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Supreme Court refuses to pass Omnibus Orders against demolitions across states

The court heard a petition filed by Jamiat Ulama-i-Hind against the demolition exercises; matter now adjourned to August 10

Sabrangindia 14 Jul 2022

Demolition
 

On July 13, 2022, the Supreme Court heard the PILs filed by the Jamiat Ulama-i-Hind (JUIH) alleging that authorities in states like Uttar Pradesh (UP) and Madhya Pradesh (MP) are resorting to “bulldozer” action to demolish the houses of persons accused in cases like riots, reported LiveLaw.

The bench comprising Justices BR Gavai and PS Narasimha reportedly observed, “Rule of law has to be followed, no dispute. But can we pass an omnibus order? If under the Municipal law the construction is unauthorized, can an omnibus order be passed to restrain authorities?"

The Supreme Court had reportedly issued a notice to the Uttar Pradesh government in connection to the matter who filed a reply stating that the demolition drives were routine exercises to remove encroachment. The Court has now asked the State of Madhya Pradesh and Gujarat to file their responses.

According to Senior Advocate Dushyant Dave appearing for the petitioners, the government is taking “selective action” against those accused in riots. He reportedly submitted, “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 further submitted that in Assam, the house of a person was reportedly demolished after he was accused in a crime. Senior Advocate CU Singh who was also appearing for the Petitioners alleged that despite the status quo order passed by the Supreme Court in Jahangirpuri, the same modus operandi was followed in many other cities, including UP, reported LiveLaw. He reportedly stated, "We have given numerous cases, where police officers announcing demolition and demolishing the houses of the accused.”

However, Solicitor General Tushar Mehta and Senior Advocate Harish Salve contended that there is no “other community” as pointed out by the petitioner and “all communities are Indian communities”. They stressed that there is no connection between the demolitions and rioting, and that the anti-encroachment exercises started long before the riots. They said "unnecessary sensational hype" must not be created.

Raising questions regarding the locus standi of the Petitioner, the SG submitted that the individual affected parties have already approached the High Courts. He further reportedly added, “Replies have been filed by authorities that procedure was followed and notices were issued. Process started much before riots."

Senior Counsel Harish Salve argued that the Court cannot pass an order that a house should not be demolished merely because the individual involved is an accused in a case. He contended that there are numerous instances where the Police authorities announced demolitions of the houses of the accused. He reportedly stated, “The problem is the police authorities are announcing that the houses of accused will be demolished. The SP of Kanpur, the SP of Saharanpur, they are announcing.”

However, Senior Advocate Dave contended that there is no material to show that other unauthorised houses were acted against. He reportedly added, “There is a pick and choose against other community… The entire Sainik Farm is illegal. Nobody has touched it in 50 years. Look at the illegal farm houses in Delhi. No action taken. Selective action is taken.”

The matter is now listed for hearing on August 10.

Brief Background

A petition had been originally filed by Jamiat-Ulama-i-Hind against demolition drives in Jahangirpuri and other states, namely - Uttar Pradesh, Madhya Pradesh and Gujarat. It then 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, on June 12, relates to Kanpur demolitions in particular, 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 on June 10, 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 on June 12. 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/intervenor 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.
 

Related:

Gujarat: Jamiat Ulama-e-Hind moves High Court against teaching of Bhagavad Gita in schools
Allegations of selective demolitions are false, Due process of law followed: UP gov’t to SC
Demolitions by the playbook, unprecedented even in pre-independence India: Senior Counsel to SC in Bulldozer Injustice case
SC to hear urgent petitions against UP demolitions today
Bulldozer Injustice: Homes of June 10 rioters to be demolished?
Anti-CAA Muslim activist Afreen Fatima’s family members illegally detained!
Spontaneous pan-India protests against Nupur Sharma
Friday protests: More people booked for unlawful assembly
Why is Jharkhand governor in favour of doxing alleged riot participants’ names?
Friday protests: At least 325 arrests in UP alone!
Jahangirpuri Demolition: SC to take “serious view of demolitions after Mayor was informed of order”
Bengaluru Police raid, tear down homes of Bengali Muslim migrants

 

Supreme Court refuses to pass Omnibus Orders against demolitions across states

The court heard a petition filed by Jamiat Ulama-i-Hind against the demolition exercises; matter now adjourned to August 10

Demolition
 

On July 13, 2022, the Supreme Court heard the PILs filed by the Jamiat Ulama-i-Hind (JUIH) alleging that authorities in states like Uttar Pradesh (UP) and Madhya Pradesh (MP) are resorting to “bulldozer” action to demolish the houses of persons accused in cases like riots, reported LiveLaw.

