Archaeological Survey
of India Vs. Narender Anand and others
[Civil Appeal No.
2430 of 2006]
Narender Anand and
another Vs. Archaeological Survey of India and others
[Civil Appeal No.
2431 of 2006]
J U D G M E N T
G. S. Singhvi, J.
1.
These
appeals are directed against the judgment of the Division Bench of the Delhi
High Court whereby the appeal filed by Archaeological Survey of India
(appellant in C.A. No. 2430 of 2006 and respondent No.1 in C.A. No. 2431 of 2006)
was allowed and the order of injunction passed by the learned Single Judge in IA
No. 2912 of 2002 in Suit No. 645 of 2002 allowing Shri Narender Anand and M/s. Raval
Apartments Pvt. Ltd. (respondent Nos. 1 and 2 in C.A. No.2430 of 2006 and
appellants in C.A. No. 2431 of 2006) to raise construction up to the height of
55 feet on plot No.14, Janpath Lane, New Delhi was set aside and Writ Petition
No.2635 of 2002 filed by Heritage and Cultural Forum was disposed of with a direction
to the Central Government to review notification dated 16.6.1992 issued under
Rule 32 of the Ancient Monuments and Archaeological Sites and Remains Rules,
1959 (for short, `the Rules').
2.
While
Archaeological Survey of India has questioned the direction given by the
Division Bench of the High Court for review of notification dated 16.6.1992, respondent
Nos. 1 and 2 have challenged that portion of the impugned judgment by which the
Division Bench vacated the order of injunction passed by the learned Single
Judge. Archaeological and historical pursuits in India started with the efforts
of Sir William Jones, who put together a group of antiquarians to form the
Asiatic Society on 15th January 1784 in Calcutta.
He was supported by many
persons who carried out survey of monuments in various parts of India. The
identification of Chandragupta Maurya with Sandrokottos of Greek historians by Jones
helped in fixing a chronological horizon of Indian history. This was followed
by the identification of Pataliputra (Palibothra of classical writings) at the
confluence of the Ganga and Sone. The decipherment of Gupta and Kutila script by
Charles Wilkinson was a landmark in this regard. Thereafter, many individuals made
contribution in surveying different monuments in India. In 1861, Alexander
Cunningham was appointed as the first Archaeological Surveyor.
He surveyed areas stretching
from Gaya in the east to the Indus in the northwest, and from Kalsi in the north
to the Narmada in the south, between 1861 and 1865. For this, he largely
followed the footsteps of the Chinese pilgrim Hieun Tsang. However, with the
abolition of the Archaeological Survey in 1866, this work came to a grinding halt.
In the meanwhile, an Act was passed in 1863 empowering the Government to prevent
injury to, and preserve the buildings remarkable for their antiquity and historical
or architectural value.
In 1878, Treasure Trove
Act was enacted which enabled the Government to confiscate treasures and
antiques found during chance digging. After 26 years, the Ancient Monuments
Preservation Act, 1904 (for short, `the 1904 Act') was enacted for the
preservation of ancient monuments and objects of archaeological, historical or artistic
interest. Section 2(1) of that Act, which contains the definition of "ancient
monuments" and Section 3 under which the Central Government was empowered to
declare an ancient monument to be a protected monument were as under: "2.
Definitions.—
In this Act, unless
there is anything repugnant in the subject or context.- (1) "ancient monument"
means any structure, erection or monument, or any tumulus or place of interment,
or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological
or artistic interest, or any remains thereof, and includes - (a) the site of an
ancient monument; (b) 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 (c) the means of access to and convenient inspection of an
ancient monument: ****
3.
Protected
monuments.-
a. The Central Government
may, by notification in the Official Gazette, declare an ancient monument to be
a protected monument within the meaning of this Act.
b. A copy of every notification
published under sub- section (1) shall be fixed up in a conspicuous place on or
near the monument, together with an intimation that any objections to the issue
of the notification received by Central Government within one month from the
date when it is so fixed up will be taken into consideration.
c. On the expiry of the
said period of one month, the Central Government, after considering the objections,
if any, shall confirm or withdraw the notification.
d. A notification published
under this section shall, unless and until it is withdrawn, be conclusive evidence
of the fact that the monument to which it relates is an ancient monument within
the meaning of this Act."
4.
The
framers of the Constitution were very much conscious of the need of protecting the
monuments and places/objects of artistic and historic importance. This is why Article
49 was incorporated in the Directive Principles of State Policy (Part IV of 6the
Constitution) whereby an obligation has been imposed on the State to protect
every monument or place or object of artistic or historic interest declared by or
under law made by Parliament.
For the sake of
reference Article 49 is reproduced below: "49. Protection of monuments and
places and objects of national importance. - It shall be the obligation of the State
to protect every monument or place or object of artistic or historic interest,
declared by or under law made by Parliament to be of national importance, from spoilation,
disfigurement, destruction, removal, disposal or export, as the case may
be."
5.
In
1951, Parliament enacted the Ancient and Historical Monuments and Archaeological
Sites and Remains (Declaration of National Importance) Act, 1951, whereby certain
monuments etc. were declared to be of national importance. After 7 years,
Parliament enacted the Ancient Monuments and Archaeological Sites and Remains
Act, 1958 (for short, `the 1958 Act') to provide for the preservation of ancient
and historical monuments and archaeological sites and remains of national importance,
for the regulation of archaeological excavations and for the protection of
sculptures, carvings and other like objects.
