Nishi Kant And Anr. vs Archaeological Survey Of India ...
2008 Latest Caselaw 525 Del

JUDGMENT

Siddharth Mridul, J.

1. The present petition has been filed in the public interest. The petitioners pray for a mandamus directing the respondents, to ensure protection to all old man-made monuments, declared and undeclared, of National or local importance, and for their restoration.

2. The petitioners are both residents of Delhi, and aver that out of respect and affection for old monuments, that represent the entire history and culture of the city, and out of concern for the dilapidated state of monuments existing in Badarpur, they approached the respondents in the month of April, 2005. The petitioners state that to their utter surprise and shock, they learnt that there was no legislation for protection of monuments within Delhi, as under the provision of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 the Archaeological Survey of India - respondent No. 1, is the Authority, for the protection of monuments of National importance only. Therefore, they were constrained to institute the present proceedings.

3. The petition states that it is the responsibility of respondent No. 2, i.e., the Department of Archeology of NCT of Delhi, to protect monuments within the State of Delhi. Further, the Municipal Corporation of Delhi and the Delhi Urban Art Commission, arrayed as respondent Nos. 3 & 4 respectively are the authorities that own the said monuments (more particularly the monuments existing at Badarpur area), and are constituted with the sole purpose to ensure the proper development of the city, whilst ensuring its aesthetic quality.

4. According to the petition, it is the mandatory and fundamental duty of the respondents, to ensure the protection of the heritage as well as composite culture of the city, which obligation requires the respondents to protect all old monuments, archaeological sites and remains. The petition alleges a lack of will, on the part of the Government agencies. Although a bill, namely, Delhi Ancient and Historical Monuments and Archaeological Sites and Remains Bill, 2004 (hereinafter referred to as `The Delhi Act, 2004') has been passed by the Assembly, it is not in force. Respondent No. 2, who has an annual budget of Rs.2 crores and an allocation of Rs. 10 crores over the last five years for preservation work, failed to put the money for providing protection to those monuments, that are within its jurisdiction. Consequently, the respondents have failed to perform statutory duties, and are by their inaction responsible for the failure to ensure the protection of all old monuments in Delhi.

5. The petition states that the petitioners were aghast and ashamed to see the dilapidated condition of the heritage monuments situated at Badarpur, inter alia, (1) Shahi Masjid, (2) Central Gateway, (3) Southern Gateway, (4) Northern Gateway, as well as (5) Kos Minars. The petitioners aver that it is the bounden duty of the present generation, who have inherited the legacy of rich cultural heritage from its ancestors to pass over the same to future generations. The petition states that The Delhi Act, 2004 must be given effect to, before monuments are rendered extinct, causing irreparable and irreversible loss to the heritage of Delhi.

6. Notices were issued to all the respondents as well as the Wakf Board. The Archaeological Survey of India stated that, it was concerned with the protection of National monuments, so declared, alone. It was stated that the second respondent was seized of the matter relating to other monuments in Delhi, and that a bill had already been passed. The Municipal Corporation of Delhi stated that although it had prepared the list of heritage buildings, it had no jurisdiction over any monument, which fell under the first respondent or would fall within the jurisdiction of the second respondent. The Delhi Urban Art Commission stated that the supervision, protection and maintenance of ancient monuments did not fall within their purview.

7. The Delhi Act, 2004 came into force from 7th September, 2005, and thereafter directions were issued to the respondent, to take action in relation to the Shahi Masjid, Central Gateway, Southern Gateway, Northern Gateway and Kos Minars situated in and around Badarpur.

8. On 24th February, 2007 Mr. Vijay Punjwani, the Amicus Curiae appointed by the Court, submitted that he will be filing a consolidated list of grievances and issues, so that appropriate orders in relation to the same are passed by this Court, while disposing of these petitions.

9. In these circumstances, it was directed that the petitioners too shall file a consolidated list of grievances/issues that need to be addressed and that remain to be resolved. The petitions were directed to be posted on 28th March, 2007. Eventually, the petition after having been adjourned on numerous dates for compliance with the direction dated 24th February, 2007, was posted for hearing on 8th April, 2008.

