Sunday, June 12 marked the day JK Ashiana, the decades old family home of Parveen Fatima in Kareli, Allahabad, that was passed on to her by her father through a legal deed in 1996, was demolished by the bulldozers of the Prayagraj (Allahabad) administration in a brazen violation of due process, the Uttar Pradesh laws and rules and the principles of natural justice.
A massive 2,000 strong contingent of police and paramilitary personnel cordoned the area off, disallowing any objection, dialogue or contestation of this brazenly illegal act. The matter is likely to be heard on Friday, June 24 or next week.
Two days ago, on June 20, a full eight days after the demolition, Parveen Fatima, wife of Javed Mohammed, and their daughter Sumaiyya Fatima have 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.
SabrangIndia has access to the entire petition. The legal research team of Citizens for Justice and Peace (CJP) assisted the senior advocates team in its preparation.
Stating clearly and cogently that the manner and method of demolishing the home of the petitioners was part of a planned conspiracy, demonstrating high-handedness of the executive caring least for the Rule of Law, 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.
Senior counsel KK Roy, a well-known rights advocate of several years’ standing assisted by Rajednra Singh and Mohammad Saeed Siddique have filed the petition. The matter is likely to be heard this week.
Last week, the Supreme Court had taken up an Intervention Application filed by original petitioners, Jamiat-e-Ulema Hind in the April-May 2022, in the matter related to demolitions in Jahangirpuri and similar instances in Madhya Pradesh and Uttar Pradesh, and issued notice to the UP government. The matter is supposed to be heard this week.
Harish Salve, counsel appearing for the UP government and Prayagraj administration had emphatically stated that legal notices had been issued to the family on May 10, 2022, a fact that has been vehemently denied in this petition before the HC. The state of UP was required to file an affidavit on oath making these averments which they have not done so far.
Narrating the grave violations of the fundamental rights of her and her family, Parveen Fatima has prayed for:
immediate government accommodation for herself and her family till her home is re constructed;
directions that the Prayagraj Development Authority immediately reconstruct the illegally demolished house;
fair compensation for the loss of property through demolition and loss of reputation.
Most significantly, the petition also prays for departmental and disciplinary action against the persons/officers responsible for the illegal demolition of the home on June 12.
The petition also narrates the grossly illegal manner in which first Javed Mohammad and thereafter Parveen Fatima and Sumaiyya Pathan were illegally detained by the Prayagraj police on June 10, 2022 prior to the demolition. Javed Mohammad has since, been allegedly falsely implicated in the Friday, June 10 Atala violence FIR, and is currently jailed at Deoria jail after first being incarcerated at Naini jail, Allahabad. A well-known tactic of the state and administration is to deliberately jail such persons away from their home districts to prevent or curtail, or limit visits by friends and family. First incarcerated in the Naini jail, he was also, without intimation to the family transferred to the Deoria jail this week.
The background of this case is sordid and now symptomatic of how the UP administration under Adityanath as chief minister (now in his second term) has been crushing the fundamental rights of citizens.
On Friday, June 10, thirteen days after the offensive remarks of erstwhile spokesperson of the Bharatiya Janata Party (BJP) Nupur Sharma and BJP media spokesperson Naveen Kumar Jindal against Prophet Mohammed, countrywide protests erupted after Friday prayers. In many cities in Maharashtra, they were large but completely peaceful. But in Jharkand, UP and Haryana they turned violent. Police firing took a life in Ranchi and in Sahranpur, Lucknow and Allahabad protests were held and some instances of stone pelting reported. Kanpur city had seen similar incidents post June 3, a week earlier.
