Courts must Bulldoze Merciless Bulldozing by Bulldozers


Courts must Bulldoze Merciless Bulldozing by Bulldozers

 
legal point sc st court matters
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India's platform of a sound democray is uninterrupted since independence with no military takeover and with strong democratic roots for which it is acclaimed and applauded all over the world. Across the border though the situation is quite the opposite, where despite a democratic process, no elected government has ever completed five years in Centre since independence, due to Army interference.

Off-late, however, we are witnessing how this merciless bulldozing by bulldozer by State machinery has ensured that India garners limelight for all the wrong reasons thus portraying our nation in a very poor light. If Courts don’t step in and keep watching like a mute spectator, then definitely people will say that even the Courts fear the Government, who behaves like tyrants when they shamelessly, senselessly and stupidly decide to punish the whole family for a wrong act committed by one single individual. We see how farmer leaders like Rakesh Tikait too jump in the fray and say that we will reply bulldozer with tractor and we saw how last year during Republic day a spectacle was made of India and even Red Fort was not spared!     

Most recently, we saw how apart from two temples even a 300-year old Lord Shiva temple in Alwar in Rajasthan was not spared and was bulldozed by a bulldozer! How can the religious sentiments of Hindus be brutally butchered and held to ransom in such a callous and horrendous manner as we saw most recently in Rajasthan where there is a Congress government in power? Who is dictating such dangerous, deplorable and disastrous orders which can engineer violence and killings on a large scale in India? What is happening in India?

It must be fairly asked: Are elected State Government taking inspiration from some farmer leader like Rakesh Tikait who gave a free run to tractors on Republic Day occasion in 2021? Let us not forget that even Rakesh Tikait himself didn’t demolish somebody’s houses and shops but now we see how brazenly the elected bodies and so also the elected governments are openly monitoring and mastering all such demolitions without seeking the prior legal approval even from courts as is mandatory also! Shame on all such governments who are behaving like a dictator does and violating law with impunity without fear of anyone! How still can our Courts watch everything by maintaining a conspicuous and deafening silence?  

It is a matter of some solace that the Madhya Pradesh High Court just recently on April 21, 2022 asked the State government not to demolish the home of an accused in the Khargone communal violence without following “due process of law”. The petition was filed by one Fardeen Bi who is a resident of Tawadi Mohalla whose husband Firoz Khan was arrested in connection to his alleged involvement in the violence. In the plea, Fareeda moved the court seeking protection against possible demolition of her newly constructed 1400 sq mt house without following the due process of law as municipal council officials asked her to produce building permissions after Khan was arrested. A single Judge Bench of Justice Vijay Kumar Shukla while asking the state government’s response warned that follow due process of law before razing house of accused or else be ready to face the consequences. On behalf of the state government, Advocate General Pushyamitra Bhargava gave a written assurance that no action would be taken with regard to the demolition without following due process of law. Very rightly so!  

On the face of it, we all witnessed for ourselves how just recently the Supreme Court on April 20 stopped North Delhi Municipal Corporation’s bulldozers an hour into their drive against encroachments on public land at Jahangirpuri which saw communal violence in which many were injured after alleged stone pelting at a Hanuman Jayanti procession. But for the Supreme Court to swing into action, we saw how eminent and senior Supreme Court lawyers like Kapil Sibal and Dushyant Dave swung into action and urged the Court to act promptly on this new bulldozing trend to save the many people of Jahangirpuri who had got nothing to do with the riots! But by the time the order was received, we saw how a lot of structures and buildings were bulldozed.

As we saw, the bulldozers razed concrete and temporary structures, including the outer gate of a mosque in Jahangirpuri as part of the drive by the BJP-ruled civic body, days after the northwest Delhi neighbourhood was rocked by communal violence. This was because even though the Bench passed the status quo order at around 10.50 am, it could not be typed and signed as the Judges were busy hearing other listed matters. In the meanwhile, the damage was done.

Raman Jha said that he lost his paan shop and has to now apply for a loan. He lamented that, “It is not like I can find another job. We have not been able to work for a week now and will soon have no money to buy food. I had spent all my cash stocking up my paan shop.” Ganesh Kumar Gupta who was owner of a juice shop since last many decades which was razed said that he had all the necessary documents and that his establishment was “completely legal”. There are many more such cases where innocents suffered!

Needless to say, the Delhi MCD Act has clear provisions which must always be adhered to in totality. It is clearly stipulated under Section 317 that the Commissioner is supposed to issue notice to remove projections (structures or fixtures) onto streets. Similarly we see that Section 343 allows demolition of buildings with a minimum notice period of 5-15 days. We have to also concede here that there is only one Section 322 that doesn’t require issuing notice, because it involves only removing temporary structures like stalls encroaching into public streets. We also ought to know that there is also an appellate tribunal under the Act that is mandated to hear appeals against notices.

