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Reply by the ASI

15. A counter- affidavit has been filed by the ASI in Writ Petition (Civil) No. 9887 of 2003 only. However, it has dealt with the facts of both the writ petitions. It is stated that the three monuments Chhote Khan, Bade Khan and Bhure Khan were built as a group of three monuments and are located inside a fully developed, regularised, urbanised and well-planned colony, known as New Delhi South Extension Part-I (NDSE-I) and that their protected limits are enveloped by Blocks C and D of NDSE-I. It is stated that Bade Khan and Chhote Khan were declared as protected monuments by a Notification dated 25th March 1918 even under the Ancient Monuments Preservation Act, 1904 (AMP Act, 1904). By a Notification dated 11th November 1926 issued under Section 3(3) of the AMP Act 1904, the tomb of Bhure Khan was also declared as a protected monument. It is stated that land measuring 5 bighas and 17 biswas in khasra No. 564/87 in Village Kotla Mubarakpur formed part of the protected limits of the protected monuments of Bade Khan and Chhote Khan, while land admeasuring 1 bigha and 7 biswas in khasra No. 563/87 of Kotla Mubarakpur formed part of the protected limits of the protected monument of Bhure Khan. After the enactment of AMASR Act, 1958 a Notification dated 16th June 1992 was issued under Rule 32 of the AMASR Rules declaring that the areas falling within a 100 metre radius from the peripheries of protected monuments as „prohibited areas‟ and further declaring the area up to the extent of 200 metres as a „regulated area.‟ It is stated that the expressions "regulated area" and "prohibited area" were different from the expression "protected area". Under Section 2(i) of the AMASR Act, 1958 "protected area" is an area which means "any archaeological site and remains which is declared to be of national importance by or under" the AMASR Act, 1958. It is accordingly submitted that whenever a notification is gazetted notifying a particular monument as a protected monument, the area shown in the notification as the location of the protected monument ipso facto becomes a protected area.

26. It is next submitted that under Rule 38(1) of the AMASR Rules, the Central Government has to form an opinion before passing an order that any building or part thereof has been constructed in the prohibited area or in a regulated area in contravention of any of the conditions of a licence granted under Rule 35 of the AMASR Rules and such order will have to direct such owner or occupier of the building to remove such building or part thereof within the period specified therein. Without prejudice to the above submission, it is submitted that the said Rule does not apply to the Petitioner since it is not the licencee within the meaning of Rule 35 of the AMASR Rules. It is also submitted that under Section 19(2) of the AMASR Act, no order has been passed by the Central Government. However, under Rule 38(2) the Central Government has been empowered to direct the District Magistrate to cause the building or part thereof to be removed, if the owner or occupier refuses or fails to comply with an order made under Rule 38(1). It is submitted that no direction was given to the District Magistrate in the instant case. The power to order for removal, in any event, has to first be passed by the Central Government. The Central Government cannot delegate such power to the ASI. It also cannot delegate the power to remove any part of the building to the ASI.

(2) If the owner or occupier refuses or fails to comply with an order made under sub-rule (1), the Central Government may direct the District Magistrate to cause the building or part thereof to be removed, and the owner or occupier shall be liable to pay the cost of such removal."

31. Section 19 (1) AMASR Act does not impose a total prohibition on any construction activity within a „protected area‟ but makes every such activity subject to the „permission of the Central Government. Section 19 (2) AMASR Act authorises the Central Government alone to exercise the powers to remove unauthorised constructions carried on in contravention of Section 19(1). No such powers of the Central Government have been delegated to the ASI either under the AMASR Act or AMASR Rules. It is a two-step process. First the Central Government has to form an opinion that construction has taken place in the protected area without permission or contrary to the terms and conditions of the permission granted by the Central government. Further, in relation to the Notification dated 16th June 1992, the Central Government will have to satisfy itself if such construction in a prohibited or regulated area took place after the issuance of such notification. In the next step, the Central Government will under Section 19(2) give a direction to the owner or occupier to remove, within a specified period of time, the unauthorised portion of construction. Where there is a failure to carry out any direction issued by the Central Government for time- bound removal of unauthorised construction under Section 19 (2), then power has been entrusted to the Collector to remove the authorized construction. Therefore, even for removal of unauthorised constructions in terms of Section 19 (1) read with Section 19 (2) AMASR Act, the ASI has not been entrusted any powers by the legislature. This position is reflected in Rule 38 AMASR Rules as well.

(vi) There is no order passed by the Central Government reflecting the formation of any such opinion in the present cases. Since this is the foundational basis for the exercise of the powers under Rule 38(1) of the AMASR Rules and no such order is shown to have been passed, there could be no action taken to demolish the construction in either khasra number, much less by the ASI.

34. In view of the above discussion, this Court does not find it necessary to examine whether Rule 38 of the AMASR Rules is ultra vires Section 19 of the AMASR Act. Inasmuch as Section 19(1) only talks of "protected area", as defined under Section 2(i) of the AMASR Act, Rule 38 expands its scope to include both "prohibited" and "regulated" area. Under Rule 38, it is only the Central Government which has been empowered to form an opinion about any construction thereon being unauthorised and to further direct consequential steps to remove such unauthorised construction. Since this is an essential condition and has not been satisfied, the entire action of the ASI stands vitiated in law and, therefore, the writ petitions can be allowed on this ground also.