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Supreme Court stays Patna High Court order to demolish Waqf Bhawan, issues notice

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The Supreme Court today issued a notice in a plea filed challenging the demolition order passed by the Patna High Court in its suo motu proceedings against the said illegal structure constructed in close proximity of the northern side of the newly inaugurated Centenary Building of the High Court. The Supreme Court has stayed the order and directed to maintain the status quo. 

Today the Supreme Court three-judge bench of Justices Uday Umesh Lalit, Ajay Rastogi, and Vikram Nath said that, “since the cognizance has taken by the High Court in Suo motu and Learned Amicus Curiae had been appointed by the High Court, Senior Advocate Rajinder Narain assisted the court in the matter. Let the notice be issued to him. Narain shall entitle to have the assistance of an Advocate on record. Any violation would face serious consideration. The effective operation of the order passed by the High Court shall be on stay, the parties, however, shall maintain status quo in regard with the construction, and alteration of the property.”

“Notice to be returnable on 18th October,” said the Apex Court. 

Petition filed by Bihar State Sunni Waqf Board

The Bihar State Sunni Waqf Board in its petition has submitted that while rendering the Impugned Judgment the High Court not only travelled 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. It is relevant to mention that the direction for demolition of the entire building was given even though the Petitioner 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).

Patna High Court order passed on August 3, 2021

The 5-judge bench comprising of Justices Ashwani Kumar Singh, Vikash Jain, Ahsanuddin Amanullah, Rajendra Kumar Mishra and Chakradhari Sharan Singh held that the entire structure in question which was about 40-42 feet in height and stood approx. 30 feet from the boundary wall of the High Court the building has been constructed in violation of statutory Bye-law 21 of the Bihar Building Bye-laws, 2014 and it is not safe for smooth functioning of the Court which is the highest state’s Judiciary, it must be demolished.

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The High Court formulated various questions concerning the serious security issues posed by a structure constructed in close proximity of the northern side of the newly inaugurated Centenary Building of Patna High Court. The said matter was registered as public interest litigation and directed by the Chief Justice to be placed before the present Special Bench for its consideration.

The construction of the structure in question, it was stated that pursuant to an amendment in the Waqf Act, 1995 (‘the Central Act’ for short) in the year 2013, the Waqf Board took a decision to acquire the Waqf property and place it under its direct control for the purpose of development of 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 the sanctioned map for the proposed construction, which was approved by the Minority Welfare Department. The Building Corporation gave its administrative sanction to the construction. The plan was approved by the Government Architect of the Building Corporation who is competent to sanction the said plan and The Minority Welfare Department accorded technical sanction and released Rs 500 lakhs for construction. With regard to compliance with Bye-law 21, it has been admitted that the Waqf Bhawan is being constructed at a distance of about 16 ft. from the boundary wall of the High Court. In the sketch plan enclosed with the affidavit, this distance has been shown to be less at only 15 feet 6 inches.

It was submitted by the Bihar State Sunni Waqf Board that one Hazrat Jalaluddin Shah, popularly known as Hazrat Shah Syed Peer Murad Rahmatullah Alaih, a leading personality of the reformist movement in the State of Bihar, died a martyr and was buried in the Qabristan during the 18th Century in what was then Village Maholi with a Muslim dominated population. Various sections of society started paying homage to the said departed saint at his Dargah. The adjoining land of the Dargah began to be used by local Muslims for the purposes of Mosque, Eidgah, Khanqah, Dargah and Graveyard. A Waqf in the name of Dargah Hazrat Shah Jalal Shaheed adjacent to the Patna High Court came to be registered on as Waqf Estate No. 663 and managed by a Managing Committee under the supervision of the Waqf Board. As regards the construction of the structure in question, it was stated that pursuant to an amendment in the Waqf Act, 1995 in the year 2013, the Waqf Board took a decision to acquire the Waqf property and place it under its direct control for the purpose of development.

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The Patna High Court had appointed Rajendra Narain, a Senior Advocate, to assist this Bench as amicus curiae. He submitted that the construction of a multi-storied building on land claimed to have been used as a graveyard since time immemorial, and which has been recorded as such, is also questionable. It has further been submitted that admittedly no attempt was made for obtaining the sanction of the plan from the Patna Municipal Corporation as has been admitted in the latter’s affidavit. It has been contended that exemption under Bye-law 8(1)(A) is not applicable to the present case inasmuch as the Architect of the Building Corporation who has sanctioned the plan is not a ‘Government Architect’ as required by the said Bye-law and therefore, sanction of the plan by Patna Municipal Corporation was mandatory. 

The managing committee of Waqf Estate No. 663 did not submit its records at all. All records as received were digitized and made available to us by the Registrar General.

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