Patna High Court Directs Demolition of Waqf Bhawan Constructed Close to the High Court Building by a 4:1 Judgement

The Patna High Court, by a 4:1 judgement, has directed the demolition of a structure being constructed close to the northern side of the newly inaugurated Centenary Building of the High Court. As per the directions of the Chief Justice of the High Court, the matter was registered as public interest litigation, posted before a five-judge special bench consisting of Justice Ashwani Kumar Singh, Vikash Jain, Ahsanuddin Amanullah, Rajendra Kumar Mishra and Chakradhari Sharan Singh.The majority judgement ordered the said demolition and directed the Chief Secretary to inquire for legal non-compliances. Justice Ahsanuddin Amanullah gave the dissenting opinion remarking that the said construction is 'irregular' and not 'illegal'. Moreover, he remarked that the violation is not of such magnitude that complete demolition is called for, he proposed the excess 10 feet height violating the bye-law can be demolished to fix the irregularity.Background The said construction is a G+3 Waqf Bhawan comprising a guest house, a guard room and a parking space on the ground floor; a library and a conference room on the first floor; and offices of the Waqf Board on the second and third floors.The Bihar State Building Construction Corporation Limited prepared the sanctioned map for the proposed construction, approved by the Minority Welfare Department. The Building Corporation gave its administrative sanction to the construction at an estimated cost of Rs. 14,67,86,000/-. The Minority Welfare Department accorded technical sanctions and released Rs. 500 lakhs for construction.The respondents submitted that the plan was approved by the Government Architect of the Building Corporation, who is competent to sanction the said plan under Bye-law 8(1)(A) of the Bye-laws. Moreover, it was admitted that the Waqf Bhawan is being constructed at a distance of about 16 ft. from the boundary wall of the High Court and not 15 feet 6 inches.On the question of whether the Patna Municipal Corporation has approved the plan for the building, a joint stand has been taken by the Waqf Board and the Building Corporation in their respective submissions to the effect that no such permission of the Patna Municipal Corporation was required given Bye-law 8(1) (A).The Patna Municipal Corporation has stated that as permission was not required, the plan for construction of the Patna High Court building was not submitted to it by the concerned Department at any point in time.Senior Advocate Rajendra Narayan was appointed as the amicus curiae to help the bench, given the seriousness of the matter.The question before the Court was whether only the offending portion of the construction above 10 metres in height be directed to be demolished as prayed by the respondents or would it be necessary to demolish the entire structure from the ground up.Submissions by the Amicus CuraieAs per the submissions of the amicus, the acquisition of the property in question by the Waqf Board has no legal basis under the provisions of the Central Act. He also raised questions on the fact that a multi-purpose multi-storied building is being built on land claimed to have been used as a graveyard since time immemorial. The issue of not obtaining sanctions from Patna Municipal Corporation was also highlighted. He contended that the said sanction by PMC was mandatory as exemption under Bye-law 8(1)(A) does not apply to the present case since the Architect of the Building Corporation who has sanctioned the plan is not a 'Government Architect' as required by the said Bye-law. He also pointed out that the structure under consideration has ostensibly been constructed surreptitiously and in haste immediately after a complete lockdown was imposed on the city in the latter part of March 2020 in the wake of the outbreak of Covid19 pandemic, when all construction activities had come to a complete halt. Interim OrderGiven the proximity of the structure to the High Court building, the said construction was probable of posing severe security concerns for Judges, lawyers, litigants, staff and security personnel alike. Earlier, at the instance of the interim order, the Court was informed by the Advocate General that the planned structure was about 40-42 feet in height and stood approximately 30 feet away from the boundary wall of the High Court building. Placing a pause on the construction activity, the Court passed interim order noting that,"Such construction was in clear breach of Bye-law 21 of the Bihar Building Byelaws, 2014 ('the Bye-laws') which prohibits the existence of any building exceeding 10 feet in height within 200 meters radius of the boundary of important buildings including the High Court."Majority Judgement Violation of Waqf Act, 1995 & Bye-Laws; Not Mere Irregularity:While directing the demolition of the structure, the Court noted that it is being constructed in utter and brazen violation of provisions of law across statutes, starting from Section 32 of the Waqf Act, 1995 through the...

Patna High Court Directs Demolition of Waqf Bhawan Constructed Close to the High Court Building by a 4:1 Judgement

Shrutika Pandey

Tags