Supreme Court denies blanket stay on demolition drives
In its plea in the apex court, the Jamiat Ulama-i-Hindi has pressed for a generic directive to stop demolition across the country until the court decided the Islamic body’s petition alleging violation of people’s rights.
The Supreme Court on Wednesday declined to stay the demolition of properties using bulldozers throughout the country, noting that an “omnibus” order by the top court could restrain municipal authorities from acting against all unauthorised constructions.
A bench of justices BR Gavai and PS Narasimha expressed its indisposition to accept a plea made by Jamiat Ulama-i-Hind, which pressed for a generic directive to stop demolition across the states until the court decided the Muslim body’s petition alleging violation of people’s rights.
“What omnibus order can be passed? Nobody disputes that the rule of law has to be followed. But look at it from another angle. If under municipal laws the construction is unauthorised, can an omnibus order be passed to restrain municipal authorities?” the bench asked senior advocate Dushyant Dave, who appeared for Jamiat.
Dave, on his part, had pleaded for an interim order against employment of bulldozers by several state governments to raze properties of those suspected of involvement in criminal activities. As the bench set down the matter for a detailed hearing on August 10, he argued that an interim order was required to ensure more houses were not demolished by police as a punitive measure against the accused.
“The question is what relief this court can give today to a poor man who will have nothing left if his house is demolished before the court hears the case on the next date,” said the senior counsel.
To this, the bench asked him: “Can we pass an omnibus order?”
Dave replied: “Why not? The entire Sainik Farm (an upmarket locality in Delhi) is illegal and nobody has touched it in 50 years. What remedy does a poor person have when his house is demolished? We aren’t governed by the jungle law. Let some order be passed.” The senior lawyer added that the problem is that a particular community (Muslims) is targeted in these demolition drives.
But the bench refrained from issuing any order. “The question also is whether an omnibus order will stand... We will hear it whenever the counsel are ready,” said the court, fixing the next hearing for August 10.
Jamiat Ulama-I-Hind filed two petitions in the top court in April against the practice of using bulldozers to pull down residential and commercial properties of persons suspected to be involved in criminal incidents such as riots.
The first petition, filed by advocate Kabir Dixit, urged the Supreme Court to issue appropriate directions to the Union government and all states that demolition cannot be used as a punitive measure against persons purportedly involved in crimes.
Jamiat’s second petition, filed by advocate MR Shamshad, specifically raised the issue of an anti-encroachment and demolition drive at Delhi’s Jahangirpuri area, four days after a communal violence broke out in the locality on the day of Hanuman Jayanti, leaving eight policemen and one civilian injured. By its orders on April 20 and April 21, the Supreme Court restrained Delhi’s municipal body concerned from carrying out any demolition drive in riot-hit area until its further orders.
Subsequently, two more applications were moved in the court by Jamiat on June 13, complaining against demolition of properties of people accused of allegedly participating in violent protests against remarks made by Bharatiya Janata Party (BJP) leaders Nupur Sharma (who was later suspended by the party) and Naveen Jindal (who was expelled) on Prophet Mohammed. While hearing these applications on June 16, the top court remarked that demolition of properties must take place in accordance with law and not as a retaliatory measure. It also sought replies from the state of Uttar Pradesh and municipal authorities of two of its cities where the demolitions took place.
All these matters came up for hearing on Wednesday when Dave commenced his arguments by calling it an “extraordinarily serious issue”. He cited newspaper reports to contend that houses of accused in cases of murder and kidnapping were reportedly demolished in Assam and Madhya Pradesh. “Demolition of houses merely because somebody is accused in a crime is not acceptable in our society. We are governed by rule of law,” he added.
Also appearing for the organisation, senior advocate CU Singh lamented that despite the pendency of the matter before the apex court, police officers in several states were announcing demolition on loudspeakers before pulling down the houses of the accused.
At this, solicitor general (SG) Tushar Mehta, representing the Uttar Pradesh government, objected to arguments based on newspaper reports. He referred to the state’s affidavit in the matter, pointing out all the instances of demolition complained against were done following due process and the individuals affected have already taken recourse to their legal remedies.
“These show-cause notices were issued much before the alleged riot took place (on June 2). Also, merely because you participate in a riot, doesn’t give you immunity from municipal laws. Let us not create a sensationalised hype,” added the SG.
Senior counsel Harish Salve, who appeared for municipal bodies of Prayagraj and Kanpur where the demolitions highlighted by Jamiat took place, defended the coercive process while opposing issuance of any interim order. “Can this court make an order somebody’s property won’t be demolished even if it is in violation of the municipal law? Or, can the court pass an order that his house cannot be demolished because he is an accused in another case?” asked Salve.
At this point, the bench said that the matter requires to be heard in detail and decided finally. It asked all the parties to file their affidavits in the matter by August 10.
In its counter affidavit filed on June 21, the UP government maintained that no property was demolished in the state as a measure to punish people accused of participating in violent protests against remarks by the BJP leaders on Prophet Mohammed, adding bulldozers razed illegal constructions in accordance with the municipal laws and after providing due opportunity to the violators.
The state justified the action by its municipal authorities in Kanpur and Prayagraj where three properties were demolished close on the heels of the violent protests, against now suspended BJP spokeswoman Nupur Sharma and expelled BJP leader Naveen Jindal for their remarks on Prophet Mohammed, rocked these cities on June 3 and June 10.
The Yogi Adityanath government took a categorical stand that these demolitions “had no relation to the riots”, and that the actions were taken as part of the ongoing demolition drive against encroachment and illegal construction under the Uttar Pradesh Urban Planning and Development Act, 1972.