Justice BR Gavai of Supreme Court while hearing the Jahangirpuri case very rightly said that, “If the statute provides that something has to be done in a particular manner… (was it) done or not? That’s it…It also provides for an appellate tribunal and the time given is between 5 to 15 days, not being less than 5 days and more than 15 days.”

The Apex Court Bench headed by CJI NV Ramana and also comprising of Justice BR Gavai and Justice L Nageswara Rao said that it will ask all those who were allegedly affected to file affidavits and that status quo will continue with the matter being listed for hearing after two weeks. Jamiat Ulama-i-Hind chief Arshad Madani welcomed the Supreme Court’s decision to stall the anti-encroachment drive by authorities in Delhi’s Jahangirpuri area. Fazlur Rahman who is the Press Secretary of Jamiat said that, “On the special directive of President Madani, a petition was filed on 17 April in the Supreme Court against bulldozing of commercial and residential properties of Muslims in BJP ruled states under the guise of crime prevention.”

It is really good to see that Rahul Gandhi of Congress party fearlessly lashes out on Jahangirpuri demolitions in Delhi remarking that, “This is a demolition of India’s constitutional values. This is state-sponsored targeting of poor and minorities. BJP must bulldoze the hatred in their hearts instead… Switch off the bulldozers of hate and switch on power plants!” But why Rahul Gandhi maintains a deafening silence when his own government in Rajasthan led by Chief Minister proudly monitors the brazen and brutal demolition of 300-year-old Lord Shiva temple in Alwar district in Rajasthan as also two other temples along with other places without following the due norms which definitely has hurt the religious sentiments of Hindus? Rahul Gandhi himself professes to be a devotee of Lord Shiva just as I am then why does he not lashes out similarly against his government in Rajasthan? Rahul must answer! It goes without saying that selective anger against bulldozing by bulldozer also cannot be justified under any circumstances!       

By all accounts, those who faced merciless and sudden demolition in Rajasthan, Delhi and so also in other states where bulldozer was given a free run by the State administration got just no time to appeal. We thus see that this was in stark contravention of the principles of natural justice. It is the bounden duty of the Courts to step in and call a spade a spade.

For the sake of argument, even if we accept State’s contention that those who do wrong must be punished then also punishing his whole family by bulldozing the wrong doer’s house cannot be justified under any circumstances! Similarly, why is the entire locality punished for a wrong act done by one particular individual as we witnessed in Jahangirpuri in Delhi and so also in other States. It is high time and those who dare to turn the bulldozer into political theatre not sparing even the harmless Lord Shiva’s 300-year old temple in Alwar in Rajasthan and choosing to proudly attack it with the sword arm of instant justice must be seriously themselves taken to task and should not be allowed to escape scot free! Even the Courts must step in seriously and not just watch helplessly, hopelessly and haplessly from the gallery like a mute spectator.

It thus merits no reiteration that the Courts have the power to themselves take suo motu action which it must take if it wants to redeem its prestige among the people! Of course, there is not even an iota of doubt that the Courts must bulldoze this merciless bulldozing by bulldozers at the behest of State government or a local body by standing up for the rule of law and not for bulldozing by bulldozer by watching everything like a hopeless, helpless and hapless spectator and washing off its hands from this whole unpalatable saga!  

On the whole, even if a demolition is to be carried out, it has to be carried out strictly as per the rules and regulations and not otherwise. It merits no reiteration that just because a demolition is to be carried out against the property of a criminal or a notorious person, it does not confer an unfettered licence on the authorities and the State to break all the rules, regulations and bulldoze everything with its bulldozer which concerns the criminal or the notorious person. It must also be mentioned here that where the demolitions that are carried into effect without following the due process of law and where demolitions are used as most potent weapons of vigilante justice would certainly be a travesty of law and per se illegal for which the executing authorities must certainly face action and so also the State government too must be taken to task.

India definitely cannot afford under any circumstances to ever allow an alarming retreat from the “rule of law” and must ensure strictly that the “due process of law” is followed always under all and under any circumstances! Those who break the law must definitely be made to pay a very heavy price always without fail but this has to happen strictly as per law and the whole family or all the people living in the entire locality where the person breaking the law lived should not be made to suffer for it for no fault of theirs! 

Adv. Sanjeev Sirohi is a Lawyer registered with the Meerut Bar. Views expressed in the post are that of the author.

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