Rajeev Kumar Yadav v. Archaeological Survey of India and Ors.

13. It is also the petitioner‟s case that grant of the aforesaid permissions is in direct violation of the law laid down by the Supreme Court in Archaeological Survey of India v. Narender Anand and Ors. 2012 2 SCC 562 wherein it was categorically held that the distance of 100 metres has to be measured from the outer boundary wall of the concerned centrally protected monument. Relevant extract of the judgment on which petitioner seeks to rely on is reproduced as follows: “The High Court‟s interpretation of prohibition contained in Notification dated 16.6.1992 is correct and the distance of 100 metres has to be counted from the outer boundary wall of Jantar Mantar which has protected area of 5.39 acres and not the physical structures of the observatory.”

14. It is further stated that the grant of aforesaid permissions is also in violation of the rights guaranteed under Article 49 of the Constitution. Moreover, in terms of the Act and Rules permission could have been granted by respondent no.1 only for alterations / repairs / renovation of an existing building as listed in Rule 6.4.[1] of the Delhi Building Byelaws, 1983 and not for any fresh construction. It is his case that respondent no.5 in complete contravention and violation of law has been carrying out fresh construction under the garb of permission for repairs / renovation. According to him permissions for such activity within “prohibited” or “regulated” area could only have been granted under “Heritage Byelaws” framed under Section 20E of the Act. In light of the fact that no such byelaws have been framed and approved, such construction activity could not have been sanctioned in any manner whatsoever.

15. It is the petitioner‟s case that from a conjoint reading of the bar placed by the Act and Rules it becomes clear that the intention of the legislature was not to permit any new construction activity within the “prohibited area” and grant of the subject permissions by respondent no.1 herein manifestly defeats the very purpose of the legislation. According to him, respondent nos. 1 to 4 have failed to perform their statutory duty and responsibility to take every possible step to ensure that the ancient monuments and archaeological sites are not destroyed or depleted by encroachments or construction near such monuments.

16. A counter affidavit has been filed by respondent No.7 (respondent No.6 in terms of amended memo of parties), which is Director Antiquities, ASI and Competent Authority, NCT of Delhi wherein it is stated that after the amendment of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 in 2010, vide Section 20D, all applications for constructions within the “Regulated Area” of monuments declared to be of national importance, are to be made to the Competent Authority, in accordance with Section 20D. In the present case, the application for construction was made by respondent No.5 in respect of premises bearing No. D-2, Nizamuddin East, New Delhi. The said plot falls within the “regulated area” of the monument of “Tomb of Khan-i-Khanan”. The aforesaid monument was declared to be an ancient monument under the Ancient Monuments Protection Act, 1904. In terms of the wording of the Notification, it is evident that it is the physical structure of the monument in question that was declared as protected, and as such, the “prohibited area” and “regulated area” would be measured from the physical structure of the monument. After consideration of the said application, permission was duly granted to the respondent No.5 to carry out construction on the said plot, in accordance with the terms and conditions set out in the said permission. It is also stated that subsequent to the filing of this petition, an inspection of the monument, vis-à-vis the plot in question was carried out on July 19, 2018. The team that carried out inspection comprised of officials from the office of the Delhi Circle, Archaeological Survey of India, Competent Authority and National Monuments Authority. As per the report, the distance of construction site i.e D-2, Nizamuddin East, New Delhi has been measured from the monument and it was found that the construction site falls in the “regulated area” of the centrally protected monument, which is at a distance of 104 metres It is further stated in the affidavit, that all construction is being undertaken in accordance with the permission granted on January 25, 2018.

17. The common petitioner in response to the respective reports filed by the respondent nos. 6 and 7 jointly and respondent no. 7 states that in terms of provisions and the legislative intent behind the Act, the said distance of 100 metres from a protected monument has to be measured from the protected monument in all directions, which includes not only the physical structure of the said monument but also the adjoining area in and around the physical structure. It is therefore his case that the said distance of 100 metres has to be measured from the outer boundary wall of the protected monument or the protected area as the case may be. He would rely on the various definitions contained in the Act in this regard. It is his case that from a conjoint reading of Section 20A, 2(j) and 2(a)(iii), it becomes clear that a “protected monument” also includes its adjoining land of the peripheral boundary wall and fencing and therefore distances have to be necessarily measured from such outer boundary wall.

