Full Text
HIGH COURT OF DELHI
CONT.CAS(C) 203/2017 & CM No.7307/2017
JAMIA ARABIA NIZAMIA WELFARE EDUCATIONAL SOCIETY .....Petitioner
Through: Mr. Ram Kumar Sharma, : . - ' Adv.
• Through: _ Mr. Sanjeev Narula, CGSC
^ i. • ' - forASL
• Mr. Anuj Gupta with Mr. Roshal Lai Goel, Advs. for
SDMC/R-2&3.
Mr. Rajat Malhotra with Mr. Sunil Malhotra, Advs. for R-
. '' • , 4,& 5. • , ' \
Insp. C.L. Meena with SI Ashok Kumar, P.S., Hazrat
• Nizamuddin.
.W ' JAMIA ARABIA NIZAMIA WELFARE EDUCATIONAL SOCIETY Petitioner
Through: Mr. Ram Kumar Sharma, t Adv.
•Through: Mr. Sanjeev Narula, CGSC
,, for ASI. , ^ Mr. Anuj Gupta with Mr. ~ Roshal Lai Goel, Advs. for
- SDMC/R-2&3.
, , Mr. Rajat Malhotra with Mr. W.P. (C) No.10997/2016 and Cont.Cas.(C) 203/20]7 Page 1 of10
2017:DHC:8837-DB Sunil Malhotra, Advs. for R-
4&5. .
Mr. Sanjeev Ralli wih Ms. Harsha Satyakam, Advs. for
DPCC/R-6.
' Mr. Jayant Tripathi with Mr. Dinesh Dahiya, Advs. for
' - , : R-7.
Insp. C.L. Meena with SI Ashok Kumar, P.S., Hazrat
. . Nizamuddin.
JUDGMENT
1 HON'BLE THE ACTING CHIEF JUSTICE I HON'BLE MR.
JUSTICE C.HARI SHANKAR ORDER % 11.10.2017
1. Writ petition (C) No.10997/2016 was filed by the writ petitioner complaining that there was encroachment, illegal and unauthorized constructions by building a double storey guest house property bearing No.279 extended upto the western wall of Baoli situated at Basti Hazrt Nizammudin, New Delhi -110013.
2. The writ petitioner has complained that this construction has been raised after destroying,the old double storied mosque called '•:l ''Chini ka Burf upto the western wall of Baoli which is part and parcel of the centrally protected monument. This construction is stated to have been come up within the prohibited area under Section 20-A of the Ancient Monuments and Archaeological Sites - and Reinains Act, 1958 (hereinafter referred to as 'the AMASR Act') as well as Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010.
3. In this writ petition, an order dated 22"^* February,, 2017 was W.P.(C) No.10997/2016 andCont.Cas.(Q 203/2017 • ^ Page 2 of10 2017:DHC:8837-DB. V I ' ^ i passed directing the respondent Nos.l to 5 to' ensure that there would be no unauthorized constructions.
4. On or about 6'^ March, 2017, the petitioner has filed the contempt petition being Cont.Cas.
(C) No.203/2017 making therein, L the grievance that the respondents have violated the order dated 22"'^ February, 2017 passed in W.P.(C) No.10997/2016 by raising massive illegal and unauthorized constructions in the property west wall of Hazrat Nizamuddin Ki-Baoli in property bea,ring Nos.279. 4 and 111, which was also within 5to 6meters from the said Hazrat ^ nd ^ Nizamuddin Ki-Baoli, even after passing of the order dated 22" February, 2017.
5. In response to the notice to show cause issued in Cont.Cas.. (C) No.203/2017, the counter affidavit on behalf of the respondent,Nos.[4] and 5 has been field by Sh. Jamail Singh, Station House Officer, Hazrat Nizamuddin iPolice Station, New Delhi.,
6. The counter affidavit has also been filed on behalf of the respondent' No.1/Archaeological Survey of India in W.P.(C).. No.10997/2016 under the signatures of Mr. N.K. Pathak, Superintending Archaeologist, Archaeological Survey of India, ' New Delhi. We extractthe, position.which subsists as is on record in the counter affidavit as under:
% W.P.(C) No.10997/2016and Cont.Cas.(C) 203/2017 Page[3] of10 Markaz (House No.279) by twofeet, the restoration of arcaded facade and renovation of Dargahi Markaz (HouseNo.279) has been undertaken as per approvals of answering respondent i.e. Archaeological Survey ofIndia and Municipal Corporation ofDelhi as cited above. The photographs at pg.50 Annexure - P-5 (Colly) filed by the petitioner itselfcorroborates to thefactor of restoration ofarcaded wall ofBaoli. Further, it is denied that Chini Ka Burj is a mosque which itself is attested at the Annexure P-6 (Colly) page No.53 to this writ petition. The photographs at page No.50, is a view of Hazrat Nizamuddin Baoli by Thomas & William Daniel (1801 * A.D.). The arcadedfacade at the lower level has been restored as per original and photographs annexed at Annexure RV explains the restoration carried under the project
11. In reply to the contents ofparas 14 and 15 it is. submitted that the repairs and restoration pf arcade structure and Dargahi Markaz (House No.279) have been undertaken under the Humanyun's Tomb-Sundar- Nursery-Hazrat Nizamuddin. Basti — Urban Renewal Project vide Memorandum of Understanding dated 11 07.2012 as per approvals ofArchaeological Survey of India and Municipal Corporation ofDelhi. Further, it is submitted that during the ongoing. project, ^ encroachmentsfrom the eastern and southern wall ofthe Baoli have been removed, besides repairs to the \ enclosure walls. Few Photographs are annexed as Annexure-RVI.
