Panchsheel Enclave Residents vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 851 Del

JUDGMENT

A.K. Sikri, J.

1. This writ petition is in the nature of Public Interest Litigation. The central issue pertains to unauthorised construction in and around the two old dilapidated and protected monumental structures right behind Blocks A and A1 of Panchesheel Enclave, New Delhi, falling in the area declared as Green Belt. According to the petitioner this land belongs to the DDA. However, the area is not only encroached upon by unauthorised persons, they are also raising illegal structures in spite of the fact that no such structure could be raised within 100 meters of the protected monuments. The petitioner is a Residents Welfare Association of Panchsheel Enclave Block A and A1. As would be clear from the averments made in the writ petition, it has brought the issue of the aforesaid encroachment and illegal construction to the various authorities including Chief Minister, Government of NCT of Delhi, Police Authorities, Municipal Corporation of Delhi, Archaeological Survey of India etc.

2. Following activities of illegal construction and unauthorised occupation were reported to these authorities:

1. Occupation and rampant construction in old and dilapidated monuments which exist for centuries in the Green Belt. These monuments have been virtually converted, after full-scale construction, into buildings for the use of commercial activities in the grab of running Madarsa/school by member of a single community.

2. Rampant illegal occupation of Government land and construction thereon by all and sundry in the area adjoining the aforesaid two dilapidated monuments where the land mafia has constructed multi-storey apartments for rental use and are being rampantly used by venders/auto-rickshaw drivers, commercial establishments for storage as godowns, job work/commercial activities by motor-mechanics etc. etc.

3. Attention of these authorities were also invited to unauthorised colonies which were coming up behind A and A1 Blocks of Panchsheel Enclave and the Petitioner Association also listed the following grievances and problems which they were facing because of this unauthorised colonies:

1. Thefts and crime have gone up tremendously and the police station are aware of this.

2. Commercial and residential constructions on government land which is a designated green area.

3. Illegal occupations of archeological monuments.

4. Conversion of inner colony road in Panchsheel Enclave into a Thoroughfare for access in and out of the unauthorised colony of commercial vehicles and criminals.

5. Cases of eve-teasing, snatching and other criminal type have soared.

6. Theft of electricity and water.

4. Certain correspondence ensued between the authorities and the Petitioner Association. It is not necessary to state the same in detail. Suffice it to state that despite repeated representations to these authorities, appropriate response could not be evoked. No positive action has been taken by these authorities either to stop illegal construction activity or remove encroachment. The petitioner has, therefore, filed this writ petition.

5. This writ petition came up for preliminary hearing on 19.9.2001 when notice to show cause was issued, returnable on 4.12.2001. On 4.12.2001 while issuing Rule, it was directed that status quo as of today shall be maintained. When the matter came up for hearing on 22.1.2002 learned counsel for the petitioner informed this Court that in spite of status quo order, rampant construction was going on. Accordingly the aforesaid order was reiterated and it was also directed that in the meantime, the respondents shall see to it that interim order passed by this Court on 4th December, 2001 directing the maintenance of status-quo is strictly adhered to and no construction is permitted to be raised within the restricted area.

6. Municipal Corporation of Delhi, Deputy Commissioner of Police and Archaeological Survey of India have filed their counter-affidavits.

7. When the matter came up for hearing on 14.5.2002 Mr. Rajiv Dutta, Senior Counsel appearing for the petitioner referred to the aforesaid orders dated 4.12.2001 and 22.1.2002 and submitted that necessary action was not taken to ensure compliance of these orders. He also submitted that in the affidavit filed on behalf of MCD it has been clarified that as per the Zonal Development Plan of Zone 'F' the site under question falls in the area earmarked for District Park and the same falls in the Development Area No. 93 as per the Notification No. F-42 (7)67/L&B dated 30th April, 1968. Thus he submitted that if it was a District Park, there could not have been any construction activity in any case. He further submitted that since the area belongs to DDA, the DDA has failed to protected its land.

8. Learned counsel also drew our attention to the

Archaeological Survey of India as per which out of two old dilapidated structures, namely, Lal Gumbad and Madarsa Zeenatul referred to in the petition, only Lal Gumbad at Chirag Delhi is declared as a monument of national importance vide Gazette Notification No.DL-3281-Edu. Dated 11.06.1924 while the other monument i.e. Madarsa Zeenatul is not looked after by the Archaeological Survey of India. This affidavit further discloses the action taken by the Archaeological Survey of India against the unauthorised construction by the encroacher and the relevant portion is extracted below:

"In the present case of Lal Gumbad at Chiragh Delhi, a centrally protected monument of National importance, the respondent Department has also lodged several FIRs/Police complaints with the nearest police station and also issued show cause notices under Sub-Section (1) of Section 4 of the Public Premises Act, 1971 to one Shri Abdul Hakim, Chrag Delhi on 24.03.1986, 01.07.1987 and 21.9.1988 immediately after receipt of an information from field staff about his illegal occupation and unauthorised constructional activity within the protected area of that monument which is in clear violation of Ancient monuments Archaeological Sites and Remains Act, 1958 Rules 1959 and notification of 1992. It is further submitted that aforesaid unauthorised construction and illegal occupation of Shri Abdul Hakim could not be got vacated at that thime as Shri Abdul Hakim filed an application for stay of eviction and operation of the impugned order dated 01.07.1987 under Section 9 of the PP Act 1971 before the Court of District Judge, Delhi wherein a stay has been granted to him by the Hon'ble Court vide order dated 16.07.1987 after disposal of which a fresh eviction order dated 1.11.88 was passed and as an FIR 284/85 is pending, no action could be taken and the matter is now listed for 23.08.2002

