PAKISTAN: A PERILOUS JOURNEY FROM JINNAHISTAN TO JIHADISTAN - The Daily Guardian
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PAKISTAN: A PERILOUS JOURNEY FROM JINNAHISTAN TO JIHADISTAN

It is time for Pakistan to realise what could not be settled in 1947 cannot be settled now and pursue a foreign policy based on universal brotherhood

ASHOK BHAN

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Pakistan that was carved out as a separate dream homeland for South Asian Muslims has gone astray. Instead of pursuing Jinnahism and following the tenets of its founder, it has chosen to follow Jihadism. It has made supporting terror a part of its state policy.

Instead of building on the common Indian pluralistic heritage, where Muslims also contributed and shined, successive Pakistani regimes and the intelligentsia have preferred to build the idea of Pakistan on pillars of Islam and antagonism towards India. The hate India has been made as a national narrative. Time has proved that Pakistan’s paranoia regarding India is unfounded.

Using terrorist groups as part of its security and foreign policy shows its obsession with India which it perceives as an existential threat. The ideology of Pakistan is built on twin pillars of Islam and antagonism towards India. Pakistan never realized that as a nation-state it should create its history and move forward but lived with historical appropriation and distortions of the past.

India’s relations with Pakistan have been defined by the Partition in 1947, the Kashmir conundrum and the military conflicts fought between the two South Asian neighbours. The relations have always been plagued by conflicts, hostilities and suspicion even though the two-share common linguistic, cultural, geographical and economic linkages.

India always offered an olive branch to sort out amicably some of the pressing issues including Kashmir. Indian Prime minister Pt Jawahar Lal Nehru was engaged with Pakistan leadership from 1948 onwards. Pakistan’s third Prime Minister Mohamed Ali in April 1953 approached Nehru for discussing the bilateral issues. They met on the sidelines of the 6th Commonwealth Conference in London in June 1953. Both sides discussed issues of canal waters, evacuee properties and other issues, except the Kashmir, cordially. Ali invited Nehru for a visit to Karachi. Various issues were being discussed by the officials separately. Nehru realized engagement with Pakistan would benefit in removing irritants in bilateral relations.

He was under impression that an engagement may not take Pakistan for a military buildup and join a military alliance with the US. He was also of the view that it may lead to the relaxation of tension in the sub-continent and it could rescue India from the dangers of Cold War politics etc. Nehru, therefore, visited Karachi in July 1953, where he received tumultuous reception.

SHEIKH’S TANTRUMS IN KASHMIR

But in August 1953 political developments turned ugly for India in Kashmir because of Shiekh Abdullah, who already was being perceived as a thorn in the flesh of the body politic of India.

On August 7, BBC reported a speech of Shiekh on Martyr’s- day in July:

“If I felt by remaining Independent, Kashmir Would be well off, I would not hesitate to raise my voice in favour of complete freedom for Kashmir. If I felt that Kashmir’s betterment lay in its accession to Pakistan, no power in the world could silence my voice.”

Shiekh was arrested on 8-9th August 1953. Pakistan’s joining the US in a defence pact changed the context of bilateral negotiations. Nehru took a firm stand by saying Pakistan is irrelevant as far as Kashmir is concerned. He said Jammu and Kashmir Constituent Assembly shall henceforth decide the future of Kashmir. He confidently said: “if Kashmir Constituent assembly, did not approve of the State’s accession to India, New Delhi would walk out of the State.” The assembly finally voted in favour of India.

Pakistan’s brazen belligerence continues towards India despite the extension of an olive branch from time and again by India for good neighbourly relations. Pakistan’s Kashmir rants echo always in United Nations Human Rights Council at Geneva and rake up the issue at UNGA. India fiercely replies calling Pakistan “Terroristan” and asserts J&K as its integral part. India is not willing to renegotiate Kashmir’s territorial status. The bilateral issues can be addressed through talks and negotiations.

There have been military wars, continuing undeclared wars, numerous skirmishes and standoffs. Many successful attempts to improve relations through Shimla Agreement, Agra and Lahore summits, etc, have fallen apart. The relations soured after the Siachen conflict of 1980, the Kashmir insurgency of 1989 onwards and the Kargil war. Terror attacks on the Indian Parliament in 2001 almost brought two nuclear nations to the brink of war. Mumbai terror attack of 2008 by Pakistani terrorists that killed hundreds, and its continuous support to terrorists in Kashmir to delegitimise the idea of India has soured our relations further.

The US has always been helpful and concerned about regional security in South Asia. US experts feel that India-Pakistan tensions will complicate and spoil Peace interests in the region and the Chinese incursions in Ladakh has put India’s geostrategic interests in Jeopardy. The foreign policy experts wish to alert Mr Modi on the implications of the close China-Pakistan relations as Beijing is trying to remake geography by launching huge infrastructure roads and bridges on the borders on the one hand and the other continue with belligerence the incursions in Ladakh Therefore, persistent and astute diplomatic engagement at a comprehensive level with nations in the region becomes important. That is how PM Modi is attempting to toggle out of the current diplomatic Catch -20 syndrome.

DOWNSLIDE IN RELATIONS WITH ITS FORMER ALLIES

Despite having started to reboot its diplomatic ties with the US to end the stalemate of the last few years, Islamabad’s relations with other nations have been on the downside because it lied to the world about the presence of Al Qaeda chief — Osama bin Laden — in Pakistan. The Americans nailed these lies by carrying out Operation Neptune Spear and he was found in Abbottabad near the elite military school in Pakistan and was liquidated. All eyes are on Pakistan and it has to come clean and stop breeding terrorists in its backyard and root them out.

