largely applied by this Court in 
environmental matters, it cannot be disputed that the executive 
exercises its powers as a ‘trustee’ of the citizens. Therefore, the 
executive actions must be consistent with main taining public 
trust.   
46. Conversely, when the executive acts in breach of the 
principles of ‘rule of law’ and ‘separation of powers’, the doctrine 
of public  trust and accountability would come into play. This 
Court in the case of Delhi Airtech Services Private Limited 
and another v. State of Uttar Pradesh and another 24 
observed thus: 
“213. These authorities are 
instrumentalities of the State and the 
officers are empowered to exercise the 
power on behalf of the State. Such exercise 
of power attains greater significance when 
it arises from the statutory provisions. The 
level of expectation of  timely and just 
 
24 (2011) 9 SCC 354

Source PDF page 49

Open this page in the original PDF
49 
 
performance of duty is higher, 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 instrumentaliti es. In  Centre for 
Public Interest Litigation  v. Union of 
India [(2005) 8 SCC 202 : (2006) 1 SCC 
(Cri) 23] , this Court declared the dictum 
that State actions causing loss are

Source PDF page 50

Open this page in the original PDF
50 
 
actionable under public law. This is a 
result of innovation, a new tool with the 
courts which are the protectors of civil 
liberties of the citizens and would ensure 
protection against devastating results of 
State action. The principles of public 
accountability and transparency in State 
action are applicable to cases of executive 
or statutory exercise of power, besides 
requiring that such actions also not lack 
bona fides. All these principles enunciated 
by the Court over a passage of time clearly 
mandate tha t public officers are 
answerable for both their inaction and 
irresponsible actions. If what ought to 
have been done is not done, responsibility 
should be fixed on the erring officers; then 
alone, the real public purpose of an 
answerable administration woul d be 
satisfied. 
216. The doctrine of “full faith and credit” 
applies to the acts done by the officers. 
There is a presumptive evidence of 
regularity in official acts, done or 
performed, and there should be faithful 
discharge of duties to elongate public 
purpose in accordance with the procedure 
prescribed. Avoidance and delay in 
decision-making process in government 
hierarchy is a matter of growing concern. 
Sometimes delayed decisions can cause 
prejudice to the rights of the parties

Source PDF page 51

Open this page in the original PDF
51 
 
besides there being violation of the 
statutory rule. 
217. This Court had occasion to express 
its concern in different cases from time to 
time in relation to such matters. In  State 
of A.P. v. Food Corporation of India [(2004) 
13 SCC 53 : 2006 SCC (L&S) 873] , this 
Court observed that it is a known fact that 
in transactions of government business, 
no one would own personal responsibility 
and decisions would be leisurely taken at 
various levels. 
218. Principles of public accountability 
are applicable to such officers/officials 
with all their rigour. Greater the power to 
decide, higher is the responsibility to be 
just and fair. The dimensions of 
administrative law permit judicial 
intervention in decisi ons, though of 
administrative nature, which are ex facie 
discriminatory. The adverse impact of lack 
of probity in discharge of public duties can 
result in varied defects, not only in the 
decision-making process but in the final 
decision as well. Every officer in the 
hierarchy of the State, by virtue of his 
being “public officer” or “public servant”, is 
accountable for 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.”

Source PDF page 52

Open this page in the original PDF
52 
 
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 another v. Union of 
India and another25 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 action s are applicable 
to cases of executive or statutory exercise of power, besides 
requiring that such actions also do not lack bona fides. The Court 
 
25 (2005) 8 SCC 202

Source PDF page 53

Open this page in the original PDF
53 
 
held that the public officers are answerable for both their inaction 
and irresponsible actions. For such actions or inactions, 
responsibility should be fixed on the erring officers  so as to 
ensure the real public purpose of an answerable administration. 
49. The Court held that the principles of public accountability 
are applicable to the government officials with all their rigour. 
Greater the power to decide, higher is the responsibility to be just 
and fair. It has been held that every officer in the hierarchy of the 
State, by virtue of his being “public officer” or “public servant”, is 
accountable for his decisions to the public as well as to the State. 
It has been held that the concept of dual responsibility should be 
applied with its rigours in the larger public interest and for proper 
governance. 
50. This Court in the case of Express Newspapers Pvt. Ltd. 
and others v. Union of India and others26 had an occasion to 
consider the distinction between exercise of power in good faith 
 
