Rajasthan High Court - Jodhpur
Sunil Paliwal vs State Of Rajasthan on 9 January, 2020
Bench: Indrajit Mahanty, Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 13795/2018
Sunil Paliwal S/o Shri Swaroop Lal Paliwal, Aged About 33 Years,
By Caste Paliwal, Resident Of 696-B, Indra Colony, Jaisalmer
(Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Principle Secretary,
Department Of Tourism, Art And Culture, Rajasthan.
Jaipur.
2. State Of Rajasthan, Through Director, Department Of
Archaeology And Museums, Albert Hall, Jaipur.
3. Deputy Director (A And M), Department Of Archaeology
And Museums, Jaipur.
4. The Superintendent, Archaeology And Museums
Department, Circle Jodhpur.
5. The Curator, Government Museum, Jaisalmer.
6. JSW Foundation, Through Chairperson Having Its
Registered Office At 6, Prithvi Raj Road, New Delhi.
7. The Authorized Signatory, Jsw Foundation Having Its
Administrative Office Jindal Mansion, 5-A, Dr. G.
Deshmukh Marg, Mumbai (Maharashtra).
8. Raj Westpower Ltd., Through Its Director Having Its
Registered Office Jsw Centre, Bandra Kurlla Complex,
Bandra (East), Mumbai (Maharashtra). Currently
Operating Branch Office At Village And Post Bhadresh,
Dist Barmer (Raj.)
9. M/s Abha Narain Lambah Associates, Through Its
Designated Authority Having Its Registered Office 201,
Amrit, B-Wing, Carter Road, Khar West, Mumbai
(Maharashtra).
10. Jaisalmer Vikas Samiti, Jaisalmer, Through Its Chair
Person District Collector, Jaisalmer.
11. District Collector, Jaisalmer.
----Respondents
For Petitioner(s) : Mr. Manas Ranchhor Khatri
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For Respondent(s) : Mr. Karan Singh Rajpurohit, AAG with
Mr. Surendra Singh
Dr. Sachin Acharya with Mr.
Manvendra Singh
Mr. Yuvraj Singh
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 09/01/2020
1. This writ petition, in the form of Public Interest Litigation, under Article 226 has been preferred claiming the following reliefs:
"I. By an appropriate writ, order or direction, the permission granted by Director, Department of Archaeology and Museums, Jaipur on 26.09.2016 (An.6) vide letter No.12498 and permission granted by Deputy Director, Department of Archaeology and Museums, Jaipur on 17.01.2017 (Anx.8) vide letter no.437 to designs, layout plans and drawings for installation of cafeteria including choki dhani restaurant, development of pool for boating, space to be developed for cultural dance and other performances, development of mini market place, shop stalls and development of suits and tent resorts and other commercial establishment inside the protected monument Village Kuldhara may kindly be revoked.
II. By an appropriate writ, order or direction, the respondent may kindly be directed to remove cafeteria, pool for boating, space developed for cultural dance and other performances, space developed for mini market place and other commercial (Downloaded on 16/02/2020 at 01:50:15 PM) (3 of 14) [CW-13795/2018] establishments installed inside the protected monument Village Kuldhara.
III. By an appropriate writ, order or direction, the respondents may kindly be directed not to charge themselves or through any person or agency acting on their behalf entry fee or any other kind of charges from the people of Paliwal Community visiting the protected monument Village Kuldhara. IV. By an appropriate writ, order or direction, the respondents may kindly be perpetually restrained to begin, carry out or conduct any kind of commercial or business activity within the periphery of the Village Kuldhara (protected monument).
V. By an appropriate writ, order or direction, the respondents may kindly be directed to restore the old structures using the old stones which have been demolished and replaced with new construction for development of administrative block, Information Centre, Cafe Building, Model House and guard houses within the protected monument Village Kuldhara. VI. By an appropriate writ, order or direction, the respondent No.1 and 2 may kindly be directed to amend the provisions of the Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 in the light of the Central Statute. The Ancient Monuments, Archaeological Sites and Remains Act, 1958 for framing of bye laws with respect to each protected monument as provided under Section 20E of the Central Statute and thereafter be directed to frame bye laws for Village Kuldhara to protect its historic importance and intrinsic value.
VII. By an appropriate writ, order or direction, any other order which the Hon'ble Court deems fit for protecting and preserving the historical importance and artistic value of the protected monument Village Kuldhara."(Downloaded on 16/02/2020 at 01:50:15 PM)
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2. Village Kuldhara was established by the sub-caste Kuldhar of Paliwal community. The houses were built using yellow stones of Jaisalmer embedded with carvings of renowned artisans of the prevailing time. The temple, Bawdi, chowki etc. are the regular feature of the village, but the villagers vacated the place in question about two hundred years ago, and the historical structures 18 kms. from the Jaisalmer City have gained immense tourist attraction.
