Monday, June 27, 2022

UP’s Bulldozer Politics

The demolition of Mohammad Javed’s house after a day’s notice goes against a 2020 ruling of the Allahabad High Court that directed the UP government to allow a 30-day window first. Why wasn’t this followed?

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The Prayagraj Development Authority’s (PDA) decision on June 12 to demolish the house of political activist and businessman Mohammad Javed goes against a 2020 ruling of the Allahabad High Court. The demolition, after serving just a day’s notice to vacate goes against the ruling which had issued a directive to the Uttar Pradesh government to allow a 30-day window.

The house, incidentally, was registered in the name of Javed’s wife Parveen Fatima. It was demolished two days after a June 10 protest against objectionable comments made by now-suspended BJP spokesperson Nupur Sharma against Prophet Muhammad turned violent. It was claimed that Javed was the alleged mastermind of that violence. 

However, stung by criticism over its hurried action, PDA said that the house was demolished as it was built against the provisions of the UP State Planning and Development Rules of 1973 and was illegal construction.

Coming to the Allahabad High Court ruling, on October 15, 2020, Justices Shashi Kant Gupta and Pankaj Bhatia had said in Abbas Ansari and Another vs State Of Uttar Pradesh: “The State authorities, wherever demolition orders are passed in respect of constructions raised on private properties under the two Acts, should wait from taking any action for actual demolition till the statutory period of appeal comes to an end.”

In the 2020 case, petitions were filed alleging that the petitioners were in occupation of properties purchased through sale deeds dated September 29, 2000, in the name of the mother of the petitioners from the recorded tenure holder and since then, they were in peaceful possession of the land in question. The petitioners claimed that they had applied for sanction of the map for raising constructions for commercial purposes which was approved on December 5, 2000. Subsequently, on account of certain variations of the map, a compounding was applied, which was approved on December 31, 2002.

It is alleged that the prescribed authority initiated proceedings under Section 7A of the Uttar Pradesh (Regulation of Building Operations) Act, 1958. The petitioners filed their objections to this. On September 16, 2020, a notice was issued under Section 10 of the 1958 Act proposing to demolish the buildings. A reply was filed by the petitioners, and thereafter, an order dated October 8, 2020, was passed, directing the demolition of the buildings. The petitioners were granted seven days for removal of the possession. The orders of September 15, 2020, and October 8, 2020, are under challenge.

The respondents raised a preliminary objection which said that against the order of demolition as well as against the order passed under Section 7A, an appeal is maintainable under Section 15(2) of the UP (Regulation of Building Operations) Act, 1958. A perusal of the said Section shows that the appeal is indeed maintainable against the order of demolition passed under Section 7A and Section 10 of the Act and the same is required to be filed within 30 days.

However, before parting with the case, the High Court noted that a large number of cases were being filed (burdening the dockets of the already overburdened Court), complaining of demolitions being carried out even before the expiry of the prescribed period for filing of an appeal. This was coupled with the fact that the UP Urban Planning and Development Act, 1973, and the UP (Regulation of Building Operations) Act, 1958, provide for an appeal within 30 days. The Court deemed it appropriate to issue general mandamus in respect of the actions being taken under the two statutes in the entire state.

The High Court did it in view of the categorical pronouncement of the Supreme Court in Chairman Indore Vikas Pradhikaran vs Pure Industrial Coke & Chemicals Limited and Others (2007) where it considered the nature of the town planning statutes vis-a-vis the rights of the citizens to live. The Court held that the town planning statutes were basically in the nature of expropriatory legislation and must be given strict construction. The Act being regulatory in nature, restricts the right of an owner of a property to use and develop the same and any omission by the regulatory authority entitles the owner to use it for any purpose unless there exists a certain regulation to the contrary, the Supreme Court observed. 

It said: “Where, however, a scheme comes into force, although it may cause hardship to the individual owners as they may be prevented from making the most profitable use of their rights over property, having regard to the drastic consequences envisaged thereunder, the statute should be considered in such a manner as a result whereof greater hardship is not caused to the citizens than actually contemplated thereby. Whereas an attempt should be made to prevent unplanned and haphazard development, but the same would not mean that the court would close its eyes to the blatant illegalities committed by the State and/or the statutory authorities in implementation thereof. Implementation of such land development as also building laws should be in consonance with public welfare and convenience. In United States of America zoning ordinances are enacted pursuant to the police power delegated by the State. Although in India the source of such power is not police power but if a zoning classification imposes unreasonable restrictions, it cannot be sustained. The public authority may have general considerations, safety or general welfare in mind, but the same would become irrelevant, as thereby statutory rights of a party cannot be taken away. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other.”

Moreover, the Allahabad High Court stated: “The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or a statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right of property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable one. [See Balram Kumwat vs Union of India & Ors. (2003) 7 SCC 628; Krishi Utpadan Mandi Samiti & Ors. vs Pilibhit Pantnagar Beej Ltd. & Anr. (2004) 1 SCC 391; and Union of India & Ors. vs West Coast Paper Mills Ltd. & Anr. (2004) 2 SCC 747]. The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation.”

On June 12, PDA had invoked Section 27 of the UP Urban Planning and Development Act to demolish Javed’s house after serving only a day’s notice to vacate the house. Section 27(2) of the 1973 Act states: “Any person aggrieved by an order under Sub-section (1) may appeal to the (Chairman) against that order within thirty days from the date thereof and the Chairman may, after hearing the parties to the appeal, either allow or dismiss the appeal or may reverse or vary any part of the order.” The provision states that “no such order shall be made unless the owner or person concerned has been given a reasonable opportunity to show cause why the order should not be made”.

The UP government on June 21 filed a detailed affidavit before the Supreme Court in the petition filed by the Jamiat Ulama-I-Hind which sought issuance of directions to the state to take no action in Kanpur District against residential or commercial property of alleged rioters.

In its affidavit, the UP government alleged that the constructions that were demolished were illegal. It said that the Prayagraj demolitions were carried out by Local Development Authority, which is an autonomous body of the state government, which endeavours to free the city of illegal and unauthorised constructions. Specifically regarding the demolition of the house of Javed, father of Afreen Fatima, the state submitted that the construction was in “violation of Prayagraj Development Authority rules” and that proceedings were initiated much “earlier than the riots” which took place after the remark on the Prophet by Nupur Sharma.

Surprisingly, none of the affected parties have approached this Court in relation to the lawful demolition actions, said the affidavit filed before the Supreme Court by the UP government. It said that the Jamiat Ulama-I-Hind attempted to give a mala fide colour to lawful action taken by the local development authorities as per procedure established by law by cherry picking one-sided media reports of a few incidents and extrapolating sweeping allegations from the same against the State. “The same, it is submitted, is completely false and misleading,” the UP government said.

What is true and what is false is now for the Court to decide. 

—By Shivam Sharma and India Legal Bureau

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