Using the incidents in Atala area of Allahabad as an excuse, Mohammad Javed was summoned to the police station at 9 P.M on June 10. He has not been released since then and an FIR naming him, allegedly falsely, was filed only the next day, June 11. His wife and daughter were also held at the police station, from the midnight of June 10, without warrant, FIR or arrest until June 12 when they were released but had to witness the brute public demolition of their home. This is a gross violation of section 46 (4) of the Criminal Procedure Code, 1973, that lays down that no woman can be arrested after sunset except in exceptional circumstances. [1]
In a clear case of post facto justification, on the next day i.e., on June 11, 2022, at about 03:13 AM, an FIR was lodged at P.S. Khuldabad, District- Prayagraj. This FIR No. 0118 of 2022, shows the accused booked under Sections 143, 144, 145, 147, 148, 149, 153-A, 153-B, 295-A, 201, 511, 307, 332, 333, 353, 395, 435, 436, 427, 504, 505(2), 506, 120-B, I.P.C., Sections 4/5 of Explosive Act, Section 7 of the Criminal Law (Amendment) Act, Section 83 of Juvenile Justice Act and Sections 3/4 of Public Property Damage Act in which Javed Mohammad has been named along with 70 other persons and 5,000 unknown persons as “accused”.
In an action reminiscent of an autocratic regime that has scant regard for the Indian Constitution, rule of law and due process, on June 11, 2022, the Prayagraj Police convened to the media (Amar Ujala, a Hindi newspaper among others reported this) that the house of Javed Mohammad shall be demolished to ground by bulldozer and that news was circulated in the electronic and print media.
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. This action is in gross violation of UP’s own laws related to procedures that need to be followed in cases where such demolition is justified. Falsely, the June 10, 2022 notice mentions that a month earlier, on June 5, 2022 a notice had been served on the family which the petitioners, on oath state that they have never received.
The state had stated orally through counsel Harish Salve, even in the Supreme Court when the matter came up last week that a “notice under Section 27(1) of the U.P. Urban Planning and Development Act, 1973 was issued to Javed Mohammed fixing June 24.05.2022 for hearing of the matter but no one had appeared. Thereafter, on 25.05.2022, an order was passed to demolish the house which was pasted on the house with the expectation that till 09.06.2022, Javed Mohammad shall demolish the house himself and communicate it, which was also not done.”
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.
In yet another post facto justification, it has also been alleged by the Prayagraj Development Authority that the map of the house had not been sanctioned and as such the construction was illegal. 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.
The Petition further argues that the “house of the Petitioner No.1 was demolished in a completely arbitrary and illegal manner. It was done in pursuance of the statements made that houses of stone-pelters will be demolished, which is an unconstitutional decision of the political executive. The entire exercise of demolition of the house of the Petitioner No.1 was thus against the Rule of Law, unconstitutional, illegal and discriminatory. The authorities acted extremely unfairly and completed the entire exercise within two days by allegedly mentioning previous dates in the notice dated June 10, 2022.”
The Petition also narrates that the notice dated June 10, 2022, was pasted on the front wall of the house of Parveen Fatima in the night on June 11, 2022 when her husband Javed Mohammad was already arrested and was illegally detained at the police station and Parveen Fatima and Summaiya Fatima were also arrested and illegally detained in Mahila Thana and the house was locked. Moreover, the alleged notice dated June 10, 2022 was back-dated and prepared in connivance with the District Administration to justify the demolition of the house. It was on the evening of June 10, 2022, that the District Administration made a public announcement to bulldoze the house of the Javed Mohammad alleging his role in the violence after Friday prayer. The alleged notice was only a ruse adopted by the Development Authority to cover its illegal actions.
Under the provisions of U.P. Urban Planning and Development Act, there is a mandatory requirement for service of notice, 15 days’ time to provide explanation and thereafter, 30 days’ time to file an appeal (vide Section 27). Even thereafter, an aggrieved person can resort to other legal and constitutional remedies. Without resorting to the procedure established by law, demolition was done just one day after the alleged last notice dated June 10, 2022. All these actions performed as arbitrary acts on the second Saturday and Sunday which were holidays were undertaken in a planned manner with a mala fide intention.
Finally, the petition states that the stone pelting by some miscreants after Friday prayers on June 10, 2022 had nothing to do with the petitioners, and they have been subject to the most arbitrary and brazen actions by a vindictive state. It is also relevant to mention here that, contrary to what the post facto FIR dated June 11, 2022 states, the Senior Superintendent of Police, Prayagraj had told the media that the Friday prayer was performed peacefully and the people who visited mosques to offer prayer returned back to their homes. The incident of stone pelting started thereafter.
