Delhi High Court
Emca Construction Co. Thr. M.P. Gupta vs Archaeological Survey Of India & Ors. on 30 October, 2009
Author: S. Muralidhar
Bench: Chief Justice, S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 30th October 2009
LPA 417/2009
EMCA CONSTRUCTION CO. THR. M.P.GUPTA ..... Appellant
Through: Mr. Rakesh Tiku, Adv.
versus
ARCHELOLOGICAL SURVEY OF INDIA & ORS. ..... Respondents
Through: Mr. Jayant Tripathi, Adv. for R-1/ASI
Mr. Aman Lekhi, Mr. Ashok Bhasin, Sr. Advs.
with Mr. Rahul Kumar, Adv. for R-4
Mr. Ajay Arora, Mr. Kapil Dutta, Adv. for MCD
Ms. Jyoti Singh, Adv. for GNCTD
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
S. MURALIDHAR, J:
1. Not very far from this Court is located the Humayun‟s Tomb. It is a
historical monument. It is a mausoleum built for the Mughal emperor
Humayun who ruled between 1530 and 1540 and again from 1555 till 1556
when his son Akbar took over the reins. The construction of the mausoleum
was commenced by Humayun‟s senior widow Hamida Banu Begum also
known as Haji Begum in 1565, nine years after his death. A Persian architect
Mirak Mirza Ghiyath was commissioned to design and build it. It is stated to
exemplify a synthesis of Persian and Indian traditions of architecture. The
arched alcoves, corridors and the high double dome signify the Persian
influence and the kiosks which give it a pyramidal outline from a distance are
attributed to the Indian influence. It is believed to have inspired the design of
LPA 417/2009 Page 1 of 25
the Taj Mahal, a monument built many years later in Agra by Humayun‟s
great grandson Shahjahan.
2. Humayun‟s tomb is square red sandstone double-storeyed structure that
rises from a 7 m. high square terrace, raised over a series of cells accessible
through arches on each side. Externally on each side of the tomb are
elevations decorated by marble borders and panels. Around the high marble
double dome in the centre are pillared kiosks. The tomb is a beautiful sight to
behold, even when viewed from a distance. The nearly 450 year old
Humayun‟s tomb is a major tourist attraction in Delhi. It has been declared as
a world heritage monument. It is a protected monument within the meaning of
the Ancient Monuments Archaeological Sites and Remains Act, 1958 („the
1958 Act‟) and the Ancient Monuments Archaeological Sites and Remains
Rules, 1959 („the 1959 Rules‟). Consequent to a notification issued on 16 th
June 1992 by the central government, an area of 100m surrounding the
Humayun‟s tomb has been declared a "prohibited area" within which no
construction activity is permitted.
3. The tomb is now located in an area of New Delhi known as Nizamuddin
East. It is surrounded by a residential colony. The continuing construction
activity in the said residential colony is a cause for concern. It has given rise
to the present proceedings.
4. This appeal by EMCA Construction Co. is directed against the interim
orders dated 31.3.2009 and 4.8.2009 passed by the learned Single Judge in
LPA 417/2009 Page 2 of 25
CM No. 4260/2009 in WP(C) No. 7889/2009. By the interim order dated
31.3.2009 the parties were directed to maintain status quo with regard to the
construction in respect of the property at A-10, Nizamuddin East, New Delhi
(hereafter „the said property‟) and by the subsequent order dated 4.8.2009, the
earlier interim order was made absolute.
5. The aforementioned writ petition was filed by Mr. Gaurang Kanth, an
Advocate having his office at A-9 (Basement), Nizamuddin East, New Delhi.
The grievance in the writ petition was that the Archaeological Survey of India
(ASI), respondent No.1 herein, had by a communication dated 1.8.2008
granted permission to the appellant EMCA Construction Company for
reconstruction of the ground, first and second floor at the said property (at A-
10, Nizamuddin East) despite the fact that the said property was located
within 100 m. of Humayun‟s Tomb,
6. The appellant, EMCA Construction Company, filed a reply to the writ
petition along with an application CM No. 5221/2009 seeking vacation of the
interim stay granted on 31.3.2009. The ASI had also filed its reply to the writ
petition on 27.5.2009. The case of the appellant in its reply to the writ petition
was that it had purchased the said property in 2005. The building was an old
one and so the appellant decided to reconstruct it. Since in certain other cases
ASI had granted permission for reconstruction, the appellant applied to the
ASI for permission for the reconstruction. This was, however, rejected by the
Superintending Engineer, ASI, Delhi Circle by an order dated 28.2.2008.