26 (1986) 1 SCC 133

Source PDF page 54

Open this page in the original PDF
54 
 
and misuse in bad faith. While elaborating the principle of fraud 
on power, this Court observed thus: 
“119. Fraud on power voids the order if it 
is not exercised bona fide for the end 
design. There is a distinction between 
exercise of power in good faith and misuse 
in bad faith. The former arises when an 
authority misuses its power in breach of 
law, say, by taking into account bona fide, 
and with best of intentions, some 
extraneous matters or by ignoring relevant 
matters. That would render the impugned 
act or order ultra vires. It would be a case 
of fraud on powers…..”  
 
 
51. In the case of Nilabati Behera v. State of Orissa and 
others27, this Court while considering as to whether the courts 
exercising writ jurisdiction could grant relief under the public law 
to a citizen complaining of infringement of the indefeasible right 
guaranteed under the Constitution, observed thus: 
 
“32. Adverting to the grant of relief to the 
heirs of a victim of custodial death for the 
infraction or invasion of his rights 
 
27 (1993) 2 SCC 746

Source PDF page 55

Open this page in the original PDF
55 
 
guaranteed under Article 21 of the 
Constitution of India, it is not always 
enough to relegate him to the ordinary 
remedy of a civil suit to claim damages for 
the tortious act of the State as that remedy 
in private law indeed is available to the 
aggrieved party. The citizen complaining of 
the infringement of the indefeasible right 
under Article 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 pre serve 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

Source PDF page 56

Open this page in the original PDF
56 
 
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 
winning of freedom in the new age. They 
must be replaced by new and up -to date 
machinery, by declarations, injunctions 
and actions for negligence…. This is not 
the task for Parliament … the courts must 
do this. Of all the great tasks that lie ahead 
this is the greatest. Properly exercised the 
new power s of the executive lead to the 
welfare state; but abused they lead to a 
totalitarian state. None such must ever be 
allowed in this country.”” 
[emphasis added] 
 
52. In the case of Common Cause , a registered society  v. 
Union of India and others28, this Court observed thus: 
“90.Halsbury's Laws of England , Vol. I(I) 
4th Edn. (Reissue), (para 203) provides as 
under: 
“Deliberate abuse of public office or 
authority.—Bad faith on the part of a 
public officer or authority will result in 
civil liability where the act would 
constitute a tort but for the presence of 
 
28 (1999) 6 SCC 667

Source PDF page 57

Open this page in the original PDF
57 
 
statutory authorisation, as Parliament 
intends statutory powers to be exercised in 
good faith and for the purpose for which 
they were conferred. Proof of improper 
motive is necessary in respect of certain 
torts and may negative a defence of 
qualified privi lege in respect of 
defamation, but this is not peculiar to 
public authorities. There exists an 
independent tort of misfeasance by a 
public officer or authority which consists 
in the infliction of loss by the deliberate 
abuse of a statutory power, or by the  
usurpation of a power which the officer or 
authority knows he does not possess, for 
example by procuring the making of a 
compulsory purchase order, or by 
refusing, or cancelling or procuring the 
cancellation of a licence, from improper 
motives. However, w here there has been 
no misfeasance, the fact that a public 
officer or authority makes an ultra vires 
order or invalidly exercises statutory 
powers will not of itself found an action for 
damages.” 
 
91. De Smith in  Judicial Review of 
Administrative Action , while speaking of 
tort of misfeasance in public office, says as 
under: 
“A public authority or person holding a 
public office may be liable for the tort of 
misfeasance in public office where:

Source PDF page 58

Open this page in the original PDF
58 
 
(1) there is an exercise or non -exercise of 
public power, whether common law, 
statutory or from some other source; 
(2) which is either ( a) affected by malice 
towards the plaintiff or ( b) the decision 
maker knows is unlawful; and 
(3) the 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.”

Source PDF page 59

Open this page in the original PDF
59 
 
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 violates the 
principle of ‘separation of powers’. We are of the view that in such 
matters the public officials, who take the law in their hands, 
should be made accountable for such high-handed actions.   
54. For the executive to act in a transparent manner so as to 
avoid the vice of arbitrariness, we are of the view that 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.

