Hauz Khas Neighborhood ... vs Archaeological Survey Of India ...
2003 Latest Caselaw 346 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1.Ancient monuments are national heritage and it is the social responsibility of any civilization to protect such monuments. It was with this avowed object The Ancient Monuments And Archaeological Sites And Remains Act, 1958 (hereinafter to be referred to as, 'the said Act') was brought into force.

2.Section 2 of the said Act is the definition section and section 2(i) and 2(j) define 'protected area' and 'protected monument' as under :-

"2. Definitions.

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(i) "protected area" means any archaeological site and remains which is declared to be of national importance by or under this Act;

(j) "protected monument" means an ancient monument which is declared to be of national importance by or under this Act."

3.Section 38 of the said Act confers power on the Central Government to make rules for carrying out the purposes of this Act, which had to be duly notified. Section 38(2)(a) of the said Act is as follows :-

"38. Power to make rules.

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(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-

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(b) the grant of licenses and permissions to make excavations for archaeological purposes in protected areas, the authorities by whom and the restrictions and conditions subject to which, such licenses may be granted, the talking of securities from licensees and the fees that may be charged for such licenses;

4.In exercise of the powers conferred by Section 38 of the said Act, the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 ( hereinafter to be referred to as, 'the said Rules') were enacted and duly notified on 15.10.1959.

5.Rule 2(f) of the said Rules defines 'prohibited area' and 'regulated area' in the following terms :-

"2. Definitions.

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(f) "prohibited area" or "regulated area" means an area near or adjoining a protected monument which the Central Government has, by notification in the Official Gazette, declared to be a prohibited area or, as the case may be, a regulated area, for purposes of mining operation or construction of both;"

6.In pursuance to the aforesaid rule 2(f) of the said Rules, the Central Government issued a notification dated 16.06.1992 declaring certain areas to be prohibited and regulated areas after giving one month's notice of its intention to declare the area up to 100 mtrs. from the protected monument and up to 200 mtrs. near or adjoining the protected monument to be the 'prohibited area' and 'regulated area' for the purposes of both mining operation and construction in terms of the Gazette Notification dated 25.07.1991.

7.Rule 33 of the said Rules provides for the effect of declaration of a prohibited area or a regulated area, which reads thus :-

"33. Effect of declaration of prohibited or regulated area. No person other than an archaeological officer shall undertake any mining operation or any construction.

(a) in a prohibited area, or

(b) in a regulated area, except under and in accordance with the terms and conditions of a license granted by the Director-General."

8.Rule 34 of the said Rules provides as to how an application for license is to be made for carrying out any mining operation or construction in the regulated area. The said Rule 34 is in the following terms :-

"34. Application for license. Every person intending to undertake any mining operation or any construction in a regulated area shall apply to the Director-General in Form VII at least three months before the date of commencement of such operation or construction."

 9.Rule 35 of the said Rules relates to 'grant or refusal of license' and Rule 36 of the said Rules relates to 'cancellation of license'.    The said rules 35 and 36 are as under :- 
   

 "35. Grant or refusal of license.-  
   

 (1)  On receipt of an application under rule 34, the Director-General may grant a license or, if he is satisfied that the license asked for should not be granted, may, for reasons to be recorded, refuse to grant a license. 
 

 (2) Every license granted under sub-rule (1) shall be in form VIII and be subject to the following conditions, namely :- 
   

 (a) the license shall not be transferable; 
 

 (b) it shall be valid for the period specified therein;  and  
 

(c) any other condition relating to the manner or carrying out the mining operation or the construction which the Director-General may specify in the license for ensuring the safety and appearance of, and the maintenance of the approach and access to the protected monument.

36. Cancellation of license.- The Director-General may, by order, cancel a license granted under rule 35 if he is satisfied that any of its conditions has been violated;"

10.Rule 37 of the said Rules provides for an appeal by any person aggrieved by an order made under rule 35 or rule 36 and as such appeal has to be preferred to the Central Government whose decision shall be final. The said rule 37 reads thus:-

"37. Appeal. Any person aggrieved by an order of the Director-General made under rule 35 or rule 36 may prefer an appeal to the Central Government; and the decision of that Government on such appeal shall be final."

11.Rule 38 of the said Rules provides for removal of unauthorised buildings in the following terms :-

"38. Removal of unauthorised buildings.

