INTRODUCTION
In recent times, we have seen that in almost every state, viz. Delhi, Gujarat, Madhya Pradesh, Maharashtra, Uttar Pradesh, etc., there has been a sharp increase in the trend of demolishing a structure by the municipal authorities.
This is done under the call of various reasons such as heritage conservation, illegal construction, non-payment of taxes, land acquisition, redevelopment projects, slum clearance, urbanization, and many other reasons of similar nature.
As per law, a demolition must always be carried out after following all the procedures. This includes compensation to the owner guaranteed under the statute. However, to the utter dismay, it is rarely found to be witnessed on the ground.
It is important to mention at the very outset that this Article refrains from giving a commentary on any political aspect of the demolition. It will deal only with providing the legal options that are available to a dweller who has received a notice of demolition from the municipal authorities operating in the state of Uttar Pradesh.
WHAT ARE THE STATUTORY REQUIREMENTS FOR DEMOLITION?
The demolitions in Uttar Pradesh are primarily governed by two legislations namely the Uttar Pradesh Urban Planning and Development Act, 1973 (Hereinafter referred to as UP Planning Act) and the Uttar Pradesh (Regulation of Building Operations) Act, 1958 (Hereinafter referred to as UP Building Act). For the convenience of the readers, we will elucidate the provisions of both Acts one by one.
The Uttar Pradesh Urban Planning and Development Act, 1973
Section 27(1) of the UP Planning Act says that where any structure has been commenced, under construction, or erected:
(i) in contravention of the Master Plan; or
(ii) without the permission/approval/sanction of the Vice-Chairman of the concerned Development Authority; or
(iii) in breach of any condition, if specified, under such permission/approval/sanction;
then the Vice-Chairman of the concerned Development Authority may pass an Order, along with reasons, directing the owner of the structure to demolish it within a minimum 15, or maximum 40 days of such order. If the owner fails to comply with the Order, then the Vice-Chairman or designated officer is empowered to initiate the removal of such construction. The costs associated with such removal will be recovered from the individual or entity responsible for commencing, developing, or completing the structure. However, any legal action cannot be lodged by the Authority before the Civil Court for the recovery of said expenses.
The proviso to the aforementioned Section provides relief to the owner by mandating the Vice-Chaiman to send a show-cause Notice to the owner asking for his/her explanation. This needs to be done before passing any Order under this Section.
Apart from this, any person who is aggrieved by this Order may present an appeal to the Chairman of the concerned Authority within 30 days of such Order. Thereafter, the Chairman, after hearing the parties to the appeal, may either allow or dismiss the appeal; or may reverse or modify any part of the Order.[1] In this process, he/she may also grant a stay upon the execution of the impugned Order until a final decision upon the appeal.[2] However, it is important to mention here that the decision of the Chairman in the appeal is final and cannot be challenged in any court of law.[3]
It is pertinent that any proceedings under this Section must not be in derogation to any other provision relating to the demolition of buildings contained in any other law for the time being in force.[4]
Thus, as per the laws contained under this Act, it is necessary that a reasonable opportunity for a hearing must be provided to the concerned person before passing the Order of demolition against him/her. Only after following this due process, a legal demotion may be carried out by the Development Authority.
The Uttar Pradesh (Regulation of Building Operations) Act, 1958
The provisions of the UP Building Act are somewhat the same as that of the UP-Planning Act. Section 10 of this Act describes that when the building’s construction, re-construction, or alteration begins, continues, or finishes:
(i) in violation of regulations outlined in this Act; or
(ii) without the previous permission of the Prescribed Authority in writing; or
(iii) in defiance of any conditions attached to that permission;
then the prescribed Authority may issue an Order requiring the owner to demolish the said construction, reconstruction, or alteration within a timeframe, not exceeding two months, as specified in the Order. In case the owner refuses to perform the demolition, then the Prescribed Authority may arrange for the demolition of such erection, re-erection, or material alteration either (i) directly, (ii) through the relevant local authority, or (iii) through any suitable agency of its choice. The cost of such demolition will be levied from the owner itself as the arrears of land revenue. However, it is mandatory that the Order may be passed only after giving a reasonable opportunity of hearing to the owner.
Additionally, if the Prescribed Authority determines that the commencement or ongoing progress of the (i) erection, (ii) re-erection of any building, or (iii) the execution of work specified in Section 6, is unlawfully taking place, then it has the authority to issue a written Notice. This Notice will require the individual overseeing or conducting the mentioned activities to cease it immediately. In the event of non-compliance, the Prescribed Authority may proceed to halt the development and may employ reasonable force, if necessary, to do the same.[1]
Hence, this Act also mandates that the Prescribed Authority is required to give a reasonable opportunity of hearing to the owner before initiating the process of demolition on its own.