3. Mr. Manas Ranchhor Khatri, learned counsel for the petitioner has laid at length the details of the suggestions for protecting the monument in question. The detailed deliberations and pleadings have been filed by all the parties.
4. The most credible of the pleadings on record are that of the Archaeological Survey of India (ASI), in the form of a report, which is in pursuance of the orders dated 06.05.2019 and 05.08.2019 passed by this Court. The said orders read as under:
Order dated 06.05.2019 :
"1. The Court has heard learned counsel for the parties and is of the opinion that for further clarity in these proceedings, the Archeological Survey of India (ASI) should be involved in the process of evaluation of the conservation activities, which are in dispute.
2. In these circumstances, the Director General of ASI is hereby requested to constitute an expert Committee - comprising of both experts within the Institute having specific expertise in the area and also include outside experts to be nominated with suitable experience. The Committee should be headed by senior ranking officer not less than Dy.Director General. The Committee shall visit the site and after considering all aspects, prepare its report. The report (Downloaded on 16/02/2020 at 01:50:15 PM) (5 of 14) [CW-13795/2018] shall enclose relevant photographs, sketches, maps etc. The Committee is requested to complete its task within 12 weeks and submit the report to this Court.
3. It is open to the 9th Respondent, the concerned Architect to give her inputs to the Committee during the course of its deliberations.
4. The petitioner may also furnish copies of the old photographs and other relevant information such as maps, literature etc., of the village to the Committee.
5. List on 5th August, 2019.
6. A copy of this order shall be separately sent by the Registry to the Director General, Archeological Survey of India, 24 Tilak Marg, New Delhi."
Order dated 05.08.2019:
"By the previous order, this Court had directed the Director General of ASI to constitute a team to inspect the site and report to the Court. Though, the office file indicates that service was complete, the ASI has not responded.
Mr. K.S. Lodha assistant to Mr. M.S. Singhvi, learned Advocate General appearing for the ASI assures the Court that the Director General of ASI will take appropriate and expeditious steps to comply with the Court's order.
List on 16.09.2019."
5. The conservation, preservation and protection activities in relation to the monument in question are going on, which is apparent from the report of ASI. The said report reads as follows:
"A Report on the Conservation Activities at Kuldhara, Rajasthan.
In compliance of the order of the Hon'ble High Court Judicature for Rajasthan at Jodhpur dated 06/05/2019 and 05.08.2019, a committee was constituted by the Director General, Archaeological Survey of India, to evaluate the (Downloaded on 16/02/2020 at 01:50:15 PM) (6 of 14) [CW-13795/2018] activities carried out by the Rajasthan State Department of Archaeology in Kuldhara.
The following were the members of the committee:-
1. Dr. M. Nambirajan, Joint Director General (Monuments) ASI, New Delhi.
2. Director, Archaeology and Museum, Govt. of Rajasthan, Jaipur.
3. Dr. V.S. Badiger, Superintending Archaelogist, Jodhpur Circle, Jodhpur.
4. Shri Girish Anan0t Kulkarni, Superintending Archaeologist Engineer, ASI, New Delhi.
5. Dr. Chandramani Singh, Former Director, Jawahar Kala Kendra, Jaipur, Co opted Member.
The Committee visited Kuldhara on 26/08/2019 and inspected the site. The representatives of JSW foundation and Shri Sunil Paliwal, petitioner in the PIL D.B. Civil Petition No.13795/2018, were also present. Kuldhara It is located at about 18 km south-west of the Jaisalmer city. It had three longitudinal roads, which were cut through by a number of latitudinal narrow lanes. The remains of a city wall are on the north and the south of the site. The dry-river bed of the Kakni River is on the east. The Kuldhara village was originally settled by Brahmins who had migrated from Pali - hence Paliwals- to Jaisalmer region. They established about 84 villages in the region. It was a prosperous community. The houses were built of locally available stone and some of them were two storied. They had rectangular columns around open courtyard. The village had four pathways running through and was protected by a boundary wall. Today almost all structures are in ruined condition with broken walls and stones scattered all over. The ruins of the Kuldhara village include hundreds of residences, 3 cremation grounds, with several memorial stones.
The village was deserted in the 19th century, for unknown reasons. Possible causes could be invasions by enemies targeting their wealth, lack of water and the atrocities of a Diwan (official) named Salim Singh. Some scholars suggested that Kuldhara and other neighboring (Downloaded on 16/02/2020 at 01:50:15 PM) (7 of 14) [CW-13795/2018] Paliwal villages (such as Khabha) were destroyed by an earthquake.