(1) The Central Government may, by order, direct the owner or occupier of an unauthorised construction in a prohibited area or in a regulated are or of a building or part thereof which has been constructed in contravention of any of the conditions of a license granted under rule 35 to remove such building or part thereof within a period specified in that order.

(2) If the owner of 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."

12.The genes of the dispute in the present three writ petitions arise from the initiation of the proceedings by the petitioner in July, 1999 when the petitioner filed civil writ petition being CWP No. 4397 of 1999 titled 'M/s. Hauz Khas neighborhood Association v. Municpal Corporation of Delhi & Ors.'.

13.The grievance made in the petition was that a monument known as 'Chor Minar' had been declared a protected monument and the area around the said monument was declared a protected area up to 100 mtrs. and a regulated area up to 200 mtrs. The grievance was made in respect of certain construction made within the said area, which was stated to be unauthorised and, thus, a Writ of Mandamus was sought for demolishing the said construction. The said writ petition was disposed of on 18.04.2000. The writ petition was concerned with the properties all situated at Hauz Khas Enclave bearing Nos. F - 1/8, F - 1/11, F - 6/B, F - 19, F - 24 and Q - 8. A direction was issued insofar the properties bearing No. F - 1/8, F - 1/11 and F - 6/B to the effect that since the matter relating to the permission from Archaeological Survey of India was pending consideration before the said authority, the same should be duly considered and decision be taken in accordance with law. It was also provided that if a person was aggrieved against the same, an appeal could be taken to the statutory appellate authority. The said direction is as under :-

"... Since the matter relating to permission from the Archaeological Survey of India is pending consideration before the said authority, I deem it necessary to pass an order that the said proceedings pending before the Archaeological Survey of India in respect of properties No. F-1/8, F-1/11, F-6/B could be considered by the Archaeological Survey of India and a decision shall be rendered in accordance with law. It is also made clear that if any person is aggrieved as against the aforesaid orders passed by the Archaeological Survey of India an appeal could be taken to the Statutory Appellate Authority in accordance with the statutory provisions and the said appeal as and when filed shall also be considered in accordance with law."

1.The last paragraph of the judgment also gave liberty as under :-

"In terms of the aforesaid order petition stands disposed of, as nothing further survives in the writ petition, with a liberty to the parties to approach the appropriate forum in accordance with law, if there be any future cause of action."

2.The petitioner preferred a letters patent appeal being LPA No. 352/2000 against the Order dated 18.04.2000, but the same was disposed of on 31.07.2000 with the permission to move the learned Single Judge. Thereafter an application was filed by the petitioner for review / recall of the Order dated 18.04.2000, which was dismissed on 06.08.2001 and against the same, the petitioner filed another letters patent appeal being LPA No. 547/2001, which was dismissed on 24.02.2003 by the Division Bench.

3.It may be noticed that in the present three writ petitions, CWP No. 5152/2000 is in respect of property bearing No. F - 6B; CWP No. 5250/2000 is in respect of property bearing No. F - 1/8; and CWP No. 5388/2000 is in respect of property bearing No. F - 1/11.

4.The present three writ petitions bearing Nos. 5152/2000, 5250/2000 and 5388/2000 have been filed in view of the Orders passed by the Archaeological Survey of India dated 23.06.2000, 27.06.2000 and 27.06.2000 respectively. It is noticed in the order dated 23.06.2000 that though the new construction falls within the prohibited area of 100 mtrs., but considering the fact that the building is within the height, which was already in existence prior to the date of notification dated 16.06.1992 published in July, 1992, permission is granted for reconstruction of the building up to the earlier existing height.

5.In the other two writ petitions, it is noticed that the applicants therein, who are respondent No. 2 in the present writ petition, had raised a multi-storeyed building after demolishing the existing structure and, thus, the ex-post facto permission sought for had been refused earlier. Against the same, an appeal was preferred under rule 37 and in pursuance to the order passed by the Secretary Culture (Central Government), a fresh application was filed along with relevant documents showing the existing height of the structure prior to the date of issuance of the notification and, thus, permission had been granted subject to the terms and conditions mentioned in the order.

6.The principal contention advanced on behalf of the petitioner is that the licensing authority had no discretion to grant any permission for mining or construction activities in the area falling within the prohibited area and an application for license to construct could be made only in respect of the regulated area.

