The Supreme Court, on Friday, called for a report from the District Collector and Deputy Conservator of Satara regarding the demolition of structures in the Afzal Khan dargah situated in Pratapgarh, Satara, Maharashtra reported LiveLaw. Petitioners have stated that the main structure of the tomb has been demolished.

The SC has directed that the authorities should file a report informing the Court of: (a) nature of encroachment; (b) due process of law followed; (c) nature of action/demolition carried out. The report has to be filed within two weeks. A two-member bench consisting of Chief Justice of India DY Chandrachud and Justice Hima Kohli passed the order after the State of Maharashtra said that the demolition of the illegal constructions have been carried out. The bench was hearing an application filed by the Hazi Mohd Afzal Khan Memorial Society against the demolition action taken by the authorities. The petition was listed today after the petitioner’s counsel advocate Nizam Pasha made an urgent mention of the matter yesterday afternoon.

Today, counsel Pasha submitted that the authorities took the action while the matter has been pending consideration in the Supreme Court for the last five years. He pointed out that the Supreme Court had requested the Bombay High Court to defer the contempt proceedings and now the State has changed the status quo. Senior advocate Neeraj Kishen Kaul, appearing for the State of Maharashtra, however, submitted that in 2017, the Bombay High Court had directed the demolition of the tomb on the ground that it was an encroachment of the forest area. Although a Special Leave Petition was filed in the Supreme Court, since stay was granted as regards the High Court. Merely because contempt proceedings are deferred, it does not mean that the order should not be complied with. Therefore, the senior lawyer submitted that there was no illegality in the action taken by the authorities. “It is only the implementation of orders of the High Court. And structures were coming up in the area which were in violation of the Forest (Conservation) Act”, Kaul submitted.

Pasha sharply contradicted this, submitting that the tomb is a protected monument since 1909. “There was a permission by the Central Govt for construction of a Daramshala around the premises. Then the permission was cancelled and withdrawn. As I understand the main structure has been demolished”, he submitted. “Even after it was mentioned yesterday they went ahead with the demolition all night, they should also mention when the demolition was carried out”, Pasha added.

After the bench passed the order, Pasha also requested that stay of further demolition be also ordered. However, the bench observed that the State is saying that the demolition has been completed. “That is why we have recorded their statement that demolition has been completed”, CJI Chandrachud observed.

Afzal Khan was a General who served the Adil Shahi dynasty of Bijapur Sultanate in India. He was involved in the southern expansion of the Bijapur Sultanate by subjugating the Nayaka chiefs who had taken control of the former Vijayanagara territory and was defeated and killed by Chhatrapati Shivaji Maharaj on 20.11.1659. Legendary stories around this figure demonise the general and valorise Shivaji.

A “Public Interest Litigation” was filed before the Bombay High Court. The Court, inter alia, held that the tomb was in a forest area and directed its demolition. Thereafter a contempt petition was filed apprising the High Court that in spite of its order, the unauthorized constructions in forest area, particularly in Pratapgarh was not removed by the authorities. The High Court directed the Government to file an affidavit with details of demolition activities carried out with certain specifications. The interim order came to be challenged before the Apex Court. While issuing notice, on 27.03.2017, the Supreme Court had requested the High Court to defer the contempt proceedings.

The society filed the present application in the pending SLP in the wake of media reports that the authorities have started demolition of the tomb structures.

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