Rajeev
Mankotia Vs. The Secretary to The President of India & Ors [1997] INSC 348
(27 March 1997)
K.
RAMASWAMY, G. B. PATTANAIK
ACT:
HEADNOTE:
THE
27TH DAY OF MARCH, 1997 Present:
Hon'ble
Mr. Justice K. Ramawamy Hon'ble Mr. Justice G.B. Pattanaik Mr. Sudarash Menon,
Advocate for the Petitioner.
Mr.
V.R. Reddy, Additional Solicitor General, Mr. A. Subba Rao, Ms. Anil Katiyar,
Mr. Y.P. Mahajan, Mr. N.K. Sharma and Mr. V.K. Verma, Advocates with him for
the respondents.
O R D
E R The following Order of the Court was delivered:
O R D
E R Viceregal Lodge at Shimla is a harbinger of Colonial past, with
architecturally grandeur and beauty of Elizabethian Era and stands a mute
witness to the transition of independence to the people of India of the sustained non- violent
struggle by the Father of the Nation, Mahatma Gandhiji. Three historical
meetings between Colonial administration and the Indian leaders took place to
discuss the issue of the Indian independence under the leadership of Mahatma
Gandhiji, viz., (i) in June-July 1946 - the historical Cabinet Mission of the
Indian leaders; (ii) in May-June 1947; and (iii) the final one wherein
historical decision was taken by Louis Mountbatten for transition of the power
conveying the proposal to the Indian leaders through Pandit Jawaharlal Nehru;
Nehru; that was followed by grant of independence to the nation and the worst
holocaust of communal disturbance due to partition of the great ancient nation
into India, i.e., Bharat, and Pakistan.
The
journey of Simla, Summer Capital of the Supreme Government, started in 1827 by
the first Governor General, Earl of Amherst and Viceregal Lodge, the official
residence built by the 17th Viceroy, Earl Dufferin, was occupied on July 23, 1888. Though Lord Dufferin and Lady
Dufferin personally supervised its taking finished shape, its completion work
went on till September 1988 which led the present shape of the building given
by Earl of Marquis of Landowne till 1889 - the only Viceroy who exclusively
lived therein during his entire tenure, i.e., from 10th December, 1888 to 26th
June, 1894 in Summer Camp. The building was building is unique. The
Viceroys/Governor Generals used this building as Summer Comp from April to
October of each calender year and the British ruled the entire India from this building. It was also
independence, it was renamed as `Rashtrapati Niwas', dawning with smile the
freedom for Bharat and the Presidents of the Bharat Republic stayed therein as Summer Resort
until Dr. Sarvepalli Radhakrishnan, the second President had it handed over to
the Indian Institute of Advanced Studies in the year 1964. The President
himself had inaugurated the Institute when Dr.
Jakir
Hussain, then as its Chairman, and who later became the President of India, had
chaired the meeting. It thus furnishes the historical evidence of the Colonial
holocaust unleashed on Indians and reflects upon the triumph of Indian
nationalism; it has laid seed-bed to the end of the British colonialism. Whether
such a building is required to be maintained as historical monument of national
importance, is the question before us.
When
Dr. Radhakrishnan, the President of India felt that since the President spent
hardly 120 days in 10 years, i.e., 10 days a year, it was worthwhile to house
the said Institute therein, instead of keeping the historical monument as idle
building which would facilitate maintaining the grandeur and beauty of the
building. However, the fact is that with the passage of time, it has faded out
and lost its real beauty. While the Institute was being so run, cruel decision
was taken by the Cabinet of the Union of India to convert the building, a
priceless treasury of our historical heritage, into tourist hotel, while
purporting to maintain the main part of the building as historical resort. Feeling
the inner voice of its ultimate destruction, the petitioner has knocked the
door of this Court, and in our view rightly, to protect it as the historical
heritage and to preserve our posterity.
Before
considering whether the Viceregal Lodge should be declared as historical
heritage (monuments), let us have a look at the legal setting in that behalf.
