Emergency Repairs in Protected Monument Zone: Criminal Prosecution Opposed to Article 21, Says Gujarat High Court
Case Title: KAUSHIK NANUBHAI MAJITHIA v/s STATE OF GUJARAT & ORS.
Case No.: R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 8473 of 2018
Coram: Justice PM Raval
Court Observation
“When a statutory Municipal Safety Notice explicitly identifies a dilapidated wall posing a threat to human life, carrying out immediate safety restoration constitutes compliance with statutory safety obligations and an exercise of the fundamental right to safety guaranteed under Article 21 of the Constitution of India. The argument that the applicant made a “false statement” by stating no construction had been carried out is legally flawed and proceeds on a basic misconstruction of statutory terms. The prosecution has equated “repair/renovation” with “construction.” Under Section 2(dc) of the AMASR Act, “construction” mandates an addition, expansion of footprint, increase in height, or erection of a new structural framework,”
“The allegations in the FIR, even if taken at face value, fail to disclose the essential ingredients of an offense under Section 30A/30B of the AMASR Act. The work executed was strictly confined to emergency stabilization, replastering, replacing wooden fittings, and masonry repair of an existing wall without adding load-bearing pillars, raising height, or expanding the horizontal footprint. The work constitutes ‘renovation/repair’ and falls outside the statutory definition of ‘construction’ under Section 2(dc) of the Act. Consequently, no penal offense is made out on the face of the record,”
“Prosecuting an occupant for executing basic safety repairs mandated by a local authority under threat of public hazard would be opposed to the constitutional guarantees under Article 21,”
“The undisputed photographic evidence on record establishes that the Petitioner did not add any floor area, alter the building line, or raise the height of the building. The work executed falls squarely within the scope of permissible maintenance and restoration,”
