Bahraich Violence-Demolition Notices | State Must Abide By Law, Ensure Actions Aren't Taken Selectively: Allahabad HC Tells UP Govt Orally

“I know the state has a lot of responsibilities to maintain peace and tranquillity, but please ensure that things are not done selectively. There has to be checks and balances. The object of ensuring peace is one thing; the object of demolition is another…please don't do anything which is not in accordance with law”: Justice Attau Rehman Masoodi orally told the Additional Advocate General VK Shahi.

The oral observation was made while dealing with a Public Interest Litigation (PIL) plea moved by the Association For Protection of Civil Rights (through its Vice President, UP East, Sayed Mehfuzur Rehman) challenging the Uttar Pradesh Government's proposed action to demolish properties belonging to the accused in the Bahraich violence case.

A bench of Justice Masoodi and Justice Subhash Vidyarthi also added that before any demolition is undertaken, a proper survey and demarcation must be done as per the relevant rules and laws.

#bahraichviolence

Allahabad HC tells @UPGovt orally (on the issue of issuance of #Demolition notices): When you propose to demolish a structure, it can't be done selectively. The state has to abide by the law and ensure that law is followed at each and every step. https://t.co/sKFk4ArtSV

— Live Law (@LiveLawIndia) November 6, 2024

Hearing the matter today, the division bench noted that the state's counter to the PIL plea was missing from the file and hence, posting the matter for next week, the Court asked the UP Govt to reply to the following three aspects of the matter specifically:

• Whether a survey and demarcation were done as per the relevant law before issuing notices to private citizens?
• Whether the state undertook a survey to ascertain if the people who have been issued notices, are the real owners of the property or if some of them are just tenants.
• Whether the notices are issued by the appropriate authorities.

Justice Masoodi also remarked that the court could take suo moto notice of the issue of civil liberties, and eliminate busy bodies from playing with the sentiments of the people, however it was also the state's duty to abide by the law.

Justice Masoodi also added that one can't just come to the road, a nuisance and then seek protection. “That also can't be done,” he said.

Against this backdrop, posting the matter for next week, the Court asked the State's counsel to ensure meanwhile that nothing is done which is not in accordance with law.

“We all have to see that law is followed in letter and spirit,” the Court said.

Here it may be noted that last month, in an extraordinary Sunday Hearing, the Court took note of the UP Govt's PWDept notice issued to occupants without indicating the number of houses situated on kilometre 38 of Kundasar-Mahasi-Nanpara-Maharajganj, District Road, that have been duly authorized for construction.

"...what pricks to the conscious of this court is the issuance of notices to submit the reply within a short span of three days. As to what number of houses situated on kilometer-38, of Kundasar-Mahasi-Nanpara-Maharajganj, District Road have been duly authorized for construction is also not much evident from the notice which may require clarity," the Court had remarked.

Though the court had not EXPLICITLY stayed the demolition in its order, it had observed that it had no reason to believe that the UP Government would not follow the Supreme Court's order on demolitions in letter and spirit.

Importantly, it has been the stand of the state government that the buildings/houses of those who have been issued notices by its PW Department have been constructed in violation of Rule 7 of UP Roadside Land Control Rules 1964.

Rule 7 of the 1964 Rules states that buildings shall not be built within the building lines, i.e., within the distances from the centre-line of any Major District Roads (MDR), which are 60 feet for open and agricultural areas and 45 feet for urban and industrial areas.

The state government has maintained that any construction raised within the prescribed distance from the centre of the Major District Road (MDR) is illegal and liable to be demolished.

The state government further argues (as pleaded in its counter-affidavit) that the area around kilometre 38 of the Kundasar-Mahsi-Nanpara Road is accident-prone, as ongoing construction has turned a previously straight road into a sharp curve.

Thus, on October 16, 2024, a 14-member committee was constituted to inspect and demarcate encroached areas on the mentioned roads. During the inspection, the committee found that the "S" curve near kilometer 38 had been caused by construction too close to the road, which compromised visibility and contributed to frequent accidents.

The inspection report identified 24 such buildings violating the provisions of Rule 7. Pursuant to this, notices were issued to the 23 individuals listed in the inspection report. The State Government claims that the PW Department also confirmed that no permissions had been granted for construction in the notified area.

The Bahraich Incident

For the uninitiated, on October 13, the final day of Durga Puja celebrations, a communal violence broke out in the Maharajganj/Mehsi area of District Bahraich after some local members of a particular community objected to the playing of loud music. The altercation further resulted in the death of a 22-year-old man named Ram Gopal Mishra.

Allegedly, Mishra climbed atop the roof of the house of a person of a particular community and removed/tore down a green flag (customarily linked to Islam) and started waving a saffron flag, while the persons part of the procession shouted slogans of "Jai Shri Ram" and "Jai Bajrang Bali".

Shortly after, Mishra was shot by someone, and he passed away. As a result, persons carrying sticks and iron rods protested and torched shops, vehicles and private properties linked to a particular community.

The violence lasted about 2 days, and the internet services were suspended for 4 days.

Advocate Saurabh Shankar Srivastava appeared for the petitioner.