18. It is also the petitioners case that the respondent‟s reliance on Notification of 1915 to conclude that it is only the structure of the monument that is protected is erroneous and in doing so they have grossly failed to understand the intent and purport of the said Notification. It stated that the entire area in and around Humayun‟s Tomb has similarly been declared to be a protected monument. It is moreover his case that any conditional permission for construction could have been granted by the respondent ASI only if the plot in question was clearly beyond the “prohibited area” which is admittedly not the case for both the subject properties. He would rely on judgment of this court in Emca Constructions v. ASI & Others, MANU/DE/2758/2009 to state that granting relaxations with regard to constructions within “prohibited area” is completely barred.

19. Mr. Anil Airi, learned senior counsel appearing for the petitioner would apart from reiterating the stance as already noted above would submit that in terms of the Section 20A of the Act, no construction would be permissible within the “prohibited area” i.e. within a radius of 100 metres from the monument. He would submit that the respondent‟s practice of measuring the said distance from the inner structure of the monument is completely contrary to the scheme of the Act and therefore needs to be prohibited. The permissions granted to the respective owners of the plots in question are therefore according to him completely illegal and unsustainable in law. He would further point out that the respondents‟ reliance on the Notification of March, 1915 to conclude that it is only the structure of the monument that is protected is completely erroneous and contrary to the letter and spirit of the Act and Rules framed thereunder. Moreover, such interpretation is not backed by any substantive language in the said Notification. He would further draw reference to the definition of “ancient monument” to reiterate that even the adjoining area would be covered under the said definition.

20. Mr. Airi would additionally draw reference to Sections 20C and 20D of the Act to submit that the permission could have been granted by the Competent Authority only for the purposes of repair and renovation of properties already existing within the “prohibited area” and permission for construction and reconstruction could have been granted for plots within the regulated area only upon recommendation of the National Monument Authority. In this regard, he would submit that the respondent ASI has the power to grant a NOC only with regard to the subject plots for which such permission is sought and not with regard to the specific construction being undertaken thereon. Consequently, the direction issue to the respondent owner to maintain set back on the plot in question is also invalid and not in accordance with the subject building by-laws.

21. In conclusion, Mr. Airi would submit that in any case no permission for construction of a basement near a protected monument could have been granted on the both the subject properties because for construction of a basement excavation would have to be taken at a deep level such that resultant soil erosion and vibrations near the base of the said monument would have damage the monument irreparably.

22. Mr. Jayant Tripathi, who appeared for ASI would submit that this monument “Abdul Rahim Khan-i-Khanan‟s Tomb” is a centrally protected monument and a declaration in that regard was issued on March 13, 1915 under the provisions of Section 6(3) of the Ancient Monument Preservation Act, 1904 by the then Chief Commissioner. The said declaration is only with regard to “Tomb of Khan-i-Khanan”. He stated that it is only the structure of the monument that is protected and he also placed before us certain other Notifications issued during the same time to draw a distinction that if the Competent Authority intended to declare the surrounding areas, as a part of the protected monument, it would have said so. In this regard, he has placed before us the Notification of the then Chief Commissioner, Delhi dated January 16, 1914 with regard to Qutab area in Mehrauli, Tomb of Sikandar Lodi at Khairpur, Old Bridge with its approaches near Tomb of Sikandar Lodi at Khairpur. In other words, it is his submission, in the absence of any Notification notifying the surrounding areas of the monument as part of the protected monument, the limit of 100 metres must necessarily be measured from the monument itself.

23. Mr. Uppal, learned Senior Counsel appearing for the respondent No.5 in W.P.(C) NO. 5052/2018 submitted that the present petition, under the garb of a public interest litigation, is totally misconceived and has been filed with ulterior motive. Mr. Uppal would strongly contend that the structure on the property is beyond the prohibited area of 100 mtrs and as such the present petition is liable to be dismissed on this very ground only.

