Delhi High Court
Heritage & Culture Forum vs Union Of India & Ors. on 25 July, 2001
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
ORDER Sanjay Kishan Kaul, J.
1. India has a vast heritage of ancient monuments. One such monument is a masjid known as 'Begumpuri Masjid' built during the reign of Firoz Shah Tuglaq. This monument built by Khan Jahan, the Prime Minister of Feroz Tuglaq is in danger as a result of the indifferent attitude of various public authorities.
2. The petitioner is a society registered with the Registrar of Societies and is stated to be concerned with the protection of heritage and culture including preservation and maintenance of ancient monuments particularly in Delhi which are part of Indian Heritage and need to be preserved. The subject matter of the petition filed as PIL is the historical monument known as 'Begumpuri Masjid' which is stated to be protected by the Archaeological Survey of India in accordance with the Ancient Monuments & Archaeological Sites & Remains Act, 1958 (referred to as the Act).
3. It is alleged in the petition that there are various illegal constructions and encroachment around the monument and the respondent authorities should be directed to remove the same.
4. Notice to show cause was issued in the petition and on 17th October, 2000 a direction was issued by this court for a survey of the area to be conducted jointly by the Delhi Development Authority, Municipal Corporation of Delhi and the Archaeological Survey of India with the Association of the petitioner. The report in pursuance to this survey has been placed on record. The fact of there being violations of the notification of the Archaeological Survey of India dated 16th June, 1992 has been recorded in the order dated 24th January, 2001. It may be stated that on 16th November, 2000 an order was passed restraining any construction to be carried out in the vicinity of the monument and in violation of the notification of the Government of India dated 16th June, 1992. It was further directed that the members of the applicant association in CM 10586/2000 i.e., Begumpur Welfare Association (Registered) were not to change the user of the properties till the next date.
5. A further direction was passed on 24th January, 2001 taking note of the large-scale constructions in violation of law and directing the MCD to comply with the provisions of law specially the notification of the Government of India dated 16th June, 1992 in respect of buildings coming within 100 metres of the mosque. Such action was directed to be taken uniformly and was applied to the buildings which had come up after the issuance of the notification dated 16th June, 1992. Officials of DDA and MCD were further directed to identify the properties which had been built after 16th June, 1992. A further direction was made restraining any fresh construction to be carried out within 100 metres of the mosque and respondents were directed to take appropriate action to ensure compliance of the same.
6. On the next date of hearing on 14th February, 2001, it was brought to the notice of the court by learned counsel for the MCD that it is the Archaeological Survey of India which had the jurisdiction to preserve and protect the monument and remove any building constructed in violation of the notification dated 16th June, 1992. This was in terms of section 38 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
7. The DDA has filed an affidavit dated 15th November, 2000 to the effect that DDA has no jurisdiction over the construction as the area is not covered under the development area of the DDA. Municipal Corporation of Delhi has filed an affidavit dated 22nd February, 2001 commenting on the joint survey and the fact that approximately 239 properties exist within 100 metre radius of Begumpuri mosque. It has been further stated that as per the house-tax assessment record 19 properties have been assessed for property tax after 16th June, 1992 in which reconstruction/new construction has been carried out after the said date. It is further stated that the power to remove unauthorised buildings situated in the prohibited area i.e. 100 metres from the protected monument vests with the Central Government.
