Jammu & Kashmir High Court - Srinagar Bench
Ghulam Ahmad Lone vs Mr. Mohammad Iqbal Khanday on 28 March, 2023
Bench: Sanjeev Kumar, Puneet Gupta
Serial No. 03
Regular Cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM 7758/2021
In CPOWP 40/2012
Ghulam Ahmad Lone
..... Petitioner/Appellant(s)
Through: Mr. G.A. Lone, Advocate with,
Mr. Mujeeb Andrabi, Advocate
V/s
Mr. Mohammad Iqbal Khanday
.....Respondent(s)
Through: Mr. T.M. Shamsi, DSGI
M. Asifa Padroo, AAG
CORAM:
Hon'ble Mr. Justice Sanjeev Kumar, Judge.
Hon'ble Mr. Justice Puneet Gupta, Judge.
ORDER
28.03.2023 CM No.7758/2021
1. This is a petition for recalling of order dated 8 th September, 2020, passed by this Court in CPOWP No. 40/2012, whereby this Court has closed the proceedings in the contempt petition with liberty to the petitioner to proceed in accordance with law, in case, if still feels aggrieved of any act of omission and commission on the part of the respondents.
2. The petitioner came to this Court in public interest through the medium of OWP(PIL) No.660/2009, and sought a direction to the respondents to protect the age old Shrine of Syed Abdul Rehman popularly known as Bulbul Shah (RA) located at Bulbul Lanker on the left side of bank of river Jhelum.
3. The respondents were put on notice. This Court after hearing both the sides disposed of the Public Interest Litigation (PIL) filed by the petitioner vide its order and judgment dated 16th August, 2011. The operative part of [CM 7758/2021 in CPOWP40/2012] Page 1 the judgment i.e., Para 11 which is relevant for our purpose is reproduced herein under:-
"11. Apart from the above direction to the 2nd and 4th respondents, having regard to the submissions made by Mr. Naik and Mr. Makroo, learned ASGI as well as Mr. Kawoosa, learned AAG and Mr. Khan, learned counsel for the 6th respondent, we direct 2nd respondent-State Government to forward copy of this order along with its own report about the renovation/improvement works carried out at the site, history of the Holy Shrine as well as the greatness of the Syed Abdul Rehman known as Bulbul Shah (RA) to 3rd respondent with a request to declare the above said ancient monument as one of the national Monuments of the Country. Such report of the 2nd respondent shall be forwarded to 3rd respondent- Director General Archaeological Survey of India New Delhi expeditiously, preferably within a period of four weeks from the date of receipt of copy of this order. On receipt of such report along with the other materials, the 3rd respondent shall cause necessary inspection and pass appropriate orders for declaring the said Monument as an national Monuments as per law expeditiously, preferably within a period of three months from the date of receipt copy of this order along with other materials."
4. When the judgment passed by this Court was not implemented, the petitioner filed CPOWP No.40/2012 for seeking initiation of the contempt proceedings against the respondents. On being put on notice, the respondents appeared before this Court and filed their respective stand. This Court considered the response/statement of facts filed by the respondents particularly the statement of facts filed by the Archaeological Survey of India and concluded that no case was made out for initiation of contempt proceedings against the respondents. The court closed the contempt proceedings and discharged the contempt notice issued to respondents. It is [CM 7758/2021 in CPOWP40/2012] Page 2 this order of the contempt Court dated 8th September, 2020, which is sought to be recalled through the medium of the instant proceedings.
5. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the order dated 8 th September, 2020, which is sought to be recalled in these proceedings is well reasoned and takes care of all aspects of the matter. There was a direction to the Archaeological Survey of India to consider the request of the State Government for declaring the Shrine of Syed Abdul Rehman popularly known as Bulbul Shah (RA) as monument of national importance in accordance with law. The Archaeological Survey of India has considered the matter after having inspected the site along with the conservation assistants and has come to the conclusion that the Shrine does not fulfil the requirements laid down in the Ancient Monuments and Archaeological Sites and Remains Act, 1958 ["the Act of 1958"] and, therefore, cannot be declared as a monument of national importance for taking up its protection and conservation by the Archaeological Survey of India. Reliance has been placed on the definition of "Ancient Monuments" contained in Section 2(A) and Section 4 of the Act of 1958.
6. Be that as it may, the fact remains that the expert body dealing with the subject i.e., Archaeological Survey of India has considered the entire issue under the Act of 1958 and as per the expert advice has not found the Shrine in question qualifying to be an "ancient monument" as defined under Section 2(A), the Act of 1958 nor have they found the Shrine to qualify to be declared as a "monument of national importance" as per Section 4 of the Act of 1958.
7. Mr. G.A. Lone, learned counsel appearing in person has disputed the stand taken by the Archaeological Survey of India and submits that the [CM 7758/2021 in CPOWP40/2012] Page 3 Shrine is very ancient existing since 15th century and was built by Rinchen Shah and, therefore, qualifies to be declared as "ancient monument" under Section 2(A) of the Act of 1958.
8. We are afraid we cannot enter into the determination of disputed questions of fact in the contempt jurisdiction. The role of the Court exercising contempt jurisdiction is to ensure that the orders and judgments passed by this Court are implemented and complied with in letter and spirit and the violators are punished under the Contempt of Courts Act. From reading of the judgment passed by this Court in the Public Interest Litigation (PIL) dated 16th August 2011 and the order passed by this Court under its contempt jurisdiction dated 8th September 2020, we are satisfied that the Court has considered all aspects of the matter and has rightly come to the conclusion that no case was made out for initiating contempt proceedings against the respondents for wilful disobedience and non compliance of the judgment passed by this Court. We, therefore, do not find it a fit case where this Court should recall its order passed in exercise of contempt jurisdiction.
9. For the foregoing reasons, we find no merit in this application and the same is accordingly dismissed, however, we leave it open to the petitioner to work out his remedy against the decision of the Archaeological Survey of India not to declare the Shrine as "ancient monument" or a "monument of national importance" under the Act of 1958.
(Puneet Gupta) (Sanjeev Kumar)
Judge Judge
SRINAGAR:
28.03.2023
"Mir Arif"
Whether the order is speaking Yes/No
Whether the order is reportable Yes/No
[CM 7758/2021 in CPOWP40/2012] Page 4