Rajasthan High Court - Jodhpur
Shri Girdhar Memorial Charitabale ... vs The Union Of India on 1 April, 2021
Bench: Sangeet Lodha, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 302/2019
Shri Girdhar Memorial Charitabale Trust, Jaisalmer Fort,
Jaisalmer Through Its Managing Trustee Smt. Mukut Raje
Lakshmi W/o Late His Highness Maharawal Raghunath Singhji,
R/o Mandir Palace, Jaisalmer.
----Appellant
Versus
1. The Union of India, through The Secretary Archaeological
Department, Government Of India, New Delhi.
2. The Superintending Archaeologist, Jaipur Circle, 70/133-
140, Patel Marg Mansarover, Jaipur (Raj.).
----Respondents
For Appellant(s) : Mr. Siddharth Joshi with Mr. Khet
Singh Rajpurohit
For Respondent(s) : Mr. Nitesh Mathur on behalf of
Mr. B.S. Sandhu
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE RAMESHWAR VYAS Judgment 1st April, 2021 PER HON'BLE MR. SANGEET LODHA,J.
1. This intra-Court appeal is directed against order dated 26.2.19 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant challenging the notice dated 16.5.20 issued by the respondents to remove the construction work of wooden doors and plaster work etc. from Suraj Prol Gate inside the Jaisalmer Fort being violative of sub- section (1) of Section 19 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short "the Act of (Downloaded on 01/04/2021 at 09:02:55 PM) (2 of 10) [SAW-302/2019] 1958') and Rules 19(1) & 33 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (for short "the Rules"), has been dismissed.
2. The appellant, a charitable trust, owns a property known as Suraj Prol which forms part of Jaisalmer Fort in the State of Rajasthan, is an archaeological monument. According to the appellant, it was in dilapidated condition and was requiring immediate repairs, had timely repair not carried out by the Trust, there was apprehension of said part of the building and structure collapsing and therefore, immediate steps were taken to get the plaster work done for reinforcing the existing structure so as to avoid further damage. Besides, the Trust also put wooden doors to stop entry of stray cattles in the open space of Suraj Prol. According to the appellant, no structural changes were made in the property and therefore, the provisions of Section 19 of the Act of 1958, which prohibits construction of building within the protected area without permission of the Central Government, are not attracted, however, the appellant Trust was served with a notice dated 16.5.2000 issued by the Superintending Archaeologist, the respondent no.2 herein, calling upon it to remove the said wooden doors and plaster work etc. from the Suraj Prol Gate on or before 25.5.2000. The appellant was informed that in the event of refusal or failure to comply with the notice within the period specified, order will be passed for removal of such unauthroised construction under the provisions of the Act of 1958 and the Rules. A reply to the notice was filed by the appellant on 20.5.2000.
3. The appellant apprehending the demolition of the repair works done, challenged the legality of the notice by way of writ (Downloaded on 01/04/2021 at 09:02:55 PM) (3 of 10) [SAW-302/2019] petition before this Court, on the ground that the respondent no.2 has miserably failed to make out a case for passing an order under Section 19(2) of the Act of 1958. The appellant contended that what is prohibited by Section 19(1) is the construction of a building and thus, the repair works done for saving the building from further damage, does not warrant any action under the said provision. According to the appellant, the construction of building would always involve structural changes and the repair works does not fall within the definition of words "construction of the building".
4. On 2.4.02, the learned Single Judge while admitting the writ petition directed the parties to maintain the status quo as existing on that day.
5. A reply to the writ petition was filed on behalf of the respondents, taking the stand that name of 'Suraj Prol' being gateway of main approach road to Jaisalmer Fort, a place of public utility, is not included in the inventory of the erstwhile Ruler of Jaisalmer. Besides, in the inventory, it is specifically mentioned that the easements of way as were enjoyed by the people will continue to be enjoyed by them without let or hindrances. The said structure was never closed by the wooden doors and remained open for public. It was denied that the said Prol was in dilapidated condition and in any case, if such construction was required to be carried out, the appellant was under an obligation to take permission from Archaeological Survey of India for necessary repairs, which is granted at the local level by a committee under the Chairmanship of District Collector, Jaisalmer. It was averred that the wooden doors and the plaster work both have been introduced for the first time in the building and it is not (Downloaded on 01/04/2021 at 09:02:55 PM) (4 of 10) [SAW-302/2019] clear as to how, it will save the building if the same is in dilapidated condition. According to the respondents, total five new doors have been put up at this monument which are sufficient to change the facade of the monument and thus, the action of the appellant is apparently violative of provisions of Section 19 of the Act of 1958.