Aggrieved by the said order, the appellant filed an „appeal‟ before the Director
LPA 417/2009 Page 3 of 25
General, ASI on 5.3.2008. The appellant, in the meanwhile, also sought
permission from the Municipal Corporation of Delhi (MCD) for carrying out
construction on the said property. The case of the appellant was placed before
an Expert Advisory Committee („Committee‟) of the ASI on 7.5.2008. The
Committee recommended that permission could be granted. Accordingly the
Director General, ASI by the communication dated 1.8.2008 accorded the
appellant permission for reconstruction of the building comprising ground,
first and second floor at the said property. This was challenged in the above
writ petition by Gaurang Kanth. The appellant again applied to the ASI on
19.8.2008 for constructing ground plus three floors along with the basement
on the said property. In response thereto, the ASI by its letter dated 6.3.2009,
granted the appellant permission to reconstruct up to a maximum height of
12.5 m. besides mumty over the terrace up to maximum height of 2.5 m.
Thereafter, the appellant applied for and was granted building sanction by the
MCD on 20.3.2009. It is contended that since there was no violation of any
statutory provision of law, no interference was called for with the proposed
construction by the appellant on the said property.
7. In its affidavit dated 27.5.2009 before the learned single Judge, the ASI
pointed out that the writ petitioner Mr. Gaurang Kanth had not come to the
Court with clean hands. According to the ASI, the entire building at A-9,
Nizamuddin East had been constructed illegally without taking any
permission from the ASI as required by law and as such, the entire building
was liable to be demolished. Since this fact had not been disclosed in the
petition, it deserved to be dismissed. It was submitted that the petition was
motivated and was "essential to stop construction in the building adjacent to
LPA 417/2009 Page 4 of 25
that of the neighbour" and was therefore an abuse of the process of Court. It
was further submitted that the writ petitioner‟s building was "closer to the
Humayun‟s Tomb" and therefore there was no question of any view of the
Tomb being blocked if the proposed construction was allowed.
8. In the said affidavit of the ASI, a reference was made to an order dated
23.7.2004 passed by a Division Bench of this Court in Archaeological Survey
of India v. Narendra Anand [FAO(OS) 414/2002] and Heritage & Cultural
Forum v. Union of India [WP(C) No. 2635/2002]. According to the ASI, in
view of the directions of the Division Bench and in view of the fact that there
were a number of cases where persons desired to construct/reconstruct upon
their property falling within the 100 m. Zone of a protected monument, an
Expert Advisory Committee (Committee) comprising eminent experts was
constituted to aid and advise the Director General, ASI for dealing with such
cases. The Committee was headed by the Director General, ASI and a
renowned historian and archaeologist, an expert in urban planning, and a
leading expert on the history of Delhi. ASI explained that the Committee
"examines all proposals where a relaxation of the rule prohibiting construction
within the 100 mts. area is asked for, and decides on a case to case basis such
applications." It was pointed out that the case relating to the construction at
the said property was decided by the Committee at its meeting held on
22.1.2009. The ASI defended the permission granted to the appellant herein
for carrying on construction in the said property. It was submitted that Rule 37
of the Rules provided for an appellate mechanism and since the Committee
had examined the proposal and opined that the proposed construction did not
threaten the integrity of the monument, did not affect the access of the public
LPA 417/2009 Page 5 of 25
to the monument or otherwise impair the skyline in relation to the monument,
permission was granted "as per the norms." It was further stated that "there is
no threat or danger of any kind to the monument of Humayun‟s Tomb on
account of the construction at A-10, Nizamuddin East which is at a distance of
88 metres from the said monument." According to the ASI, the writ petitioner
had not produced any material, scientific or expert evidence to substantiate his
allegation of danger to the monument.
9. It may be mentioned that initially by an order dated 28.8.2009 in the present
appeal, while granting a stay of the orders dated 31.3.2009 and 4.8.2009, it
was prima facie observed by this Court that the writ petitioner Mr. Gaurang
Kanth had no locus standi to maintain a writ petition as "he himself is
occupying the adjoining building which has been constructed admittedly
without any permission from the ASI." This Court also expressed a prima
facie opinion that "appellant company who had obtained mandatory prior
approval of the ASI could not have been restrained from carrying out
construction without either disposing of appellant-Company‟s application for
vacation of ex-parte ad-interim stay or without giving reasons."
10. This court has perused the record of the case as available with the ASI and
with the consent of the parties has heard the appeal finally. The submissions
of Mr.Rakesh Tiku, learned counsel for the Appellant, Mr.Aman Lekhi and
Mr.Ashok Bhasin learned Senior Counsel for Mr.Gaurang Kanth, Mr.Jayant
Tripathi, learned counsel for the ASI, Mr.Ajay Arora, learned counsel for the
MCD and Ms.Jyoti Singh learned counsel for the GNCTD have been heard.
