Supreme Court Stays Patna High Court's Order Directing Demolition Of Waqf Bhawan Constructed Close To The High Court Building

Supreme Court on Monday stayed the operation of Patna High Court's judgment directing the demolition of the entire structure of the proposed Wakf Bhawan building, which was being constructed in the vicinity of the High Court.

A Bench comprising Justice UU Lalit, Justice Ajay Rastogi, and Justice Vikram Nath issued the direction in an appeal filed by the Bihar State Sunni Waqf Board.

"Pending further consideration, the effect and operation of the order passed by the High Court shall be stayed. The parties shall maintain status quo with regard to the construction and the status of the site in question. No construction/alteration of any kind shall be effected. Any infraction shall entail in serious consequences", Court said.

The appeal filed through Advocate Ejaz Maqbool has argued that the direction for demolition of the entire building was given even though the Wakf Board, as well as all the State Authorities, had themselves agreed to demolish the offending portion of the building (i.e. to bring the building within the height of 10 meters).

The appeal has stated that in passing the impugned order, the High Court not only traveled beyond the 4 issues framed by it but also proceeded to direct demolition of the entire structure of the proposed Wakf Bhawan Building, solely due to the reason that the building was in excess of 10 meters of height which was in violation of Bye-Law No. 21 of the Bihar Building Bye-Laws, 2014.

The appeal has argued that, on the basis of the Plan and Map signed by the Senior Architect of the Bihar State Building Construction Corporation, several buildings including the court campus, the Family Court buildings, the Civil Court buildings, etc have been constructed, without taking any other separate sanctions from the Patna Municipal Corporation.

High Court's order: Patna High Court, by a 4:1 judgment, 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 Justices Ashwani Kumar Singh, Vikash Jain, Ahsanuddin Amanullah, Rajendra Kumar Mishra and Chakradhari Sharan Singh.

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 question before the Court was whether only the offending portion of the construction above 10 meters 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.

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."

In its final order, 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.

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 on whether the nature of land used for the said purpose can be modified for the construction of a building for unconnected purposes.

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.

Mapping the history and architectural nuances of the High Court building, the Bench emphasised the need to preserve historical buildings and architectural history. It was remarked that,

"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."

Case Title: The Bihar State Sunni Waqf Board v.The State of Bihar & Ors.

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