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 Curaie

As 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 Order

Given 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 various provisions of the Municipal Act, and finally Bye-law 21, as discussed above, and must be held to be illegal and non-est from the word go. It remarked,

"The very initiation of the entire project with the takeover of the property of Waqf Estate No. 663 by the Waqf Board was unauthorised and without fulfilling the preconditions of section 32 of the Central Act. No prior notice for the purpose is shown to have been issued by the Waqf Board to the Waqf Estate No. 663 specifying the nature of work proposed for the development of its property, nor has the latter been shown to have expressed its unwillingness or incapability to execute the development work on the property as specified in such notice. Such notice was statutory and could not have been waived or ignored."

Moreover, the Court highlighted that it has nowhere been indicated that the proposed building would be an income-generating asset intended to recoup the expenses incurred by the Waqf Board before returning the property to the said Waqf Estate. Instead, the respondents have now taken the stand that the building would be used mainly as the offices of the Waqf Board. No averment was made to suggest any proposal ever to return the property to the said Waqf Estate.

The Court was of the view that the Waqf Board's primary objective is in self-interest by providing office space for itself, rather than for the development of Waqf Estate, which is contrary to the very spirit of Section 32 of the Central Act. Moreover, the respondents have failed to show that the proposed building with the purpose of its use, as initially stated, by way of the guest house, library, conference room and offices of the Waqf Board, could at all have been constructed on land admittedly recorded as Dargah and Qabristan. The Court emphasised whether the nature of land used for the said purpose can be modified for the construction of a building for unconnected purposes.

The Court expressed surprise that the construction of the G+3 structure commenced during the period of complete lockdown. Referring to the said conduct as 'surreptitious', the Court raised suspicion and severe doubt on the construction. It noted that fundamentally, none of the respondents could satisfactorily explain who exactly is a 'Government Architect' within the meaning of Bye-law 8(1)(A). It noted,

"They have not been able to show any Act, Rule, Bye-law, Circular or Notification whatsoever defining the term, much less than an Architect employed by the Building Corporation is a Government Architect."

On the other hand, it was the specific submission of the Building Corporation that its Architect "be construed as the Government Architect", which itself is a tacit acceptance that the two terms are incapable of being equated.

The Court noted that the approval of the building plan by the Architect of the Building Corporation does not satisfy the condition laid down in Bye-law 8(1)(A), which requires the plan to be sanctioned by a 'Government Architect'. In the absence of any enabling words in the Bye-laws, it is also not possible to accept the submission that the Building Corporation be treated at par with the Bihar State Housing Board mentioned in Bye-law 8(1)(A) for purposes of exemption from obtaining permission thereunder.

The Court held that there was no valid sanction plan approved by a 'Government Architect' based on which construction of the building could have been initiated. Such construction made without a valid sanction plan must thus be held to be illegality rather than a mere irregularity.

Noting the construction to be illegal and not merely irregular, the Court noted,

"An irregularity may thus include a case of construction with some deviation from an existing valid sanction plan and may be capable of being rectified, but not a case where a valid sanction plan did not exist at all. In the present case, the very basis and foundation for the construction of the building were contrary to law. The acts of the respondents were equally unauthorised by law, which are thus rendered substantively illegal and non-est, and hence cannot be saved."

Safety & Security

One amongst many reasons necessitating the demolition as recorded by the Court was the perceived threat to the safety and security of Court records, litigants, lawyers, staff and all stakeholders, arising from the extreme proximity of the structure, which stands a mere 15 feet 6 inches from the boundary of the High Court.

The said stems from the fact that construction was initiated without a valid sanction plan. The fact that a competent authority did not duly and validly sanction the building plan bypasses the assurance that the structure is structurally solid and safe, not only for itself but for all those in the vicinity. Referring to Bye-law 8(1)(A) and its' non-compliance in the instant case, the Court noted,

"The respondents have erroneously proceeded on the assumption that sanction was accorded to the building plan by a Government Architect, and thus no permission from the competent authority had been sought, nor compliance of all applicable safety laws ensured. As such, there is no assurance of the structural safety of the construction starting with its very foundation."

