Wednesday, February 28, 2024

Patna High Court dismissed PIL seeking protection of Zinda Shah Saheed Baba Mazaar

In the matter of an old and historical Mazaar of Zinda Shah Saheed Baba situated at Kayamnagar, Bhojpur on the four lane of National Highway No. 30 and 84 connecting Koilwar to Bhojpur, Roona, the counsel for Haji Md. Riyazuddin, the petitioner prayed for protection of Zinda Shah Saheed Baba Mazaar. The local public of all communities pay great respect to this old and historic Mazaar Sharif since long time. However, on account of approval and ongoing construction of the aforenoted four lane National Highway 30 and 84, the authorities are bent upon to shift/relocate the Mazaar, in question, despite several representations before the competent authorities with a request to protect it and not to disturb the same. The petitioner had also challenged the notice dated September 16, 2022 issued by the District Magistrate, Bhojpur directing to relocate /shift the Mazaar before the High Court. 

Although the petitioner was not opposed to construction of National Highway, but is only concerned with the religious sentiments of the people at large and moreover when alternative measures are available like to make Diversion, Golambar or Flyover, the respondents should take steps to protect the sentiments of the followers from all faiths and religion. It is lastly submitted that the Mazaar, in question, is a Waqf property
and without having any permission from the Bihar State Sunni Waqf Board, it cannot be demolished or shifted to any other place. 

The order records that a meeting of all stakeholders, including Roona, the Advocate for the petitioner and local community member was convened by the Collector, Bhojpur on March 6, 2023 to discuss and deliberate on the possibility of arriving at a consensus for the peaceful shifting of the Mazaar situated at Kayamnagar. The proceeding of meeting, as contained in Memo No. 194 dated March 7, 2023 was brought on record.

It emerged that no consensus could be arrived at as the local people and the Advocate for the petitioner were not ready for shifting of the Mazaar. The petitioner submitted his option in order to save the Mazaar being shifted to different place viz. Change in alignment, construction of Golambar, construction of Flyover and slope down the Mazaar. The authorities of the National Highway Authority of India, who were also present in the meeting have not found the option provided by the petitioner feasible, as the existence of the Mazaar, in question, falling in the alignment is causing great inconvenience and hindrance to the movement of traffic on the National Highway, which is High Speed Corridor and due to the structure, in question, it has become accident prone. Hence, the submission has been made on behalf of the respondents that there is no option but to shift the said Mazaar, as has been done in cases of large number of religious structures, which have been shifted earlier in this project.

The Court pointed out that in a matter, dealing with the four lane Koilwar-Bhojpur National Highway NH 30 and 84 in C.W.J.C. No. 8344 of 2021, it has directed the respondent authorities concerned to ensure that all steps are taken expeditiously so that the project may be completed within the stipulated period.

The order reveals that “Bihar unauthorized religious structures, construction, survey and its regularization, relocation and removal Rules, 2013” framed in exercise of powers conferred under Article 136 of the Constitution of India was  cited. The Court observed that "Even as per the aforesaid Rule no religious structure situated at public place could be regularized, which causes hindrance in smooth trafficking in any of the manner." 

The order inadvertently and incorrectly refers to Article 136 of the Constitution of India, which is situated in Chapter IV on Union Judiciary in Part V of the Constitution. Article 136 deals with "special leave to appeal by the Supreme Court". It provides that "(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces." It is evident that Article 136 has no relevance with regard to Bihar unauthorized religious structures, construction, survey and its regularization, relocation and removal Rules, 2013. The preamble of the 2013 Rules makes it quite clear. It reads: "In view of order passed by the Hon’ble Supreme Court in S.L.P. (c) No. 8519 of 2006 Union of India v/s State of Gujarat and others, and in exercise of the powers conferred by the Article 166 of the Constitution of India; the Governor of Bihar." 

Notably, High Court's order cites this very case law in its dismissal order. It emerges that the High Court ought to have referred to Article 166 of the Constitution of India, not Article 136. Article 166  is situated in Part VI of the Constitution of India which deals with the States and under its Chapter II on the Executive. Article 166 deals with "Conduct of business of the Government of a State". It reads: "(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." Notably, Constitution (Forty-second Amendment) Act, 1976 had inserted fourth section of Article 166 in the original Constitution of India with effect from January 1, 1977 which was omitted by the Constitution (Forty-fourth Amendment) Act, 1978 with effect from June 20, 1979.    

As per the orders of the High Court, the Administration attempted to arrive at an amicable solution but the local populous were unrelenting and the options put forth by the petitioner was not found feasible, therefore, construction of the road cannot be further delayed. 

Taking note of the importance and significance of the NH 30 and 84 High Speed Corridor, the Court did not find any substance in the present Public Interest Litigation and dismissed it.

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