The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short,
the `Ancient Monuments Act') provides for the preservation of ancient and historical
monuments and archaeological sites and remains of national importance. The Act
was enacted to clarify the legal position that the Central Government regulates
exclusively ancient monuments etc. of national importance, leaving the field
open to the Stable legislatures to enact the law on the subject, i.e., ancient
monumens of State imulus or place of interment, or any cave, rock-sculpture,
inscription or monolith, which is of historical, archaeologicla or artistic
interest and which has been in existence for not less than one hundred years,
and includes (emphasis supplied):
(i) the
remains or an ancient monument;
(ii) the
site of an ancient monument;
(iii)
such portion of land adjoining the site of an ancient monument as may be
required for fencing or covering in or otherwise preserving such monument ; and
(iv) the means of access to, and concentient inspection of an ancient monument.
Section
3 of the Act declares that all ancient and historical monuments and
archaeological sites and remains which have been declared by the Ancient and
Historical Monuments and Archaeological Sites and Remins (Declaration of
National Importance) Act 1951, or by Section 126 of the States Rs- organisation
Act, 1956, to be of national importance shall be demed to be ancient and
historical monuments or archaeological sites and remins declared to be of
national importance for the purpose of this Act. Section 4 empowers the Central
Government to declare any ancient monuments or archaeological site and remins
not included in Section 3 to be of national importance by giving two months
notice of lts so declaring. The Ancient Monuments Preservation Act, 1904
provides for the preservation of ancient monuments and objects of
archaeological, historicl of artistic interest. Section 2(a) of the Ancient
Monuments Act. Section 2 (4) defines `maintain' and `maintenance' to include
the fencing, covering in, repairing, restoring and cleaning of protected
monument and the dolng of any act which may be necessary for the purpose of
maintaining a protected monument or of securing convenient access thereto.
Section
3 deals with `protected monuments' and empowerers the Central Government, by a
notification in the official Gazette, to declare an ancient monument to be a
protected monument under the said Act. Section 11 enjoins that the Commissioner
shall maintain every monument in respect of which the Government has acquired
any of the rights mentioned in Section 4 or which the Government has acquired
under Section 10 etc.
It
would, therefore, be manifest that all ancient and historicl monuments and all
archaeological sites and remins or any structure, erection or monument of any
tumulus or place of interment shall be deemed to be ancient and historical
monument of archaeological sites and remins of national importance and shall be
so declared for the purpose of Ancient Monuments Act if they have existed for a
century;
and in
the case of a State monument, of State importance covered by the appropriate
State importance covered bythe appropriate State Act. The point of reference th
these provisions is that an ancient monument is of historical, cultural of
archaeological or sculptural or monolithic of artistic interest existing for a
century is of national importance of State importance. In other words, either
of them are required and shall be protected, reserved and mintained as national
monuments or State monuments for the basis which not only gives pives pride to
the people but also gives us insighi into past glory of our structure, culture,
sculptural, artistic or archeaological aignificance, artistic skills and the
vision and wisdom of our ancestors, which should be preserved and perpetuated
so that out succeeding generaitons learn the Skills of our ancestors and
traditions, cultural and civilisation. They would have the advantage to learm
our art, architecture, ascethetic tastes imbided by the authors of the past and
to continue the same tradition for the posterity. Preservation and protection
of ancient monuments, is thus the duty of the Union of India and the State
Government concerned in respect of ancient monuments of national inportance or
those of State importance respectively to protect, preserve and maintain them
by preserving of restoring their original conditions.
Coming
to the birth, the improvements and the existence of the Viceregal Lodge, we
have the graphic account in that behalf by Edward J.Back in his `Simla Past and
Present'.
Before
adverting to it, it is of importance to note that Simle is a beautiful Hill
Resort on the small spurs of the lower Himalayas. At the beginning of the last century, though Simla did not find place
in the world tourist map and remained a small village taken by the British from
the Jhind Rana in 1855 and then given to Maharaja of Patiala for the assistance
rendered to the British in the Nepal War.
Maharaja
of Patiala maintained Simla as a samatorium.
The British, therafter, had stationed their Commander of the North-Eastern
States at Simla. Captain Charles Pratt was the first foreigner sent as
Superintendent of the Hill States.
He was
stationed at Simla. After survey of the area, the Britishers discovered the
beauty and grandeur of Simla and the hills and developed it as a hill resort
and ultimately summer resort by shifting the administration from Calcutta and later from Delhi. The first Government General, the
Earl of Smherst, for the first time, visitied Simla and stayed in the house of
Captain Kennedy, namely, Kennedy House.