7.The writ petitions are opposed by the respondents including the respondent No. 2 and it has been contended that the issues raised in the previous writ petition filed by the petitioner cannot be re-agitated herein and there would have been no issue of remand of the matter for consideration, if there was such a ban.

8.Allegations have also been made that the writ petitions have been filed for extraneous consideration and an illustration of the same stated to be that the petitioner is not aggrieved by the construction in Q - 8 or Q - 2A, which are identical to the respondent No. 2. It is further stated that no grievance had been made in respect of other buildings in the same area. The plea of res judicata / constructive res judicata and estoppel has been raised in view of the earlier writ petition and the finality of the order passed by the learned Single Judge in the earlier writ petition which was confirmed by the Division Bench. It is further stated that the Government of India by an order dated 04.04.2000 has sought to harmonise the interpretation of notification dated 16.06.1992, the building bye-laws and the Master Plan norms while holding that the permission could be granted to the extent of authorized construction.

9.It has also been contended that the present writ petition is not maintainable in view of the alternative efficacious remedy provided under the said Rules for an appeal, as also in view of the liberty granted by the learned Single Judge in CWP No. 4347/1999. This position is disputed by the petitioner on the ground that the order passed by the competent authority is without jurisdiction and, thus, in view of the judgment of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. , the remedy under Article 226 of the Constitution of India is available.

10.It is further stated that even in terms of the Order dated 18.04.2000 passed in CWP No. 4347/1999, liberty was granted to the parties to approach the forum and the appropriate forum in the present case is the present proceedings initiated by the petitioner. It is stated that the petitioner is not an aggrieved party and could not have resorted to an appeal and more so because no notice of the proceedings had been issued to the petitioner.

11.I am of the considered view that the issue of alternative appellate remedy has to be considered, since if it is held that the same is available, it would not be necessary to go into the merits of the controversy.

12. It is relevant to note that rule 37 of the said Rules, which provides for an appeal refers to any person aggrieved by the order made under rule 35 or rule 36. Rule 35 of the said Rules refers to the grant or refusal of license and states that on receipt of an application under rule 34, the Director-General may grant a license or may, for reasons recorded, refuse to grant a license. The said rule, thus, shows that both grant and refusal are aspects arising from the orders to be passed under rule 35. Since in terms of rule 37 of the said Rules, an aggrieved person is 'any person aggrieved by an order made under rule 35', the natural consequence would be that such an appeal in case of refusal of license, would be the person, who had applied for the license, who would be aggrieved. However, the applicant can certainly not be a person in case he had granted a license. Construing both the rules together, I am of the considered view that it provides for an appeal even by a person aggrieved by the grant of license. Such a person can only be any person other than the applicant, who would be entitled to file the appeal.

13.Thus, I am of the considered view that the respondents are right in making the submission that the remedy against the order impugned in the present proceedings is to file an appeal under rule 37 of the said Rules.

14.It has to be appreciated that the said Rules have been framed under the said Act and provides a complete procedure for consideration of the applications and the appeal. The grievance of the petitioner really is that the order should not have been passed by the competent authority in favor of the respondent No. 2, since no construction was permissible within the prohibited area. This cannot be called a case of inherent lack of jurisdiction, since the jurisdiction did exist to grant or refuse to grant the license and which has been exercised in favor of the respondent No. 2 being the applicants.

15.There is another aspect of the matter in view of the fact that the petitioner had preferred an earlier writ petition. In the said writ petition also directions had been passed that if any person is aggrieved against the orders to be passed by the competent authority, appeal could be taken to the statutory appellate authority in accordance with the statutory provisions, which will be considered in accordance with law. The writ petition was disposed of with liberty to the parties to approach the forum in accordance with law.

16.In view of the aforesaid position, it was open to the petitioner to have filed an appeal before the appellate authority under rule 39 claiming to be an aggrieved person by the grant of license in favor of the respondent No. 2. I see no reason why this Court should exercise jurisdiction under Article 226 of the Constitution of India when the alternative efficacious remedy of appeal is available. This is also to be considered in view of the allegations made in the writ petition that there was no material to come to the conclusion of a particular existing height of the earlier structure and that the elevation plans were also incorrect as submitted by the respondent No. 2. All these factual aspects can be best considered by the appellate authority.

17.Thus, all the three writ petitions are dismissed with liberty to the petitioner to approach the statutory appellate authority and in case of such an appeal being filed, the same shall be considered by the appellate authority in accordance with law. The parties are left to bear their own costs.