LPA 417/2009 Page 6 of 25
11. The genesis of the present case is the Notification dated 16.9.1992 issued
by the central government Union of India prohibiting any construction within
100 mts. of a protected monument. The said notification reads as under:
"THE GAZETTE OF INDIA
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,
Archeological Survey of India no. S.O. 1447 dated the 15th
May 1991, published in the Gazette of India, part II,
Section 3, sub-section (ii) dated the 25th May 1991, the
Central Government gave one month‟s notice of its
intention to declare areas up to 100 meters from the
protected limits and further beyond it up to 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 Monuments 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 to similar declarations already made in
respect of monuments at Fatehpur Sikri; Mamallapuram;
Golconda Fort, Hyderabad, Andhra Pradesh; Thousand
Pillared Temple, Hanamkonda, district Warangal, Andhra
Pradesh; Sher Shah‟s Tomb, Sasaram, Bihar; Rock Edict
of Ashoka, Kopbal, district Raichur, Karnataka; Fort Wall,
Bijapur, Karnataka; Gomateswara Statute at
Sravanabelagola, district Hassan, Karnataka; Elephanta
Caves, Gharapuri, district Kolaba, Maharashtra.
[No. F.8/2/90-M]
M.C. JOSHI,
Director General."
12. It is disputed by the ASI that vis-à-vis the Humayun‟s Tomb an area "up
LPA 417/2009 Page 7 of 25
to 100 metres" from its limits is a "prohibited area" and beyond it up to 200
meters is a "regulated area" respectively for purposes of construction. The
recognition of Humayun‟s tomb as a protected monument has itself a long
history. The first step towards legislative protection of monuments in India
was contemplated under the Ancient Monuments Act, 1904. Under Section 3
of that Act, the Central Government was given the power to declare any
ancient monument as a "protected monument". This was followed by the Act
of 1951. Under Section 126 of the States Reorganization Act, 1956,
monuments protected under the 1904 Act situated in Part C States (including
Delhi) were declared monuments of national importance. In 1958, The
Ancient Monuments and Archaeological Sites and Remains Act was enacted.
Under Section 2(j) of the 1958 Act, "protected monument" means any ancient
monument which is declared to be of national importance by or under the
1958 Act. Under Section 3 of the 1958 Act, all ancient and historical
monuments which have been declared as such under the 1951 Act or by
Section 126 of the States Reorganization Act, 1956 "shall be deemed to be
ancient and historical monuments or archaeological sites and remains declared
to be of national importance for the purpose of this Act." Rule 2(f) of the 1959
Rules defines a „prohibited area‟ or „regulated area‟ to mean "an area near or
adjoining a protected monument which the Central Government has, by
notification in the Official Gazette, declared to be a prohibited area, from as
the case may be, a regulated area, for purposes of mining operation or
construction or both."
13. We may at this stage notice the provisions under Articles 49 and 51A (f)
LPA 417/2009 Page 8 of 25
of the Constitution of India which reads as under:-
"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 interests, 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."
"51A. Fundamental duties.___It shall be the duty of every
citizen of India____
xxx
xxx
(f) to value and preserve the rich heritage of our composite
culture."
14. We note that the Supreme Court has in Rajeev Mankotia v Secretary to
President of India AIR 1997 SC 2766 while discussing the provision of the
Constitution and the Act observed as under (AIR SC @ 2767-6 & 2774):
"6. It would, therefore, be manifest that all ancient and
historical monuments and all archaeological sites and remains
or any structure, erection or monument or any tumulus or place
of interment shall be deemed to be ancient and historical
monument or archaeological sites and remains of national
importance and shall be so declared for the purpose of Ancient
Monuments Act it they have existed for a century; and in the
case of a State monument, of State importance covered by the
appropriate State Act. The point of reference to these provisions
is that an ancient monument is of historical, cultural or
archaeological or sculptural or monolithic or artistic interest
existing for a century is of national importance or of State
importance. In other words, either of them are required and
shall be protected, reserved and maintained as national
LPA 417/2009 Page 9 of 25
monuments or State monuments for the basis which not only
gives pride to the people but also gives us insight into past
glory of our structure, culture, sculptural, artistic or
archaeological significance, artistic skills and the vision and
wisdom of our ancestors, which should be preserved and
perpetuated so that our succeeding generations learn the skills
of our ancestors and traditions, cultural and civilisation. They
would have the advantage to learn our art, architecture,
ascethetic tastes imbibed by the authors of the past and to
continue the same tradition for the posterity. Preservation and
protection of ancient monuments, is thus the duty of the Union
of India and the State Government concerned in respect of
ancient monuments of national importance or those of State
importance respectively to protect, preserve and maintain them
by preserving or restoring their original conditions.