Thereafter
successive Governor Generals and Viceroys continued to successive Governor
Governor generals and Viceroys continued th stay, apart from Viceregal Lodge,
for some time, in various houses by name Bentinck Castle, Auckland House, Strawberry Hill,
Peterhof. Ultimately, as stated earlier, Earl of Dufferin had the building plas
approved and got constructed the Viceregal Lodge and entered for the first time
into the House. The structural and magnificent furmishing done to the Viceregel
Lodge finds expression delienated in Buck's "Simla Past and Present".
Lady
Dufferin mentioned in her diary, seeing the furnished building on Sunday, 15th July, 1888 as under;
"I
went to the new house this afternoon, and it did look lovely.
It was
one of Simla's most beautiful moments, between showers, when clouds and hills,
and light and shade, all combine to produce the most glorious effects. One
conld have spent hours at the window of my unfurnished boudoir, looking out on
the plains in the distance, with a great river flowing through them : at the
variously shaped hills in the foreground, brillinatly coloured in parts, and
softened down in others by the fleecy clouds floating over them of nestling in
the valleys between them or nestiling in the valliys between them. The
approaching sunset, too, made the horizon gorgeous with red and golden and
pale-blue-tints. The result of the whole was to make me feel that in is a great
pity that we shall have so such magnificent views." On 23rd July, 1888, they returned to the building and
mentioned as under:
"We
are sending things up to the house and hope to sleep in it on Monday. We really
inhabit the new viceregal Lodge today (23rd July, 1888) so I left the old
directlu after breakfast, just returning there for an hour at lunch time, and
busied myself whole day arranging my room and my things, and the furniture in
the drawing- room. Happily the weather was very tolerable, and our beds got up
here dry, D. and the girls did not come near the place till dinner time, when
everything was brilliantly lighted up by the electric lighting up and putting
out of the lamps is so simpe that it is quite pleasure to go round one's room
touching a button here and there, and to experiment with various amounsts of
light. Afrer dinner we went down to look at he Kitchen, which is a splendid
apartment, with white tiles six feet high all round the walls, looking so clean
and bright.
We sit
in the smaller drawing-room, which is still a little stiff and company- like,
but it will soon get into out ways and be more comfortale." On August 8, 1888, they had first entertainment in
the new house and the book contains its account as under:
"We
had our first entertainment in our new house tonight. It looked perfectly
lovely, and one could see that every one was quite astonished at it and at the
softness of the light. First we had a large dinner for sixty-six people at one
long table. The electric light is enough, but as candelabra ornament the table
we had some on it. At one end of the room there was a side- board covered with
gold plate, etc., end at the other end double doors were open, and across the
ball-roomb one saw the band which played during dinner. We had all the Council
and 'Personages" of Simla, and the minister, Asman Jha, from Hyderabad, who brought his suite. After
dinner people began to arrive for the dance. When not dancing, everyone was
amused roaming about the new rooms, and going up to the first floor, whence
they could look down upon the party." "Vicregal Lodge possess, as it
rightly should, one of the most commanding position in Simla. It lies to the
extreme west of the station, and is one of the first objects to strike the eye
as the traveler approaches from Kalka.
Described
briefly it consists of a main block of three stories, and another called the
Kitchen wing, of five storeys, but the latter is built on the side of a
precipice, and commences three storeys below the ground level of th emain block
an deast wing; so that viewed from the north-east the house has a very lofty,
somewhat forbidding appearance, and might at a distance be mistaken for a
medieval castle.
