Allahabad High Court
U.P. Rajkiya Nirman Nigam Ltd.Thru ... vs U.O.I. Thru Secy. Min.Of Culture,New ... on 2 January, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 25 Case :- MISC. SINGLE No. - 36671 of 2019 Petitioner :- U.P. Rajkiya Nirman Nigam Ltd.Thru Pawan Kumar Unit Incharge Respondent :- U.O.I. Thru Secy. Min.Of Culture,New Delhi And Ors. Counsel for Petitioner :- Gaurav Mehrotra Counsel for Respondent :- A.S.G.,Abhinav N.Trivedi Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the petitioner and Sri S.B. Pandey, learned Assistant Solicitor General of India, assisted by Sri Shikhar Srivastava, appearing for respondent nos.1 to 6.
2. The Department of Medical Education and Training although has not been made a party to the petition, learned counsel for the petitioner prays for and is granted permission to implead Department of Medical Education and Training, Government of U.P., through its Secretary as proforma respondent no.8 in this petition during the course of the day.
3. This petition has been filed by the U.P. Rajkiya Nirman Nigam Ltd., a Government of U.P. undertaking incorporated under the provisions of Companies Act, 1956, challenging the orders passed by the appellate authority in rejecting the appeal of the petitioner against the order dated 6.2.2019 and the order dated 5th and 6th March, 2019 passed in the 218th Meeting of the National Monuments Authority, rejecting the application of the petitioner for grant of NOC to raise construction of a Transit Hostel for nursing students at the request of the Government of U.P. and the King George's Medical University, Lucknow (for short 'KGMU').
4. It has been submitted by the learned counsel for the petitioner that on the request of KGMU, the Department of Medical Education and Training, Government of U.P. gave administrative and financial sanction to the petitioner's preliminary estimate of Rs.10660.31 lacs for construction of a Transit Nurses Hostel near a protected historical monument, namely, the Residency. The work commenced in 2014 and the Senior Conservation Assistant, ASI, Sub Circle-II, Residency, Baillie Guard Cottage, Golaganj, Lucknow informed the petitioner that the construction of the Transit Nurses Hostel was being raised in regulated area of Residency and hence, construction work be stopped and only started after procuring NOC from the competent authority, which was stated to be the Commissioner, Lucknow Division, Lucknow. The petitioner requested the Registrar of KGMU to apply for the NOC in the prescribed format and the same was forwarded to the competent authority i.e. the Commissioner on 20.1.2018. The Additional Commissioner, Lucknow Division, Lucknow requested the Superintendent of ASI, Lucknow Region for a joint inspection of the premises in question with the officials of the Department of Revenue, Government of U.P. by letter dated 6.2.2018.
5. A joint inspection was conducted thereafter and the Sub Divisional Magistrate submitted an inspection report on the prescribed Form-2 to the Commissioner, Lucknow. The Commissioner, Lucknow sent the inspection report to the Member Secretary, National Monuments Authority, Department of Cultural Activity, Ministry of Culture, New Delhi and requested for issuance of NOC. The Director (Conservation), Ministry of Culture, National Monuments Authority, New Delhi thereafter requested the Commissioner to direct the petitioner to submit a Heritage Impact Assessment Report from INTACH or IIT Kanpur or any other recognized Heritage Body as the total floor area of the proposed construction is more than 5000 square meters. In compliance of the letter dated 21.5.2018, the petitioner approached a Former Director (Monuments), Government of India, who had engaged a recognized firm by the name of "The Society of South Asian Archaeology" for preparing the Heritage Impact Assessment Report, which was prepared and submitted on 17.12.2018 before the Commissioner with the request that the same be forwarded to respondent no.5 for grant of NOC.
6. In the Heritage Impact Assessment Report that was prepared by the panel of experts, it was clearly mentioned that the proposed construction of Transit Nurses Hostel of the petitioner on the land in question would have a negligible impact on the social, cultural, historical and archaeological value of the centrally protected monument i.e. the Residency. There were several other high rise residential, public and institutional multi-storeyed buildings existing near the protected monument and the report concluded that there will be no direct impact of the residential development on the protected monument i.e. the Residency.
7. The Commissioner forwarded the Heritage Impact Assessment Report in December, 2018, but the petitioner was informed by the letter dated 6.2.2019 that the application for grant of NOC was rejected and the petitioner was directed to remove the constructions already carried out on the land in question. The petitioner had already constructed seven floors for the Transit Nurses Hostel at the proposed site when the decision was communicated. The petitioner thereafter submitted a representation to the respondent no.3 and was informed that a statutory appeal may be filed.
8. The petitioner preferred an appeal against the order dated 6.2.2019 before respondent no.2 under Section 20(D) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as "the Act of 1958). The Commissioner informed the KGMU that the statutory appeal should have been preferred directly to the Member Secretary of National Monuments Authority. The petitioner thereafter preferred the said appeal before the National Monuments Authority and since the same was not being decided and the constructions had already been stopped, to avoid delay, the petitioner filed Writ Petition No.18911 (MB) of 2019, praying for a direction to be issued to the appellate authority to decide the appeal. This Court disposed of the writ petition on 11.7.2019, directing the respondent no.2 to make an earnest endeavour to consider the statutory appeal and decide the same expeditiously, say within a period of two months from the date, a copy of the said order was produced before it. Now, the appeal has been rejected on 30.8.2019.