12. That in reply to the contents of para 16 it is submittedthat there is no damage caused to theprotected area ofBaoli. Chini KaBurj is not a Centrally Protected Monument, The photographs annexed by the petitioner at Annexure P/7 (colly) at pg. No.55 to 57 indicates the intact portion and restored arcaded facade, Chini Ka Burj during and after completion of work. The debris W.P.(C) No.10997/2016 andCont.Cas.(C) 203/2017 Page 4 of10 u and remains of piers in the photographs are. of the ancient arcaded peripheral wall of Baoli, which have ' - been restored by Aga Khan Trustfor Culture only after receding back wall ofHouse No.279. Further, it is pertinent to mention that petitioner has annexed a publication ofArchaeological Survey ofIndia dating back to year 1922 which at pg. No.-17 mentions ^ that Chini Ka Burj is in dilapidated conditions.: Although, it is not a Centrally Protected Monument, but, has beenpartially repaired and restored as already cited ^ above. ^ 13. That in reply to the'contents ofparas 17 and 18 it is submitted that Chini Ka Burj is not, a Centrally Protected Monument, therefore, to question of applicability ofSI. No.20, as it sought to be contradicted by Petitioner does not arise. Moreover, ChiniKa Burj is being restored and preserved in accordance with Memorandum ofUnderstanding dated 11 July 2007.
14. That in reply to the contents of para 19 it is submitted thai there is ho encroachment made in the protected area of Bdoli, a Centrally. Protected Monument. The petitioner may be asked to provide a strict proof of the encroachment of about 150 Sq. mtrs. ' and the destruction of Chini Ka Burj. Further, it is submitted that the receding back of wall of Dargahi Markaz (House No.279) has facilitated restoration of arcaded wall ofBaoli, a,Centrally Protected Monument.
15. That in reply to the contents ofparas 20 and 21 it is submitted that through the Humanyun's Tomb- Dundar-Nursery-Hazrat Nizamuddin Basti-Urban Renewal project the monuments (both protected and unprotected) are repaired and restored. The project is monitored by a Core Committee. The restoration of House No.279 (Dargah Mdrkaz) to restore ancient \ W.P.(C) No:10997/2016andCont.Cas.(C) '203/2017 Page 5of10 ^ ' arcaded wall qfBaoli, a Centrally Protected Monument is part ofabove project^Hence, it is denied that there is< any damage causedto the ancient structure. But, on the ', contrary the dilapidated/altered/damaged dreaded structure, part ofBaolihas been restored. I _ ' Grounds: '.: A-N\, •.. • That the grounds are wrong arid hence denied to the extentit controverts theprovisions ofAncient Monuments • and Archaeological Sites and Remains Act, 1958 and • Rules 1959 (Amendment And Validation) Act 2010 and ^ the orders ofthe Hon 'ble Supreme Court ofIndia and High Court which are matter of records. Reply of the proceeding paras may be referred to the contents of which are not repeatedfor thesake ofbrevity.
16. Thatinreply to the contents ofparas 22, 23and24 ' needs no reply. In view of the above,^.the Respondent. (Archaeological Survey of India) indicates action to report unauthorized constructions as per the provisions of, Ancient Monuments and Archaeological Sites and Remains Act 1958 arid Rules 1959 (Amendment and Validation) Act 2010 not only in Nizamuddin Baoli, but i • for all Centrally Protected Monument under its control, V under encroachment to all civic/law enforcing agencies. The power to cause demolition rest with District. Collector/District Magistrate asperprovisions ofSection 19 and Rule 38 of Ancient Monuments and ArchaeologicalSites &Remains Act &Rules.
1. The Archaeological Survey of India has filed certain photographs on record, which manifest the above stated position.
8. It appears that the South Delhi Municipal Corporation has W.P.(C) No.10997/2016 and Cont.Cas.(C) '203/2017 ' Page 6of10 A \),also taken action in the niatter, which is reflected by the following assertion in the affidavit dated 8'*^ March, 2017, which reads as under:
10 writ property- consisted of ground and first floor. The ASI has further permitted pushing back the wall 2 feet awayfrom the protected limit at Dargah Markaz. A copy of said permission letter dated 26/01/2014 is annexed herewith as Anhexure -A.