The
style of architecture throughout is English Renaissance (English Renaissance
(Elizabethan), the masonry of the walling is light blue limestone, and the
wrought stone work is all of sand stone of a very fine grain and beautiful
light gray tint. This stone is uniform in texture, an dis capable of being
worked to very short arises; the moulding are all true, and where carving has
been carried out it is bold and sharp. Very litle stone carving has been used,
but what there is of it relieves the plain parts, and is very effective. The
walling stone was quarred about five miles away and was transported to Simla on
mules, but much of this was found to be porous and was replaced with hard stone
from kalka and sanjouli at a cost of nearly a lakh and a quarter. The cut stone
was brought in for 50 miles from th efool of th ehills near kalka. Carrying on
the labour in the winter was a matter of much difficulty as the masons refused
to work except for extremely high wages, while carpenterrs were not obtainable
at any price. A small tower surmounts the house from which flies the flag which
denotes the presence of the Viceroy in Simal. In this tower are the water tanks
into which is pumped the supply from the municipal mains, and the view from its
summit on a clear day is magnificent. To the northe, and north-east
particularly, the ranges of perpetual snows are seen to great advantage over
the peaks of the nearer ranges, while on the west, especially in the rains,
there is grand view of the plains, wi;th the sutlej winding away in the
distance. The house, grounds, and approaches are now lighted by electricity.
There are about 1,000 lamps, the majority of 16 candle- power, and the engines
which used to supply the power situated near the main entrance gate and close
to the stable range. This shed has since been dismantled and is convereted into
a transformer room on the ground floor, with the offices of the Superintendent
of Viceregal Lodge on the first floor.The engines were sold and replaced by a
taransformer. Inside, the house is entrance hall, with its gallery leading to
the ball- room, being perhaps the feature.
This
gallery is fifty feet in height, ninety feet long, but only eighteen feet
broad, which is really much too narrow.
The
woodwork, however, is beautiful. For instance, the treads, newels, and
handrails of the main staircase are of teak, the blusters are solid walnut, the
carriages and concealed portions of the framing of the stairs are of deodar,
some of the carving being very bold and efective. Heavy velvet curtains divide
the galler from the ball-room, an apartment seventy feet by thirty feet with a
side annexee seventy feet by ten feet on the west, and a vestibule seventeen
feet by thirty feet on the east. These really are a portion of the room as they
communicate with it by large openings twenty feet wide. Another velvet curtain
hangs ovet opening to the the state drawing-room ,sixty feet by thirty feet, a
chrming room, with the wall panels hung in silk tapestry and the woodwork
painted white. The upper part of th egallery is hung with Japanese paper in
white and gold heavily embosse. Perhaps the state dining-room appeals most to
the ordinary visiter. This is panelled all round ten feet high with teak, the
upper two feet being in pierced strap work, and supporting the shields charged
with the armorial bearings of the several Governors- General and viceroys of
India, all illuminated in the proper heraldic colours. These now make a
splendid decoration. The walls are divided by means of pilasters supporting the
ceiling beams, and their upper portion is hung with crimson silk and woolen
tapestry, while there is a good deal of bold carving in the room. On the
Occasion of a state dinner the scene is a particularly brilliant one. The
furnishing of th ehouse was originally done partly by Messrs. Maple & Co.
who sent out their assistants for the purpose;
many
of the simpler articles, however, were made by punjab carpenters whose work was
excellent." Lord Lansdowne, during his term of office made improvements
and the grounds surrounding the house were planted out with trees and shrubs.
Many improvement which were designed mainly for t h epurpose of garden parties
were carried out under the supervision of Mr. A. Parsons, the English Authority
on gardening in Simla. The Viceregal entertainments were conducted in large
scale.
When
Lord Curzon took over the echarge in 1889, Lady Curzon look interest in
renovating the building. She got hung damask, sky-blue and pale green in the
two drawing rooms, yellow in the ball room. Most pleasant part of th ehgouse was,
in their view , its grounds and Lord Curzon added to them an avenue of limes;
the rose `pergola' which was such a typical feature of many large Victorian
gardens and parks, was designed by Lord Curzon. Lady Curzon felt that "a
look out of the windows makes up for it all, and I can live on views for five
years "(as mentioned in "A Hill Station Simla in British India's by
pat barr and Ray Desmond. In this behalf, it is of interest to note that the
British authors have not lost their gratitude to mention the native people,
their glamour and simplicity. One of the greatest Telugu poets. Sri Sri in his
` Mahaprastayan'had said that the beauty of Taj Mhal cannot be measured by the
Emperor Shahjahan's pointed of view who got it constructed in memory of his
beloved queen Mumtaj mahal; but from its delicate craftsmanship and carvings of
the workers, architects and the masons who built the mantion, the world
renowned national heritage of our nation. Similarly, reflections can be found
from th emasons, the men and women who built the Viceregala Lodge under the
supervision and guidance of Mr. Henry Irvin, the Architect, and the Chief
Superintendent fo the work assisted by Mr. F.B. Harbert and L.M. Seth clay as
Executive Engineer and M/s A. Scott T. Macpheryn and T. English Assistant
Engineers as mentioned by Mr. Edward J. Buck in his Second Edition recorded
from th ediary of lady Dufferin on July 16th 1887 as under:
"D.