21....... We avail this opportunity to direct the Government of
India to maintain all national monuments under the respective
Acts referred to above and to ensure that all of them are
properly maintained so that the cultural and historical heritage
of India and the beauty and grandeur of the monuments,
sculptures secured through breathless and passionate labour
workmenship, craftsmanship and the skills of the Indian
architects, artists and masons is continued to be preserved. They
are pride of Indians and places of public visit."
15. In Wasim Ahmed Saeed v. Union of India 2004 (8) SCALE 159, the
Supreme Court was dealing with the issue concerning 86 shops (of which 19
were shops-cum-residence) found within a 100 m radius of the Fatehpur Sikri,
a protected monument near Agra. The Court ordered:
"As per the report filed in the undated affidavit, which is
tendered in Court today, by Archaeological Survey of India
(ASI) within first 100 metres of monument, there are 86 shops
LPA 417/2009 Page 10 of 25
of which 19 are shops-cum-residence. The ASI is directed to
remove and/or close down within a fortnight from today all
shops within 100 metres. The State of U.P. and the Police are
directed to give all assistance required for such removal. It is
clarified that, for the present, residents must not be disturbed.
The State to consider acquiring some land for the purpose of
rehabilitating the residents.
The ASI and the local police to thereafter ensure that no shop
either in a temporary structure or otherwise comes up within
100 metres. For that purpose both the ASI and the Police to
nominate an officer each, whose names will be given to this
Court. It will be the duty of these officers to supervise the area
every day and ensure that no shop comes up within 100 metres.
If any shop is found within 100 metres these officers will be
held personally responsible and will become liable in contempt.
The named officers not to be transferred without permission of
this Court.
Before demolition/closure takes place, the ASI to note down the
names of the shopkeepers whose shops are being
demolished/closed down. These shopkeepers to be given shops
in Ghata No.244/2."
Similar orders have been passed in M.C. Mehta v. ASI 2005 (4) SCALE 73 in
relation to constructions in the vicinity of the tombs of Zauq and Ghalib in
Delhi.
16. The above provisions and the Notification dated 16.6.1992 were discussed
in extenso by the Division Bench of this Court in Narendra Anand (supra).
The issue there concerned illegal constructions within 100 m of Jantar Mantar,
another protected monument. A plea was made in that case that the Court
LPA 417/2009 Page 11 of 25
should take a "practical and pragmatic approach" to the problem. In response
to that submission, this Court in para 7.6 of the judgment observed as under:
"7.6 We find ourselves to be in agreement with the
submissions made by Mr Lekhi in this regard that a
pragmatic and practical approach must be adopted and we
must not become slaves to a rule of thumb. At the same
time, prima facie, we feel that as long as the Notification
dated 16.6.1992 holds the field, no construction activity
can be permitted within 100 meters of Jantar Mantar.
However, this does not dissuade us from directing the
Central Government to review the operation of its
Notification dated 16.6.1992 and to consider the
provision of a mechanism where the prohibition is
imposed or relaxed on a case to case basis. It is true that
the 100 meter stipulation brings in a certain degree of
objectivity and cuts out subjectivity. But, it also introduces
an element of arbitrariness inasmuch as it treats all
protected monuments alike, which in fact are quite
dissimilar. The degree and type of protection depends upon
various variables such as the nature of the protected
monument, its locale, the weather conditions, the
topography, the soil etc.,. There has to be an application of
mind on these and other issues linked with preservation
and the ASI ought not to hide behind the said notification
and abdicate this vital function of theirs. Public interest lies
in protection and preservation. It also lies in development
and progress. The two opposing forces have to be
harmonised and balanced in the context of time and space.
We feel that prohibition of construction must not be left to
an inflexible rule of thumb but must be arrived at after a
conscious and objective application of mind. There may be
instances where larger prohibited and regulated areas are
necessary, while in others smaller areas of prohibition and
regulation would suffice. Therefore, we direct the
LPA 417/2009 Page 12 of 25
Central Government to review its Notification dated
16.6.1992 in the light of the discussion above within a
period of six months from the date of this judgment."
(emphasis supplied)
17. The highlighted portions of the above order are crucial as far as the
present case is concerned since they are being interpreted to mean that the
Central Government was constrained to set up a mechanism for granting
permission for construction within the 100m area of a protected monument.