Similar legislations
have been enacted by various State legislatures with reference to 7entry 12
List II of the Seventh Schedule of the Constitution. The definition of "ancient
monument" contained in Section 2(a) and Sections 3, 4, 38(1), (2)(a) and (b)
and 39 of the 1958 Act, which are relevant for deciding the issues raised in these
appeals are reproduced below: "2. Definitions. - In this Act, unless the context
otherwise requires,-- (a) "ancient monument" means any structure, erection
or monument, or any tumulus or place of interment, or any cave, rock sculpture,
inscription or monolith, which is of historical, archaeological or artistic interest
and which has been in existence for not less than 100 years, and includes
i.
the
remains of 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 convenient inspection of an ancient monument;
**** 3. Certain
ancient monuments, etc., deemed to be of national importance. - All ancient and
historical monuments and all archaeological sites and remains which have been declared
by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration
of National Importance) Act, 1951 (71 of 1951), or by section 126 of the States
Reorganisation Act, 1956 (37 of 1956), to be of national importance shall be deemed
to be ancient 8and historical monuments or archaeological sites and remains
declared to be of national importance for the purposes of this Act.
4. Power of Central
Government to declare ancient monument, etc., to be of national importance. –
1.
Where
the Central Government is of opinion that any ancient monument or
archaeological site and remains not included in section 3 is of national
importance, it may, by notification in the Official Gazette, give two months'
notice of its intention to declare such ancient monument or archaeological site
and remains to be of national importance; and a copy of every such notification
shall be affixed in a conspicuous place near the monument or site and remains,
as the case may be.
2.
Any
person interested in any such ancient monument or archaeological site and remains
may, within two months after the issue of the notification, objects to the declaration
of the monument, or the archaeological site and remains, to be of national
importance.
3.
On
the expiry of the said period of two months, the Central Government may, after considering
the objections, if any, received by it, declare by notification in the Official
Gazette, the ancient monument or the archaeological site and remains, as the
case my be, to be of national importance.
4.
A
notification published under sub-section (3) shall, unless and until it is
withdrawn, be conclusive evidence of the fact that the ancient monument or
archaeological site and remains to which it relates is of national importance
for the purposes of this Act.
38. Power to make rules.-
1.
The
Central Government may, by notification in the Official 9Gazette and subject to
the condition of previous publication, make rule for carrying out the purposes
of this Act.(
2.
In
particular, and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:-
a. the prohibition or regulation
by licensing or otherwise of mining, quarrying, excavating, blasting or any operation
of a like nature near a protected monument or the construction of buildings on land
adjoining such monument and the removal of unauthorised buildings;
b. the grant of licences
and permissions to make excavations for archaeological purposes in protected
areas, the authorities by whom, and the restrictions and conditions subject to which,
such licences may be granted, the taking of securities from licensees and the
fees that may be charged for such licences.39. Repeals and saving. –
(1) The Ancient and
Historical Monuments and Archaeological Sites and Remains (Declaration of National
Importance) Act, 1951 (71 of 1951), and section 126 of the States
Reorganisation Act, 1956 (37 of 1956), are hereby repealed.(2) The Ancient
Monuments Preservation Act, 1904 (7 of 1904), shall cease to have effect in relation
to ancient and historical monuments and archaeological sites and remains
declared by or under this Act to be of national importance, except as respects things
done or omitted to be done before the commencement of this Act."
6.
In
exercise of the power vested in it under Section 38 of the 1958 Act, the Central
Government enacted the Rules, the relevant provisions whereof are extracted
below: "31. Notice or intention to declare a prohibited or regulated area.-
1. Before declaring an area
near or adjoining a protected monument to be a prohibited area or a regulated
area for purposes of mining operation or construction or both, the Central Government
shall, by notification in the Official Gazette, give one month's notice of its intention
to do so, and a copy of such notification shall be affixed in a conspicuous place
near the area.
2. Every such
notification shall specify the limits of the area which is to be so declared
and shall also call for objection, if any, from interested persons. 32.
Declaration of prohibited or regulated area. - After the expiry of one month from
the date of the notification under rule 31 and after considering the objections,
if any, received within the said period, the Central Government may declare, by
notification in the Official Gazette, the area specified in the notification
under rule 31, or any part of such area, to be a prohibited area, or, as the case
may be, a regulated area for purposes of mining operation or construction or
both.
33. Effect of declaration
of prohibited or regulated area.- No person other than an archaeological officer
shall undertake any mining operation or any construction, - (a) in a
prohibited, area, or (b) in a regulated area except under and in accordance with
the terms and conditions of a licence granted by the Director- General."
7.
Jantar
Mantar, New Delhi is one of the five unique observatories built between 1699 and
1743 by Majaraja Jai Singh (II) of Jaipur, who was a great Mathematician and
Astronomer. The other observatories are at Jaipur, Ujjain, Varanasi and Mathura.
Jantar Mantar, New Delhi, like other observatories has several instruments that
can graph the path of the astronomical universe. There is a colossal Samrat
Yantra at the periphery of Jantar Mantar.