took Hermie and me all over the house in the afternoon. We climbed up the most
terrible places, and stood on single planks over yawning chasms. The workpeople
are very amusing to look at especially the young ladies in neckless, bracelets,
earrings, tight cotton trousers, turbans with long veils hanging down their
backs, and a large earthen-were basin of mortar on their heads. They walk about
with the carriage of empresses, and seem as much at ease on the top of the roof
as on the grounmd-floor;
most
picturesque masons they area.
The
house will really be beautiful, and the views all round are magnificent. I saw
the plains distinctly from my boudoir window, and I am glad to have that open
view, as I shall not then feel so buried in the hills." Thus, the great
Indian masons, men and women had built the magnificent ancient monument with their
hear, sweat and labour to be enjoyed by the Viceroys/Governor Generals who
conquered the country because of disunity among the Indian rulers and because
some rulers connived with the British forces. Disintegration for the Society
was on account of regional and religious differences, caste structures and , costly
personal feuds and rivalries among the Rajas and Maharajas themselves.
As
stated hereinbefore, the freedom movement was launched in a non-violent manner,
the Father of the Nation, Gandhiji called by the people with love
"Bapuji" and sustained as people's movements was carried on over
years at the sacrifice of life of numberless patriot men and women.
The
Viceregal Lodge witnessed two historical conferences held by the Indian leaders
with the Viceroy/Governor General and in particular Lord Mountbaten who was
instrumental in handing over the Bharat to us. The ancient India got dissected
into two parts, viz., Bharat and pakistan, due to two-nation theory
successfully campaigned by Sri Jinnah on behalf of the Muslims, who later
regretted for the damage done by him to the great nation. The emergence of two
nations ultimately resulted in the halocaust of communal disturbances and loss
of lives of innocent British Indians who included both Hindus and Muslims. In
this behalf, in 'Freedom at Midnight' by Larry Collins and Dominique lapierre
it is mentioned in Chapter VI titled "A Precious Little place, Simla, May
1947" precluding the events leading to the division of India. It is
mentioned therein that during may 1947, Lord Mountbetten had stationed himself
in Simla in this very Viceregal Lodge. The authors have narrated their research
in the following words:
"Each
year in mid-April when the warm weather arrived, the Viceroy's departure for
Simla in his white and gold viceregal train signaled that the mountain
capital's season had begun." It is mentioned at page 123 that "Much
of that old Simla was already was already gone by the time Louis Mountbatten
arrived in early may 1947. Now an Indian could even wald down the Mall-provided
he was into wearing the national dress of his country." Earlier, Idians
were prohibited from going there. "Simla changed with an easily foreseen
rapidity after independence. The Indians, because of its connotations,
abandoned it as their summer capital The only thing which remains of th eold
Simla, 'M.S. Oberoi, owner fo th ececil's Hotel and Chairman of Oberoi's Hotels
Ltd., lamenated in 1973,`is the climate'. The Viceregal Lodge also was used as
a parat of the Legislative wing for th esummer session fo parliament and it,
therefore, has the laste of transacting legislative business with the Indian
legislators partly composed with the British Administrators Lord Mountbatten
had finalised the Plan in Simla to divide India into three countries, namely,
Bengal, composed of East and West Bengal, Pakistan and India, apart from
retention of the respective areas had by; named rulers. a graphic account was
given as to how Lord Mountbatten had his plan secretly disclosed, by inviting
pandit Jawaharlal Nehru, the first prime Minister, who was a very close friend
of Lord Mountbatten and an important spokesman on behalf of the congress party,
to Simla. Lord Mountbatten had shown his plan of division of India. The violent
reaction for Panditji was noted as mentioned at page 126 as under:
"The
British had run India for three centuries with the byword`Divide and Rule'.