Source PDF page 60

Open this page in the original PDF
60 
 
V. RIGHTS OF THE ACCUSED UNDER THE CONSTITUTION 
55. While we consider the issue in this case, we will have to 
reiterate that even the incarcerated individuals, whether 
accused, undertrial, or convicts, have certain rights, as any other 
citizen. They have a right to dignity and cannot be subjected to 
any cruel or inhuman treatment. The punishment awarded to 
such persons has to be in accordance with law .  Such 
punishment cannot be inhuman or cruel. 
56. This Court has protected the prison ers from excesses and 
arbitrariness of the State and its officials. In  the case of Sunil 
Batra (I) v. Delhi Administration  and others 29, the Court 
declared that the use of iron fetters, or the practice of solitary 
confinement and cellular segregation is inhuman. Speaking for 
the Court, Justice Krishna Iyer , in his inimitable style, states 
that: 
 
29 (1978) 4 SCC 494

Source PDF page 61

Open this page in the original PDF
61 
 
“I hold that bar fetters are a barbarity 
generally and, like whipping, must vanish. 
Civilised consciousness is hostile to torture 
within the walled campus. We hold that 
solitary confinement, cellular segregation and 
marginally modified editions of the same  
process are inhuman and irrational… The law 
is not abracadabra but at once pragmatic and 
astute and does not surrender its power before 
scary exaggerations of security by prison 
bosses... Social justice cannot sleep if the 
Constitution hangs limp where its consumers 
most need its humanism.” 
57. Again in the case of Charles Sobraj v. Supdt., Central 
Jail, Tihar, New Delhi30, while observing that the rights enjoyed 
by prisoners are not static and will rise to human heights when 
challenging situations arise, this Court observed thus: 
“12. … prisoners retain all rights enjoyed by 
free citizens except those lost necessarily as 
an incident of confinement. Moreover, the 
rights enjoyed by prisoners under Articles 14, 
19 and 21, though limited, are not static and 
will rise to human heights when cha llenging 
situations arise.” 
 
30 (1978) 4 SCC 104

Source PDF page 62

Open this page in the original PDF
62 
 
58. In Sunil Batra (II) v. Delhi Administration 31, 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 Articl e 21 is satisfied.”  
 
59. This Court recently in the case of Sukanya Shantha v. 
Union of India & Ors.32, 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 
 
31 (1980) 3 SCC 488 
32 2024 INSC 753

Source PDF page 63

Open this page in the original PDF
63 
 
mechanisms, where oppressive systems were 
designed to dehumanize and degrade those 
under the control of the State. Authoritarian 
regimes of the pre -constitutional era saw 
prisons not only as places of confinement but as 
tools of domination. This Court, focusing on the 
changed legal framework brought out by the 
Constitution, has recognized that even prisoners 
are entitled to the right to dignity… 
Thus, the jurisprudence which emerges on the 
rights of prisoners under Article 21 is that even 
the incarcerated have inherent dignity. They are 
to be treated in a humanely and without cruelty. 
Police officers and prison officials cannot take 
any disproport ionate measures against 
prisoners. The prison system must be 
considerate of the physical and mental health of 
prisoners. For instance, if a prisoner suffers 
from a disability, adequate steps have to be 
taken to ensure their dignity and to offer 
support.” 
60. It is thus clear that no one can take away the fundamental 
rights of prisoners or the accused. Incidentally, this Court in the 
case of Rudul Sah v. State of Bihar  and another 33, had an 
occasion to consider the question as to what happens when the 
rights of the accused or the prisoners are violated, and he 
 
33 1983 INSC 85

Source PDF page 64

Open this page in the original PDF
64 
 
becomes a victim of lawlessness on the part of the State 
Government which keeps him in illegal detention for over 14 
years after his acquittal. While granting monetary compensation 
to the victim in the said case, this Court observed thus: 
“One of the telling ways in which the violation of 
that right can reasonably be prevented and due 
compliance with the mandate of Article 21 
secured, is to mulct its violators in the payment 
of monetary compensation. Administrative 
sclerosis leading to flag rant infringements of 
fundamental rights cannot be corrected by any 
other method open to the judiciary to adopt. The 
·right to compensation is some palliative for the 
unlawful acts of instrumentalities which act in 
the name of public interest and which pre sent 
for their protection the powers of the State as a 
shield. If civilisation is not to perish in this 
country as it has perished in some others too 
well-known to suffer mention, it is necessary to 
educate ourselves into accepting that, respect 
for the rights of individuals is the true bastion of 
democracy. Therefore, the State must repair the 
damage done by its officers to the petitioner's 
rights. It may have recourse against those 
officers.”