To the South of
Samrat Yantra, there is an amazing instrument called Jai Prakash, which has two
concave hemispherical structures used for determining the position of the Sun and
celestial bodies. The other important yantras are Misra Yantra, Daksinovartti Bhitti
Yantra, Karka Rasivalaya, Niyat Cakra, Rama Yantra, Brhat Samrat and Sasthamsa Yantra.
Unfortunately, some of these yantras have been rendered unworkable or have
become non-functional. One of the main reasons for this is the construction of multistoried
structures which have come up in the vicinity of Jantar Mantar in the last 25
to 30 years.
8.
8.
In exercise of the powers conferred by Section 3(1) of the 1904 Act, the Central
Government issued notification dated 4.10.1956, which was published in the Gazette
of India dated 13.10.1956, declaring Jantar Mantar, New Delhi to be a protected
monument. That notification reads as under: "MINISTRY OF EDUCATION ARCHAEOLOGY
New Delhi,
the 4th October 1956 S.R.O.
2306. - In exercise of the powers conferred by sub-section (1) of Section 3 of
the Ancient Monuments Preservation Act, 1904 (7 of 1904), the Central Government
hereby declares the ancient monument described in the Schedule annexed hereto to
be a protected monument within the meaning of the said Act. SCHEDULE Sl. Dist- Locality
Name of Area Boundary:
Whether Owner- Rem- No.
rict Monum East, South, in ship arks ent North, West religious use Delhi New Jantar
Protect- South: No Maharaja Delhi Mantar ed area South of Jaipur 5.39 India
Club, 9, Jantar Mantar Road East: Low Land with a modern temple & well West:
Jantar Mantar Road 13 North-East: Partap Singh Building North-West: Parliament Street
[No.F-3-76/50-C-1] D. CHAKRAVARTI Under Secretary"
9.
With
a view to correct an obvious mistake committed by showing Maharaja of Jaipur as
the owner of Jantar Mantar in the Schedule of the aforesaid notification, the Central
Government issued notification dated 3.5.1957 under Section 3(1) of the 1904
Act, which reads as under: "TO BE PUBLISHED IN THE GAZETTE OF INDIA PART
II SECTION III. No. F.3-76/50-0.1 Government of India, Ministry of Education. New
Delhi, dated the 3rd May, 1957. NOTIFICATION (ARCHAEOLOGY)
In exercise of powers
conferred by sub-section (1) of section 3 of the Ancient Monuments Preservation
Act, 1904 (7 of 1904) and in supersession of notification of 14 the Government
of India Ministry of Education No.F.3- 76/50/0.1 dated the 4th October, 1956, the
Central Government hereby declares the ancient monument described in the Schedule
annexed hereto to be a protected monument within the meaning of the said Act. (Sd/-
(Rameshwar Dass) Under Secretary
The Publisher, Gazette
of India, New Delhi."The Schedule annexed with that notification is
reproduced below:"Ct. Local Name of Area Boundary: East, Ownership ity Monume
South, North, nt West 1 2 3 4 5 6Delh New Jantar Protecte South: South Government
i Delhi Mantar d area India Club, of Rajasthan" 5.39 9, Jantar Mantar Road
East: Low Land with a modern temple & well West: Jantar Mantar Road North-East:
Partap Singh Building North-West: Parliament Street
10.
Although,
notification dated 3.5.1957 was not published in the Official Gazette, as was
done in the case of notification dated 4.10.1956, the only difference in the
two notifications was that in the Schedule appended to the first notification,
the ownership of Jantar Mantar was shown to be that of "Maharaja of
Jaipur" and in the second notification, the owner of Jantar Mantar was
shown as the Government of Rajasthan.
What needs to be
emphasized is that after merger of the erstwhile State of Jaipur and formation
of the State of Rajasthan, Maharaja of Jaipur did not retain his earlier status
and he no longer remained the owner of Jantar Mantar because it was not his
private property.
11.
In
exercise of the power vested in it under Rule 31 of the Rules, the Central Government
issued notification dated 15.5.1991, which was published in Gazette of India dated
25.5.1991, and gave notice of its intention to declare an area of 100 meters
from the protected limits and further beyond it upto 200 meters near or adjoining
protected monuments to be prohibited and regulated areas respectively for the purposes
of mining operations and constructions.
After considering the
16objections/suggestions received from the public, the Central Government
issued notification dated 16.6.1992, which was duly published in the Official Gazette.
The final notification reads thus: "DEPARTMENT OF CULTURE (Archaeological
Survey of India) New Delhi, the 16th June, 1992. (ARCHAEOLOGY) S.O. 1764-Whereas
by the notification of the Government of India in the Department of Culture,
Archaeological Survey
of India No. S.O. 1447 dated the 15th May, 1991 published in Gazette of India,
Part-II Section 3 sub-section (ii) dated 25th May, 1991, the Central Government
gave one month's notice of its intention to declare area upto 100 metres from the
protected limits, and further beyond it upto 200 meters near or adjoining protected
monuments to be prohibited and regulated areas respectively for purposes of
both mining operation and construction. And whereas the said Gazette was made
available to the public on the 5th June, 1991. And whereas objections to the making
of such declaration received from the person interested in the said areas have been
considered by the Central Government.