They proposed to leave it on a new one:
'Fragment
and Quit'.
Whitefaced,shaking
with rage, Nehru stalked into the bedroom of the confident krishna Menon who'd accompanied
him to Simla, with a furious gesture, he hurled the plan on to his bed."
"It's all over!'s he shouted." Because of the reaction of Panditji to
such a division of India, Mountbatten realised that he cannot succeed in his
effort to hand over the power to the people in fragmentation.Therefore, he
redrafted the plan and at the call of th ethen prime Minister, Mr. Atlee, he
went to London, had discussions and ultimately succeeded to divide the country
as India, i.e., Bharaata and pakistan; and Independence Act was enacted by
British Parliament in conclusion. It would, thus, be seen that Viceregal lodge,
as stated earlier, is a mute witness to the destruction of Indians, their
subjugation as subject fo British empire who ruled the country for over three
centuries by 'divide and rule' The agony of the Indians and the glory of the
British empire and the Simla as its summer seat for the Asian British empire
was witnessed by this Viceregal lodge.
Equally,
it is also a witness to heralding of new era of independence though the ancient
India was fragmented into two nationsw,
namely, India, i.e., Bharat and Pakistan.
India, thus became a sovereign,
socialist, secular democrataic republic under a written constitution. Democracy
is its basic feature; Constitutionalism, rule of law and democratic governance
as basic means to establish an egalitarian social order in which every citizen
of Bharata is entitled to enjoy justice social, economic and political
liberties, and equality of status and of opportunity, with dignity of person
and fraternity among all the sections of the society as an integrated Bharat.
Such being the historic evidence furnished by a Viceregal Lodge, is it not the
duty of the Indians and of the Government of Indian to preserve Viceregal Lodge
as a monument of national importance for the posterity of the historic evidence
so that every Indian citizen while visiting Shimla would have the glimpses of
it to recall the fully of disunity, teaching us the lesson of being united so
as not to destroy ourselves once over and lose democracy and liberties on
account of disunity, dishaormony on ground of religion, region, caste, language
and denial of al opportunities. The facilities to our own weaker segments of
the society' of equality of opportunities and of status to improve excellence
in chosen facets of the respective lives. Answer is obviously `yes'. If we
forget the past and repeat the same mistake, we would stand to lose our
nation's unity and integrity; stand to lose our nation's unity and integrity; stand
to lose the opportunity to integrate into the world our great democratic Bharat Republic. Viceregal lodge teaches us these lessons and it is for all
of us, individually and collectively, to learn, awake, arise and work for
integration, unity and fraternity, which are our fundamental duties.
In
this backdrop, when the writ petition was filed by way of public Interest
litigation, this court issued rule nist on Novemberr 19,1990 to all the
respondents. Initially, a stand was taken in the counter-affidavit filed by the
union of India that they had decided to use a part
of the area for commercial purpose and the rest of the main building to
maintain and restore the glory of the Viceregal Lodge. Thus the decision to
convert the historical building into a tourist hotel was sought to be justified
on the ground that the Ministry of Tourism has encoraged a scheme of heritage
resorts which essentially means preservation of the old properties and their
use in such a limited commercial manner so as to generate enough sources to
ensure that the properties will not crumble. As regards the construction of Five
star Hotel in the area, it is stated thus:
"The
premises may not necessarily be converted into a five stat hotel as commonly
known but the concept plan will be more of a heritage resort, which would
enhance and project the cultural identity of the area instead of destroying
it," This Court was not satisfied with the counter-affidavit filed on
behalf of the Government of India. Therefore, it gave directions on November24,
1995 to have the matter reconsidered by the Cabinet sub-affidavit was again
filed on January 22,1996 stating that "In August
1982,the union Cabinet took a decision that the Indian Institute of Advanced
Studies which is housed in the Rashtrapati Nivas building should be shifted to
some other building in Shimla". It was further stated that "At a
subsequent cabinet committee meeting held on 8th May, 1990, it was decided that
the entire campus earlier known as viceregal Lodge may be transferred to the
Ministry of Toruism for being developed as a major tourist resort by the ITDC