9. It has been submitted by the learned counsel for the petitioner that the appellate order has been communicated to the petitioner through the letter of the Vice Chancellor of KGMU dated 22.10.2019, who was in turn communicated the appellate order by the Director, Conversation through his letter dated 30.9.2019.
10. It has been submitted that prior to the passing of the impugned appellate order dated 30.8.2019, no opportunity of hearing of any kind whatsoever was afforded to the officers or employees of the petitioner and the petitioner only came to know about the decision taken by the respondent no.3 on the statutory appeal with the approval of respondent no.2 by the letter of the Director, Conservation dated 30.10.2019.
11. Learned counsel for the petitioner submits that the appellate authority has wrongly referred to Section 31 of the Act of 1958 with regard to jurisdiction of the Magistrate concerned to take penal action in case of constructions being raised without NOC.
12. Learned counsel for the petitioner has referred to Section 20(D) of the Act, which provides that permission may be granted by the competent authority to raise constructions in a regulated area after giving an opportunity of hearing to the concerned person and in case of refusal also, such opportunity has to be given.
13. Sri S.B. Pandey, appearing for respondent nos.1 to 6, states that the petitioner had raised constructions without seeking permission, therefore, there is no question of application of Section 20(D) of the Act. The petitioner had not made any application for grant of NOC before raising such constructions, but the petitioner had filed the appeal against the order dated 6.2.2019 issued by the respondent no.5, directing the petitioner to remove constructions being carried out on the land in question. The petitioner having raised constructions already, the said fact has been noted in the impugned order dated 30.8.2019 by the appellate authority.
14. Learned counsel for respondent nos.1 to 6 has pointed out Section 20(D)(2) of the Act reproduced in the order impugned, which reads as under:
".....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."
15. It has been submitted by Sri S.B. Pandey that the appellate authority has rightly come to the conclusion that the Nirman Nigam had submitted an application for grant of NOC after undertaking constructions and thus, violated Section 20(D) and Section 20(C) of the Act and, therefore, the appellate authority has referred to Section 31, which relates to jurisdiction of the Magistrate concerned for taking penal action for the offence under the Act.
16. This Court has perused Section 20(B), Section 20(C) and Section 20(D) of the Act of 1958. It is evident that after declaration of regulated area in respect of any protected monument by the Central Government by notification in the Official Gazettee, permission or licence can be granted for constructions only on NOC being issued on appropriate application being made before start of constructions.
17. It has been fairly admitted by the petitioner that no such application was made before start of construction. However, after such construction was being undertaken and the respondent no.5 issued the order on 6.2.2019 for demolition of such constructions, the petitioner preferred an appeal to the competent authority and also moved an application for grant of NOC through KGMU on 20.1.2018 before the appropriate authority. The application for grant of NOC was being processed by the competent authority by asking for a joint inspection to be carried out and also by asking the petitioner to submit the Heritage Impact Assessment Report. The National Monuments Authority in its 218th Meeting held on 6.3.2019, rejected the application for grant of NOC on the ground that constructions had already started. The Minutes of Meeting dated 5th and 6th March, 2019 and the decision to reject the application for NOC along with the order passed by the respondent no.5 dated 6.2.2019 were both challenged in statutory appeal.
18. This Court has also perused the language of the Sections, which provide that 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 grant of NOC. In this case, an application for grant of NOC was moved by the petitioner through KGMU, respondent no.7.
19. It is undisputed that the land belongs to the Government and the Department of Medical Education and Training. The administrative and financial sanction has been given by the Department of Medical Education and Training in consultation with the Department of Finance and Law to the petitioner, which is only a Project Implementation Agency. No application has been made by the Government i.e. the Department of Medical Education and Training to the Ministry of Culture for grant of NOC.
20. The appellate authority having quoted Section 20(C)(2) of the Act has failed to notice this fact that the Department of Medical Education and Training is the owner in possession of the land in question on which, the Transit Nurses Hostel is proposed to be built.
21. The Department of Medical Education and Training and respondent no.7 shall file an application for permission to raise constructions before the Competent Authority and the Competent Authority shall thereafter forward such an application along with Joint Inspection report and Heritage Impact Assessment Report, which was submitted earlier.
22. The appropriate application shall be moved within three weeks from the date, a copy of this order is produced before the Government of U.P. i.e. proforma respondent no.8.
23. The Competent Authority shall take an appropriate decision in the matter within a period of three months from the date, the Government of U.P., Department of Medical Education and Training and respondent no.7 move their application.
24. The competent authority shall consider the fact that if due to inadvertence, any construction was raised by the Project Implementation Agency and the owner in possession of the land in question had not moved such an application for prior approval/permission from the Competent Authority, the ultimate brunt of such an order for demolition of construction already raised in the regulated area, shall be borne by the public Exchequer. The Transit Nurses Hostel is being constructed for an avowed public purpose. No private or vested interested is going to be served in construction of such Hostel.
25. For a period of five months or till the date of taking of decision on the application proposed to be moved, no demolition of construction already carried out, shall be done by any authority. However, no further construction can be raised by the petitioner till an appropriate decision is taken by the competent authority.
26. The writ petition stands disposed of.
Order Date :- 2.1.2020 Sachin