The bench comprising Justices BR Gavai and PS Narasimha reportedly observed, “Rule of law has to be followed, no dispute. But can we pass an omnibus order? If under the Municipal law the construction is unauthorized, can an omnibus order be passed to restrain authorities?"

The Supreme Court had reportedly issued a notice to the Uttar Pradesh government in connection to the matter who filed a reply stating that the demolition drives were routine exercises to remove encroachment. The Court has now asked the State of Madhya Pradesh and Gujarat to file their responses.

According to Senior Advocate Dushyant Dave appearing for the petitioners, the government is taking “selective action” against those accused in riots. He reportedly submitted, “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 further submitted that in Assam, the house of a person was reportedly demolished after he was accused in a crime. Senior Advocate CU Singh who was also appearing for the Petitioners alleged that despite the status quo order passed by the Supreme Court in Jahangirpuri, the same modus operandi was followed in many other cities, including UP, reported LiveLaw. He reportedly stated, "We have given numerous cases, where police officers announcing demolition and demolishing the houses of the accused.”

However, Solicitor General Tushar Mehta and Senior Advocate Harish Salve contended that there is no “other community” as pointed out by the petitioner and “all communities are Indian communities”. They stressed that there is no connection between the demolitions and rioting, and that the anti-encroachment exercises started long before the riots. They said "unnecessary sensational hype" must not be created.

Raising questions regarding the locus standi of the Petitioner, the SG submitted that the individual affected parties have already approached the High Courts. He further reportedly added, “Replies have been filed by authorities that procedure was followed and notices were issued. Process started much before riots."

Senior Counsel Harish Salve argued that the Court cannot pass an order that a house should not be demolished merely because the individual involved is an accused in a case. He contended that there are numerous instances where the Police authorities announced demolitions of the houses of the accused. He reportedly stated, “The problem is the police authorities are announcing that the houses of accused will be demolished. The SP of Kanpur, the SP of Saharanpur, they are announcing.”

However, Senior Advocate Dave contended that there is no material to show that other unauthorised houses were acted against. He reportedly added, “There is a pick and choose against other community… The entire Sainik Farm is illegal. Nobody has touched it in 50 years. Look at the illegal farm houses in Delhi. No action taken. Selective action is taken.”

The matter is now listed for hearing on August 10.

Brief Background

A petition had been originally filed by Jamiat-Ulama-i-Hind against demolition drives in Jahangirpuri and other states, namely - Uttar Pradesh, Madhya Pradesh and Gujarat. It then 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, on June 12, relates to Kanpur demolitions in particular, 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 on June 10, 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 on June 12. 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/intervenor 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.
 

Related:

Gujarat: Jamiat Ulama-e-Hind moves High Court against teaching of Bhagavad Gita in schools
Allegations of selective demolitions are false, Due process of law followed: UP gov’t to SC
Demolitions by the playbook, unprecedented even in pre-independence India: Senior Counsel to SC in Bulldozer Injustice case
SC to hear urgent petitions against UP demolitions today
Bulldozer Injustice: Homes of June 10 rioters to be demolished?
Anti-CAA Muslim activist Afreen Fatima’s family members illegally detained!
Spontaneous pan-India protests against Nupur Sharma
Friday protests: More people booked for unlawful assembly
Why is Jharkhand governor in favour of doxing alleged riot participants’ names?
Friday protests: At least 325 arrests in UP alone!
Jahangirpuri Demolition: SC to take “serious view of demolitions after Mayor was informed of order”
Bengaluru Police raid, tear down homes of Bengali Muslim migrants

 

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