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Synopsis

The Supreme Court has directed the Prayagraj Development Authority to pay Rs 10 lakh to a man and others for the inhuman and illegal demolition of their houses and building in 2020.

"These cases shock our conscience," a bench of Justices Abhay S Oka and Ujjal Bhuyan said, noting the residential premises/buildings of the appellants had been demolished highhandedly.

"The authorities, especially the development authority, must remember that the right to shelter is also an integral part of Article 21 of the Constitution of India. This right can be taken away only by following due process of law. Moreover, our country is governed by the rule of law, which is an integral part of the basic structure of the Constitution," the bench said.  

Going by the counter affidavit filed by the PDA, the bench noted that a show-cause notice, as contemplated by the proviso to sub-section (1) of Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973, was issued on December 18, 2020 by the PDA. On the very day, the notice was allegedly affixed on the structure with the remark that it was attempted to be served on the appellants on the same day, but it could not be served. Thereafter, an order on January 8, 2021, was passed by the Zonal Officer of the PDA directing demolition of the structures of the appellants.

"We find from the counter affidavit that an identical endorsement was made on the said order of January 8, 2021 and that a copy of the order was allegedly affixed," the bench said. 

Thereafter, on March 1, 2021, another communication of the order of demolition passed earlier was issued by the Zonal Officer of the PDA to the appellants. Even though the said communication was purportedly affixed on the same day, it was also sent by Registered Post, which was served upon the appellants on March 6, 2021 and on March 7, 2021, the demolition of residential structures of the appellants was carried out by use of bulldozers, the bench noted.

The court pointed out as far as service of notice is concerned, the law has been subsequently laid down by this court in the case of In Re: Directions in the matter of demolition of structures (2024).

"It is true that it is a subsequent decision. Therefore, we have examined the provisions of the 1973 Act as regards the service of notice," the bench said.

Referring to the provision of the law, the bench said, "It is clear that only after genuine multiple efforts are made to find the person on more than one day, one can say that “the person cannot be found”. It cannot be that the person entrusted with the job of serving notice goes to the address and affixes it after finding that on that day, the person concerned is unavailable at a given time. The words “if such a person cannot be found” cannot be given any other interpretation".

The court pointed out that it is evident that repeated efforts have to be made to effect personal service. Only if those efforts fail, can the other two options be resorted to. One is of affixing and the second is of sending by registered post. Considering the drastic consequences provided in Section 27, recourse should usually be taken to both modes. 

The officers of the PDA must understand that before a structure is demolished, every possible effort should be made to effect a proper service of the show-cause notice. It is their duty to do so. Moreover, after proper and effective service of the order of demolition, at least 15 days’ time must be provided to the owner or occupier to avail the remedy of an Appeal under Section 27(2) of the 1973 Act, the bench said.

The court said multiple efforts were not made to personally serve the notice. The requirement of the proviso to sub-section (1) of Section 27 is to grant a reasonable opportunity for the person whose structure is sought to be demolished to show cause. This is no way of granting a reasonable opportunity, court emphasised. 

The bench said the residential structures of citizens cannot be demolished in such a summary manner without following the principles of natural justice. No efforts were made to make the personal service of the show cause notice. Although the option of sending it by registered post was available, it was not exercised, court highlighted. 

The court noted in the order of January 8, 2021, directing the demolition, on the very day, it was stated to be served by affixing. A copy thereof was not sent by the registered post. Only the communication of March 1, 2021, was sent by the registered post, which was served upon the appellants on Saturday, March 6, 2021. Within twenty-four hours of the service of the said communication, the structures were brazenly demolished.   

"This deprived the appellants of their opportunity to avail of the remedy of appeal under sub-Section (2) of Section 27 of the 1973 Act," the bench said.

"Therefore, the demolition action is completely illegal, which violates the appellants' right to shelter guaranteed by Article 21 of the Constitution of India. The action is completely arbitrary. Moreover, carrying out demolition of residential structures in such a highhanded manner shows insensitivity on the part of the statutory development authority. This is one more case of bulldozer justice. The officers of the PDA have forgotten that the rule of law prevails in our country. Unfortunately, the State Government has supported the PDA," the bench said.

In the case, the court gave appellants an option to reconstruct their houses, building subject to giving an undertaking that in the event the appeal filed under sub Section (2) of Section 27 is dismissed, it will have to be demolished at their own cost.

As the appellants stated that they were not in a position to reconstruct the structures, the bench said, there was now no occasion to direct the planning authority to follow the due process of law in these cases. However, considering the inhuman and illegal action of demolition carried out, the planning authority must be saddled with costs, it held.

The court set aside the Allahabad High Court's order of March 8, 2021 which refused to interfere with the decision to demolition the structures. It directed the PDA to scrupulously follow the directions in the decision of the court in Re: Directions in the matter of demolition of structures. The bench allowed the appellants to file appropriate proceedings to establish their rights in respect of the land. The court also clarified that the appellants will also be entitled to file proceedings to claim compensation on account of illegal demolition.

The petitioners filed a plea in the apex court after the Allahabad High Court dismissed their plea against the demolition. Their counsel argued that the state had wrongly linked their land to gangster-politician Atiq Ahmed, who was killed in April 2023.

Case Title: Zulfiquar Haider & Anr Vs State of Uttar Pradesh & Ors