Patna High Court: A Special 5-Judges Bench comprising of Ashwani Kumar Singh, Vikash Jain, Ahsanuddin Amanullah, Rajendra Kumar Mishra and Chakradhari Sharan Singh, JJ., had by the majority of 4:1, directed to demolish the entire building of newly erected Waqf Bhawan which was constructed in close proximity of the northern side of the newly inaugurated Centenary Building of the Patna High Court. The Court opined.
“The structure has been constructed in utter and brazen violation of provisions of law across statutes, starting from Section 32 of the Central Act, 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.”
Noticing a huge structure being constructed in close proximity of the northern side of the newly inaugurated Centenary Building of the Patna High Court the Court had formulated the following questions in view of the serious security concerns posed by such construction had referred the matter to the Chief Justice for being taken on the judicial side –
- Who is constructing the building and at whose instance it is being constructed?
- Whether such person has right and title over the land on which the construction is being made?
- Whether the map of the building has been duly approved by the Patna Municipal Corporation and the construction is in accordance with the approved plan?
- What is the proposed use of the building?
The matter was registered as public interest litigation and was placed before the Special Bench for its consideration. Accordingly, the Court took note that the structure in question was about 40-42 feet in height and stood approximately 30 feet away from the boundary wall of the High Court building which was in clear breach of Bye-law 21 of the Bihar Building Byelaws, 2014 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.
Stand Taken by the Waqf Board
As per the Building Construction Department and the Bihar State Sunni Waqf Board the properties in question were being used as Mosque, Eidgah, Khanqah, Peer Khana and Maqbara Graveyard since time immemorial and thus constitute ‘Waqf by user’ under the provisions of Section 2 (m) of the Bihar Waqf Act, 1947. A 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 were proposed to be constructed and a sanction map was prepared by the Bihar State Building Construction Corporation Limited for the proposed construction, which was approved by the Minority Welfare Department. It was further stated that the plan was approved by the Government Architect of the Building Corporation.
On the question whether the plan for the building had been approved by the Patna Municipal Corporation, a common stand had been taken by the Waqf Board and the Building Corporation that no such permission was required in view of Bye-law 8(1) (A); which states that wherever works are carried out by Central Government and State Government departments/the Bihar State Housing Board, no permission is required if the building plans are signed by the Government Architect, who shall no doubt, ensure that such plans accord with the Bye-laws.
Whether the Architect of the Building Corporation a Government Architect?
The respondents contended that the construction in question had been carried out by the Building Corporation, which was wholly owned by the State Government. The construction being carried out at the instance of the Minority Welfare Department of the State Government, and been made on the basis of the building plan signed by the Government Architect did not require any permission.
Noticing that no materials had been brought on record to satisfy the Court that the Architect of the Building Corporation who sanctioned the building plan was a ‘Government Architect’ to avail the exemption; although a submission was made that a Government Architect would be one who is registered under the Architects Act and performs the work of the Government, the Bench opined that no clear basis for this was however shown. There was no explanation as to who is the ‘Government Architect’ within the meaning of Bye-law 8(1)(A). The State respondents could not place any statutory provision, circular or notification defining the term; much less an Architect employed by the Building Corporation was a Government Architect. Hence, the stand of the respondents that an Architect employed by the Bihar State Building Construction Corporation was the Government Architect had been rejected.
Whether the Building was Exempted under Bye-law 8(1)(A)?
The Building Corporation proceeded with the construction on the strength of Bye-law 8(1)(A), submitting that the building plan having been sanctioned by the Government Architect, sanction of the plan by Patna Municipal Corporation was not required. While Amicus Curiae, Mr. Rajendra Narayan contended that the exemption under Bye-law 8(1)(A) was not applicable to the instant case inasmuch as the Architect of the Building Corporation who sanctioned the plan was not a ‘Government Architect’ as required by the bye-law.
The stand of the respondents on the strength of Byelaw 8(1)(A) that permission of Patna Municipal Corporation was not required, was rejected on the ground that the main body of Bye-law 8(1) exempts from permission in cases only of certain alterations and not those of new erection of a building within the meaning of Bye-law 2(135) read with Section 312(1)(a) of the Bihar Municipal Act, 2007.