The Kuldhara Development Project The Kuldhara village was declared as a state protected monument in 2008. In 2015, the Rajasthan government decided to take up restoration of the site and develop the village as a tourist spot. The project was undertaken as a public-private partnership with Jindal Steel Works. The plan included establishment of visitors facilities such as a cafe, a lounge, a folk-dance performance area, night-stay cottages and shops, apart from museum and an administration block. An agreement was signed on 29 th September, 2015, between Rajasthan government and the JSW Foundation to restore the site as per approved concept plan which was prepared by the JSW Foundation. The restoration was to be carried out strictly as per management plan approved by the Director, Archaeology and Museums, Government of Rajasthan. (Copy enclosed). The project was funded by the Raj West Power Ltd, a JSW group, under the CSR Scheme. The project consultant was M/S Abha Narain Lambah Associates, Mumbai. A letter was written by the Director, Archaeology and Museums, on 26.09.2016, enumerating the condition which is to be followed while restoring the monument. (Copy enclosed). As a first step towards restoration and normal procedure the JSW prepared documentation drawing of the site and the work started immediately thereafter.
The approved items of work included Construction of administrative office and souvenir shops, cafeteria block, periphery development of nearby temple and main villages square, model house of Paliwal, cobbled pathways, guard rooms, parking, restoration and reconstruction of works, stone signages, benches, garbage bins etc. Of these museum, admin block, model house, signages, benches have been completed.
It was informed during discussions that there were periodical site inspections by the State department of archaeology to monitor the progress. There were instances (Downloaded on 16/02/2020 at 01:50:15 PM) (8 of 14) [CW-13795/2018] of modifications on work carried out after such visits (Copies enclosed).
Based on the site visit, discussions, examination of documents, photographs and inputs from the consultants and the petitioners, following observations are made:-
1. Out of nearly, 400 ruins of residences, five have been restored fully and they are named as administrative Office, museum shop, Model Paliwal House, Museum and cafeteria.
2. They have been restored to extant more than what was required. Model Paliwal house is a good idea which would give the visitor a feel of life style and culture of the original occupants.
3. One of the buildings has been re-designed and restored to function as restaurant (with vegetarian and non-vegetarian section), which is not in consonance with to the original character of the monument. Non vegetarian section may hurt the sentiments of the Paliwal community, who are basically vegetarians.
4. Five guard rooms, which are not part of the original site have been constructed under the project, which is a new introduction. These guard rooms actually not necessary there. May consider relocating them somewhere.
5. An instance of letting the site on rent for hosting events which are not in consonance with the nature of the site has been brought to the notice.
6. The facilities such as toilets, restaurant are basic visitors amenities but they could have been provided within the complex but away from the core area of the monuments.
7. Five structures are already fully restored and renovated using huge amount of public money. The consultant architect explained that universally acceptable restoration methods have been followed. A few pictures of similar restoration carried out in foreign countries in similar context were provided to us. They can be put to use as proposed in the concept plan. It is a fact that facilities such as administration (Downloaded on 16/02/2020 at 01:50:15 PM) (9 of 14) [CW-13795/2018] block, museum and cafeteria are very much essential requirements at any important heritage site for better management.
8. The model house is an interesting concept. With regard to restoration of its exterior and roof, care has been taken to follow original construction method, however it is opined that interiors have been modernized beyond required level. Any intervention should be reversible and to the minimum extant possible. Wherever new stones are used they shall be selected as per original material, matching fabric and color with a view to maintain their integrity and authenticity. At the site it was informed by the consultants that purpose of reconstructing a modal house was to give the visitors a fell of the house of the Paliwals at their glory.
Recommendations
1. As the restoration of five building has been completed, it is opined that they may be used as museum, administration block, visitors centre, model house etc as per their proposal.
2. The guard rooms - a new introduction - are not needed in the main pathway and can be considered for relocation.
3. The food plaza can be utilized and no further construction may be made.
4. The monument proper may not be let out on rent for use as dining area.
5. Temporary roof over the restored structures as proposed design may be allowed as and when needed. However a flat roof is suggested instead of a Hip Roof. A hip roof is a type of roof where all sides gently incline towards the walls.
6. All other structures needs to be restored/ strengthened/ consolidated up to the extant level or one or two courses of wall may be constructed above the existing height to prevent further deterioration and using the available stones taking in to consideration the level of conservation measure (Downloaded on 16/02/2020 at 01:50:15 PM) (10 of 14) [CW-13795/2018] required. Decision may be taken on case to case basis. Water tightening is required to be done to prevent water seepage."
6. Mr. Karan Singh Rajpurohit, learned Additional Advocate General states that the ASI recommendations are acceptable to them and they shall implement the same in totality.
7. Learned counsel for the petitioner however, submits that stringent parameters may be laid down by this Court in addition to the recommendations made by the ASI so as to give maximum impetus to the preservation, conservation and development of the monument in question.