Source PDF page 65

Open this page in the original PDF
65 
 
61. Again in the case of Ankush Maruti Shinde and others v. 
State of Maharashtra34, 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. Second ly, 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 
 
34 2019 INSC 305

Source PDF page 66

Open this page in the original PDF
66 
 
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, he cannot be spared for 
such an illegal, arbitrary, mala fide exercise of power.   
VI. PRINCIPLES OF CRIMINAL LAW: PRESUMPTION OF 
INNOCENCE AND NATURAL JUSTICE. 
 
63. The principle, that the criminal justice process is also to be 
in accordance with the principle of the rule of law , is also 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.

Source PDF page 67

Open this page in the original PDF
67 
 
64. 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. H.L.A. Hart summarized the principle of natural justice 
as follows: 
“It may be said that the distinction between a 
good legal system which conforms at certain 
points to morality and justice, and a legal 
system which does not, is a fallacious one, 
because a minimum of justice is necessarily 
realized whenever human behaviour  is 
controlled by general rules publicly announced 
and judicially applied. Indeed we have already 
pointed out,' in analysing the idea of justice, that 
its simplest form (justice in the application of the 
law) consists in no more than taking seriously 
the n otion that what is to be applied to a 
multiplicity of different persons is the same 
general rule, undeflected by prejudice, interest, 
or caprice. This impartiality is what the 
procedural standards known to English and 
American lawyers as principles of 'Nat ural 
Justice' are designed to secure. Hence, though 
the most odious laws may be justly applied, we 
have, in the bare notion of applying a general 
rule of law, the germ at least of justice.”35 
 
35 H.L.A. Hart, The Concept of Law  (Oxford University Press, New York, 2nd Edn., 1994), 
p. 206

Source PDF page 68

Open this page in the original PDF
68 
 
65. John Rawls defined the principle of natural justice in the 
following words36: 
“Finally, there are those precepts defining 
the notion of natural justice. These are 
guidelines 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 impo se the correct penalty. 
Thus, a legal system must make 
provisions for conducting orderly trials 
and h earings; 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 w ays 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 
 
36 John Rawls,  A Theory of Justice (Revised Edition)  (The Belknap Press of Harvard 
University Press, Cambridge, 1999).

Source PDF page 69

Open this page in the original PDF
69 
 
legal order will be impartially and regularly 
maintained.”37  
 
66. It is thus required that the trial must be fair and open, but 
not prejudiced by public clamor.  The precepts of natural justice 
are to ensure that the legal order will be impartially and regularly 
maintained. 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.  
67. In this regard, it will be apposite to refer to the decision of 
this Court in the case of Himanshu Singh Sabharwal v. State 
of Madhya Pradesh and others38, where it was held: 
“Failure to accord fair hearing either to the 
accused or the prosecution violates even 
minimum standards of due process of law. 
It is inherent in the concept of due process 
of law, that condemnation should be 
rendered only after the trial in which the 
hearing is a real one, not sham or a mere 
farce and pretence. Since the fair hearing 
requires an opportunity to preserve the 
 
37 Id. at 209-210. 
38  AIR 2008 SC 1943

Source PDF page 70

Open this page in the original PDF
70 
 
process, it may be vitiated and violated by 
an overhasty stage -managed, tailored and 
partisan trial… 
The fair trial for a criminal offence consists 
not only in technical observance of the 
frame and forms of law, but also in 
recognition and just application of its 
principles in substance, to find out the truth 
and prevent miscarriage of justice.” 
68. It has been held by this Court in the case of State of 
Maharashtra v. Champalal Punjaji Shah39, that the right to a 
fair and speedy trial is enshrined under the right to life 
guaranteed under the Constitution. 
69. The importance and purpose of the principles of natural 
justice have been succinctly summed up by Lord Megarry in the 
case of John v Rees40 as under: 
“It may be that there are some who would 
decry the importance which the courts 
attach to the observance of the rules of 
natural justice. ‘When something is 
obvious,’ they may say, ‘why force 
everybody to go through the tiresome 
waste of time involved in fr aming charges 
 