Now, therefore, in exercise
of the powers conferred by Rule 32 of the Ancient Monument and Archaeological sites
and Remains Rules, 1959, the Central Government hereby declares the said areas
to be prohibited and regulated areas. This shall be in addition to and not in any
way prejudice the similar declarations already made in respect of monuments at Fatehpur
Sikri; Mahabalipuram; Golcunda Fort, Hyderabad (Andhra Pradesh);
Thousands Pillared Temple,
Hanamkonda, Distt. Warangal (Andhra Pradesh); Shershah' Tomb, Sasaram (Bihar); Rock
Edict of Ashoka, Kopbal, Distt. Raichur (Karnatka); Gomateshwara Statue at Sravanbelgola,
District Hassan (Karnataka); Elephanta Caves, Gharapur, District Kolba (Maharashtra).
(No.F.8/2/90-M-M.C. M.C. Joshi, Director General"
12.
Respondent
Nos. 1 and 2, who own plot No. 14, Janpath Lane submitted an application to the
New Delhi Municipal Corporation (for short, `the Corporation') sometime in August
1986 for sanction of the building plan for the construction of multistoried commercial
building. The same was rejected vide letter dated 15.9.1986 on the ground that the
area was under comprehensive development and the details of redevelopment
controls/drawings, if any, finalized by the Delhi Development Authority (for short,
`the DDA') were not available with the Corporation.
After about 7 years,
respondent Nos.1 and 2 again submitted application dated 24.6.1993 for sanction
of the building plan. The DDA vide its letter dated 1.10.1993 suggested 18to the
Corporation that plot No.14, Janpath Lane form part of redevelopment scheme and
the building plan should be approved as per the Development Control Norms. The building
plan was finally sanctioned by the Corporation sometime in September 2000 and
was released on 5.3.2001.
Thereafter,
respondent Nos. 1 and 2 demolished the existing structure and started digging
foundation for the new building. On 5.5.2001, the Conservation Assistant of Archaeological
Survey of India lodged a complaint about the excavation and construction being undertaken
by respondent Nos. 1 and 2 in violation of the prohibition contained in notification
dated 16.6.1992.
The Superintending
Archaeologist, Archaeological Survey of India, vide his letter dated 10.5.2001 informed
the Corporation that the sanction given by it was contrary to notification dated
16.6.1992. Thereupon, the Corporation issued notice dated 23.5.2001 to
respondent Nos. 1 and 2 and directed them to stop the construction and obtain the
requisite permission from the Archaeological Survey of India.
13.
Respondent
Nos. 1 and 2 challenged the letter of the Corporation in Suit No. 645 of 2002 and
prayed that the restriction imposed on the construction of building be declared
as nullity. They also filed I.A. No. 2912 of 2002 under Order 39 Rules 1 and 2
CPC for temporary injunction. On 22.3.2002, the learned Single Judge directed
registration of the suit and passed an ex parte injunction order whereby the Corporation
was restrained from giving effect to letter dated 23.5.2001 subject to the condition
that respondent Nos. 1 and 2 shall furnish an undertaking that they will raise
construction up to the height of 55 feet only. On notice, Archaeological Survey
of India filed I.A.No.4479 of 2002 for modification of order dated 22.3.2002. The
same was disposed of by the learned Single Judge with a direction to respondent
Nos. 1 and 2 not to raise construction beyond the DPC level.
14.
The
injunction application was finally allowed by the learned Single Judge vide order
dated 30.10.2002 and order dated 22.3.2002 was made absolute. The learned
Single Judge noted that despite several opportunities, counsel representing Archaeological
Survey of India failed to produce a copy of the Official Gazette in which notification
dated 3.5.1957 was published and held that in the absence of such publication,
the notification cannot be treated as effective. The learned Single Judge further
held that subsequent notification dated 8.1.1958 in which reference was made to
earlier notification dated 3.5.1957 was also ineffective and in the absence of a
legally binding notification having been issued under Section 3(1) of the 1904 Act,
the prohibition contained in notification dated 16.6.1992 cannot be made applicable
to the plot of respondent Nos.1 and 2.
15.
I.A.No.10985/2002
filed by Archaeological Survey of India for review of the injunction order was disposed
of by learned single Judge on 27.11.2002 by taking cognizance of the concession
made by the counsel appearing on its behalf that notification dated 3.5.1957
had not been published in the Official Gazette.
16.
Archaeological
Survey of India challenged the order of injunction in FAO (OS) No.414 of 2002
mainly on the ground that while deciding the application for injunction, the learned
Single Judge had misinterpreted the notifications issued under Section 3(1) of
the 1904 Act and Section 39 of the 1958 Act.
17.
During
the pendency of the appeal filed against the order of the learned Single Judge,
Heritage and Culture Forum, Delhi filed Writ Petition No.2635 of 2002 by way of
public interest litigation and prayed for issue of a mandamus for stopping the
construction of multistoried building on the plot owned by respondent Nos. 1
and 2 by asserting that the same was contrary to the provisions of the 1958 Act
and the Rules framed thereunder and the prohibition imposed on the construction
of buildings within 100 meters of the protected monument.
18.
In
their counter affidavit, respondent Nos. 1 and 2 not only questioned the locus
standi of the Heritage and Culture Forum to challenge the permission granted to
them for the construction of building, but also pleaded that the prohibition contained
in 22notification dated 16.6.1992 was not applicable to their plot. On behalf of
Archaeological Survey of India, the Superintending Archaeologist filed counter
affidavit and pleaded that the building plan sanctioned by the Corporation which
enabled respondent Nos. 1 and 2 to construct the building was violative of the
prohibition contained in notification dated 16.6.1992.