Purportedly aggrieved by the above directions, the ASI filed SLP(C) No. (CC
1603 and 1604) of 2005, in the Supreme Court. We have been shown a copy
of the said SLP paper book. The main grievance of the ASI, as set out in the
grounds of the SLP are as under:
"A. It is submitted that the portion of the impugned
Judgment directing review of the statutory notification
dated 16.6.92 is liable to be set aside in as much as
Hon‟ble Delhi High Court ought to have appreciated the
expert role of the Archaeological Survey of India in the
preservation conservation and protection of ancient
monuments, which has set the limit of 100 metres as the
minimum limit after due deliberation and consideration of
all factors.
B. That the Hon‟ble Delhi High Court ought to have
appreciated that the limit of 100 metres, being set by an
expert body which is entrusted with the task of
preservation of the national heritage of India, ought not to
be interfered with, specially in the absence of specific
prayers to that effect.
C. That the Hon‟ble Delhi High Court ought to have
realized that a review of the limits set under the
notification dated 16.06.1992 would lead to situation
where the statutory role of the Petitioner in the protection
of monuments would be diluted;
D. That the Hon‟ble Delhi High Court‟s order directing
review of the Notification dated 16.06.1992 ought to be set
aside in view of the observation made by the Hon‟ble
Supreme Court in W.P. (C) 653 of 1994 dated 02.09.2004
to the effect that there should be no such reconsideration of
the 100 metre limit in respect of ancient monuments.
LPA 417/2009 Page 13 of 25
E. That the Hon‟ble Delhi High Court ought to have
realized that the direction to carry out the review within 6
months is not feasible in as much as the exercise would
entail a review of 4000 monuments, bringing out separate
preliminary and confirmatory notifications in respect of
each of them, with a mandatory gap of 2 months between
the preliminary notification and the confirmatory
notification.
F. That the Hon‟ble Delhi High Court ought to have
appreciated that the in as much as there is constitutional
mandate contained in Article 49 of the Constitution of
India, directing the preservation of monuments, and in as
much as there is a statutory enactment to protect
monuments of national importance, there cannot be any
"trade-off between preservation on the one hand and
development on the other", and the order directing the
review, being based on such reasoning, ought to be set
aside.
18. Along with the above SLP, a prayer for interim relief was also made as
follows:
"(a) Pass an ex-parte ad-interim order, staying the
operation of that part of the impugned combined Judgment
and Final Order dated 23.07.2004 passed by the Hon‟ble
High Court of Delhi in F.A.O. (OS) 414 of 2002 and W.P.
(C) 2635 of 2002, whereby the Hon‟ble High Court has
directed a review of the Notification dated 16.6.1992
within a period of 6 months."
19. On 8.5.2005, the Supreme Court passed the following order in the
aforementioned SLP:
"Delay condoned.
Issue notice. In the meantime, portion of the High Court
order directing the Government to re-consider limits
around ancient monuments is stayed."
20. It appears that nearly one year thereafter on 8.6.2006, the Director General
of ASI prepared a note for approval of the Secretary (Culture) concerning
LPA 417/2009 Page 14 of 25
constructions in prohibited/restricted areas. The said note which is instructive
reads as under:
"Sub.: Construction in prohibited/restricted areas
Secretary (Culture) may kindly recall that a presentation
was made before the Minister (T&C) regarding permission
for construction in prohibited/ restricted areas of the
protected monuments. A set of guidelines which was
prepared by the ASI in consultation with the Legal Advisor
was put up to the Minister (T&C) for consideration and
approval.
During the discussions on the subject, the Minister
(T&C) desired that:
(i) ASI should make a complete photo-documentation
of the surroundings of all protected monuments to
keep a record of the present level of construction
around the monuments.
(ii) Lay down the condition / circumstances under which
reconstruction / renovation of buildings in the
prohibited area may be allowed.
(iii) Constitute a committee to advise the DG, ASI in
giving permission for renovation / reconstruction in
the prohibited areas.
As a meeting of the Superintending Archaeologists
is convened in the 3rd week of June 2006, the matter of
photo-documentation would be discussed and appropriate
instructions will be issued to all the SA‟s. The Legal
Advisor (Shri Sanjay Jain) has already been requested to
discuss the matter at point No.2 above.
Regarding the matter of constitution of an Advisory
Committee, it is submitted that this Committee should
consist of well known experts / professionalists as
permitting construction in the prohibited / regulated area is
a function exercised under the statutory powers. It is for
consideration that the Committee may consist of
(i) Prof. K.T. Ravindran (Expert in Urban Planning,
School of Planning and Architecture)
(ii) Shri Jagat Pati Joshi, former DG, ASI (who
formulated the Ahmedabad guildelines) and
(iii) Smt. Narayani Gupta, Historian and former Prof. of
Jamia Milia Islamia University, Member of the
Expert Group constituted by the Supreme Court for
Red Fort.
LPA 417/2009 Page 15 of 25
This may kindly be placed before the Minister
(T&C) for favour of kind information and approval.