8. An affidavit dated 5th March, 2001 has been filed on behalf of the Central Government by the Superintending Archaelogist, Archaeological Survey of Indian. It is admitted in the affidavit that in accordance with the provisions of Rule 31 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (referred to as the Rules) framed under section 38 of the Act a notice of the intention to declare area up to 100 metres from the protected limits and further beyond it up to 200 metres near or adjoining protected monuments to be prohibited and regulated areas respectively was issued vide notification dated 25th May, 1991 and after considering the objections, notification no.1764 dated 16th June, 1992 in exercise of the powers conferred by Rule 32 of the Rules declaring the said area to be prohibited and regulated area was issued. It is stated that Central Government and the Archaeological Survey of India have been making efforts to ensure due compliance of the notification but despite the same numerous dwelling and commercial units have come up in the vicinity of the monument for which several FIRs have been lodged with the local Police Station i.e. Malviya Nagar Police Station. It is also stated that despite removal certain unauthorised constructions have been coming up again. A submission has been made in the affidavit that the area around the monument needs to be demarcated by the SDM in order to initiate appropriate action. A prayer has been made seeking assistance of this Court to direct police authorities, MCD and DDA to extend all possible cooperation for removal of the encroachment from the protected area and for a direction to the DDA and MCD not to sanction any site plan for construction in the prohibited and regulated area.
9. It is a sad commentary on the working of the system that the ancient heritage of this country is protected by the concerned authorities in such a perfunctory manner. It is compounded by relevant authorities including Central Government expressing its helplessness in preventing illegal construction coming up, in removal of the illegal construction and user of the property in question. The authorities are armed with sufficient power under various Acts to ensure compliance of the notifications and do not need directions of this court to secure compliance of their notifications and orders. It can hardly be appreciated as to why the Central Government cannot take necessary action and direct even the police authorities to ensure due compliance of its notifications. The relevant area being a notified area there should be no question of either the MCD or DDA sanctioning any plans within such area. It is for the public authorities and the Central Government to have appropriate interaction amongst themselves and to ensure that the rule of law is upheld. It is unfortunate that the petitioner association has to approach this Court and that this Court has to pass directions for the respondent authorities to take action in accordance with law.
10. Be that as it may, keeping in mind the inaction of the respondent authorities and their expression of helplessness, it becomes necessary for this Court to issue directions keeping in mind the conspectus of the present case as also the earlier directions issue by this Court.
11. Taking into consideration the facts and circumstances of the case we issue the following directions:-
(1) The SDM of the area stationed at Hauz Khas, New Delhi is directed to carry out demarcation in accordance with law within a period of six weeks from the date of receipt of copy of writ order from the court and to clearly delineate area which is the notified area under the notification dated 16th June, 1992. It will be for respondents to ensure that their authorised representative remain present on spot on the date of demarcation.
(2) Respondents 1 and 2 being the competent authorities under the Ancient Monuments Preservation Act, 1904 are directed to ensure compliance in terms of the notification. Any illegal construction carried out in violation of the same should be removed in accordance with law within a period of 4 months from the carrying out of demarcation by the SDM.
(3) The MCD and DDA are directed to ensure that no plans are passed for construction in the prohibited and regulated area without obtaining an NOC from the Archaeological Survey of India. The said two authorities are further directed to assist and cooperate with the Central Government and the Archaeological Survey of India in carrying out their obligations under the Act and in compliance of the present order.
(4) The Commissioner of Police and the SHO, PS Malviya Nagar are directed to ensure police assistance which may be requested by the Central Government, MCD and DDA to ensure compliance in the notified area and to keep a watch of the area to prevent repeated constructions and encroachments. The SHO, PS Malviya Nagar will be responsible for ensuring that the structures removed or demolished are not reconstructed in violation of law. The competent authorities shall ensure that no further construction is carried out in the vicinity of the monument in violation of the notification of the Government of India dated 16th June, 1992.
(5) The members of applicant Association i.e. Begumpur Welfare Association in CM 10586/2000 shall not carry out any constructions and shall not change the user of the properties except in accordance with law.
(6) The concerned authorities will also take steps for removal of the pump house, if it has been constructed in violation of the Central Government notification dated 16th June, 1992.
12. The petition is disposed of with the aforesaid directions which shall be duly complied with by the respondent authorities within the time stipulated in the directions. Registry will ensure that copies of the writ orders are sent forthwith to the respondents and SDM, Hauz Khas.