19.
At
the hearing of the appeal, learned counsel for respondent Nos. 1 and 2
reiterated the plea taken before the learned Single Judge that Jantar Mantar, New
Delhi cannot be treated as a protected monument because notification dated 3.5.1957
had not been published in the Official Gazette and, as such, the prohibition contained
in notification dated 16.6.1992 was not applicable to his clients. He then argued
that there was no justification to enforce the prohibition qua plot No. 14,
Janpath Lane because a number of other buildings including Phase-II of the
Corporation's building had already been constructed around Jantar Mantar in
violation of the restriction of 100 meters.
20.
The
Division Bench of the High Court took cognizance of the fact that the Corporation
had constructed Phase-II building in violation of the prohibition contained in notification
dated 16.6.1992 and directed Archaeological Survey of India to explain why such
construction of that building was not stopped. Thereupon, the Superintending
Archaeologist filed affidavit dated 26.5.2003. In paragraph III(1) and (2) of his
affidavit, the deponent spelt out the details of the objections raised by
Archaeological Survey of India against the construction of Phase II building of
the Corporation and claimed that the officers of the Corporation continued with
the construction despite objections. In paragraph IV of his affidavit, the
deponent made the following statement: "IV)
That it is evident from
the above-stated chronology of events that in so far as ASI is concerned, it
pursued the matter with NDMC and Government of NCT of- Delhi vigorously with
the hope that NDMC would stop the construction. However, despite best efforts
of ASI, nothing was being done to ensure that the construction activity at the site
takes place in accordance with the provisions of Law. It is only on 26th August,
2003 that an application in the prescribed form has been submitted by NDMC, seeking
the permission of Archaeological Survey of India to sanction the construction in
the regulated area.
It is respectfully
submitted 24 that Archaeological Survey of India does not have any machinery,
either to demolish the construction or to stop the construction and therefore
it could do only as much in the present case, since it involved a local authority,
and for the purposes of execution of its orders ASI has to depend upon the
assurance of Local Government only. It is significant to note that in the
present case the construction was carried cut by none other than the municipal authority,
and, as such, there was nothing that Archaeological Survey of India could do except
to persuade the concerned authority to dissuade from persisting with the same. Towards
the said directions, best efforts were made by the ASI, but to no avail."
21.
In
compliance of order dated 26.4.2002 passed by the Division Bench of the High Court,
the Corporation submitted a status report containing the details of the applications
made by respondent Nos. 1 and 2 and sanction of the building plan. The status report
also made a mention of letter dated 25.9.2001 written by the DDA to the Corporation
that the objections/suggestions made by Archaeological Survey of India
regarding setbacks and heights were considered while finalizing the
Redevelopment Scheme in 1989, which was approved by the DDA on 24.5.1994 and by
the Ministry of Urban Development in October 1994.
22.
In
compliance of another order passed by the Division Bench on 6.8.2003, the Corporation
explained its position regarding Phase II building by stating that approval for
NDMC, New Delhi City Centre was granted vide Resolution dated 12.2.1969 and the
building was to be constructed in two phases. That plan for Phase II was approved
by the Delhi Urban Arts Commission on 13.3.1992 and the building was constructed
without violating the 100 meters restriction.
23.
Respondent
Nos.1 and 2 also filed an affidavit and claimed that the proposed building is 218
feet away from the outer boundary of Jantar Mantar and 101.46 meters from the
protected monument. According to respondent Nos.1 and 2, in terms of the
sanction plan they are entitled to construct building up to the height of 75 feet
but the learned Single Judge has allowed construction only up to 55 feet.
24.
The
Division Bench of the High Court first considered the implication of the concession
made before the learned Single Judge by the counsel appearing for Archaeological
Survey of India that notification dated 3.5.1957 had not been published in the
Official Gazette as per the requirement of Section 3(2) of the 1904 Act and observed
that the so called concession was inconsequential because copy of the Official
Gazette had, in fact, not been produced before the Court.
The Division Bench then
considered the question whether Jantar Mantar is a protected monument, referred
to notifications dated 4.10.1956 and 3.5.1957 and observed that the second notification
had been issued only with a view to correct the mistake which had been
committed in mentioning the name of Maharaja of Jaipur in the column of
`ownership' of the first notification. The Division Bench opined that Jantar Mantar
had already been declared as a protected monument by notification dated
4.10.1956, which was specifically saved by Section 39 (2) of the 1958 Act.
The Division Bench
then referred to notification dated 16.6.1992 and held that in view of the prohibition
contained therein, respondent Nos. 1 and 2 were not entitled to raise construction
on plot No.14, Janpath Lane because the same was within 100 meters of the 27protected
monument. The observations made by the Division Bench in this respect are
extracted below: "The Notification dated 4.10.1956 clearly refers to the protected
area as comprising 5.39 acres. It is not in dispute that the entire area within
the boundary wall comprises of these from 5.39 acres.