Sd/-
(C. Babu Rajeev)
DG, ASI,
8.6.2006"
21. This was approved by the Union Minister for Tourism and Culture. Later,
on 7.7.2006, two other members, one a landscape Architect and another an
Architect were added to the Committee.
22. In response to a pointed query by the Court, it was candidly stated by
learned counsel appearing for the ASI that although some draft guidelines had
been prepared for functioning of this Committee, those guidelines were never
formally adopted. The said draft guidelines are not to be found even on the
file of the ASI. The fact is that the Committee of the ASI, which has no legal
basis for its functioning, has been examining applications and granting
permissions for constructions within 100m of the protected monuments
contrary to the notification dated 16.6.1992, without any guidelines
whatsoever. This is indeed a matter for grave concern. What is even more
astonishing is that in the notes on the file proposing the setting up of the
Committee, no reference is made either to the order of the Division Bench of
this Court or to the order of the Supreme Court.
23. Learned counsel appearing for the ASI, when asked to explain the basis
for setting up and for the functioning of the above Committee, referred to the
order of the Division Bench. According to him, since only one portion of the
direction issued by the Division Bench requiring the Central Government to
LPA 417/2009 Page 16 of 25
review the Notification dated 16.6.1992 was stayed, the other portion of the
direction requiring it to consider setting up a mechanism for granting
permissions for construction/renovation in relaxation of the Notification on a
case to case basis was operative and that this Committee was accordingly
constituted.
24. We do not find this explanation to be acceptable in law. Clearly, the ASI is
contradicting the very stand taken by it before the Supreme Court in the SLP
referred to hereinbefore. There the ASI has taken the stand the Notification
dated 16.6.1992 prohibiting any construction within a range of 100 m. from a
protected monument is sacrosanct and ought not to be diluted at all. Therefore,
for the ASI now to set up a Committee to consider relaxation of that very
norm on a case to case basis is not only unacceptable as being contradictory to
its own stand, but is also clearly impermissible in law. As of today, the
Notification dated 16.6.1992 prohibiting construction within a range of 100 m.
from a protected monument is in force. That Notification has not been diluted
one bit. To us it seems plain that the ASI is misreading the directions
contained in the judgment of the Division Bench of this Court in Narendra
Anand. If the sentence in question is read as a whole, it is apparent that what
the Division Bench meant was that as and when the Central Government
reviews the position and considers relaxing the norm stipulated in the
Notification dated 16.6.1992, it should also consider setting up of a
mechanism whereby prohibition is imposed or relaxed on a case to case basis.
It is indeed strange that while on the one hand, the ASI has urged before the
Supreme Court that there should be no dilution of the aforementioned
Notification and the Supreme Court has on its urging stayed the direction of
LPA 417/2009 Page 17 of 25
this Court asking the Central Government to review the said Notification, the
ASI has itself set up a Committee to grant permissions in dilution of the said
Notification. The stay granted by the Supreme Court requires the notification
dated 16.6.1992 to be given full effect to without any relaxation of the norm
stipulated therein. The ASI is charged with the statutory duty to ensure this.
Its actions since 8.6.2006 have unfortunately been to the contrary.
25. A desperate attempt was made by learned counsel appearing for the ASI to
justify the setting up and working of the Committee with reference to Rules
33, 35, 36 and 37 of the 1959 Rules. Rule 33 states that no person other than
an archaeological officer shall undertake any mining operation or any
construction in the prohibited area or in a regulated area except under and in
accordance with the terms and conditions of a licence granted by the Director-
General. Rule 33, therefore, does not permit undertaking of any construction
by a person other than an Archeological Officer. It can hardly be invoked for
justifying the setting up of a Committee to grant permissions to private parties
for construction in a prohibited area. There is no doubt that as far as the
Humayun‟s Tomb is concerned, the area covering a radius of 100m
surrounding it is a prohibited area. The construction envisaged to be
permitted in terms of Rule 34 is only for a "regulated area" and not a
prohibited area. The provision under Rules 35, 36 and 37 relate to the grant or
refusal of licence to undertake construction in a "regulated area". These do
not apply to a prohibited area. Consequently, these rules are hardly of any
assistance to the ASI to justify its setting up of a Committee to grant
permission for construction in a prohibited area.
LPA 417/2009 Page 18 of 25
26. There is yet another problem for the ASI. The communication dated
28.2.2008 by the Superintending Archaeologist (SA) addressed to the
appellant reads as under:
"Sir,
With reference to your application dated 23.11.07 on the
subject cited above, I inform you that the site under
reference falls in the prohibited area of South Wall of
Humayun‟s Tomb, a centrally protected monument at a
distance of 82m. As per the Ancient Monuments and
Archaeological Sites and Remains Act, 1958, Rules, 1959
and subsequent notification issued under the rules in 1992,
the permission for construction / reconstruction / addition /
alteration cannot be granted. You are, therefore, requested
not to undertake any construction / reconstruction /
addition / alteration at the site under reference which may
amount to violation of law in force."
