Cannot impose ‘omnibus’ ban on demolitions: Supreme Court

Court reiterates rule of law can’t be ignored

July 13, 2022 02:05 pm | Updated 11:34 pm IST - NEW DELHI

A Supreme Court Bench posted a petition filed by Jamiat Ulama-i-Hind for detailed hearing on August 10. File

A Supreme Court Bench posted a petition filed by Jamiat Ulama-i-Hind for detailed hearing on August 10. File | Photo Credit: Sushil Kumar Verma

The Supreme Court on Wednesday wondered whether it can pass "omnibus" orders to stop demolitionsby municipal authorities across the country even as senior advocate Dushyant Dave insisted that the nation should refuse to accept the bulldozer "culture".

Solicitor General Tushar Mehta, for Uttar Pradesh, objected to Mr. Dave's submission that the demolitions targeted a certain community.

"All communities are Indian communities... We cannot have community-based PILs in the Supreme Court," Mr. Mehta said.

Mr. Dave countered by asking why then had the authorities not taken the bulldozers to unauthorised constructions and farm houses located in some of the poshest colonies of the Capital. "Entire Sainik Farms is illegal... Are we not all governed by the rule of law," he asked.

"Nobody can dispute that rule of law cannot be ignored... But can an omnibus order be passed against demolitions... When in cases where authorities are rightly entitled to take action, will such an omnibus order stand in their way," a Bench led by Justices B.R. Gavai and P.S. Narasimha asked, posting the case for detailed hearing on August 10.

Senior advocate Harish Salve, also for the State, said the "argument on rule of law was powerful indeed".

"But the factual foundation is wobbly. Can Your Lordships pass an order saying that a house cannot be demolished merely because it belongs to an accused," Mr. Salve asked.

But Mr. Dave, for petitioner Jamiat Ulama-i-Hind, said the court should view the problem from a larger perspective. The country was facing an "extraordinarily serious" situation. Justice was being delivered by the arms of the bulldozer. Rule of law lay in the debris.

Powerful State governments and its functionaries were taking advantage of municipal laws to "wreck vengeance" by using bulldozers to demolish the private homes and buildings of people whom they believed were behind communal violence and riots.

"We do not want this culture. Instead of following the rule of law, they take advantage of the municipal laws to demolish houses," the senior lawyer said.

Highlighting signs that instant justice was becoming a trend, Mr. Dave pointed to media reports showing how authorities had destroyed the house of a murder accused even before the case had come to trial.

Jahangirpuri demolitions

Senior advocate C.U. Singh, also for Jamiat, said the court's stay of the Jahangirpuri demolitions had hardly stopped the authorities from using the same modus operandi "in city after city" hit by communal violence.

“In fact, these demolition drives are announced by the police... There have been express statements from higher-ups in the police that ‘I saw you throwing stones so I am going to demolish your home’ ... This is just not done,” Mr. Singh submitted.

In its latest affidavit on June 12, the Uttar Pradesh government said petitions being filed in the Supreme Court against “routine” demolitions were a surreptitious attempt by third partiew such as the Jamiat Ulama-i-Hind to protect “illegal encroachments” and “sensationalise” the issue.

Uttar Pradesh said demolitions conducted so far were those against unauthorised constructions on public land. Action was taken strictly under the U.P. Municipal Corporation Act 1959 and U.P. Urban Planning and Development Act 1973.

Prophet remarks row

The Uttar Pradesh government has throughout maintained that the demolitions carried out in the aftermath of violence following the Prophet remarks row were not “extra legal punitive measures” targeting persons of a particular religious community linked to rioting, but routine measures taken by independent local authorities against owners of illegal structures.

In an earlier 63-page affidavit, the Uttar Pradesh government had taken offence to Jamiat’s accusations that the constitutional high-functionaries of the State, with their statements, had triggered the bulldozers.

Uttar Pradesh said rioters were already being dealt with under separate laws such as the U.P. Gangster Act, the Prevention of Public Property Damages Act, the U.P. Recovery of Damages to Public and Private Property Act, the Code of Criminal Procedure and the Indian Penal Code.

It had flatly denied allegations that local authorities were influenced by higher powers in the State.

On June 16, the Supreme Court had told the Uttar Pradesh government that demolitions could happen only in accordance with the provisions of the law and could not be retaliatory.

“Ultimately, the rule of law should prevail… any action by you should be in accordance with the law,” the court had addressed the Uttar Pradesh government.

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