Making a strong case for the abuse of due process as the first petitioner, Parveen Farima was not served with any notice till the demolition, the petition states thatt the right to shelter has been recognised as a part of life under Art. 21 of the Constitution [vide Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545; State of Karnataka & Others v. Narasimha Murthy & Others (1995) 5 SCC 524; Rajesh Yadav v. State of U.P. 2019 3 UPLBEC 1853; Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan & Others (1997) 11 SCC 121; Chameli Singh v. State of U.P. (1996) 2 SCC 549; Shanti Star Builders V. Narayan K. Totame (1990) 1 SCC 520].
In 2020, the Allahabad High Court in the matter of Writ C No. 16357 of 2020 gave some general directions when the state had attempted public shaming of properties of protesters (in the anti CAA/NRC protests) and demolishing of their homes. The HC had this to say since a large number of such cases of demolition before the expiry of the period of limitation:
“1. The State authorities, where ever demolition orders are passed in respect of constructions raised on the private properties under the two acts, should wait from taking any action for actual demolition till the statutory period of appeal comes to an end.
2. The Appellate authority empowered the two Acts should Endeavour to decide the interim applications filed along with the appeals, if any, expeditiously preferably within a period of two weeks from the date of filing of the interim application.
3. Till the disposal of the interim application filed in the statutory appeals the authorities should not take any steps for executing the demolition orders.
4. Copies of the demolition orders, passed under the acts should be properly served upon the persons against whom the orders are passed.
5. The orders of demolition proposed should be passed after giving an opportunity of hearing to the persons against whom the orders are proposed to be passed.
6. The Registrar General of this Court is directed to forward a copy of this order to the Chief Secretary, Government of Uttar Pradesh, Lucknow for ensuring the compliance by all the Vice-Chairmen of all the Development Authorities and the District Magistrates throughout the State of Uttar Pradesh. The Registrar General shall also send a copy of this order for its compliance to all the Vice-Chairmen of the Development Authorities in the State of Uttar Pradesh as well as to all the District Magistrates for its compliance in terms of the mandate given in the order.
The writ petitions are disposed of in terms of the said order and the general Mandamus as directed above.”
Besides, the petition states that Articles 38 & 46 of the Constitution directs the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimize inequalities to income and endeavor to eliminate inequalities in states. Article 300A of the Constitution also states that, person not be deprived of property save by authority of law. -No person shall be deprived of his property save by authority of law.
In the case of ‘Tukaram Kana Joshi & Others vs. MIDC and others (2013) 1 ACC 353’, the Court had noted that, “The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right, though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in the realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. now however, human rights are gaining an even greater multifaceted dimension. The right to property is considered, very much, to be a part of such a new dimension.”
On the post-facto contention that ‘the map was not sanctioned’, the petitioners have also argued that section 32 of the U.P. Urban Planning & Development Act, 1973 explores demises for the compounding of the building whose, map has not been sanctioned. Section 32 of the Act are extracted below:
“32. Composition of Offences.-
(1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded-by the [Vice-Chairman (or any officer authorised by him in that behalf by General or Special order)] on such terms, including any term as regards payment of a composition fee, as the [Vice-Chairman) (or such officer) may think fit.
(2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded.”
More than anything else, fundamental rights under under Articles 14 & 21 have been stripped from the petitioners as they are subjected to hostile discrimination and indignity because the petitioners have no alternative place to live, they are shelter less and living in their relative’s house. Hence the prayers, rebuild, compensate and prosecute. Now it’s over to the Allahabad high court where justice is eagerly awaited.
Related:
Three UN Special Rapporteurs condemn India home demolitions, allege Collective punishment of Muslims
Bulldozer Injustice: Homes of alleged June 10 protesters to be demolished in UP?
Allahabad’s Nagrik Samaj demands justice for illegal demolition victims
Bulldozer Injustice: How far is the regime planning to go?
Anti-CAA Muslim activist Afreen Fatima’s family members illegally detained!
[1] Section 46 (4) of CrPC is extracted below: “Save in exception circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the is to be made.”