6. After due consideration of the rival submissions, the writ petition preferred by the appellant has been dismissed by the learned Single Judge. The learned Single Judge arrived at the finding that the entire Jaisalmer Fort including Suraj Prol has been declared to be an ancient monument and has been listed in the world monument watch list and therefore, it requires special protection. Relying upon a Bench decision of this Court in Hari Shanker & Anr. vs. Union of India & Ors.: D.B.Civil Special Appeal No.1101/98 ( AIR 2000 Raj., 26) and the provisions of Section 19 of the Act of 1958, the learned Single Judge opined that the appellant may not have engaged in constructing any building within the protected area but they have certainly engaged themselves in "operation of like nature in such area" and thus, provisions of Section 19 are attracted in the matter and the appellant could not have proceeded with the alleged repair work without permission of the Central Government. The learned Single Judge observed that installation of the doors amounts to making structural changes. Accordingly, while dismissing the writ petition, the learned Single Judge has directed the appellant to remove the doors which they have installed in ancient monument 'Suraj Prol' at their own risk and cost within one month. The learned Single Judge issued further directions in the following terms: (Downloaded on 01/04/2021 at 09:02:55 PM)
(5 of 10) [SAW-302/2019] "14. The respondents are therefore, directed to form a local level committee consisting under the Chairmanship of the District Collector, Jaisalmer alongwith the officials of the Archaeological Survey of Indian and the Chief Executive Officer of the Local Municipality who will coordinate with the various Government Departments including the Water Works Department, Public Works Department, Police Department, Transport Department and the Tourism Department and set up a plan for regulating the traffic in the Fort.
15. All the encroachments which have been made made in and around the Jaisalmer Fort, also known as Sonar Fort, and around the walled city, shall be removed. The district administration is directed not to allow any water or power connection to any illegal construction made in an around the Sonar Fort. The respondents shall be free to initiate proceedings under Section 30-A of the Ancient Monument Act, 1958. The Committee shall also be authorized to initiate action for imposing penalties under Section 30-A, 30-B and 30-C of the Ancient Monuments Act, 1958 which read as under:-
...............xxxx..............................xxxx.........
16. The Committee, as noticed above, shall submit its compliance report relating to the steps as directed by this Court herein above within two months and this writ petition shall be listed for the said purpose before the Court."
7. Learned counsel appearing for the appellant submitted that the repair works undertaken to save part of the building which was in dilapidated condition, does not fall within the definition of the words 'construction of building' or carrying on any operation of like nature in the protected area of the ancient monument and thus, the provisions of Section 19 of the Act of 1958 are not attracted in the matter. According to the learned counsel, putting of the doors at the premises does not amount to structural change warranting action by the Central Government under the provisions of sub-section (2) of Section 19 of the Act of 1958. Learned counsel submitted that since the appellant had undertaken only the repair works, no permission was required to be taken from the Central Government as envisaged by Rule 10 (1) of the Rules. According to the appellant, the action of the respondent no.2 in (Downloaded on 01/04/2021 at 09:02:55 PM) (6 of 10) [SAW-302/2019] directing removal of the plaster and the doors on account of alleged violation of Section 19 of the Act of 1958 and sub-rule (1) of Rule 10 & Rule 33 of the Rules is ex facie without jurisdiction and thus, the learned Single Judge has seriously erred in dismissing the writ petition and issuing directions for the removal of the doors as aforesaid. In support of the contention, learned counsel relied upon a decision of Supreme Court in the matter of Moideenkutty Haji vs. Director General & Ors.: (2017) 8 Supreme
63.
8. During the course of hearing, the counsel for the appellant produced the photograph of the site for perusal of the Court, which are taken on record.
9. On the other hand, the counsel appearing for the respondents while reiterating the stand taken before the learned Single Judge contended that Suraj Prol, which forms part of Jaisalmer Fort, a protected ancient monument, was a space meant for public utility and thus, the appellant could not have installed the doors and close the open space. Learned counsel submitted that in the said part of the building, no plaster exists and thus, the action of the respondent in putting the plaster also amounts to structural change in the premises which could not have been effected without permission of the Central Government. Learned counsel submitted that as a matter of fact, Suraj Prol has been closed by the appellant by putting the doors with an intention to put it to commercial use, which cannot be permitted. Learned counsel submitted that the action of the respondents being in conformity with the provisions of Section 19 of the Act of 1958 and Rule 10 of the Rules, the learned Single Judge has rightly (Downloaded on 01/04/2021 at 09:02:55 PM) (7 of 10) [SAW-302/2019] declined to interfere with and directed the appellant to remove the doors installed at its own risk and costs.
10. We have considered the rival submissions and perused the material on record.
11. Indisputably, the Act of 1958 has been enacted to provide for preservation of ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archaeological excavation and protection of sculptures, carvings and other like objects.
12. Section 2(d) defines 'archaeological sites and remains' to mean any area which contains or reasonably believe to contain ruins or relics of historical or archaeological importance, which have been in existence for not less than one hundred years and includes-
(i) such portion of land adjoining the area as may be requiring for fencing or covering in or otherwise preserving it, and
(ii) the means of access to, and convenient inspection of the area.