In law the SA was right. There was no question of any permission being
granted to the appellant. Further, there was no question of the appellant filing
an appeal against such refusal. Neither the Act nor the Rules contemplates any
such appeal. We are really at a loss to know how the appellant herein could
have possibly preferred an appeal against the order dated 28.2.2008 passed by
the Superintendent of the ASI and the said appeal having been entertained by
the Director General, ASI. No power has been vested under the 1958 Act in
the Director General, ASI to entertain such an appeal much less to grant any
permission for construction or renovation of any building in the prohibited
area.
27. We now take up for consideration the points urged by Mr.Tiku, learned
counsel for the Appellant. He submitted that there was no formal declaration
under the 1958 Act declaring Humayun‟s tomb to be a protected monument;
that only a monument declared to be of national importance can be declared to
LPA 417/2009 Page 19 of 25
be a protected monument in terms of Section 2(j) of the 1958 Act; in the
absence of such declaration it is the Delhi Ancient and Historical Monuments
and Archaeological Sites and Remains Act 2004 („The Delhi Act‟) which
would apply; in terms of Section 17 of the Delhi Act an area up to 50 m from
the protected limits of a monuments shall be declared as a prohibited area and
further beyond it up to 100m a regulated area and therefore the central
government‟s Notification dated 16.6.1992 will also not apply.
28. We do not find merit in the above submissions. The counter affidavit filed
by the ASI to the writ petition, which has been adverted to earlier, states that
all ancient monuments in terms of the 1904 Act situated in Part C States
(including Delhi) were declared to be of national importance under Section
126 of the States Reorganisation Act 1956. Under Section 2(j) of the 1958
Act, "protected monument" means any ancient monument which is declared
to be of national importance by or under the 1958 Act. Under Section 3 of the
1958 Act, all ancient and historical monuments which have been declared as
such under the 1951 Act or by Section 126 of the States Reorganization Act,
1956 "shall be deemed to be ancient and historical monuments or
archaeological sites and remains declared to be of national importance for the
purpose of this Act." Consequently the 450 year old Humayun‟s tomb which
obviously was an ancient monument under the 1904 Act is a protected
monuments of national imp0ortance under Section 2 (j) of the 1958 Act.
Therefore there is no question of the Delhi Act applying as it pertains to
monuments other than those of national importance. The limits specified in
the Notification dated 16.6.1992 of the central government would apply to the
Humayun‟s tomb and not Section 17 of the Delhi Act. Also, throughout the
LPA 417/2009 Page 20 of 25
Appellant has itself been contending that the Humayun‟s tomb is a protected
monument. This is to be found in its appeal both before the DG, ASI as well
as in the present memorandum of appeal. Consequently, the appellant cannot
be now heard to say that Humayun‟s tomb is not a protected monument
29. It was then submitted by Mr.Tiku that under Rule 10 of the 1959 Rules,
permission could be sought from the central government for construction in a
"protected area" and that is how the application to the ASI and the further
appeal to the DG, ASI was made. In the first place it requires to be noticed
that under Section 2 (i) of the 1958 Act a "protected area" is defined to mean
"any archaeological site and remains which is declared to be of national
importance. This refers to the area of the monument itself. Rule 10 of the 1959
Rules talks of construction in the "protected area" and not a "prohibited area"
as defined under Rule 2 (f) of the 1959 Rules. The Notification dated
16.6.1992 has been issued by the central government in terms of Rule 32 of
the 1959 Rules and it specifies the "prohibited area" and "regulated area." In
terms of Rule 35 permission can be granted for construction, if at all, in a
regulated area. There is no provision in the 1959 Rules that permits the central
government to give permission for construction in a prohibited area.
30. Mr.Tiku relied upon the notification dated 20.7.2006 to submit that a
Committee was validly constituted and was therefore had the power to grant
building construction permission. As already noticed the said Committee has
functioned thus far without any authority of the law. Moreover, the said
notification was in fact never published.
LPA 417/2009 Page 21 of 25
31. The inescapable conclusion if that the order dated 1.8.2008 of the DG,
ASI granting permission to the appellant for reconstruction in the said
property was wholly ultra vires the 1958 Act and the 1959 Rules and in the
teeth of the Notification dated 16.6.1992 issued by the Central Government.