6. That writ property consists of ground floor and first floor. As of now, no construction activity is going on. The property is occupied. In view of given permission, ASI needs to clarify whether, owner has carried out repair work in accordance with permission or not."
9. So far as the grievance of the petitioner with regard to ongoing illegal and unauthorized constructions by the owner of ^ House No.279 &277 are concerned, the position which subsists II • i • has-been stated in the reply affidavit dated 7^ September, 2017 filed in Cont.Case.(C) No.203/2017 on behalf of.the Contemnor No.l under the signatures of.Ms. Usha Sharma, Director General, Archaeological Survey of India, New Delhi, wherein it is stated as ( under: •2. That in reply to the contents of para 2 it is submitted that in respect ofhouse no.279 the answering W.P.(C) No.10997/2016 andCont.Cas.(C) 203/2017 Page 7of10. i \ respondent vide letter dated 03.01.2014 had accorded permission to the Project Coordinator, Aga Khan trust for Culture to push back the wall at Dargah Markaz (House No.279) two (02) feet away from the protected limit of Baoli, a Centrally Protected Monument at Nizamuddin. Further, it is submitted that the shifting back ofwall ofDargah Markaz (House No.279) by two feet, the restoration ofarcadedfacade and renovation of Dargah Markaz (House No.279) has been undertaken as per approvals of Archaeological Survey of India and Municipal Corporation ofDelhi by the Aga Khan Trust for Culture under the Humanyun's Tomb-Sundar Nursery-Hazrat Nizamuddin Basti Urbanl Renewal.^ project as per Memorandum of Understanding dated 11.07.2012. The receded facade of the structure has been restored. The relevant details have been submitted in the counter affidavit to the Writ. Petition (C) No. 10997/2016: Further, it is also submitted that the answering respondents has initiated action, in respect of unauthorized construction atpf-operty No.277 located in the prohibited area of Baoli, Nizamuddin, a Centrally ProtectedMonument prior tofiling of writpetition and^ C.M. on 02.11.2016 the Humanyun's Tomb Sub-Circle In-chqrge had lodged a complaint to the Station House - Officer, PS Nizamuddinfor unauthorized construction at House No.277. Further, a show cause notice dated 16.11.2016 was issued by the Circle Officer under intimation to civic and other law enforcing agencies to stop the illegal/unauthorized construction and register, case against offender under the provisions of Ancient Monument and Archaeological Sites & Remains Act, 1958and (Amendment and Validation) Act, 2010. It was ' followed by issuing notice asperprovisions ofRule 38(1) \ on 11.04.2017 and demolition order dated 27.04.2017for removal ofunauthorized construction under intimation to civic and law enforcing agencies. Copies of relevant W.P. (C) No.10997/2016 and Cont.Cas.(C) 203/2017 Page 8of10, ' correspondence areannexed asAnnexure —R[1] (Colly).
3. That in reply to the contents of para 3 it, is submitted that in pursuance ofdirections of this Hon'ble Court vide order dated 22.02.2017 the answering respondent directed to Sh.. Ahmed Nizami, Property No.279 to ensure that no construction is taken place and orders of the Hon 'ble Court are implemented in letter and spirit. Sh. Ahmed Nizami vide letter dated 14.03.2017 has, confirmed that renovation work at his property, initiated by Aga Khan Trust for Culture and duly sanctioned by the Archaeological Survey ofIndia, was completed in August 2016. Since then he has been residing there and no construction has taken place after August 2016 till date. Copies ofrelevant correspondence: _are annexed as Annexure R—II (Colly). Further, all concerned civic agencies and law enforcing agencies vide; letter dated 12.04.2017 have been requested to ensure that no further construction takes place at property No.,277 in respect of which Archaeological Survey of India has already issued demolition order under Section 38(2) of Ancient Monuments andArchaeological Sites and Rules, 1959.'''
10. It would, therefore, appear that the respondents have taken action in accordance with law so far as illegal and unauthorized A constructions in the property bearing Nos.277 and 279, Baoli Gate, Basti Hazrt Nizammudin, New Delhi - 110013 are concerned^ after the boundary wall has been pushed back. The respondents have stated thatthe construction is within the four-comers of law.,11. In view of the above, Writ Petition (C) No.10997/2016 and Cont. Cas.
(C) No.203/2017 as well as pending applications are \ disposed ofwith adirection to the respondents that the respondents W.P.(C) No.10997/2016 and Cont.Cas.(e) 203/2017' Page 9of10 T' \ •• 1-,, - >, ), • ''. "• / shall ensure that the statutory provisions are strictly complied with and no illegal and unauthorized, constructions are permitted to be 'continued or raised. ~ ' v
12. Notice issued in Gont.Cas.(C) No.203/2017 stands discharged;;,, ' - ' - '; ' • Dqsii to the parties.; _ ACTINjI&CHIEFJeSflCE;:rpCAR,V G.HARI OCTOBER 11,2017/pmc.. •> W.P: (C) No.10997/2016and Cont.Cas. (C) 203/2017 Page 10 of10