Allegations of selective demolitions are false, Due process of law followed: UP gov’t to SC

Supreme Court
Image Courtesy: economictimes.indiatimes.com

On June 21, 2022, the State of Uttar Pradesh submitted an affidavit before the Supreme Court justifying the demolitions undertaken in Kanpur and Prayagraj, claiming they were legal and compliant with provisions of the Uttar Pradesh Urban Planning and Development Act, 1973.

The said affidavit was filed in response to the two Intervention Applications (IAs) filed by Jamiat-Ulama-I-Hind on June 13, in connection with the demolitions of homes of alleged rioters in Uttar Pradesh.

The State submitted that the Petitioner cherry-picked two demolition actions of illegal constructions in the properties of one Mr. Ishtiaq Ahmad and one Mr. Riyaz Ahmed that took place in Kanpur in an attempt to falsely link the same to the rioting, and that in both cases, certain portions of the two illegal/non-compliant structures in question took place; that both buildings were under construction and not in conformity with the permission granted and that most importantly, proceedings under the Urban Planning Act against the two buildings had been initiated by the Kanpur Development Authority long before the incidents of rioting that took place in June 2022.

With respect to the Prayagraj demolition, the State submitted that the proceedings under the 1973 Act and Rules by the Prayagraj Development Authority against Javed Mohammed (husband of Parveen Fatima) had been initiated much prior to the incidents of rioting for illegal construction and unauthorised use of land as an office.According to the State, the illegal construction had been demolished only after due service and providing adequate opportunity under Section 27 of the Act.

It is the case of the State, that the Javed Mohammed and his family was served with a demolition order/notice dated May 25, 2022,and only because the notice failed to comply with the said order and remove the unauthorized construction himself, the noticee was served with a final notice dated June 10, 2022, directing them to vacate the premises by 11:00 A.M on June 12, 2022, so that the demolition of the building could be carried out. It submitted that the notice was even attempted to be hand delivered but the family members refuse to take the notice and therefore, the notice was served in accordance with Section 43(1)(d)(ii) of the Act by pasting it on the wall of the building.

These facts have been expressly denied by Parveen Fatima, the actual sole owner of the house, in a writ petition filed before the Allahabad High Court on June 20. She as first petitioner, and her daughter Sumaiyya, as second petitioner, have called out the government, denied the May 10, 2022 notice and called these “manufactured documents.”

Two days ago, on June 20, a full eight days after the demolition, Parveen Fatima, wife of Javed Mohammed, and their daughter Sumaiyya Fatima approached the court for full and fair restitution in a detailed writ petition. Afreen Fatima, former student activist is the elder daughter of the first petitioner. It was the petitioner’s case that JK Ashiana, the decades old family home of Parveen Fatima in Kareli, Allahabad, was passed on to her by her father through a legal deed in 1996.

The petition alleges that Parveen Fatima and her entire family have been subject to hostile discrimination and indignity, deprived of their valuable legal and constitutional rights under Articles 14, 21 and 300. Post-facto, the demolition is even being justified on the basis of manufactured documents (notices) now being cited by the government and authorities.

The illegal demolition was resorted to after the husband of the petitioner was arrested and thereafter, both the women Petitioners were forcibly taken from house to Mahila Thana. These are violations of set guidelines by the Supreme Court of India.

The petition states that, in order to execute this plan of illegal demolition, on the night of June 11, 2022, a pre-dated notice dated June 10, 2022, was pasted on the front wall of the house of Parveen Fatima by the Prayagraj Development Authority through its Joint Secretary/Zonal Officer informing that the house should be vacated by 11 A.M of the next day, i.e June 12, 2022 and that the house shall be demolished. Falsely, the June 10, 2022 notice mentions that a month earlier, a notice had been served on the family which the petitioners, on oath state that they have never received.

Ironically, the gross illegality if apparent in the fact that the so-called notice was served on Mohammad Javed who is not even the legal owner of the home. All bills, land, electricity and water have been duly and promptly paid and there are records of the same. The petitioners state clearly that no notices of May 25, 2022 and June 10, 2022 were ever served on the owner of the house, Parveen Fatima. These notices were not served on Javed Mohammad or any other member of his family either. The petitioners have clearly stated that these are manufactured documents. The only time that the notice was seen was the one dated June 10, 2022, posted on the wall of house in the night of June 11, 2022, was addressed to Javed Mohammad, who is neither the owner of the house nor has any share in the property.

Parveen Fatima is sole owner of the property. The Petitioners had no occasion to reply to this allegation as they did not receive any notices, as mentioned above. Like all others in the locality, who are similarly situated, the Petitioner No. 1 has been regularly paying all these years the house tax, water tax and electricity bill of the house and at no juncture, any objection was raised by the departments. More details on the said petition maybe readhere.

While these generalities in the state of UP’s affidavit datedJune 21, 2022

In its reply, the State alleged that the petitioner has attempted to give malafidecolour to the lawful action taken by the local development authorities as per procedure established by law by cherry-picking one sided media reporting of a few incidents and extrapolating sweeping allegations from the same against the State.

It further submitted that the demolitions referred to in the IAs had been carried out by the Local Development Authorities, which are statutory autonomous bodies, independent of the State administration, as per law as part of their routine effort against unauthorised/illegal constructions and encroachments, in accordance with the UP Urban Planning and Development Act, 1972.

Moreover, the State alleged that the Petitioners are seeking an omnibus relief and there is no occasion to invoke the extraordinary jurisdiction of the Supreme Court. The State is of the opinion that it is the affected parties who are to seek relief and that too before the High Court.