Thus, the Bench held that ‘alteration’ was the pre-condition which controls the applicability and interpretation of Bye-law 8(1)(A) which was but a part of Bye-law 8(1). Opining that Bye-law 8(1)(A) was not separate but an extension of Bye-law 8(1), the majority stated that Bye-law 8(1)(A) specifically enjoined the Government Architect to ensure that the plans are prepared as per the provisions of the Bye-laws. Moreover, the Building Corporation could not be granted the privilege of exemption as the Building Corporation could not be equated with the Central or State Government, much less the Bihar State Housing Board, rather it was an entirely distinct, separate and independent entity.
Accordingly, the Bench held that considering that the building plan was admittedly never submitted to the Patna Municipal Corporation, it was duty bound to have enquired into the construction to satisfy itself that the same was in conformity with the Building Bye-laws and for the breach of which it ought to have taken action under Section 314 and Section 323 of the Municipal Act. Instead of so doing, it became a mute spectator to the illegal construction being carried on in gross violation of Bye-law 21.
Observation and Analysis
While examining Section 32 of the Waqf Act, 1995 which enumerates the powers and functions of the Waqf Board, the Bench observed that Section 32 does not accord unlimited power to the Waqf Board to acquire property of a Waqf for its own use on a permanent basis. Therefore, the action of the Waqf Board in acquiring the land for the stated purposes, particularly earmarking two floors of the building for its own use, was ex-facie held to be in the teeth of Section 32 and destructive of the very object of a Waqf. Similarly, the funds of the Waqf had not been used for developing the land; rather it was the clear stand of the Waqf Board that it was the Bihar State Minority Welfare Department, Government of Bihar which, after granting technical sanction, had released Rs. 500 lakhs for purposes of construction of the proposed building.
Bye-law 21 stipulates an unexceptionable and absolute embargo upon construction of any building exceeding 10 meters in height within 200 meters radius of the boundary of important buildings including the High Court. The Bench opined that the main object behind such embargo was of course, the safety and security standpoint in view of the sensitive nature of duties discharged within these buildings. The Bench added, “Apart from that, the ‘important buildings’ referred to therein have special significance and stand as a symbol of the rich heritage, culture and history of the city. It is apparent that the purpose of restricting any major construction around buildings such as the High Court is to ensure that they continue to retain their majesty, glory and grandeur by providing an unobstructed view, which is all at once stunning, magnificent and awe-inspiring.”
In spite of the expressed embargo, construction far in excess of 10 meters in height had been made at a distance of only 15 feet 6 inches on the northern side of the boundary wall of the High Court in complete, utter and outright violation of Bye-law 21, which, in the view of the Bench was a compelling reason to necessitate the demolition of the structure as it could be a 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 Bench expressed,
“The wanton impunity with which law has been violated by the various authorities, firstly in granting sanction and allowing construction, and secondly in not halting the illegal construction which continued for several months, discloses serious lapses and errors of both omission and commission. This leaves the Court with no other option but to correct the executive error.”
Findings of the Court
In the backdrop of above, the Bench, by the majority of 4:1, held that the structure could not be allowed to stand and must be demolished in its entirety for several reasons, which were:
- The structure had been constructed in utter and brazen violation of the provisions of law across the Statutes starting from Section 32 of the Waqf Act, 1995, various other provisions of the Municipal Act and finally Bye-Law 21 of Bye-Laws;
- The very initiation of the entire project with taking over of the property by the Waqf Board was unauthorized and without fulfilling the pre-conditions of Section 32 of the Act of 1995;
- There was nothing on record to indicate that the proposed building would be an income generating asset intended for the purposes of recouping the expenses incurred by the Waqf Board before returning the property to Waqf Estate in question;
- The primary object of the Waqf Board was in self interest by way of providing office space for itself rather than for the development of Waqf Estate, which was contrary to the very spirit of the Waqf Act.