Considering the direction of demolition merely of the upper portion of the construction above 10 metres height, the Court noted that it would not ensure safety. It noted that the construction was negligently in a manner not keeping in mind the dignity of the Court. The sketch plan attached shows that the space is allocated for a septic tank almost abutting the boundary wall of the High Court.

"This is enough to jar the sensibilities of any right-thinking person. The respondents have acted without due regard to the peaceful functioning of the High Court in constructing the structure for housing the offices of the Waqf Board, apart from a Musafir khana, library, conference hall, etc. so close to the High Court, as it would certainly have caused a perpetual disturbance," the Court added.

Losses To The Public Exchequer:

In addition, the Court noted that construction without a valid sanction causes loss of several crores to the public exchequer. Justice Ashwani Kumar Singh, in his judgement, noted,

"The lawmakers' repose confidence in the authorities that they would ensure compliance of laws. If the authorities breach that confidence and act in dereliction of duties by encouraging illegal activities, judicial notice will have to be taken, and judicial discretion exercised wherever it is required to uphold the law."

He further remarked that the records show a 'sorry state of affairs of the Government which has been the instrument of the origin and perpetuation of illegality in the present case. He remarked,

"It is surprising to note that the State Government sanctioned the impugned structure was unaware of its laws while sanctioning the construction. It was completely unmindful of the fact that while it confronts its citizens with the axiom' ignorance of the law is no excuse', it had tried to defend an illegal act of its own by pleading before this Court that they were ignorant about the existing law, namely Bye-Law 21."

He noted that the absence of any effort by the authorities to verify either irregularity or illegality of the structure and the construction makes it look like there was some amount of urgency to construct the illegal structure, mainly during the period of complete lock-down imposed by the Government on account of the COVID-19 pandemic.

Historical Preservation of High Court Building:

Mapping the history and architectural nuances of the High Court building, he emphasised the need to preserve historical buildings and architectural history. He remarked,

"The importance of any institution in the eyes of its people is physically reflected through the building from which it is functioning. That being so, it was for the authorities to construct the building which could have done justice to the ethos, values and majesty of the Court. Judiciary being one of the founding pillars and vanguards of life, liberty and freedom, was one of the first institutions to be established in the newly separated State."

The Court noted that history shapes the present and future of any country and this in any State, preservation of historical buildings tells the story of that State's architectural history.

Justice Ashwani Kumar Singh remarked on the overall lacking committment of the State of Bihar towards historical preservation of values & tradition. He noted,

"Preservation of the historical, heritage and traditional values of buildings in the State is one of the most neglected aspects of governance in the State of Bihar. While in other States the authorities have enacted laws to preserve and conserve heritage buildings and other structures of heritage value by constituting expert bodies for the same, the State of Bihar has lagged behind in creating an effective framework to preserve/conserve its heritage buildings."

He proposed that the authorities must activate the Commission in the State of Bihar to achieve the object of conservation and preservation of the heritage and historic buildings by domain experts.

"These buildings are a shining testimony to the evolution of the history of the State, which, if lost, would result in irreversible loss of the State heritage. There is immediate need for such conservation and preservation, which is central to the idea and spirit behind Bye-Law 21 of the Bihar Building Bye-Laws, 2014," he added.

Dissenting Judgement by Justice Ahsanuddin Amanullah

Justice Ahsanuddin Amanullah departed on the finding that the structure's construction is void ab initio. He noted that being so has to be necessarily demolished regarding the grave concern relating to the safety and security of the High Court, the Judges, learned counsel, litigants etc. He reasoned that the area already has heavy footfalls, in the usual course, and merely being in the proximity of the High Court premises would not, ipso facto, mean that all activities in the building in question threaten the Court's security. He remarked,

"I would hasten to add that I may not be understood to mean that the security concerns of the High Court should not be dealt with, but the same has to be in consultation with all stakeholders, from a practical and realistic point of view, which the respondents have, be it noted, agreed to address. The stand of the respondents concerned is taken on record, and they are held bound by the same."