Also, the State further argued that it has taken strong exception to the attempt by the Petitioner to name the highest constitutional functionaries of the State and falsely colour the local development authority’s lawful actions strictly complying with the UP Urban Planning and Development Act, 1973, as “extra legal punitive measures” against accused persons, targeting any particular religious community.

Finally, the Government urged the Supreme Court to hold the petitioners to terms for the false allegations that are made without any basis.

On June 13, the vacation bench of Justices AS Bopanna and VikramNath ordered that no out of turn demolitions are to take place pending the court proceedings. While the Court did not order a complete stay on the demolitions, the court prohibited the Uttar Pradesh government from carrying out demolition activities without following the due process of law. The court reportedly stated, “Action will only be in accordance with law.”

“We also keep seeing, we are also part of society. We also see what’s happening. Sometimes we have also formed some impressions. In someone’s case of grievance, if this court doesn’t come to rescue, it’s not proper. We have a duty. We should ensure safety in the meantime. It should look fair,” said Justice Bopanna.

Solicitor General Tushar Mehta had argued that the petitioner JamiatUlama-I-Hind is not the affected party to approach the court. He reportedly stated, “Someone has to come and say on the affidavit that the law is not followed. It’s an omnibus petition by an omnibus organisation seeking omnibus relief.”

However, Justice Bopanna remarked, “We have to be conscious of the fact that those people whose houses are demolished may not be able to approach the Court.”

Latest Intervention Applications

JUIH was the original petitioner in the matter pertaining to the demolitions carried out in Delhi’s Jahangirpuri area. It has now sought an urgent and comprehensive stay on demolitions as well as related directions to the state of Uttar Pradesh and its police force to refrain from illegal and malafide actions in demolishing homes of alleged accused in Kanpur, Saharanpur and Prayagraj (Allahabad).

The first plea, filed afresh now, on June 12, relates to Kanpur demolitions in particular, has sought a stay on any further demolition drives that the authorities may be planning to carry out in Kanpur district, which witnessed violence during the protests earlier this month. Kanpur was the first city in India to experience violence following the protests against (the now suspended) BJP spokesperson, Nupur Sharma.

On the afternoon of June 3, following Friday prayers, attempts to shut down shops had resulted in stone pelting and violence by the police. Following its now established high-handed and unlawful procedure, the authorities had proceeded to name, blame and then proceed to demolish the homes/properties of alleged accused behind the violence. The Jamiat said in its fresh plea that following the violence in Kanpur, “a number of persons in authority have stated in the media that the properties of suspects/ accused would be confiscated and demolished.”

“Even the Chief Minister of the state has said in the media that the houses of accused persons would be razed using bulldozers. The Additional Director General (Law and Order), Mr. Prashant Kumar, and Commissioner of Police of Kanpur, Mr. Vijay Singh Meena, too, has reiterated that the properties of the accused would be seized and demolished,” the application states.

The plea urged the top court to direct the UP government to ensure that “no precipitative action be taken in Kanpur District against the residential or commercial property of any accused in any criminal proceedings as an extra-legal punitive measure.” An article in The Hindustan Times had reported these statements of the top echelons of the police. Other media reports had revealed that of the three FIRs registered by the Kanpur police, in which 1,000 unnamed accused were listed, 55 named accused were all Muslim suggesting a partisan gaze.

The second intervention application, relates to the brazen demolition in Prayagraj (Allahabad) that was carried out in full public view on June 12, on the home of Parveen Fatima, mother of youth activist Afreen Fatima and wife of political activist Javed Mohammad. Claiming (without any investigation) that Javed Mohammad was one of the “masterminds” in the Prayagraj stone pelting that took place last Friday, the UP police – after serving a hurried post-dated one-day previous notice – had simply arrived on the spot in Kareli and brought down Parveen Fatima’s ancestral home last Sunday. An intimidating presence of 2,000 plus police and riot police prevented any citizens from protesting this brazenly illegal act.

The second intervention application states that the Prayagraj administration cited violation of building norms and demolished the house. The IA also states that the police have handed over a preliminary list of 37 accused in the protests to the Prayagraj Development Authority (PDA) to check for irregularities in their properties — and take action, if needed, including demolition. All these persons face a potential threat of the same kind faced by the family of Afreen Fatima.

Explicit directions have been sought from the Supreme Court by the petitioner/intervener to “ensure that any demolition exercise of any nature must be carried out strictly in accordance with applicable laws, and only after due notice and opportunity of hearing is given to each of the affected persons.” It also prayed for directions that “residential accommodation” or “any commercial property cannot be demolished as a punitive measure.”

Stating that such a “demolition exercise of any nature must be carried out strictly in accordance with applicable laws, and only after due notice and opportunity of hearing to each of the affected persons — as mandated by this Hon’ble Court”, the IA seeks judicial intervention on the high-handed activities of the executive.

The applications point out that even under Section 10 of the Uttar Pradesh (Regulation of Building 7 Operations) Act, 1958, demolition of a building shall not be undertaken unless the affected person is given a reasonable opportunity of being heard. Further, Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973 also requires that the affected person be heard before proceeding with the demolition and be given at least 15 days’ notice. Moreover, as per the Act a person aggrieved with order of demolition is entitled to appeal against it to the Chairman within a period of 30 days of the order.

Therefore, it has been stated that the decision of proceeding with demolition of properties of accused persons is clearly illegal and doing so without providing a reason for the opportunity of hearing is also in violation of the municipal laws of the state, as well as violating principles of natural justice. Hence, such plans of the state of proceeding with vengeance are against our democratic values and resultantly, weaken the justice delivery system of the state. Based on the law, the interveners argue that it would be in the interest of justice that any demolition drive that the authorities are planning to carry out in Kanpur District, Prayagraj (Allahabad), Sahranpur or anywhere in Uttar Pradesh are stayed during the pendency of the instant writ petition.