8. Dr. Sachin Acharya, learned counsel appearing on behalf of respondents No.6 to 9 submits that they had undertaken some developmental work in respect of the monument in question under the CSR Scheme, and that, apart therefrom, some of the development has been done by Jaisalmer Vikas Samiti.
Dr. Acharya also apprised this Court that respondent No.6 has taken help of the best of the experts and invested huge amount to protect and preserve the heritage of the country. Dr. Acharya also submitted that no development, detrimental to the preservation and conservation of the monument, shall be undertaken, and that, though the present task is complete, but in the interest of the monument in question, if any further work is assigned to them, they shall appropriately complete the same.
9. After due deliberations with learned counsel for the parties, this Court is of the opinion that the report of the ASI enables this Court to set at rest the present controversy.
10. This Court appreciates the report prepared by the experts of the ASI, which has been furnished by learned counsel (Downloaded on 16/02/2020 at 01:50:15 PM) (11 of 14) [CW-13795/2018] for the ASI, Mr. Yuvraj Singh, and the recommendations made therein are accepted, and thus, the State is directed to carry out further preservation, conservation and development of the monument in question, in light of such report as per the assurance given by the learned Additional Advocate General and also while treating the same to be as directions of this Court in this writ petition.
However, while accepting the recommendations made by the ASI, this Court further directs that any developmental work which has to take place regarding new construction shall be undertaken only on the left flank of the road, which divides the actual heritage monument and the vacant land, while travelling from the entrance, as shown to this Court on the computer screen by the parties in the visuals of the entire site which were captured by drone photography giving the complete status.
11. Thus, this Court gives the following directions, apart from the recommendations of the ASI:
(i) All necessary steps for conversation, protection and development of the monument in question shall be undertaken.
(ii) Any fresh construction shall take place on the left vacant flank of the road and not on the right flank, where actually the heritage monument is located.
(iii) No construction already made by the private respondents shall be required to be removed, except for the over ground guard rooms which may be taken underground to avoid being an eyesore as already recommended by the ASI.(Downloaded on 16/02/2020 at 01:50:15 PM)
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(iv) Except for the toilets and the resting area and for an arrangement for sale of souvenirs regarding the site in question, the actual monumental area shall not be utilized for any restaurant or any commercial activity.
(v) The State shall be required to make necessary appointments to provide for necessary manpower in tandem with the ASI report so as to make the conservation, protection and development of the monument in question possible. The necessary deployment in consultation with ASI shall be made within a period of three months from today.
(vi) Water and electricity supply shall be kept underground to avoid any eyesore to the monument in question.
(vii) Any commercial usage shall be permissible only on the left flank of the vacant road where the tents and structures can be created.
(viii) Any structure established afresh on the left flank of the road shall not be of more than one storey, and thus, everything shall have to be on the ground floor, in case established.
(ix) The State shall take all necessary steps to facilitate the tourist movement in the monumental area.
(x) The renovations/constructions already made in the monumental area shall not be demolished, but the same shall not be utilized for any commercial activity. Any non-
commercial use to those facilities can be provided in the interest of tourist, but any commercial activity shall have to be shifted to the left flank of the monumental area.
(xi) The model house and other development done under CSR Scheme shall be preserved and maintained. (Downloaded on 16/02/2020 at 01:50:15 PM)
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(xii) The respondents shall develop a mechanism for levying of entry fee, its collection and other charges so as to ensure proper streamlining of the funds for the development and maintenance of the monument in question.
(xiii) The CSR activity conducted by the respondent no.6 in consultation with respondent no.9 under this project has apparently given an impetus to the conservation of the monument in question and similar endeavor shall be continued to restore, protect and conserve the rest of the monuments also. However, since the current work of the respondent no.6 has already been undertaken, necessary handing over - taking over shall be completed by the respondents within a period of one month from today ensuring smooth exit of the respondent no.6 from the present project.
12. This Court appreciates the CSR and ASI efforts to develop the overall monuments and hope that such cooperation shall continue as per the directions given. However, if any recommendation of the ASI is contrary to the directions given by this Court at the end, the directions given by this Court shall have overriding effect and the same shall be followed strictly.
13. At this stage, learned counsel for the petitioner also raises an issue of a crematorium, which is a cremation ground next to the monument in question and is comprised in some portion of khasra No.49 & 100 and complete land of khasra No.97.
14. This Court directs the petitioner to give a detailed representation before the State authorities for preservation and conservation of the cremation ground, which is adjacent to the monument in question. The State in turn shall take appropriate (Downloaded on 16/02/2020 at 01:50:15 PM) (14 of 14) [CW-13795/2018] decision in this regard, after due application of mind and strictly in accordance with law.
15. With the aforesaid observations and directions, the present petition stands disposed of. All pending applications also stand disposed of accordingly.
(DR. PUSHPENDRA SINGH BHATI),J (INDRAJIT MAHANTY),CJ 7-SKant/-
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