WHAT IS THE PROCEDURE AFTER NOTICE OF DEMOLITION?
The individual, or corporation, that has received the Order of demolition must file an appeal before the Chairman of the jurisdictional Development Authority under Section 27 of the UP Planning Act to get the Order stayed/quashed within a minimum time. This appeal must be attached with all the relevant papers which prove that the subject property is the lawful and legitimate property of the owner. On the first day itself, the Order must be stayed by the Chairman till final disposal of the Appeal.
In case the Chairman dismisses the Appeal and directs the Development Authority to proceed in accordance with the contents of the Order, then the owner, as soon as possible, must approach before the Hon’ble High Court. The Hon’ble High Court, under Article 226 of the Constitution of India, has the authority to quash the whole Order, as well as the proceedings of demolition, if found to be illegal.
Since there is no provision for appeal in the UP building Act, the owner may directly appear before the Hon’ble High Court to get the Order of demolition stayed/quashed.
In the worst circumstance, God forbid, the property got demolished illegally i.e., without following the procedure established by law, then the owner may approach the Hon’ble High Court under Article 226 of the Constitution of India to either get his/her property restored at the expense of the Development Authority or get a compensation for such illegal demolition. The various High Courts in India have time and again granted relief to the property owner in case of illegal demolition by the Authorities.
HOW COURTS HAVE PREVENTED ILLEGAL DEMOLITION?
The Hon’ble Supreme Court in the locus classicus case of Municipal Corporation of Greater Mumbai v. Sunbeam High Tech Developers Private Ltd.[1] has made some important directions for the prevention of illegal demolitions. The two of them are as follows:
(i) “… The exercise of the power of demolition which affects the property of the citizens of this country must be exercised in an absolutely fair and transparent manner. Rules in this regard must be followed…”
(ii) “… If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law…”
However, the Hon’ble Court, in the very same case, has also stated that these observations are not applicable in the case of illegal constructions as the illegality must be dealt with iron hands.
In some other instances Abdul Mateen Siddiqui v. Union of India & Ors.[1] (famously known as the Haldwani demolition case) as well as Jamiat Ulama-I-Hind v. North Delhi Municipal Corporation & Ors.[2] (famously known as the Jahangirpuri demolition case), the Hon’ble Apex Court put a large-scale demolition on hold by citing humanitarian grounds.
The Hon’ble Allahabad High Court has also placed its step in for the protection of citizens vide Abbas Ansari & Ors. v. State of U.P. & Ors.[3] and ordered that demolition can never take place till the expiry of the statutory period of appeal/disposal of appeal. The Hon’ble High Court made a series of directions for the Development Authorities in this regard. The following are:
1. 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.
2. The Appellate authority empowered the two Acts should endeavour to decide the interim applications filed along with the appeals, if any, expeditiously preferably within a period of two weeks from the date of filing of the interim application.
3. Till the disposal of the interim application filed in the statutory appeals, the authorities should not take any steps for executing the demolition orders.
4. Copies of the demolition orders, passed under the acts should be properly served upon the persons against whom the orders are passed.
5. 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.
CONCLUSION
It is important to bear in mind that in the case of a demolition Order, time is really of the essence. If the dweller makes a delay in filing an appeal or writ, the Authorities will demolition the property. Thereafter, he/she will have to run from pillar to post to get his/her property restored or even receive compensation. Thus, if the property is legal, then it is paramount that the demolition Order must be either stayed or quashed by the appropriate forum in the minimum time possible. In case you need any legal support, you can reach out to S&D Legal Associates.
[1] Section 27(2), The Uttar Pradesh Urban Planning and Development Act, 1973.
[2] Section 27(3), The Uttar Pradesh Urban Planning and Development Act, 1973.
[3] Section 27(4), The Uttar Pradesh Urban Planning and Development Act, 1973.
[4] Section 27(5), The Uttar Pradesh Urban Planning and Development Act, 1973.
[5] Section 10(2), The Uttar Pradesh (Regulation of Building Operations) Act, 1958.
[6] (2019) 20 SCC 781.
[7] 2023 SCC OnLine SC 17.
[8] 2022 SCC OnLine SC 1050.
[9] Writ C No. 16357 of 2020.
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