39 (1982) 1 SCR 299 
40 (1970) Ch 345 at p. 402

Source PDF page 71

Open this page in the original PDF
71 
 
and giving an opportunity to be heard? 
The result is obvious from the start.’ Those 
who take this view do not, I think, do 
themselves justice. As everybody who has 
anything to do with the law well knows, 
the path of the law is strewn with 
examples of open and shut cases which, 
somehow, were not; of unanswerable 
charges which, in the event, were 
completely answered; of inexplicable 
conduct which was fully explained; of fixed 
and unalterable determinations that, by 
discussion, 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

Source PDF page 72

Open this page in the original PDF
72 
 
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 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.   
72. 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

Source PDF page 73

Open this page in the original PDF
73 
 
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.  
73. As we have already said, 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.   
74. 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.   
75. It is to be noted that even in the cases consisting of 
imposition of a death sentence, it is always a discretion available

Source PDF page 74

Open this page in the original PDF
74 
 
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’.   
VII. RIGHT TO SHELTER 
76. 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

Source PDF page 75

Open this page in the original PDF
75 
 
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 others v. 
State of U.P. and another 41 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 
 
41 (1996) 2 SCC 549

Source PDF page 76

Open this page in the original PDF
76 
 
make the right meaningful to the poor, the 
State has to provide facilities and 
opportunity to build houses. Acquisition of 
the land to provide house sites to the poor 
houseless is a public purpose as it is the 
constitutional duty of the State to provide 
house sites to the poor. 
8. In any organised society, right to live as 
a human being is not ensured by meeting 
only the animal needs of man. It is secured 
only when he is assured of all facilities to 
develop himself and is freed from 
restrictions which inhibit his growth. All 
human rights are designed to achieve this 
object. Right to live guaranteed in any 
civilised society implies the right to food, 
water, decent environment, education, 
medical care and shelter. These are basic 
human rights known to any civilised 
society. All civi l, political, social and 
cultural rights enshrined in the Universal 
Declaration of Human Rights and 
Convention or under the Constitution of 
India cannot be exercised without these 
basic human rights. Shelter for a human 
being, therefore, is not a mere prot ection 
of his life and limb. It is home where he 
has opportunities to grow physically, 
mentally, intellectually and spiritually. 
Right to shelter, therefore, includes 
adequate living space, safe and decent 
structure, clean and decent surroundings, 
sufficient light, pure air and water,

Source PDF page 77

Open this page in the original PDF
77 
 
electricity, sanitation and other civic 
amenities like roads etc. so as to have easy 
access to his daily avocation. The right to 
shelter, therefore, does not mean a mere 
right to a roof over one's head but right to 
all the infrastructure necessary to enabl e 
them to live and develop as a human 
being. Right to shelter when used as an 
essential requisite to the right to live 
should be deemed to have been 
guaranteed as a fundamental right. As is 
enjoined in the Directive Principles, the 
State should be deemed t o be under an 
obligation to secure it for its citizens, of 
course subject to its economic budgeting. 
In a democratic society as a member of the 
organised civic community one should 
have permanent shelter so as to 
physically, mentally and intellectually 
equip oneself to improve his excellence as 
a useful citizen as enjoined in the 
Fundamental Duties and to be a useful 
citizen and equal participant in 
democracy. The ultimate object of making 
a man equipped with a right to dignity of 
person and equality of sta tus is to enable 
him to develop himself into a cultured 
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,

Source PDF page 78

Open this page in the original PDF
78 
 
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 also happen to belong to 
accused persons. He, however, reiterated that it was the stand of

Source PDF page 79

Open this page in the original PDF
79 
 
various States that such properties can be demolished only in 
accordance with the procedure prescribed by law.   
81. The position is disputed by the learned counsels appearing 
on behalf of the petitioners/applicants. It is stated that the chain 
of events clearly depicts that the demolition of the houses was an 
immediate reflection of the persons being implicated in crimes.  
It was submitted that the time gap between the person being 
named as an accused and demolition of his property/properties 
made it apparent that the punishment of demolition was inflicted 
by the executive on such person being arrayed as an accused. It 
was also submitted that in case of demolition of the property of 
an alleged accused, it is difficult to belie ve that only a single 
construction belonging to an accused is unauthorized 
construction, whereas all other structures in the vicinity are legal 
and authorized as per local laws.  
82. Though the learned SG may be right in submitting that in 
some cases it may be by sheer coincidence that the properties

