We Are A Secular Country, Guidelines Will Be Laid Down For Everyone: Supreme Court While Extending Stay On Demolitions Without Its Permission
The Supreme Court today extended its interim order, whereby it stated that there will be no demolition of properties, including of those accused of crime, without its permission. The Court clarified that it is being extended till the matter is decided.
The Court was hearing the Writ Petition (PIL) filed by the Muslim body Jamiat Ulama-i-Hind against the demolition drive carried out by the North Delhi Municipal Corporation ('NDMC') in the Jahangirpuri area.
While taking suggestions on the guidelines against the demolition drives happening in the country, the Bench of Justice BR Gavai and Justice KV Viswanathan said, "Whatever we are laying down, we are a secular country. We are laying it down for all the citizens, for all the institutions, not for any particular community."
During the hearing, Solicitor General (SG) Tushar Mehta, appearing for three states, UP, MP, and Rajasthan, contended, since your lordships indicated that guidelines will be formulated pan-India, I have certain suggestions. "One of the concerns was that notice has to be issued...most municipal laws, depending on the subject matter they are dealing with, have provisions for the issuance of notice. Your Lordships may read that a notice be issued via registered post," SG Mehta submitted.
The SG contended, "One thing bothering me is this—in the context of a few instances, guidelines are being considered. But please see a few instances alleging a particular community targeted. Second point, in some laws, encroachment on footpaths, forest areas, etc."
Justice Gavai said, "Whatever we are laying down, we are a secular country. It would be for the whole country. That we have clarified. If it's a public road, water bodies, railway lines. Whether it be temple, dargah, it has to go. Public safety is paramount."
"We will clarify that demolition can't be carried out merely because someone is an accused or convict. Also, consider that there should be a narrow window...even before orders for demolition are passed. When I was in Bombay, I had myself directed the demolition of unauthorised construction on footpaths. We will direct courts to be cautious while dealing with unauthorised construction matters," Justice Gavai further said.
SG Mehta expressed that he is only worried about the misuse of encroachers going to court. He submitted that these steps may not assist non-genuine litigants, encroachers would be given 1 week.
To this, Justice Viswanathan said, "Many cases come where notices are challenged. The real window has to be post the demolition order."
"I have reservations about the court laying down remedies that are not stipulated in laws," Mehta contended.
The Court clarified, "We are only talking of providing access to remedy already available in law. Encroachment on public streets we are not touching."
Senior Advocate Abhishek Manu Singhvi, appearing for the petitioner, contended, "There is a compilation of 4-5 principal parties. I am the Jamat. A chart is given collating submissions. There is no issue on things like the religion-based demolition issue...We have a total of three charts prepared. The idea is only constructive, only guidelines. The idea is not to dig past. Idea is only the future."
Senior Advocate CU Singh, also appearing for one of the petitioner, submitted, "Municipal laws are being misused; demolitions cannot be used as policing or combat stone throwing, etc. Your lordships will clarify in the law...The reason we seek additional safeguards is that these people are picked up, incarcerated, and while they are behind bars, demolition is conducted." "People are fighting elections on this basis. So, it has become a tool," Singh argued.
Justice Gavai said, "We are going to take care of it."
Additionally, Senior Advocate MR Shamshad contended, "Three issues: (i) how notice is to be issued; (ii) after notice, what happens; (iii) there is a feeling that in certain pockets, demolition has happened with respect to certain communities...I have some suggestions. Your Lordships may see to it that there are witnesses (from the vicinity) when notice is served. And contents of notice shall be in vernacular. To be uploaded on portal. There should be a nominated officer. If owner of house is in custody, notice shall be served before the concerned Judicial Magistrate. As far as the period, 60 days may be given. Some structures are really old."
Justice Gavai said, "We are making it consistently clear that whatever decision we will be taking will be for everyone."
After taking suggestions from both parties, the Court extended the interim order of stay on demolitions without its permission. Accordingly, the Court reserved its verdict.
Pertinently, on September 2, the Bench had orally remarked that authorities cannot demolish a house only because he is an accused or even if he is a convict without following the procedure step by step. The Court had clarified that it will not protect unauthorised constructions. It had also said that it will frame guidelines applicable to Pan India against the demolition drives happening in the country.
The Apex Court, on April 21, 2022, had extended the order of status quo regarding the demolition drive. The Court had issued notice in all cases and has directed parties to file pleadings regarding whether or not notices were served before demolition. Dave had argued that a particular section of the society is being targeted through the demolition drive and that Jahangirpuri was picked despite there being 731 unauthorised colonies in Delhi. Dave relied upon Section 343 of the Delhi Municipal Corporation Act, 1957, to argue that notice should have been given before the demolition of structures.
The NDMC had halted the demolition drive it was carrying out in the Jahangirpuri area after the Supreme Court directed its Secretary-General to convey the order to stop demolition to the NDMC Mayor and the Delhi Police Commissioner immediately. The matter was mentioned by Senior Advocate Dushyant Dave once again since the NDMC continued the demolition driving stating that it did not receive a copy of the interim order passed by the Court.
The NDMC in its counter-affidavit before the Supreme Court, had said that as per the Delhi Municipal Corporation Act, 1957, it can remove unauthorized projections on public land and unauthorized temporary structures beyond the boundary of houses and shops, without serving notice. It has also said that for the removal of such structures, bulldozers are required. "When a road or footpath is cleared, the process goes on from one end to another without any distinction of the religion or owner/occupier who has unauthorizedly occupied footpath or public road", the NDMC had said while denying the allegation of targeting any particular community.
In June 2022, the Court had also sought response from the Uttar Pradesh Government while refusing to stay the demolition drive in the Kanpur and Prayagraj districts of Uttar Pradesh. Jamiat had also, through a new affidavit, sought a writ of Mandamus to the Union of India and the State Government so that no lasting precipitative action is taken against any accused in any criminal proceeding. Jamiat had in its affidavit referred to the protest and the ensuing scuffle that happened in Kanpur District of Uttar Pradesh and stated that several persons of authority, including the Chief Minister of Uttar Pradesh, have given statements in the media that the houses and properties of the perpetrators would be razed using bulldozers.
The Jamiat Ulama-i-Hind had also moved the Supreme Court, seeking a direction to the Centre and some states, including Madhya Pradesh and Uttar Pradesh, that "precipitative actions" like razing buildings in criminal proceedings be not taken. The plea had assumed significance because of recent actions taken by authorities in Madhya Pradesh to use bulldozers to raze the properties of those accused of rioting during the Ram Navami celebrations. Jamiat Ulama-I-Hind, in its petition, had said that the action like razing the house in a criminal proceeding as a punishment is unknown to criminal law.
Cause Title: Jamiat Ulama-i Hind v. North Delhi Municipal Corporation [W.P. (C) No. 295 of 2022]