with the stipulation that the main building will not be used for tourist
purposes. It was also decided that the Institute of Advanced Studies which is
housed in te campus of the Rashtrapathi Nivas Estate may be shifted to an
alternative site offered by the Government of Himachal Pradesh." "IN
February, 1992 the matter was further discussed by the committee of secretaries
and the earlier decision was amplified to the effect that the main Viceregal
Lodge with a part of the appurtenant land should be preservad and mantained as
a national museum and th esurrounding land may be handed over the Ministry of
Tourism for development of a tourist resort." Therefore, it was stated
that "it owuld be unnecessary for the matter to be taken to the Cabinet
once awgaing for a decision about the preseration of the main building and the
appurtenant land as heritage oroperty". It was also stated that there were
"no plans for the development of any part of the Rashtrapati Nivas estate
into a five-star hotel complex. No plan for any such purpose has been discussed
or finalised nor has any budgetary allocation been made for the said purpose in
the Eighth Five year plan". The last pare itself is a manifest of the
intention of the Government that its usein future as a tourist resort had not
been ruled out. As a consequence, by Order dated February 27,1996, this Court
stated thus:
"the
Chief Engineer of the CPWD, In charge of the maintenance of Vice Regal Lodge has
brought to the Court echology album of the entire area. it was stated that
around the buildinig, as at present, there is no proposal for construction fo
tourism hotels as originally proposed, but there is a direction of the Division
Bench of the Shimla High Court directing the Secretary, Human Resources
Developments and Urban Development should decide as to what is the extent of
appartenant land around the building beyond which the CPWD intends to construct
quarters and office building for the employees transferred and stationed there
or which is part of the property lease dout to the Institute of Advance
Studies." This Court observed that since th eGovernment of India had
admitted in the counteraffidavit that the building part of the appurtenant land
would be preserved as National Monuments by the Archaeological Department, the
question that had arisen was what would be the appurtenant land. The court was
informed that around 65 acres was the land near the main building at th
eovservatory hill and 25 acres of the land was situated elsewhere at prospect
hill. This Court indicated to the learned senior counsel for the respondents
that the appurtenant land which was kept vacant, as was admitted in their
counter-affidavit, should be 25 acres surrounding the entire building. The
Court directed that if the said land is used for any other publci purpose, lide
establishment of tourist hotels or office buildings, which was originally
proposed and resolved by the cabinet Resolution, the same should be beyond that
area and that too without contravention fo the Forest Act and other relevant
laws. The counsel sought and was granted time for producing tentative plan
proposed by them without touching the appurtenant land. When the matter had
come up for next hearing on April 3,1996 counsel was not present and,
therefore, the matter was adjourned indicating that in case of non-appearance,
appropriate orders would be passed.
A
Counter-affidavit dated April 26,1996 was filed on behalf of the Government of
India stating therein that a meeting of the Secretary, Department of Urban
Development, Secretary, Ministry of Uraban Affairs and Employment, Secretary,
Department of Education, Ministry of Human Resources Development, Joint
Secretary, Department of Tourism, Ministry of Civil aviation and Tourism and
other officials concerned with the matter had met on 22nd March, 1996 and
decided as under:
"a)
The Appurtenant land arond Rashtrapati Niwas (on the observatory Hill) was
agreed to be 24.27 acres. This was determined both from the engineering angle
and with a view to protecting the natural surroundings of the Rashtrapathi
Niwas. It was also agreed that the building of Rashtrapti Niwas and the
surrounding appurtenant area will be earmarked as a "heritage area"
whereinno construction activity should be permitted or undertaken.
b) Om
regard to the area outside the heritage area, a master plan would be prepared
by the Ministry of Urban Affairs and Employment (Department of Urban Developemt
) in consultation with Ministry of Human Resources Developmet Civil aviation
and Tourism (Department of Tourism), Ministry of Environment and Forest and
concerned local agencies like the shimal Municipal corporation, The Town
planning Department and the state Forest Department, so as to ensure that the environment
and ecology of the are ais preserved and no activity be taken which may
endanger the environmental position.