9. Mr. Dutta further submitted that although as per the stand of Archaeological Survey of India in the aforesaid affidavit; number of FIRs/Police complaints were made by Archaeological Survey of India with nearest Police Station whenever current construction activity was noticed within the prohibited and regulated area of Lal Gumbad, no action was taken by the Police, However, on the other hand, he pointed out that as per the affidavit filed by Deputy Commissioner of Police, the Police Authorities had not received any such complaint and the only complaint regarding security and safety problems of the residents of the colony dated 9.8.2001 was received from the Petitioner Association pursuant to which best staff was directed to take extra protection and thereby ensuring safety and security of the residents of the colony.

10. The DDA has not filed its response so far and further time was sought.

11. The aforesaid narration of facts depicts following admitted position:

A. Lal Gumbad monument is declared a centrally protected monument of national importance vide Notification No. 3281-Educ. Dated 11.06.1924 as per the Ancient Monuments Preservation Act-VII of 1904 which was repealed as Ancient Monuments Archaeological Sites and Remains Act, 1958. The protection notification specifically mentions that the ownership lies with the Government and as such the protected monument comprising 8094 sq. ft are remained under its physical protection.

B. The area around this protected monument has been encroached upon and the factum of such illegal encroachment, is accepted by all the Government authorities who are respondents in this petition.

C. It is also admitted that the modern construction activity is noticed within the prohibited and regulated area of Lal Gumbad which is clearly illegal.

D. As per Archaeological Survey of India it had taken out proceedings under Section 9 of the Public Premises (Eviction of unauthorised Occupants) Act, 1971 and passed order dated 1.7.1987 against which one Abdul Hakim had filed an appeal which was disposed of vide order dated 16.7.1987. Thereafter, fresh eviction order dated 1.11.88 was passed. However, no action has been taken pursuant thereto and the encroachers have not been removed.

E. The site in question where the encroachments have been made is also a District Park as per the Zonal Development Plan and, therefore, no construction can be carried out.

12. It is thus clear that one Abdul Hakim and some other persons have made illegal encroachments over the land belonging to the Government. No construction activity can be carried out on such a land either as per the provisions of the Ancient Monuments Archaeological Sites and Remains Act, 1958, Rules 1959 framed there under. Further Notification of 1992 issued under aforesaid Act completely prohibits any construction within 100 meters of the protected monuments. Even as per the Master Plan when the area is earmarked for District Park, no construction activity can be carried out.

13. However, the petitioner has filed the photographs which indicate rampant construction activities in utter violation of the aforesaid provisions of law that too by encroachers and illegal occupants of the land. All this has been happening but no concrete action has been taken by the respondents authorities either to stop the construction or remove the illegal encroachments.

14. Under these circumstances, the present writ petition is disposed of with the following directions:

1. The Archaeological Survey of India shall take appropriate action for removal of unauthorised encroachments on the land in question and implement its order dated 1.11.88 passed under Public Premises (Eviction of unauthorised Occupants) Act, 1971, if there is no other impediment for taking action pursuant to the aforesaid eviction order.

We may notice that although the Archaeological Survey of India has stated in its affidavit that further action could not be taken in view of some FIR pending, however, we do not understand as to how pendency of any such FIR could come in the way of the Archaeological Survey of India in implementing its order dated 1.11.88 unless some appeal is filed under the Public Premises (Eviction of unauthorised Occupants) Act, 1971 against the aforesaid order and some stay order is passed by the Competent Court. It is not stated in the affidavit that any such appeal has been filed.

2. The DDA shall also take appropriate action for removal of the encroachment from the site earmarked for District Park and also to ensure that no construction activity is carried out therein.

Both the aforesaid authorities should ensure that no further construction takes place. They should also take steps for removal of all unauthorised construction which has come up in the area, in accordance with law. Such construction activities being contrary to the doctrine of "Public Trust" cannot be allowed to remain.

3. The Deputy Commissioner of Police of the concerned area should extend all possible assistance and render all necessary police aid to the Archaeological Survey of India and DDA in executing their action.

15. The appropriate action should be taken within a period of two months and the necessary action taken report be filed in this case.

16. It is made clear that in case any further construction takes place, the Deputy Commissioner of Police of the area in question as well as concerned officials of Archaeological Survey of India and DDA shall be personally responsible for the same and answerable to this Court.

17. In case the petitioner feels that appropriate steps are not taken by the aforesaid authorities in all earnestness, the petitioner shall be entitled to bring this to the notice of the Court by filing miscellaneous application and may seek appropriate direction therein.