Thus, reading the
1956 Notification itself makes it clear that what is protected is not just the buildings/structures
comprised within, which collectively go by the name Jantar Mantar, but the entire
area of 5.39 acres. Now, reading the Notification dated 16.6.1992, it is apparent
that what has been prohibited is mining and construction activity within 100 meters
"from the protected limits" of the protected monuments. Therefore, the
measurement that has to be obtained is not from the structures but from the
boundary wall or in other words from "the limits of the protected area".
If that is so, then there is no dispute that the proposed building at plot No.14,
Janpath Lane falls within 100 meters thereof."
25.
The
Division Bench rejected the argument of respondent Nos.1 and 2 that in view of
the provisions contained in the Delhi Development Authority Act, 1957 (for
short, `the DDA Act'), which is a special law enacted for planned development of
Delhi, the prohibition contained in notification dated 16.6.1992 issued under
Rule 32 of the Rules framed under Section 38 of the 1958 Act will not be applicable
to their case. In the opinion of the Division Bench, there is no conflict
between the provisions of the DDA Act and the 1958 Act because the two statutes
operate in different fields and even if there was some conflict, the 1958 Act
being a special law enacted for the preservation and protection of ancient
monuments would prevail over the DDA Act.
26.
The
Division Bench then noted that several buildings including the Phase II
building of the Corporation had come up in violation of the prohibition contained
in notification dated 16.6.1992 but did not delve deep into the issue because an
undertaking was given on behalf of the Corporation that the basement of the building
constructed in violation of the prohibition shall not be used.
Finally, the Division
Bench vacated the order of injunction passed by the learned Single Judge but
proceeded to direct the Central Government to review notification dated
16.6.1992 by observing that a provision could be made for relaxation of the prohibition
on case to case basis because the degree and type of protection depends upon
variables such as the nature of protected monument, its location, the weather conditions,
the topography, the soil etc. and there has to be application of mind on these and
other issues linked with preservation of monuments and Archaeological Survey of
India cannot take shelter of the notification prohibiting construction within 100
meters from the boundary of the protected monument in each and every case for refusing
permission or license for construction.
27.
Before
proceeding further, we deem it proper to mention that in compliance of the direction
given by this Court on 29.9.2010, an additional affidavit was filed on behalf of
the Corporation detailing the events leading to the construction of its Phase II
building. In the end, it has been stated that Director General, Archaeological Survey
of India has accorded ex-post facto approval to the construction of that
building. In support of this assertion, copies of letter dated 11.2.2005 issued
by the Director General, Archaeological Survey of India to the Chairperson of
the Corporation conveying ex-post facto approval and license dated 21.2.2005 issued
by the Superintending Archaeologist, Delhi Circle, have been placed on record.
Respondent Nos.1 and 2 also filed additional affidavit stating therein that while
they are not being allowed to construct building, the Corporation has constructed
multistoried building within 70 meters of the protected monument and this is in
clear violation of the prohibition contained in notification dated 16.6.1992.
28.
28.
At this stage, it is apposite to mention that during the pendency of these appeals
the 1958 Act was amended by the Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Act, 2010 and Sections 20A and 20B were inserted
with effect from 16.6.1992 and Sections 20C to 20Q were inserted with effect from
29.3.2010.
Since the validity of
the Amendment Act has not been questioned before us, we do not propose to
examine the same. However, we would like to notice the provisions of Sections 20A,
20B, 20C and 20F(1) and (2), the interpretation of which will have far reaching
impact on the future of protected monuments of national and international importance
including Jantar Mantar, New Delhi. These sections read as under: "20A.
Declaration of prohibited area and carrying out public work or other works in
prohibited area.-
Every area, beginning
at the limit of the protected area or the protected monument, as the case may
be, and extending to a distance of one hundred metres in all directions shall
be the prohibited area in respect of such protected area or protected
monument:Provided that the Central Government may, on the recommendation of the
Authority, by notification in the Official Gazette, specify an area more than one
hundred metres to be the prohibited area having regard to the classification of
any protected monument or protected area, as the case may be, under section 4A.
(2) Save as otherwise
provided in section 20C, no person, other than an archaeological officer, shall
carry out any construction in any prohibited area. (3) In a case where the Central
Government or the Director-General, as the case may be, is satisfied that--(a)
it is necessary or expedient for carrying out such public work or any project
essential to the public; or(b) such other work or project, in its opinion,
shall not have any substantial adverse impact on the preservation, safety, security
of, or, access to, the monument or its immediate surrounding, it or he may, notwithstanding
anything contained in sub-section (2), in exceptional cases and having regard
to the public interest, by order and for reasons to be recorded in writing, permit,
such public work or project essential to the public or other constructions, to
be carried out in a prohibited area:
Provided that any
area near any protected monument or its adjoining area declared, during the period
beginning on or after the 16th day of June, 1992 but ending before the date on which
the Ancient 32Monuments and Archaeological Sites and Remains (Amendment and Validation)
Bill, 2010, receives the assent of the President, as a prohibited area in
respect of such protected monument, shall be deemed to be the prohibited area declared
in respect of that protected monument in accordance with the provisions of this
Act and any permission or licence granted by the Central Government or the Director-
General, as the case may
be, for the construction within the prohibited area on the basis of the
recommendation of the Expert Advisory Committee, shall be deemed to have been validly
granted in accordance with the provisions of this Act, as if this section had
been in force at all material times: Provided further that nothing contained in
the first proviso shall apply to any permission granted, subsequent to the completion
of construction or re-construction of any building or structure in any
prohibited area in pursuance of the notification of the Government of India in the
Department of Culture (Archaeological Survey of India) number S.O. 1764, dated the
16th June, 1992 issued under rule 34 of the Ancient Monuments and
Archaeological Sites and Remains Rules, 1959, or, without having obtained the
recommendations of the Committee constituted in pursuance of the order of the Government
of India number 24/22/2006-M, dated the 20th July, 2006 (subsequently referred to
as the Expert Advisory Committee in orders dated the 27th August, 2008 and the
5th May, 2009).