c) In
regard to the remaining part of Rashtrapati Nivas Estate (on Prospect Hill) the
land could be put to such use as the Government may determine from time to
time, subject to the due compliance with the applicable law including the
Forest Act, Town Planning Act, Local Municipal Law and others." It was
further stated therein that the as per the detailed plan of the Rashrtapati Niwas
Estate placed before this court, the designated boundary of the Rashtrapati
Nivas Building with the appurtenant land agreed upon as "heritage
area" was shown by a broken line in brown colour. The area therein
suggested was 24.27 acres in place of 25 acres, to be preserved within the
natural boundaries formed by the roads encircling Rashtrapati Nivas. On may 6,
1997 learned counsel for th epetitioner was directed to verify and make a
report with regard to the plan submitted and whether any further modification was
required. Counter-affidavit accompanied by the reports was filed on behalf of
the petitioner stating that the Viceregal Lodge consists of an area of 90 acres
which included ancillary buildings that constituted the whole estate of the
viceregal Lodge. The said buildings namely, Corzon House, Del Ville, Bilaspur
House, Bilaspur Cottage and Squires Halla have not been included in the plan
submitted by the Government and they were not included within the heritage
area. It was also stated that the viceregal Lodge, as suggested by Intact
requires repairs for the upkeep of the said monument and the said building
requires to be notified as a protected monument and the memorabilia awithin the
Lodge should be notifies as protected antiquities. A report in support was also
accordingly filed. As a large part of the building requires repairs,
preservation adn restoration to their original form, for effectuating the
grandeur and beauty of th ebuilding, direction was given to look into the
objections raised in the enclosed report and th ematter was adjournd. After
compliance thereof, a report has been submitted demarcating the area and
identifying th econtiguous land in th eplan appended to the report but
notification in that behalf had not been issued. Therefore, by proceedings
daated August 19,1996, the Government of India was directed to notify the
entire area of the Viceregal Lodge as a protected ancient monument. After
several adjounmants, ultimately the notification came to be issued on 6th May,
1997 with the boundaries as directed in the orders and mandamus in that behalf
stands complied with.
Thus,
the protection and preservation of Viceregal Lodge and the appurtenant land as
historical heritage has become faite accompli by orders of this Court.
It is
needless to mention that as soon as the Indian Institute of Advance studies
vacates the building and hands it over to the Archaeological Department, the
Government should provide the necessary budget for effecting repairs and
restoring to the building its nataural beauty and grandeur. It is also
necessary that its proper maintenance and preservation is undertaken as an
on-going process to protect the historical heritage and needed repairs are effected
from time to time. We avail this opportunity to direct the Government of India
to maintain all national monuments under the respective Acts referred to above
and to ensure that all of them are properly maintained so that the cultural and
historical heritage of India and the beauty and grandeur fo the monuments,
sculptures secured through breathless and passionate labour workmenship,
craftsmanship and the skills of the Indian architects, artists and masons is
continued to be preserved. They are pride of Indians and places of public
visit. The tourist visitors should be properly regulated collection of funds by
way of admission/entrance fee should bt conscientiously accounted for and
utilised for their upkeep and maintenance under respect regulations/rules.
Adequate annual budgetary provisions shoudl be provided. In this behalf, it may
not be out of place to mention that if one goes to Williamsburg in United
states of America, the first settlement of the Britishers therein is preserved
as a tourist resort and though it is one in th erow, its originality is
maintained and busying business activity goes on in and around th earea
attaracting daily hundreds of tourists from all over the world. Similar palces
of interest, though of recent orign, need to be preserved and maintained as
manifestation of our cultural heritage or historical evidence. Similar efforts
should also be made by the Government of India, in particular the Tourism
Department, to attract foreign tourists and to give them good account of our
past and glory of the people of India, in particular the Tourism Department, to
atatract foreign tourists and to give them good account of our past and glory
of th epeople of India as message to other countries and territories. Equally
all the State Governments would do well vis-a-vis monuments of State importantm
though given power under Entry 12, List II of the Seventh Schedule to the
Constitution. From this perspective, the petitioner has served a great cause of
national importance and we place on record his effort to have the Viceregal
Lodge preserved and maintained; but for his painstaking efforts, it would have
been desecrated into a Five Star Hotel and in no time "We, the people of
India" would have lost our ancient historical heritage.
The
writ petition is accordingly disposed of.
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