The Supreme Court on Monday refused to entertain a petition filed by the Communist Party of India (Marxist) challenging the demolition drive initiated by the South Delhi Municipal Corporation in the Shaheen Bagh area of Delhi.
A bench comprising Justices L Nageswara Rao and BR Gavai said that it cannot interfere at the behest of a political party. The bench asked why the High Court cannot be approached.
"What is this CPI(M) party filing the case? We can understand if somebody aggrieved is filing the writ petition", Justice Rao asked Senior Advocate PV Surendranath at the outset.
"What is your fundamental right violation?", Justice Gavai asked.
Surendranath submitted that the petition has been filed in public interest and there is no "party interest".
"Mr.Surendranath, you are better advised to go to the High Court. Not at the behest of political parties. This is not the platform", Justice Rao said.
Surendranath submitted that the second petitioner is a hawkers' union and they are being removed without notice.
Justice Rao : If hawkers are encroaching, they will be removed. If the authorities are violating the law, go to the High Court. In Jahangirpuri, we interfered because structures were being demolished.
Surendranath : They are demolishing buildings.
Justice Rao : We don't know what are they demolishing. Hawkers also put up structures. They sit on platforms. Let the affected party come.
Surendranath then prayed that demolitions be stopped till the residents approach. Justice Rao at this juncture turned to the Solicitor General and asked "Mr.Solicitor, when you do something, why don't you act in accordance with law?Issue notice to them".
The Solicitor replied that the petitioner has misrepresented facts. "Facts are being misrepresented. This is a process which has been going on for long, a routine exercise against encroachments", the SG said. The SG submitted that as per the Municipal Corporation Act, no notice is required to be served to remove encroachments on public roads. The SG said that the action has been taken on the basis of certain orders passed by the High Court after residents groups complained of encroachments.
"See what kind of misrepresentation of facts are being made for political hype...My learned friend says houses are being demolished. Where does he get this from?", the SG asked.
The bench then pointed out to Surendranath that the order challenged by the petitioner mentions that the exercise has been going on since April. The counsel requested that when the Court is seized of the matter, the authorities have started the process.
"We are not seized of all encroachment matters. Even in Jahangirpuri matter, we told Mr.Sibal we can't pass orders against all encroachments. We have to strike a balance", Justice Rao said.
"We can leave liberty open to persons aggrieved to approach the appropriate forum. Do you want to foreclose that too?", Justice Rao asked the petitioner's counsel.
Surendranath submitted that the authorities are coming with bulldozers and for removing chattels in roads, one does not require bulldozers. This means structures are being demolished, he said.
"We have not given license to anybody to come here to say my house cannot be demolished even if it is unauthorized. You cannot take shelter of that order. We cannot interfere...that too at the instance of political parties", Justice Rao repeated.
"This is not right Mr.Surendranath. Filing petitions like this. You spent the whole day here and you could have gone to the High Court instead. This is too much... some party coming us and telling us HC won't hear", Justice Rao added.
"How can you say HC will not take up. This is showing disrespect to HC. They have wider power under A. 226", Justice Gavai said.
"We can understand if you go to the HC and the HC refuses to hear..but you don't even go there and straightaway come to the Supreme Court", Justice Rao said.
"It appears there is something in what the Solicitor is saying that HC has passed orders..", Justice Rao added.
"That is why they are not going to the High Court. And that is why individuals are not approaching", SG submitted.
While agreeing to withdraw the petition and approach the High Court, Surendranath requested that the demolitions be stayed for two weeks.
"Not at your behest. You mention tomorrow in HC. Mr Solicitor General please don't do anything till tomorrow", Justice Rao told the SG.
"Whatever had to be removed has been removed before the matter was mentioned....They just want to create headlines that SC saved area from demolition", the SG said.
The matter was dismissed as withdrawn with liberty given to approach the High Court.
"The Ld. SR Counsel after arguing for sometime seeks permission to withdraw this petition to approach the High Court under Article 226. Permission granted. Writ Petition dismissed", the bench noted in the order.
On April 20, a bench led by the Chief Justice of India had ordered status quo on the demolitions carried out by the North Delhi Municipal Corporation in the riots-hit Jahangirpuri area on an oral plea made by Senior Advocate Dushyant Dave. Next day, a bench led by Justice Rao extended the status quo order until further orders, after issuing notice to the NDMC.