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Prayagraj demolition falls foul of Allahabad HC order, says former CJ

“The directions in the case have not been followed by the state. There is an apparent violation of law in taking action before 30 days of serving the notice,” Justice Govind Mathur, who was the Chief Justice of Allahabad High Court then, told The Indian Express.

Written by Apurva Vishwanath | New Delhi |
Updated: June 17, 2022 12:06:19 pm
Mohammad Javed, Prayagraj Development Authority, Prayagraj demolition, Indian Express, India news, current affairs, Indian Express News Service, Express News Service, Express News, Indian Express India NewsPolice deployed at Prayagraj’s Atala area on Thursday. PTI

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

“The State authorities, where ever demolition orders are passed in respect of constructions raised on the 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,” a ruling by Justices Shashi Kant Gupta, Pankaj Bhatia in October 15, 2020 had said in Abbas Ansari And Another versus State Of Uttar Pradesh.

The two legislations referred in the ruling are the Uttar Pradesh Urban Planning and Development Act, 1973 and the Uttar Pradesh (Regulation of Building Operations) Act, 1958. “The directions in the case have not been followed by the state. There is an apparent violation of law in taking action before 30 days of serving the notice,” Justice Govind Mathur, who was the Chief Justice of the Allahabad High Court then, told The Indian Express.

On June 12, the Prayagraj Development Authority had invoked Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973, to demolish Javed’s house after serving just a day’s notice to vacate the house. The provision gives the municipal authorities power to order the demolition of a building if it is found to be in contravention of the Master Plan or is without requisite permission or approval under the law.

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While the municipal authorities said a show cause notice was issued on May 10, it claimed that a notice to voluntarily remove the encroachment was issued on May 25. However, Javed’s family and his lawyer KK Rai have denied receiving any notices before the night of June 10.

Emails sent to Prayagraj Development Authority (PDA) Vice Chairman Arvind Kumar Chauhan, PDA Secretary Ajeet Kumar Singh and District Magistrate Sanjay Khatri seeking clarification on the court’s directive of October 15, 2020, and the action taken by the administration did not elicit a response.

In the Abbas Ansari ruling, the Court acknowledged that the Uttar Pradesh government is carrying out demolitions without allowing the property owners time to appeal in several instances.

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“Before parting with the case, we have noticed that before this court a large number of cases are being filed before this Court (burdening the dockets of this already overburdened court), complaining of demolitions being carried out even before the expiry of prescribed period for filing of an appeal, coupled with the fact that the statutes namely the U.P. Urban Planning and Development Act, 1973 as well as U.P. (Regulation of Building Operations) Act, 1958, provide for an alternative remedy of an appeal within 30 days, we deem it appropriate to issue general mandamus in respect of actions being taken under the two statutes in the entire State,” the Court said.

The HC had also directed the Registrar General of the Court to forward a copy of the order to UP Chief Secretary to ensure compliance by all the Vice-Chairmen of all the Development Authorities and the District Magistrates throughout the state.

Section 27(2) of the 1973 Act states that: “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.”

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Additionally, the provision also states that “no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made.”

The Allahabad High Court also said the timelines cannot be mere procedural crutches and that “expropriatory legislation” must be given a strict interpretation as they “purport to take away the valuable constitutional rights of the citizens.”

“Till the disposal of the interim application filed in the statutory appeals the authorities should not take any steps for executing the demolition orders. Copies of the demolition orders, passed under the acts should be properly served upon the persons against whom the orders are passed,” the HC held.

The ruling also underlined that the source for demolishing properties under municipal and revenue laws is not derived from police powers.
“The courts cannot also be oblivious of the fact that the owners who are subject to the embargos placed under the statute are deprived of their valuable rightful use of the property for a long time. Although ordinarily when a public authority is asked to perform statutory duties within the time stipulated it is directory in nature but when it involves valuable rights of the citizens and provides for the consequences therefore it would be construed to be mandatory in character. The courts should, therefore, strive to find a balance of the competing interests,” the Court said.

The UP government has filed an appeal against the Abbas Ansari ruling before the Supreme Court. On March 12, 2021, the SC agreed to hear the appeal but did not stay the operation of the verdict. It has not been listed for hearing since.
In January 2021, the Allahabad HC relied on the Abbas Ansari ruling in a batch of three cases and stayed a demolition notice, directing the state to maintain status quo till the appeal is disposed of.

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First published on: 17-06-2022 at 03:15:47 am
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