Criminals Must Be Taken To Task, But Demolishing Their Houses Affects Family: Dushyant Dave Deprecates ‘Bulldozer Justice’ Before Supreme Court

“What the Madhya Pradesh man, who was arrested for allegedly urinating on someone belonging to a tribal community, did was despicable. He has to be taken to task. But, the authorities demolished a portion of his house which it could not have done. What about this family? The law needs to be settled. This court has said right to shelter is right to life. Law cannot be taken into own hands like this. How can a particular section of society be targeted like this?”

A bench of Justices BR Gavai and JB Pardiwala was hearing a batch of petitions relating to a demolition drive proposed to be held in April in Delhi’s Jahangirpuri – but ultimately stayed by the top court – as well as a separate plea against states resorting to the demolition of houses of persons accused in crimes.

During the hearing, noting that the North Delhi Municipal Corporation (NDMC) has announced a ‘special joint encroachment removal action programme’, Justice Pardiwala said, “We can give effect to the prayer sought to quash the demolition notice unless there is an encroachment notice. If there is no encroachment, this cannot be given effect to. Therefore, first, there must be a satisfaction that the property sought to be demolished is unauthorised.” The judge added, “There has to be an order and a hearing to decide whether a particular structure is authorised or unauthorised. And if it is unauthorised, the corporation has the power to demolish the structure.”

Solicitor-General Tushar Mehta also weighed in, saying that a person being accused of an offence cannot be a ground for his immovable property getting demolished. “The demolition of immovable property can take place only for and in accordance with the procedure prescribed in the respective municipal law or law governing development authorities of the area. In other words, no immovable property can be demolished solely on the ground that the owner-occupant of the property is involved in a criminal offence. Demolition – whether in part or whole – can only take place only on the grounds mentioned in the municipal laws governing legal constructions and after following the procedure given.”

“We will have to hear it on a non-miscellaneous day,” Justice Gavai said, stating the bench’s decision to adjourn the hearing. But before the adjournment, Dave also said, “These kinds of demolition under the garb of anti-encroachment activities start at the instance of the ruling party and it is not malice in law. This court will have to settle whether powers can be used in this manner or not.”

The senior counsel expressed his concerns about the largely Muslim composition of the group of people hit by the local authority’s demolition notice, even though Jahangirpuri houses both Muslims and Hindus. “This is an off-the-cuff submission,” the solicitor-general objected, “The majority in the area is made up of Hindus, of whom some were adjudicated to be encroachers.”

“Let us have it on another day,” Justice Gavai reiterated, before directing the matter to be listed again in September. Smiling, he told the two counsel, who had exchanged heated verbal blows in court, “The two of you, please do not express your love and affection for each other so loudly!”

Background

In April last year, Delhi’s Jahangirpuri witnessed a flare-up of communal violence during a ‘shobha yatra’ or procession that was taken out on the occasion of Hindu festival Hanuman Jayanti. Reportedly, as a result of the stone-pelting, arson, and torching of vehicles, eight police personnel and a local resident were injured. Within a few days, on the basis of a letter written by Delhi Bharatiya Janata Party president Adesh Gupta, the North Delhi Municipal Corporation (NDMC) mayor directed an anti-encroachment drive to be carried out in the area allegedly without serving prior notice, in a move which many have criticised as discriminatory and illegal.

Several petitions were filed against the demolition drive, including by Islamic clerics’ body Jamiat Ulama-i-Hind, Politburo member of the Communist Party of India (Marxist) and former Rajya Sabha member Brinda Karat, and juice shop owner Ganesh Gupta whose shop was demolished.

The first plea – seeking a declaration that the properties of accused cannot be demolished as a punitive measure – was mentioned before a bench headed by the then Chief NV Ramana on the very day when the demolition was supposed to begin. On the insistence of Senior Advocate Dushyant Dave to immediately intervene, the bench agreed to not only list the matter on the coming day, but also ordered status quo to be maintained. The day after this order was passed, Karat moved the top court, alleging that the demolition drive in the riot-hit areas was continued despite the court’s status quo order and only stopped when the order was produced. “Now, under the guise of encroachment removal, discriminatory and arbitrary demolition drive is being operated as communal political game plan. The entire action is malafide,” the petition further stated.

Later, a bench led by now retired judge L Nageswara Rao extended the interim order earlier passed to maintain status quo and issued notice in the batch of petitions. Notably, among these is another plea by Jamiat Ulama-i-Hind against authorities in different states resorting to demolishing houses of people accused in crimes, in respect of which, the top court sought the responses of the states of Madhya Pradesh, Uttar Pradesh, and Gujarat.

While in an affidavit, Karat submitted that the demolition drive using bulldozers was a malafide exercise of power to specifically target Muslims under the guise of removal of encroachment at the behest of the Bharatiya Janata Party which controlled the municipal authority at that time, the NDMC submitted that the drive was a routine administrative exercise which had been given an unwarranted communal colour by the petitioners. Besides telling the bench that it had only removed unauthorised projections on the public road and unauthorised temporary structures well beyond the boundary of houses, the municipal corporation also claimed that Gupta’s juice shop had been demolished because it did not have a valid permit and after the owner failed to respond to a show-cause notice issued to him.

Case Details

1. Jamiat Ulama-i-Hind v. North Delhi Municipal Corporation & Ors. | Writ Petition (Civil) No. 295 of 2022,
2. Brinda Karat v. North Delhi Municipal Corporation & Ors. | Writ Petition (Civil) No. 294 of 2022, and other connected matters.