The Modi government’s policy to isolate Pakistan from erstwhile friendly countries such as the UAE, Central Asian countries and other relevant nations have succeeded. By now the world has acknowledged the stark truth that Pakistan is the sponsor of terrorism and poses a serious threat to security in the South Asian region. As such at the moment no dialogue with Pakistan is the Indian policy.

India’s astute diplomacy and her latest strategy may require a change in Pakistan’s unrealistic rigidity that Kashmir is the unfinished business of Partition. That view, having no legal merits has not many takers internationally.

The United Nations Now, with 193 members, shows virtually no interest in the issue. Pakistan’s leaders still refuse to recognise that the territorial status quo and a better life for Kashmiris might be all they can hope for. They prefer to keep Kashmir alive as a problem that is neither solved nor set aside.

Pakistan’s desire for an international solution to Kashmir seems farther from possibility than ever. In the aftermath of the recent Modi Government decision, the US noted that India considers it an internal matter.

Chinese reaction was focused more on its territorial dispute with India over Ladakh than on Pakistan’s stance although the Chinese statement did refer to the dispute as “an issue left from the past between India and Pakistan.”

Sri Lanka, Bangladesh, and the Maldives – all members of the South Asian Association for Regional Cooperation (SAARC) – acknowledged the internal nature of the constitutional changes. Among member states of the Organisation of Islamic Cooperation (OIC), United Arab Emirates (UAE) took the lead in expressing the hope that the changes would improve the lives of Kashmiris.

BIDEN TOES TRUMP’S POLICY ON PAKISTAN

Imran Khan’s call to Turkey’s Preside Recep Tayyip Erdogan elicited a promise of “steadfast support” without condemnation of India. A similar call for support to Malaysia’s Prime Minister Tun Mahathir bin Mohamad resulted only in a lukewarm expression of concern. Despite having started to reboot its diplomatic ties with the US to end the stalemate of the last few years, Islamabad’s relations with other nations have been on the downside because it lied to the world about the presence of Al Qaeda chief — Osama bin Laden — in Pakistan. The Americans nailed these lies by carrying out Operation Neptune Spear and he was found in Abbottabad near the elite military school in Pakistan and was liquidated. All eyes are on Pakistan and it has to come clean and stop breeding terrorists in its backyard and root them out.

Former US President Trump had voiced his strong-arm policy against terrorism. Now the almost same policy is echoed by the current Joe Biden Administration. Pakistan has to take it seriously if it wishes to get financial aid from the US. Financial Action Task Force is eyeing Pakistan. China removed the objection to putting Pakistan on the grey list by FATF.

Pakistan is being placed on the global terrorist-financing list from June 2018 onwards that would endanger its handful of remaining banking links to the outside world causing financial pain to its economy. Saudi Arabia has also removed its objection and now only Turkey is supporting Pakistan.

President Trump has said it is time to expose and hold responsible those countries who breed, support and finance terror groups. The US administration has charted a new South Asia policy in which it has sought a larger role for India in South Asia and has put Pakistan on notice.

Pakistan’s temper tantrums and petulance responses have not convinced the US and other nations. Pakistan has to take a hard look at options. It has to play tough against Hizbul Mujahideen, Lashkar-e-Taiba, Jaish-e-Mohammad and all other similar groups.

International relations are seldom about legalistic and moral arguments of the kind Pakistanis offer about the invalidity of then Maharaja Hari Singh’s accession and subsequent UN resolutions on Kashmir. Countries care more about their interests and Pakistan offers less and less in terms of value concerning others.

China’s annual trade with India amounts to $95 billion compared to $13 billion with Pakistan. Turkey’s trade with India stands at $8.6 billion against $1 billion with Pakistan. Malaysia-India trade at $14 billion is 14 times more than the $1 billion of goods and services Malaysia exchanges with Pakistan.

BUYING PEACE WITH HOSTILE NEIGHBOUR

Modi by now is conscious that he may not be able to transact any big issue with Pakistan because it wants business on Siachen and Sir Creek, which in turn is always demurred. India does not buy any formula on Kashmir, as it firmly believes terror and talks cannot go together and until and unless Pakistan brings to the book perpetrators of the 26/11 Mumbai killings. The territorial status of Kashmir is not negotiable. Thus, the only issue that can find an agreement is enhanced trade relations and other economic development schemes but that too will take some time to materialise.

Conducting frequent talks at different levels, which do not yield a satisfying outcome, is part of diplomacy. India and its Prime Minister are to be seen as a participant in the process of buying peace with even the hostile neighbour country to promote his credentials as a moderniser internationally.

It is time for Pakistan to take these harsh realities into account instead of just emotional and religion-based appeals to settle what could not be settled in 1947. The civilizational ethos of foreign policy should be a strong belief in universal brotherhood- VASUDHAIVA KUTMBAKAM

The Modi government’s policy to isolate Pakistan from erstwhile friendly countries such as the UAE, Central Asian countries and other relevant nations has succeeded. By now the world has acknowl- edged the stark truth that Pakistan is the sponsor of terrorism and poses a serious threat to security in the South Asian region. As such at the moment no dialogue with Pakistan is the Indian policy.

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Legally Speaking

MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?

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The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.

The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.

It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?

In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.

It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.

The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-

Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.

Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.

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HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956

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The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

FACTS OF THE CASE:

The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.

The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.

the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.

Contentions Raised by the Parties:

It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.

It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.

The submissions of the petitioner were countered by the Respondent on the following grounds:

Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.

It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.

COURT ANALYSIS:

The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.

The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.

Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.

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KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?

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The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.

The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.

In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.

Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.

Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.

It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.

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Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.

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The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?

In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.

Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.

The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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