(4) No permission, referred
to in sub-section (3), including carrying out any public work or project
essential to the public or other constructions, shall be granted in any
prohibited area on and after the date on which the Ancient Monuments and Archaeological
Sites and Remains (Amendment and Validation) Bill, 2010 receives the assent of
the President. 3320B. Declaration of regulated area in respect of every protected
monument.-(1) Every area, beginning at the limit of prohibited area in respect
of every ancient monument and archaeological sites and remains, declared as of national
importance under sections 3 and 4 and extending to a distance of two hundred metres
in all directions shall be the regulated area in respect of every ancient
monument and archaeological sites and remains:
Provided that the Central
Government may, by notification in the Official Gazette, specify an area more than
two hundred metres to be the regulated area having regard to the classification
of any protected monument or protected area, as the case may be, under section
4A:Provided further that any area near any protected monument or its adjoining area
declared, during the period beginning on or after the 16th day of June, 1992
but ending before the date on which the Ancient Monuments and Archaeological Sites
and Remains (Amendment and Validation) Bill, 2010, receives the assent of the
President, as a regulated area in respect of such protected monument, shall be deemed
to be the regulated area declared in respect of that protected monument in accordance
with the provisions of this Act and any permission or licence granted for
construction in such regulated area shall, be deemed to have been validly
granted in accordance with the provisions of this Act, as if this section had
been in force at all material times.
C. Application for repair
or renovation in prohibited area, or construction or re-construction or repair
or renovation in regulated area. –
1.
Any
person, who owns any building or structure, which existed in a prohibited area before
the 16th day of June, 1992, or, which had been subsequently constructed with
the approval of the Director-General and desires to carry out any repair or renovation
of such building or structure, may make an application to the competent authority
for carrying out such repair or renovation, as the case may be.
2.
Any
person, who owns or possesses any building or structure or land in any regulated
area, and desires to carry out any construction or re-construction or repair or
renovation of such building or structure on such land, as the case may be, may make
an application to the competent authority for carrying out construction or
re-construction or repair or renovation, as the case may be.
F. Constitution of National
Monuments Authority. –
1.
The
Central Government shall, by notification in the Official Gazette, constitute an
Authority to be called as the National Monuments Authority.
2.
The
Authority shall consist of,--
a. a Chairperson, on whole-time
basis, to be appointed by the President, having proven experience and expertise
in the fields of archaeology, country and town planning, architecture, heritage
and conservation-architecture or law;
b. such number of members
not exceeding five whole-time members and five part-time members to be
appointed, on the recommendation of the Selection Committee referred to in
section 20G, by the Central Government, having proven experience and expertise
in the fields of archaeology, country and town planning, architecture, heritage,
conservation-architecture or law.
c. the Director-General
as member, ex officio."
29.
What
has been done by enacting Sections 20A and 20B is to give legislative mandate to
the concept of prohibited and regulated areas respectively for the purposes of
mining operation and construction. Before the 2010 amendment, the Central
Government could issue notification under Rule 31 read with Rule 32 and declare
an area near or adjoining a protected monument to be a prohibited area or a regulated
area for the purposes of mining operation or construction or both. With the
insertion of Section 20A it has been made clear that every area, beginning at the
limit of the protected area or the protected monument, as the case may be, and extending
to a distance of one hundred meters in all directions shall be the prohibited
area in respect of such protected area or protected monument.
Not only this, by virtue
of proviso to Section 20A(1) the Central Government has been clothed with the power
to extend the prohibition beyond 100 meters by issuing a notification in the
Official Gazette keeping in view the classification of any protected monument
or protected area, as the case may be, under Section 4A. Of course, this power can
be exercised only on the recommendations of the Authority as defined in Section
2(da) and constituted under Section 20F. Somewhat similar provision has been
made in Section 20B for the regulated area in respect of every ancient monument
and archaeological site and remains. Proviso to that section empowers the Central
Government to issue notification in the Official Gazette and specify an area
more than two hundred meters to be the regulated area having regard to the classification
of any protected monument or protected area, as the case may be, under Section
4A.
In terms of Section
20A(2), it has been made clear that no person other than an Archaeological Officer
shall carry out any construction in any prohibited area. This is subject to Section
20C, which can be treated as an exception to Section 20A(2). That section lays down
that any person who owns any building or structure, which existed in a prohibited
area before 16.6.1992 or had been subsequently constructed with the approval of
the Director General may carry out any repair or renovation of such building or
structure by making an application to the competent authority.