Source PDF page 80

Open this page in the original PDF
80 
 
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. The authorities will have to 
satisfy the court that it did not intend to penalize a  person 
accused by demolishing the structure.   
83. While considering the issue with regard to the demolition of 
the houses which are required to be demolished for breach of the

Source PDF page 81

Open this page in the original PDF
81 
 
local laws, we find that the principle of the rule of law needs to 
be considered even in the municipal laws. There may be certain 
unauthorized constructions which could be compoundable.  
There may be certain construction s 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 others v. State of Madhya Pradesh and

Source PDF page 82

Open this page in the original PDF
82 
 
others42, K.S. Puttaswamy and another v. Union of India and 
others43 (Privacy 9-J) and Vivek Narayan Sharma and others 
v. Union of India and others44 (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 others (supra), this Court observed thus:  
“60. …….Thus, while examining as to 
whether the impugned provisions of the 
statute and rules amount to reasonable 
restrictions and are brought out in the 
interest of the general public, the exercise 
that is required to be undertaken is the 
balancing of fundamental right to carry on 
occupation on the one hand and the 
restrictions imposed on the other hand. 
This is what is known as “ doctrine of 
proportionality”. Jurisprudentially, 
“proportionality” can be defined as the set 
of rules determining the necessary and 
sufficient conditions for limitation of a 
constitutionally protected right by a law to 
be constitutionally permissible. According 
to Aharon Barak (former Chief Justice, 
Supreme Court of Israel), there are four 
 
42 (2016) 7 SCC 353 
43 (2017) 10 SCC 1 
44 (2023) 3 SCC 1

Source PDF page 83

Open this page in the original PDF
83 
 
sub-components of proportionality which 
need to be satisfied [ Aharon 
Barak, Proportionality: Constitutional 
Rights and Their Limitation  (Cambridge 
University Press 2012).] , a limitation of a 
constitutional right will be constitutionally 
permissible if: 
(i) it is designated for a proper purpose; 
(ii) the measures undertaken to effectuate 
such a limitation are rationally connected 
to the fulfilment of that purpose; 
(iii) the measures undertaken are 
necessary in that there are no alternative 
measures that may similarly achieve that 
same purpose with a lesser degree of 
limitation; and finally 
(iv) there needs to be a proper relation 
(“proportionality stricto sensu ” or 
“balancing”) between the importance of 
achieving the proper purpose and the 
social importance of preventing the 
limitation on the constitutional right.” 
86. It is also to be noted that the 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

Source PDF page 84

Open this page in the original PDF
84 
 
embodies the collective hopes of a family or individual s 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.  
VIII. PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT 
87. Right to life is a fundamental right. As already discussed 
herein above, with the expanded scope of law, the right to shelter 
has also been considered as one of the facets of Article 21 of the 
Constitution. In one structure, 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.

Source PDF page 85

Open this page in the original PDF
85 
 
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 others v. Gujarat Steel Tubes Mazdoor Sabha 
and others45: 
“111. The cardinal distinction in our 
punitive jurisprudence between a 
commission of enquiry and a court of 
adjudication, between the cumulative 
 
45 (1980) 2 SCC 593

Source PDF page 86

Open this page in the original PDF
86 
 
causes of a calamity and the specific guilt 
of a particular person, is that speaking 
generally, we have rejected, as a nation, 
the theory of community guilt and 
collective punishment and instead that no 
man shall be punished except for his own 
guilt. Its r eflection in the disciplinary 
jurisdiction is that no worker shall be 
dismissed save on proof of his individual 
delinquency. Blanket attainder of a bulk of 
citizens on any vicarious theory for the 
gross sins of some only, is easy to apply 
but obnoxious in principle.” 
 
IX. DIRECTIONS 
90. In order to allay the fears in the minds of the citizens with 
regard to arbitrary exercise of power by the officers /officials of 
the State, we find it necessary to issue  certain directions in 
exercise of our power under Article 142 of the Constitution. We 
are also of the view that 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.  
We are further of the view that even in cases of persons who do 
not wish to contest the demolition order, sufficient time needs to

Source PDF page 87

Open this page in the original PDF
87 
 
be given to them to vacate and arrange their affairs. It is no t a 
happy sight to see women, children and aged persons dragged to 
the streets overnight. Heavens would not fall on the authorities if 
they hold their hands for some period.  
91. At the outset, we clarify that these directions 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.  
A. NOTICE 
i. 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. 
 
ii. The notice shall be served upon the owner/occupier 
by a registered post A.D.  Additionally, the notice shall

Source PDF page 88

Open this page in the original PDF
88 
 
also be affixed conspicuously on the outer portion of 
the structure in question.  
 
iii. The time of 15 days, stated herein above, shall start 
from the 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 acknowle dging 
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.

