Delhi High Court - Orders
National Monuments Authority & Anr vs Mahindra Kumar Rohatgi & Ors on 15 November, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~36-38.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 64/2021
NATIONAL MONUMENTS AUTHORITY & ANR...... Appellant
versus
MAHINDRA KUMAR ROHATGI & ORS. ..... Respondent
+ LPA 65/2021
NATIONAL MONUMENTS AUTHORITY & ANR...... Appellant
versus
MAHINDRA KUMAR ROHATGI & ORS. ..... Respondent
+ LPA 66/2021 and CM APPL. 5666/2021
NATIONAL MONUMENTS AUTHORITY & ANR...... Appellant
versus
MAHINDRA KUMAR ROHATGI & ORS. ..... Respondent
Through:
Memo of Appearance:
For the Petitioners
Mr. Ripu Daman Bhardwaj, CGSC with Mr. Kushagra Kumar, Advocate for
Petitioner in all the matters.
For the Respondents.
Mr. Ajay Bhargava with Mr. Aseem Chaturvedi and Mr. Raddhika Khana
Tandon, Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:22.11.2022
15:45:23
ORDER
% 15.11.2022 The Appellants herein have approached this Court against orders dated 10.11.2020, 16.10.2020, 18.12.2020 passed by this Court in W.P.(C.) No. 13145/2019. The aforesaid orders arise out of a single writ petition and raise similar questions of law and are therefore being disposed of vide a common order.
A perusal of the order dated 10.11.2020 reveals that an application was preferred for modification of order dated 16.10.2020. The order dated 16.10.2020 passed in W.P.(C.) No. No.13145/2019 reveals that the Petitioners were aggrieved by the inaction on part of Respondent no.2 apropos consideration of their application for grant of "No Objection Certificate" ('NOC') for completion of their building and came up before this Court stating that the building in question is 90-95% complete and it just requires finishing touches. The application for grant NOC was rejected by the Respondent No.2 therein without hearing the writ petitioners and it was in these circumstances that the order was passed, to hear the Petitioners and pass a fresh order. Thereafter, another order was passed on 10.11.2020 and the same reads as under:
"The hearing was conducted through video conferencing. CM APPL. 28673/2020 (fresh by R-2 for modification of order dated 16.10.2020)
1. This application seeks clarification of the order dated 16.10.2020 as it is of the view that the applicant/National Monument Authority („NMA‟), has there is no power to pass an order after it has given its view (under the provisions of the of the Ancient Monuments and Archaeological Sites and Remains Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.11.2022 15:45:23 Act, 1958 („AMASR Act‟) and that it does not have any power to grant ex-post facto approval/permission or to regularize constructions already made.The relevant portion of the order dated 16.10.2020 reads as under:
"....
7. The petitioners‟ application for grant of NOC was rejected by respondent no. 2 without hearing them, simply because the petitioners had started the construction of the building. Surely, this cannot be a reason for rejection of the application, if in substance the petitioners have a right to construct the property upto a certain height. It is also not the case that the petitioner did not have a sanctioned building plan. The Municipal Corporation is deemed to have considered all aspects when it sanctioned the building plan and also of the need to take permission from other authorities in such regulated areas. The petitioners cannot be found wanting in their action. However, for the issue of regulation of the height of the building R-2 would need to take a decision. ....."
2. The order clearly notes that the petitioners‟ application was dismissed without their being heard, which is a clear denial of natural justice. Therefore, such a dismissal would be non est in law. That being the position, the Court had directed the NMA to reconsider the issue apropos the height of the building in question. It appears that the NMA wishes to insist upon its own order which ex facie is wrong in law. It has not complied with the order within the time span given to it.
3. The learned counsel for the petitioners/non-applicant, who appears on service of advance copy, refers to the applicant‟s own documents, i.e. Annexure R-2/2, which is advice given by the Ministry of Law and Justice, Government of India, apropos building construction having been started by a party prior to making an application for NOC from the NMA. The said document reads, inter alia, as under:
".... So far as providing of NOC is concerned in such cases, fresh application, if any may be processed as per the provisions of the AMASR Act read with the provisions of the Ancient Monuments And Archaeological Sites and Remains (Framing of Heritage Bye-Laws and Other Functions of the Competent Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.11.2022 15:45:23 Authority) Rules,2011 and decision thereon may be taken as per Rules. ..... "
4. That being the position, the applicant knew fully that even where construction may have already started or even completed, a subsequent application seeking a NOC would have to be considered on its merits. The objective of the AMASR Act is that the height of the buildings in the regulated area would have to be maintained in terms of permissible limits.
5. Since the timeline given by the Court has expired, the applicant/NMA shall hear the petitioners on 25.11.2020 in terms of the previous order, and the decision of the NMA shall be communicated to the petitioners on or before 14.12.2020.
6. The application stands disposed-off in terms of the above. W.P.(C) 13145/2019 & CM APPL. 53541/2019
7. List on 14.12.2020 i.e. the date already fixed.
8. The order be uploaded on the website forthwith."
The aforesaid order was passed on an application preferred by the National Monument Authority stating that under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 it does not have any power to grant ex-post facto approval/permission to regularize constructions already made.
The learned Single Judge had again directed the National Monument Authority to hear all the Petitioners and to pass a fresh order. The fact remains that the main matter is still pending before the learned Single Judge and by way of interim orders, the National Monument Authority was directed to pass orders in the matter pertaining to grant of NOC, after hearing the Petitioners.
This Court has already granted an interim order in the present case on 18.02.2021, meaning thereby, the National Monument Authority has not Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.11.2022 15:45:23 passed any final order in the matter as directed by the learned Single Judge. In the considered opinion of this Court, the matter has to be heard on merits finally and, therefore, the present case is remanded back to the learned Single Judge to be decided on merits. Till then, the interim order passed in the present LPA shall continue. The learned Single Judge is requested to decide the matter on merits after taking into account all the grounds raised by the parties in accordance with law, at an early date. It is needless to mention that this Court has not expressed any opinion on the merits of the case.
The appeal stands disposed of in the aforesaid terms.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J NOVEMBER 15, 2022 N.Khanna Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.11.2022 15:45:23