24. Mr. Gaurav Duggal, learned counsel for the private respondent No.5 in W.P. (C) 7996/2017 would submit that an application for permission under Section 20D of the Act is to be made to the Competent Authority under the Act which is in turn forwarded to the National Monument Authority for approval. It was vide communication dated 30th August, 2016 that pursuant to mandatory inspections and verifications, permission was granted to the said respondent to undertake the construction in question with the only condition being placed that such construction was to be restricted to a height of 18 metres. It was his submission that all construction being undertaken on the said plot is only in terms of the permission granted and not in violation of any of the provisions of the Act or the local building by-laws.

25. Having heard the learned counsels for the parties, the issue which needs to be considered and decided by this Court is whether the „prohibited area‟ and „regulated area‟ are to be measured from the physical structure of the monument or from the outer wall erected around the adjoining area surrounding the said monument.

26. In these two writ petitions, we are concerned with two properties i.e A-25, Nizamuddin (West), New Delhi and D-2, Nizamuddin East, New Delhi. The case of the petitioner in both the writ petitions is that plot No. A-25, Nizamuddin (West), New Delhi is situated within 45.12 mtrs from the monument whereas property bearing No. D-2, Nizamuddin East, New Delhi is situated at a distance of 68.61 mtrs from the boundary wall and

91.54 mtrs from the monument itself. It is in this background, an allegation is made that the construction activity is being undertaken within a radius of 100 metres of the monument, which is impermissible in view of Section 20A of the Act and Rule 33 made thereunder.

27. Mr. Airi had relied upon the definition of the word „ancient monument‟ under Section 2(a) of the Act. The same reads as under:-

2. Definitions.―In this Act, unless the context otherwise requires,― (a) “ancient monument” means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes―

(i) the remains of an ancient monument,

(ii) the site of an ancient monument,

(iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and

(iv) the means of access to, and convenient inspection of, an ancient monument;

28. Section 20A has already been reproduced above.

29. According to Mr. Airi, no construction would be permissible within the prohibited area i.e within a radius of 100 mtrs from the monument. According to him, in terms of Section 20C and 20D of the Act, the Competent Authority could have only permitted repair and renovation of the properties already existing within the prohibited area and construction in the regulated area only upon recommendation of the National Monument Authority.

30. On the other hand, Mr. Tripathi, who appeared for ASI submitted that in terms of the declaration issued with regard to the monument in question i.e. “Abdul Rahim Khan-i-Khanan‟s Tomb” dated March 13, 1915, is only to the effect of the Tomb. In other words, it is only the structure of the monument that is protected. He has drawn distinction between different Notifications issued declaring different monuments in that regard. The plea as advanced by Mr. Airi by relying on definition of the word „Ancient Monument‟ as provided under Section 2(a) of the Act to contend that by operation of law, all land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument would constitute ancient monument is appealing on a first blush but on a deeper consideration, more specifically in terms of Section 3 of the Act of 1904, under which, the Notification dated March 13, 1915 was issued, contemplates a declaration by the Central Government of its opinion to declare an ancient monument as a protected monument and which declaration shall be deemed to be a declaration for the purposes of the Act of 1958, as per Section 3, which we reproduce as under, it is clear that the declaration is only to the extent “Tomb of Khan-i-Khanan”:-

3. Certain ancient monuments, etc., deemed to be of national importance.―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 (71 of 1951), or by section 126 of the States Reorganisation Act, 1956 (37 of 1956), to be of national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purposes of this Act.

31. Now the question is, whether a portion of the land adjoining the site of an ancient monument, i.e., the Tomb which may be required for fencing or covering in or otherwise preserving such monument shall be part of the ancient monument i.e “Abdul Rahim Khan-i-Khanan‟s Tomb” (in this case).

