New Delhi (ILNS): The Allahabad High Court has issued a stay order spanning an entire series of demolition orders on structures on private land. The demolition orders were issued by the Uttar Pradesh government. These demolition orders had been issued before expiry of the date of appeal that the landowners had, and this goes against established legal precedents, ruled the court. Orders have been issued to demolish structures that violate recent changes in land use rules, but the land owners have not been given enough opportunity to appeal.
The court’s order came while passing judgment on a particular case of two landowners, Abbas Ansari and Jamshed Raza. When a change in the compounding rule found these landowners staring at a situation where the government had passed orders to demolish the structure they had constructed on their land, the owners moved court. The Allahabad High Court directed the state government authorities not to demolish constructions raised on their private properties till the interim application filed in statutory appeals is disposed of by the authorities concerned.
This order has been given by the bench of Justice Shashikant Gupta and Justice Pankaj Bhatia. The Court has said that no action should be taken on the demolition order till the period of filing the appeal in 30 days. The interim Application on Appeal should be decided in two weeks.
The Court observed, “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 further directed that the copies of the demolition orders, passed under the said Acts, should be properly served upon the persons against whom the orders are passed. Besides, the orders of demolition proposed should be passed after giving an opportunity of hearing to the persons against whom the orders are proposed to be passed.
Having passed that order, the court turned to the larger picture. Said the court in its order: “However, 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.
“We are doing so in view of the categorical pronouncement of the Supreme Court in the case of Chairman Indore Vikas Pradhikaran vs Pure Industrial Coke & Chemicals Limited and Others,
(2007) 8 SCC 705 wherein the Supreme Court considered the nature of the town planning statutes viz-a-viz the rights of the citizens to live, the Supreme Court held that the Town Planning Statutes are basically in the nature of expropriatory legislation and must be given strict construction, the Act being regulatory in nature restrict the right of a owner of a property to use and develop the same, and any omission by the regulatory authority entitles the owner of the property to use the same for any purpose unless there exists a certain regulation to the contrary, the Supreme Court as observed as under:
“‘46. 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.
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“‘47. For the aforementioned purpose, an endeavour should be made to find out as to whether the statute takes care of public interest in the matter vis-a- vis the private interest, on the one hand, and the effect of lapse and/ or positive inaction on the part of the State and other planning authorities, on the other.
“‘48. 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 therefor it would be construed to be mandatory in character.
“‘52. The courts should, therefore, strive to find a balance of the competing interests.
“‘57. 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 v. Union of India & Ors. (2003) 7 SCC 628; Krishi Utpadan Mandi Samiti & Ors. v. Pilibhit Pantnagar Beej Ltd. & Anr. (2004) 1 SCC 391; and Union of India & Ors. v. West Coast Paper Mills Ltd.]’”
-ILNS