The term "renovation"
appearing in Section 20C will take its colour from the word "repair"
appearing in that section. This would mean that in the garb of renovation, the owner
of a building cannot demolish the existing structure and raise a new one and the
competent authority cannot grant permission for such reconstruction. Section
20A(3) lays down that the Central Government or the Director General can, in exceptional
cases and having regard to the public interest, pass a reasoned order and
permit a public work or any project essential to the public or other construction
in a prohibited area provided that such construction does not have substantial adverse
impact on the preservation, safety, security of, or access to the protected
monuments or its immediate surrounding.
The use of the
expression "such other work or project" in clause (b) of Section
20A(3), if interpreted in isolation, may give an impression that the Central
Government or the Director General is empowered to allow any other work or
project by any person in the prohibited area but, in our view, the said
expression has to be interpreted keeping in view the mandate of Article 49 of
the Constitution and the objects sought to be achieved by enacting 1958 Act, i.e.
preservation of ancient and historical monuments, archaeological 38sites and
remains of national importance.
This would
necessarily imply that `such other work or project' must be in larger public
interest in contrast to private interest. In other words, in exercise of power
under Section 20A(3), the Central Government or the Director General cannot pass
an order by employing the stock of words and phrases used in that section and
permit any construction by a private person de hors public interest. Any other interpretation
of this provision would destroy the very object of the 1958 Act and the prohibition
contained in notification dated 16.6.1992 and sub-section (1) of Section 20A
would become redundant and we do not think that this would be the correct
interpretation of the amended provision.
It also needs to be
emphasized that public interest must be the core factor to be considered by the
Central Government or the Director General before allowing any construction and
in no case the construction should be allowed if the same adversely affects the
ancient and historical monuments or archaeological sites.
30.
We
may now revert to the impugned judgment in these appeals. In our view, Archaeological
Survey of India is fully justified in making a grievance that the Division Bench
of the High Court was not justified in directing the Central Government to review
the prohibition contained in notification dated 16.6.1992. The High Court's anxiety
to maintain a balance between the dire necessity of protecting historical
monuments of national and international importance and development of
infrastructures is understandable, but it is not possible to approve the fiat
issued to the Central Government to review the prohibition contained in notification
dated 16.6.1992.
That notification was
issued by the Central Government for implementing the policy enshrined in Article
49 of the Constitution and the 1958 Act i.e. to preserve and protect ancient and
historical monuments and archaeological sites and remains of national importance.
Section 19 of the 1958 Act contains a restriction against construction of any
building within the protected area or carrying out of any mining, quarring,
excavating, blasting or any other operation of similar nature in such area. Rules
31 and 32 of the Rules empower the Central Government to declare an area near or
adjoining a protected monument to be a prohibited area or a regulated area for the
purposes of mining operation or construction.
The Central
Government must have issued notification dated 16.6.1992 after consulting
experts in the field and keeping in view the object of the 1958 Act. Therefore,
in the name of development and accommodating the need for multistoried structures,
the High Court could not have issued a mandamus to the Central Government to review/reconsider
notification dated 16.6.1992 and that too by ignoring that after independence
large number of protected monuments have been facing the threat of extinction
and if effective steps are not taken to check the same, these monuments may
become part of history.
One of such monument
is Jantar Mantar, New Delhi. Some of its instruments have become unworkable/non
functional. This is largely due to construction of multistoried structures around
Jantar Mantar. Therefore, we have no hesitation to hold that the High Court was
not justified in directing the Central Government to review or reconsider notification
dated 16.6.1992 and, to that extent, the impugned judgment is liable to be set
aside. We may add that with the insertion of Sections 20A and 20B, the direction
given by the High Court for review of notification dated 16.6.1992 has 41become
infructuous and the Government is no longer required to act upon the same.
31.
The
appeal of respondent Nos.1 and 2 is wholly meritless. The High Court, in our view,
has rightly held that even though notification dated 3.5.1957 did not become
effective because the same was not published in the Official Gazette, the earlier
notification issued on 4.10.1956 remained effective and the same was saved by
Section 39(2) of the 1958 Act. We may add that even though notification dated 3.5.1957
was issued in supersession of notification dated 4.10.1956, the same remained
alive because of non compliance of Section 3(2) of the 1904 Act.
The High Court's interpretation
of the prohibition contained in notification dated 16.6.1992 is correct and the
distance of 100 meters has to be counted from the outer boundary wall of Jantar
Mantar which has protected area of 5.39 acres and not the physical structures of
the observatory. The High Court has given detailed reasons for rejecting the
plea of respondent Nos.1 and 2 that the provisions of the DDA Act would prevail
over those contained in the 1958 Act and we entirely agree with it.
32.
We
may have dealt with the additional affidavits of the parties in greater detail and
examined whether Archaeological Survey of India was justified in not taking action
against construction of large number of buildings in violation of the
prohibition contained in notification dated 16.6.1992, but do not consider it
proper to do so because the owners of these buildings are not parties to these
appeals.
33.
In
the result, Civil Appeal No.2430 of 2006 is allowed and the direction given by the
Division Bench of the High Court for review of notification dated 16.6.1992 is
set aside. However, it is made clear that in future the Central Government or
the Director General shall not take action or pass any order under Section
20A(3) and 20C except in accordance with the observations made in this
judgment. Civil Appeal No.2431 of 2006 is dismissed. The parties are left to
bear their own costs.
......................................J.
(G.S. SINGHVI)
......................................J.
(ASOK KUMAR GANGULY)
New
Delhi;
January
16, 2012.
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