32. Before we answer that, we would like to reproduce the declaration as made on March 13, 1915 as under:- The 13th March, 1915. NO. 1660-Education- In exercise of powers, conferred by Section 3(3) of the Ancient Monuments Preservation Act, 1904, (VII of 1904), the Chief Commissioner is pleased to confirm Notification no. 08, dated the 5th January 1915, which declared the undermentioned monument to be a protected monument within the meaning of the Act. Name of the Monument Locality. Tomb of Khan Khanas South of Nizam-ud-din village. By order, G.F. DEMONTMORENOY, Personal Assistant to the Chief Commissioner, Delhi Province

33. We would also like to reproduce a declaration given in with respect to certain other monuments by the then Chief Commissioner, Delhi on January 16, 1914. 16th January, 1914 NO. 387-Education- In exercise of powers, conferred by Section 3(3) of the Ancient Monuments Preservation Act, 1904, (VII of 1904), the Chief Commissioner is pleased to confirm Notification no. 8453 - Education, dated the 12th November 1913, which declared the undermentioned monuments to be a protected monuments within the meaning of the Act. Monuments Locality

1. Tomb of Mumammad Shah known as Mubarik Khan Ka Gumbaz.

2. Tomb of Sikandar Lodi, with its enclosure walls and bastions, gates and compound.

3. Old Lodi Bridge with its approaches.

4. Mosque with its dalans and courtyard and the Bara Gumbaz (the domed entrance to the mosque). Khairpur. Khairpur. Near Tomb of Sikandar Lodi, Khairpur. Khairpur.

5. Unknown tomb with blue tile decoration known as Shisha Gumbaz.

6. The Qutub archaeological area as now fenced in, including the mosque, iron pillar, Minar of Qutbud Din, unfinished Minar, all colonnades, screen arches, tomb of Altamash, college buildings of Alaud Din, Tomb of Imam Zamin and all carved stones in the above area with gardens, paths and water channels and all gate ways including the Alai Darwaza; also all graves in the above area.

7. Tomb of Adham Khan (Rest House)

8. Tomb of Mumammad Quli Khan. Khairpur. Mehrauli. Mehrauli. South of Qutb Dak bungalow, Mehrauli.

34. A perusal of both the Notifications would reveal that wherever the Competent Authority intended to include in the Notification, the land adjoining the site of an ancient monument, it had said so. For example, in the Notification dated January 16, 1914 with regard to Tomb of Sikandar Lodi, the Authority has included enclosure walls and bastions, gates and compound as part of the declaration. Similarly, for Qutb Archaeological area has also included mosque, iron pillar, Minar of Qutbud Din, unfinished Minar, all colonnades etc. Similarly, against

┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│ Sl.   District      Locality    Name of      Area        Boundary: East, South,        Whether     Ownership     Remarks │
│ No.                             monument                 North, West                   in                                │
│                                                                                        religious                         │
│                                                                                        use                               │
│       Delhi         New         Jantar       Protected   South: South India Club, 9,   No          Maharaja of           │
│                     Delhi       Mantar       area 5.39   Jantar Mantar Road                        Jaipur                │
│                                                          East: Low land with a                                           │
│                                                          modern temple and well                                          │
│                                                          West: Jantar Mantar Road                                        │
│                                                          North-East: Partap Singh                                        │
│                                                          Building                                                        │
│                                                          North-West: Parliament                                          │
│                                                          Street                                                          │
│                                                                                        [No.F-3-76/50-C-1]                │
└──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

35. We also find that the Supreme Court in the case reported as (2012) 2 SCC 562, Archaeological Survey of India v. Narender Anand and Ors, while considering a similar issue with regard to Jantar Mantar, New Delhi had referred to a Notification of the year 1956, which reads as under:- "MINISTRY OF EDUCATION ARCHAEOLOGY New Delhi, the 4th October 1956 S.R.O. 2306. - In exercise of the powers conferred by sub-section (1) of Section 3 of the Ancient Monuments Preservation Act, 1904 (7 of 1904), the Central Government hereby declares the ancient monument described in the Schedule annexed hereto to be a protected monument within the meaning of the said Act. Sl. No. District Locality Name of monument Area Boundary: East, South, North, West Whether in religious use Ownership Remarks Delhi New Delhi Jantar Mantar Protected area 5.39 South: South India Club, 9, Jantar Mantar Road East: Low land with a modern temple and well West: Jantar Mantar Road North-East: Partap Singh Building North-West: Parliament Street No Maharaja of Jaipur [No.F-3-76/50-C-1] D. CHAKRAVARTI Under Secretary"

36. The Supreme Court in para 37 has referred to an observation made by the Division Bench with regard to the aforesaid Notification wherein the High Court has, by giving reference to the words “protected area 5.39” under the head “area” has held that the entire area of 5.39 acres falls under prohibited area.