13. As per Section 2(i), 'protected area' has been defined to mean any archaeological site and remains which is declared to be national importance by or under the Act.
14. As per Section 3 of the Act of 1958, 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 to be of national importance are deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purpose of the Act of 1958.
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15. The Jaisalmer Fort including ancient temples in Jaisalmer were declared to be ancient and historical monuments under Section 2 of the Act of 1951, which finds mentioned at Serial No.59 in Part II of Schedule appended thereto.
16. A Bench of this Court in Hari Shanker's case (supra), categorically held that Jaisalmer Fort with its entire precincts is a protected area being an archaeological site and remains of national importance for the purposes of the Act. The Court held:
"8. It is now to be seen whether the aforesaid protected area has been declared to be of national importance by or under the Act. Section 3 of the Act provides that all ancient and historical monuments and all archaeological sites and remains referred to in Part I and Part II of the Schedule appended to that Act are declared to be ancient and historical monuments and archaeological sites and remains of national importance. In Part II of the Schedule at Serial No.59 in the State of Rajasthan. Jaisalmer Fort including ancient temples has been declared to be ancient and historical monuments and archaeological sites and remains of national importance. Thus, the combined effect of clauses
(d) & (i) of Section 2 and Section 3 of the Act is that Jaisalmer Fort with its entire precincts is a protected area being an archaeological site and remains of national importance for the purposes of the Act and, therefore, the respondents are within their right to proceed against any building constructed by any person within that area in contravention of the provisions of sub-section (1) of Section 19 of the Act. For the aforesaid reason, we find that though the learned Single Judge committed an error in dismissing the petition before him on the ground that it involved disputed questions of fact on merits, there is no force in the petition from which this appeal arises. The appeal, therefore, has no force, it is dismissed."
17. Section 19 of the Act of 1958, which deals with protected areas, prohibits any person including owner or occupier of the protected area from constructing any building within the protected area or carry on any mining, quarrying, excavating, blasting or any operation of a like nature in such area or utilise such area or any part thereof in any other manner without the permission of (Downloaded on 01/04/2021 at 09:02:55 PM) (9 of 10) [SAW-302/2019] the Central Government. Sub-section (2) of Section 19, empowers Central Government to direct removal of any building constructed by any person within the protected area in contravention of the provisions of sub-section (1), within the specified period and if the person refuses or fails to comply with the order, the Collector may cause the building to be removed and the person shall be liable to pay the cost of such removal.
18. Rule 10 of the Rules of 1959 mandates that no person shall undertake any construction or mining operation within the protected area except under and in accordance with a permission granted in this behalf by the Central Government.
19. A conjoint reading of Section 19 of the Act of 1958 and Rule 10 of the Rules of 1959, makes it abundantly clear that the appellant could not have proceeded with the construction within the precincts of the Jaisalmer Fort, which is a declared protected area, without permission of the Central Government. It is not disputed before this Court that before undertaking the alleged repair works and the installation of doors in the Suraj Prol, an open space, within the precincts of Jaisalmer Fort, no permission was obtained by the appellant from the Central Government.
20. As noticed above, the allegation against the appellant is that the doors were installed with an intention to put the premises to commercial use. A perusal of the photographs placed on record by the appellant showing five doors installed reveals that over the middle gate i.e. gate no.3 from either side, a signage displaying the name of a commercial venture 'SOFI HANDICRAFTS' is installed and thus, the stand sought to be taken by the appellant before this Court that the wooden doors are put just to stop entry of stray cattle in the open space in the property known as 'Suraj (Downloaded on 01/04/2021 at 09:02:55 PM) (10 of 10) [SAW-302/2019] Prol' and not to put the same to commercial use, does not appear to be prima facie correct.
21. It is contended on behalf of the appellant that the words 'construction of the building' have not been defined yet in the legal terms it would always involve structural changes and the repair work does not fall within the definition of the construction. As a matter of fact, the word 'construction' has been defined under Rule 2(a) of the Rules of 1959, to mean any structure including addition to or alteration of an existing building. In considered opinion of this Court, the conversion of an open space by putting the doors into a premises which could be put to commercial or other use, certainly amounts to material alteration of the building and thus, the proceeding initiated by the respondents for removal of the construction raised as aforesaid, in exercise of the power conferred under Section 19(1) of Act of 1958 read with Rule 10(1) of the Rules of 1959, cannot be faulted with and thus, the contention of the appellant that the impugned notice issued by the respondent authority is arbitrary and without jurisdiction, is devoid of any merit.
22. For the aforementioned reasons, we are in agreement with the view taken by the learned Single Judge of this Court.
23. No case for interference in exercise of intra-Court appeal jurisdiction is made out.
24. In the result, the appeal fails, it is hereby dismissed. No order as to costs.
(RAMESHWAR VYAS),J (SANGEET LODHA),J
Aditya/-
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