Source PDF page 89

Open this page in the original PDF
89 
 
v. The notice shall contain the details regarding: 
a. the nature of the unauthorized construction. 
b. the detail s 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 today 
wherein details regarding service/pasting of the 
notice, the reply, the show cause notice and the order 
passed thereon would be available.

Source PDF page 90

Open this page in the original PDF
90 
 
B. PERSONAL HEARING 
i. The designated authority shall give an opportunity of 
personal hearing to the person concerned. 
 
ii. The minutes of such a hearing shall also be recorded. 
 
C. FINAL ORDER 
i. Upon hearing, the designated authority shall pass a 
final order. 
 
ii. 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;

Source PDF page 91

Open this page in the original PDF
91 
 
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. 
 
D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL 
SCRUTINY OF THE FINAL ORDER. 
 
i. We further direct that 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 
as stated above. 
 
ii. An opportunity should be given to the owner/occupier 
to remove the unauthorized construction or demolish

Source PDF page 92

Open this page in the original PDF
92 
 
the same within a period of 15 days. Only after the 
period of 15 days from the date of receipt of the notice 
has expired and the owner/occupier has not 
removed/demolished the unauthorized construction, 
and if the same is not stayed by any appellate 
authority or a court, the concerned authority shall 
take steps to demolish the same. It is only such 
construction which is found to be unauthorized and 
not compoundable shall be demolished.    
 
iii. Before demolition, a detailed inspection report shall be 
prepared by the concerned authority signed by two 
Panchas.   
 
E. PROCEEDINGS OF DEMOLITION 
i. The proceedings of demolition shall be video-graphed, 
and the concerned authority shall prepare a 
demolition report giving the list of police officials and

Source PDF page 93

Open this page in the original PDF
93 
 
civil personnel that participated in the demolition 
process. Video recording to be duly preserved.  
 
ii. The said demolition report should be forwarded to the 
Municipal Commissioner by email and shall also be 
displayed on the digital portal. 
 
92. Needless to state that the authorities hereinafter shall 
strictly comply with the aforesaid directions issued by us.   
93. It will also be informed that violation of any of the directions 
would lead to initiation of contempt proceedings in addition to 
the prosecution.  
94. The officials should also be informed that 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.

Source PDF page 94

Open this page in the original PDF
94 
 
95. The Registrar (Judicial) is directed to circulate a copy of this 
judgment to the Chief Secretar ies of all the States/Union 
Territories and the Registrar Generals of all the High Courts. All 
State Governments shall issue circulars to all the District 
Magistrates and local authorities intimating them about the 
directions issued by this Court.   
96. Before we part with the judgment, we must place on record 
our appreciation for the valuable assistance and suggestions 
given by Shri Abhishek Manu Singhvi, Shri M.R. Shamshad, Shri 
Sanjay Hegde, Shri C.U. Singh, Smt. Nitya Ramakrishnan, 
learned Senior Counsel, and Shri Prashant Bhushan, Shri Mohd. 
Nizammudin Pasha, Smt. Fauzia Shakil and Smt. Rashmi Singh, 
learned counsel appearing for the petitioners/applicants. 
97. We also make a special mention of the pain -staking efforts 
made by Shri Nachiketa Joshi, learned Senior Counsel in 
collating the suggestions given by all the different counsel.

Source PDF page 95

Open this page in the original PDF
95 
 
98. We must place on record our appreciation for Shri Tushar 
Mehta, learned Solicitor General of India, who has presented the 
case in an objective and dispassionate manner in keeping with 
the traditions of his high office.  
99. Post the writ petitions for further orders after four weeks.  
 
 
 
 
 
 
…….........................J.        
[B.R. GAVAI] 
 
 
 
…….........................J.        
[K.V. VISWANATHAN] 
NEW DELHI; 
NOVEMBER 13, 2024