Consequently, the further permission granted on 6.3.2009 to the appellant to
construct up to a maximum height of 12.5 m. besides mumty up to 2.5 m. was
also wholly without the authority of law.
32. We also have no doubt whatsoever that the setting up of the Committee by
the ASI, with the approval of the Union Minister for Culture and Tourism ,
Government of India for advising the DG, ASI on the grant of permission for
construction/renovation in a prohibited area was wholly without any legal
basis. The appellant has, along with the memorandum of appeal, enclosed a
Notification dated 20.7.2006 purportedly issued by the ASI constituting the
Committee with the DG, ASI as its Chairman. We were, however, informed
by Mr. Tripathi, learned counsel appearing for the ASI that the said
Notification was never in fact issued. He submitted that the reference in the
said Notification to Rule 33 of the 1959 Rules was a mistake since that Rule
had no application. He submitted that the said Notification should in fact be
considered to be a circular. However, as already noted above, there is
absolutely no provision in the 1958 Act permitting the Government to set up
such a Committee much less for the said Committee to take decisions on
granting permission for construction/ renovation in a prohibited area.
33. We are informed that the Committee has processed over 400 applications
LPA 417/2009 Page 22 of 25
from all over the country and over 150 such applications from Delhi itself.
We are constrained to note that this entire exercise is without the authority of
law. We are, however, unable to pass consequential orders as all the affected
parties would have to be given a hearing which is neither practicable nor
feasible. We are also not a little concerned that the ASI, which is entrusted
with the constitutional and statutory responsibility of ensuring preservation of
our ancient and protected monument, is facilitating the violation of the
notification dated 16th June 1992 by granting permissions for construction in
prohibited areas all over the country. The least the ASI should have done is to
await the outcome of the SLP filed in the Supreme Court. The stay granted by
the Supreme Court meant that the hands of the ASI, as far as the said
notification was concerned, were tied. It had to be strictly enforced. Instead
the ASI acted to the contrary. As far as the present case goes, the ASI hardly
needs to be reminded that every `reconstruction‟ of a building afresh, after
pulling down an existing one, would involve activity that might endanger a
450 year old protected monument. That concern should be uppermost in the
priorities of the ASI.
34. We direct the ASI through its DG to forthwith stop accepting and
processing any application for grant of permission for construction/renovation
of any structures or buildings in a prohibited area and to also stop accepting
appeals against any orders that may have been issued refusing such
permissions. The ASI will also take steps within a period of four weeks, to
reconsider all permissions granted pursuant to the setting up of the Committee
and take consequential steps, after giving the affected parties an opportunity
of being heard.
LPA 417/2009 Page 23 of 25
35. As far as the case of the appellant is concerned the order dated 1.8.2008
and the subsequent order dated 6.3.2009 of the ASI granting it permission to
raise construction are clearly illegal and in contravention of the Notification
dated 16.6.1992.
36. Mr. Lekhi, learned Senior counsel appearing for Mr. Gaurang Kanth very
fairly stated that if the building occupied by Mr. Kanth which is A-9,
Nizamuddin East was also constructed in contravention of the Notification
dated 16.6.1992, then it should also face the same fate.
37. We accordingly order that the status quo shall be maintained in respect of
the properties both at A-9 and A-10, Nizamuddin East since both are stated to
be in contravention of the Notification dated 16.6.1992 declaring the area
within 100 m. of the Humayun‟s Tomb to be a prohibited area. The Central
Government is empowered under Rule 38 of the 1959 Rules to direct the
owner or occupier of an authorized building in a prohibited area to remove
such building or a part thereof within a period specified in that order. We
direct the Central Government to exercise its powers under Rule 38 vis-à-vis
both the appellant EMCA Construction Co., as well as Mr. Gaurang Kanth
and/or any other occupier by issuing them each a show cause notice within a
period of two weeks from today. After considering their respective replies
thereto, which shall be filed within a further period of two weeks, a hearing
shall be given to them and a reasoned order passed in accordance with law.
Till such time the central government passes such orders, status quo in
relation to the two properties in question will be maintained. It would be open
LPA 417/2009 Page 24 of 25
to the appellant and Mr. Kanth and/or other occupier of the properties in
question to seek appropriate remedies as may be available to them in law if
they are aggrieved by those orders.
38. We accordingly vacate the interim order dated 28.8.2009 passed by this
Court in the present appeal. The impugned interim orders dated 31.3.2009 and
4.8.2009 passed by the learned Single Judge will stand substituted by the
present judgment. The appeal and application are accordingly disposed of.
39. This order be given dasti to the learned counsel for the parties.
S. MURALIDHAR, J.
CHIEF JUSTICE OCTOBER 30, 2009 LPA 417/2009 Page 25 of 25