Arguing against a necessary demolition of the structure, he noted that the right of the Waqf Board and the Waqf estate in question for construction of a building could not be curtailed as long as there is no violation of any legal provision. He proposed that the plan of the building that has been constructed can very well be reappraised by the PMC concerning it conforming with the provisions of the Act and the Bye-laws and bringing it within the stipulated height of 10 metres, not necessitating the demolition of the structure.

He also noted that if the Architect of the Corporation has prepared and signed the building plan, the same cannot be brushed aside and held to not conform to the Bye-laws. Considering the domino effect of ordering demolition, he noted that given the data extracted above, there are various buildings of the government/its agencies and courts in Bihar constructed similarly. He remarked,

"A domino effect would necessarily have to ensue, resulting in demolitions of multiple government buildings, which, besides burdening the State exchequer would deal a serious blow to such institutions which clearly would go against the public interest at large."

Opining against the demolition, he noted that the harmful and crippling effect of such consequential demolitions on the administrative and justice systems would be of various proportions. He concluded that demolition would be too harsh a punishment to inflict, especially when the structure, at best, is an 'irregular' construction and not an 'illegal' construction.

He noted that theconstruction, being 'irregular' can be regularised within the confines of the Act and Bye-laws

On the question of whether the existing building satisfies other conditions of the Act and the Bye-laws, he noted that it is to be decided by the PMC. The Court is, in praesenti, neither equipped nor required to delve into the technical niceties, which the PMC is directed to examine on its own merits. However, he noted that the height limit obviously would be within 10 metres as already accepted and assented to by the concerned respondents.

He cited reasons of public interest, noting the undeniable and uncontroverted fact that numerous government and court buildings have been constructed in a similar manner of approval/sanction all over the State of Bihar. He noted,

"It is trite that the Courts are to rule as per law. However, the Court is required to exhibit dynamism to accommodate various contingent situations, within the ambit of law, among other things, without compromising on the basis thereof. In the present case, I do not find that there has been a violation of a magnitude such that the entire structure is required to be demolished, more so, at the cost of repetition, when there is a right in law to make the construction up to the height of 10 metres, subject to other conditions in the Act and the Bye-laws. 163. Moreover, many constructions, within the proximity of and around the High Court also, if tested on the touchstone of the parameter aforesaid, may be required to be, but necessarily, demolished if an order for demolition of the present structure is made, as all structures in terms of the alleged violation would have to be treated equally by this Court."

He also dissented the direction that no structure can be constructed within 200 metres of the boundary wall of the High Court without information to the learned Registrar General of this Court, noting that it would amount to legislation by the Court as the domain is covered by the legislative enactment, specifically Bye-law no.

He opined that when there is no ban on construction or requirement of permission from the High Court and, instead, permission to construct upto the height of 10 metres, subject to the satisfaction of all other conditions of the Act and Bye-laws, is contemplated in law; this Court cannot impose any additional restrictions on its own accord. He remarked,

"It is significant to note that Bye-law no. 21 already qualifies the High Court as an important building. That is the mandate of the Legislature as expressed through the Act and the Bye-laws. For this Court to now seek an additional privilege by way of a judicial direction may not comport with the institutional values of the judiciary, since that this Court cannot step into the legislative arena when the same is an occupied field."

On the question of carrying out the construction activity during the lockdown, he noted that the said ban on construction lasted for a few months. Therefore, the efficiency of the Corporation in construction speed cannot be a ground for either drawing an adverse inference or passing a penal order of drastic consequences.

Title: Re: Suo Motu cognizance taken by the Court vide order dated 01.03.2021 of a structure on the north side adjacent to the Centenary Building of the Patna High Court which came up during Covid-19 Pandemic. 

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