- There was no explanation as to who is the ‘Government Architect’ within the meaning of Bye-law 8(1)(A). The State respondents could not place any statutory provision, circular or notification defining the term; much less an Architect employed by the Building Corporation is a Government Architect. Accordingly, the plea that approval of building plan by the Architect of the Building Construction Corporation satisfies the condition laid down in Bye-Law 8(1)(A), which requires plan to be sanctioned by a Government Architect was not tenable;
- The submission that the Building Construction Corporation should be treated at par with the Bihar State Housing Board mentioned in Bye-Law 8(1)(A) for the purposes of exemption from taking permission thereunder could not be accepted.
Ahsanuddin Amanullah, J recorded his dissent view on the matter. The Judge opined that the structure was irregular and not an illegal one and deficiency could be removed, especially qua bringing the height of the structure within ten meters in conformity with Bye-law 21. The Judge further held that the Corporation being a Government Company, its Architect would be deemed to be a Government Architect and in terms of Byelaw 8(A), therefore, once he had prepared the map for the building, no permission was required from the PMC and, even if it was assumed that the building was constructed in the absence of sanction from the competent authority, the map of the building could very well be submitted to the PMC for post facto approval.
Opining that Bye-laws 8(1) and 8(A) could be construed in harmony, the Judge held that Bye-law 8(1) and Bye-law 8(A) were distinct, operating in different fields and relating to different situations and Bye-law 8(A) was not a sub-clause of Bye-law 8(1), thus the same could not be limited to alterations and modifications. Even otherwise, the Judge opined that,
“Merely because the building in question is in proximity to the High Court, the same is necessarily required to be razed to the ground – cannot be a view that this Court ought to approve, given that, in law, the affected party has a right to construct up to the height of 10 metres, subject to satisfying other conditions under the Act and/or the Bye-laws.”
Consequently, the Judge concluded that demolition would be too harsh a punishment to inflict, especially when the structure, at best, was an ‘irregular’ construction, and not an ‘illegal’ construction as the violation was not of a magnitude such that the entire structure was required to be demolished, more so, at the cost of repetition, when there is a right in law to make construction up to the height of 10 metres.
Similarly, holding that the Architect of the Corporation had to be held to be a ‘Government Architect’ within the ambit of Bye-law 8(A), subject to the architect qualifying under Bye-law 2(107) which reads ‘“Registered Architect” means an Architect registered with the Council of Architecture and who had not been debarred by the Authority, the Judge stated that the Corporation was a fully-owned Government Company under a department of the State Government, hence, there was no reason not to include the Corporation within the expression ‘State Government Departments’ occurring in Bye-law 8(A).
In the backdrop of above, the majority was of the view that the disputed structure had been constructed in violation of statutory Bye-law 21 of the Bihar Building Bye-laws, 2014. Accordingly, the respondents were directed to demolish the entire building with the further direction that in case the Building Corporation fails to do so within one month, Patna Municipal Corporation was be required to ensure demolition of the entire structure and realise the cost of demolition from the Building Corporation.
Observing the surreptitious manner in which the construction of the building had come up during the period of complete lockdown, the majority directed the Chief Secretary to cause an enquiry and appropriately fix responsibility and take action should be take action against the erring Architect and others who had caused or allowed the illegal construction to come up, including by way of recovery of such loss from them.
Additionally, taking note of the fact that a number of religious structures had mushroomed in an unauthorised manner by encroaching public land including public roads all over the State, the majority directed the State of Bihar to look into that aspect with right earnest and take steps for the removal of such illegal structures in the larger public interest.[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, In Re., 2021 SCC OnLine Pat 1633, decided on 03-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Mr. Amicus Curiae Rajendra Narayan, Sr. Advocate
For the State: Mr. Lalit Kishore, Advocate General
For the Sunni Waqf Board : Mr. P.K. Shahi, Senior Advocate
For the PMC: Mr. Prasoon Sinha, Advocate
For the Bihar State Building Construction
Building Corporation Ltd. : Mr. Tej Bahadur Singh, Sr. Advocate
For the High Court: Mr. Mrigank Mauli, Advocate
For the Managing Committee of Waqf Estate No. 663: Mr. Khursheed Alam In Person as President of the Managing Committee