37. In fact, the Supreme Court in para 53 of the Judgment has held as under: - “53. The appeal of Respondents 1 and 2 is wholly meritless. The High Court, in our view, has rightly held that even though the Notification dated 3-5- 1957 did not become effective because the same was not published in the Official Gazette, the earlier Notification issued on 4-10-1956 remained effective and the same was saved by Section 39(2) of the 1958 Act. We may add that even though the Notification dated 3-5-1957 was issued in supersession of the Notification dated 4-10-1956, the same remained alive because of non compliance of Section 3(2) of the 1904 Act. The High Court's interpretation of the prohibition contained in the Notification dated 16-6- 1992 is correct and the distance of 100 m has to be counted from the outer boundary wall of Jantar Mantar which has protected area of 5.39 acres and not the physical structures of the observatory. The High Court has given detailed reasons for rejecting the plea of Respondents 1 and 2 that the provisions of the DDA Act would prevail over those contained in the 1958 Act and we entirely agree with it.” From the above conclusion of the Supreme Court it is clear that in terms of the Notification issued with respect to Jantar Mantar, Delhi the whole area of 5.39 acres is the protected area and not just the physical structure of the observatory. So, the Supreme Court has based its observation on the Notification issued in that case.

38. In view of the aforesaid, we agree with the submission made by Mr. Tripathi that wherever the Competent Authority intended that the land adjoining the site of an ancient monument need to be included in the definition of „ancient monument‟, it would have said so. In the case in hand, it cannot be construed that the area adjoining the Tomb is part of the monument. We also say within 100 metres of the monument in terms of Section 20A of the Act and the judgment of the Supreme Court in the case of Archaeological Survey of India v. Narender Anand and Ors. (supra), no construction activity is permissible being prohibited / protected area.

39. Having said that, in the case in hand, the premise on which the petitioner has filed the petitions is that the construction activity is being taken within 100 mtrs from the outer wall of the monument. In view of our conclusion above, the premise on which the petitioner has filed the petition is fallacious.

40. Having said that, with regard to the property No. A-25, Nizamuddin (West), New Delhi, it is the case of the Director Antiquities, ASI and Competent Authority, NCT of Delhi that under the Act as depicted from the joint inspection report carried out on July 19, 2018, the Competent Authority has issued permission to the respondent No.5 for construction in regulated area after leaving a clear setback of 12 metres from the South East corner and 5 metres from the North East corner of the front side of the proposed site of construction. By this direction, the Competent Authority had directed the respondent No.5 to make construction beyond 100 metres of the monument by directing in the manner stated above. In other words, the intention of the Competent Authority is to bring the construction in continuity with the provisions of the Act / law laid down by the Supreme Court that no construction activity is permissible in the protected / prohibited area, i.e., within 100 mtrs from the monument.

41. Insofar as the property bearing No. D-2, Nizamuddin (East), New Delhi is concerned, it is represented before the Court that the property is at 104 mtrs i.e. beyond the protected area, i.e., the monument. If that be so, the impugned action of the respondent cannot be faulted. We may state here, that it is not the case of the petitioner that permission has not been granted by the Competent Authority under the 1958 Act for construction to the petitioners.

42. Having said that we find that a stand has been taken by the SDMC that the construction made in A-25, Nizamuddin (West), New Delhi is beyond the permissible limit; some part of the construction is within the compounding limit and the other being not and the proceeding for sealing has been initiated. We say nothing except that the SDMC is bound to take action in accordance with law.

43. In so far as the reliance placed on the Judgment of this Court in Emca Construction (supra) is concerned, suffice it to state, a co-ordinate bench of this Court has inter alia, held, that there is no provision for construction / renovation in a prohibited area. There is no dispute on the said proposition. The judgment has no applicability in these facts. In view of our above discussion, we do not see any merit in the petitions. The same are dismissed. CM APPL. 32963/2017 in W.P.(C) 7996/2017 CM APPLs. 19421/2018, 21827-28/2018 in W.P.(C) 5052/2018 Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE MARCH 06, 2019