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Quashes FIR Against Kaushik Majithia for Near Protected Monument
Ahmedabad, – In a significant ruling that balances heritage protection with fundamental rights, the has quashed an FIR against Kaushik Nanubhai Majithia, who was accused of illegally constructing a house within 100 metres of the protected Rani Chippri Masjid in Khadiya. Justice P. M. Raval held that undertaken to stabilise a dilapidated structure do not amount to "construction" under the , and that criminal prosecution for such safety works violates of the Constitution.
Safety Repairs or Illegal Construction? The Crucial Distinction
The case arose from an FIR registered on , under , which prohibits construction within 300 metres of a protected monument without prior permission. The alleged that Majithia had commenced building a house within 100 metres of Rani Chippri Masjid and completed it despite a notice to stop.
Majithia, however, contended that he had received a notice from the under , declaring his house dilapidated and unsafe. He argued that he only carried out necessary repairs—replacing worn-out wooden fittings, painting, and applying brick masonry to stabilise a crumbling wall—and did not raise any new construction.
Emergency Restoration vs. Penal Offence: The Legal Framework
The court closely examined the statutory definitions under the AMASR Act.
defines "construction" as any erection of a structure or building, including any addition or extension, but explicitly excludes
"reconstruction, repair and renovation of an existing structure."
defines "repair and renovation" as alterations to a pre-existing structure, but not construction or reconstruction.
Justice Raval observed that the law is well-settled: "Repair" or "maintenance" implies restoration of a structure to its existing state without altering its load-bearing framework, footprint, or cubic content. The undisputed photographic evidence on record established that Majithia did not add any floor area, alter the building line, or raise the height of the building. The work executed fell squarely within the scope of permissible maintenance and restoration.
Overrides Rigid Statutory Interpretation
The court made a powerful observation on the interplay between penal statutes and fundamental rights:
"The penal provisions of a regulatory statute cannot be read in isolation to compel a citizen into a state of structural peril. 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 guaranteed under of the ."
The judgment noted that the Municipal Corporation had issued an official notice declaring the premises unsafe. Majithia acted in compliance with statutory safety obligations to prevent structural collapse. Prosecuting an occupant for executing basic safety repairs mandated by a local authority under threat of public hazard, the court said, would be opposed to constitutional guarantees.
‘Vague Assertions Without Technical Basis Cannot Sustain Prosecution’
The court was critical of the investigating agency's approach. It noted that the respondent-authority acted mechanically and in gross violation of administrative principles by lodging the FIR without considering Majithia's written reply dated , which was submitted prior to the FIR along with the Municipal Corporation Notice.
"Vague assertions of 'structural change' in an FIR, without technical foundation, cannot form the basis of criminal prosecution. Police authorities lack the technical expertise to decide architectural and structural parameters. Where the material on record conclusively demonstrates mere restoration within the existing framework, subjecting the Petitioner to a criminal trial after nearly nine years serves no legitimate legal purpose."
The court further found that the prosecution had equated "repair/renovation" with "construction," which was a basic misconstruction of statutory terms. Majithia's reply stating that no fresh construction was undertaken was fully substantiated by "before and after" photographs confirming that the horizontal perimeter, structural boundary, and height remained unchanged.
Lack of : No Criminal Intent
Emphasising the absence of criminal intent, the court held that the acts complained of were executed strictly pursuant to a statutory Safety Notice requiring immediate abatement of a public hazard. Action taken under statutory compulsion and to avert an immediate threat to life and public safety cannot be attributed with criminal intent or penal guilt under .
Court’s Decision and Implications
Allowing the application under , Justice Raval quashed FIR No. II-3055/2018 registered with and all consequential proceedings. The court made rule absolute.
The ruling clarifies that to protect life and property within a regulated area do not automatically attract criminal liability. It reinforces the principle that heritage protection laws must be interpreted reasonably and cannot be used to force citizens into unsafe living conditions. The decision is likely to guide lower courts and authorities in similar disputes where renovation work is confused with prohibited construction.