10. In the meantime, an application for early hearing, namely, CM No. 4134/2008 was filed by the petitioners, stating therein that, an urgent hearing may be granted in the petition, as the National Highway Authority of India and Delhi Metro Rail Corporation, are going ahead with projects that are not in accordance with, and are in violation of the provisions of The Delhi Act, 2004. This application for early hearing, i.e., CM No. 4134/2008 was allowed on 18th March, 2008, and the arguments in the present petition were heard on the said date, and the orders reserved.

11. On behalf of respondent No. 2 herein, it is urged that during the pendency of the writ petition The Delhi Act, 2004 has come into force. This act empowers the answering respondent, to declare any lesser known monument of local importance, as protected. Accordingly, respondent No. 2 has declared the following six monuments situated in and around Badarpur as protected under Section 4(3) of The Delhi Act, 2004.

  S. No.  Name of Monuments     Location
  1.    Norther Gateway       Badarpur
  2.    Central Gateway       Badarpur
  3.    Southern Gateway and
        enclosure remains     Badarpur
  4.    Kos Minar             Badarpur
  5.    Kos Minar             Badarpur Boarder
                              (Village Tajpul)
  6.    Kos Minar             Village Kotla
                              Mahigirim (near
                              Apollo Hospital)
 

12. It was further submitted on behalf of the official respondent that under the provisions of The Delhi Act, 2004, even without declaring a monument as protected, if the Director who is the Competent Authority, opines that a particular monument is being destroyed, either deliberately or otherwise, and the same needs to be preserved in the public interest, he shall take such steps as may be necessary to prevent destruction of the monument. It is also averred that the conservation and maintenance of 20 monuments, whose details are given here-in-below, is being undertaken by the respondent. Mutiny Memorial at Northern Ridge near Hindu Rao Hospital

The face lifting of this monument was done by the Department.

Dara Shikoh Library Building at Kashmere Gate

A basement on the rear side of the building which was hidden by debris and stair case was removed and the original Mughal structure was exposed thereby discovering red sand stone arches and ornamental pillars of Mughal period.

Maqbara Paik opp. G.T. K. Bus Depot.

The monument was in dilapidated condition. It was conserved in a systematic manner and the underground crypt chamber was uncovered after clearing the debris.

Turkman Gate at Asif Ali Road

Vegetation growth on the monument was carefully removed and it was given general facelift.

Pavilion (Baradari) at Qudsia Garden

The building which was in dilapidated condition was conserved sensitively by retaining its original character.

The entire decayed plaster on the outer surface of the monument was removed with utmost care and pointing was done with suitable mortar in the joints of the Iakhuri bricks. Deep cracks that had appeared on the surface, were also repaired by epoxy grouting applied with uniform pressure.

It has been identified for setting up of a museum.

Tomb at Sadhana Enclave

Micro vegetation growth with moss and lichen had covered the monument over past few years which was thoroughly cleaned and cracks repaired. Suitable grill boundary was also provided.

Baradari at Sadhana Enclave

Over past many years the monument was covered with micro vegetation growth. It was conserved after exposing the plinth and attended to other conservational measures like edging the ancient plaster, pointing deep joints of the stone masonary with suitable mortar and water tightening of the roof. Traces of broken stone chhajja found over these arched openings on the eastern façade, was replaced. The surface of the monument was thoroughly cleaned after removing micro vegetation. Suitable grill boundary was provided all around the monument.

Ghalib Haveli at Ballimaran, Chandni Chowk

Efforts were made to create a harmonious environment taking into account the same impact that would have been remained here in the nineteenth century. Care was taken while exposing the Mughal Lakhouri bricks on walls and arches. Sandstone flooring and chhajja in the courtyard was also provided. Suitable wooden gates having antique finish were provided by replacing the deteriorated ones.

A memorial museum was set up at Mirza Ghalib Haveli showing various facets of Ghalib's life and works and opened to public on all days from 10 A.M. To 5 P.M. Except on Mondays and Gazetted holidays.

Chaumchi Khan's Tomb at Mehrauli

The tomb was conserved by the Deptt. Of Archeology.

Sayyid Abid's Tomb in Delhi Golf Club

The tomb developed huge cracks on the outer surface of the dome and lot of moss & lichen accumulated. After removing the micro vegetation, the evidence of original shell plaster was discovered. The deep cracks developed on the outer surface of the dome were repaired. The monument was given chemical treatment and applied preservative coating.

Tomb near Hole No. 14-16 in Delhi Golf Club

Due to passage of time, the outer surface accumulated lot of moss & lichen and at some places lime plaster was pulverized. The internal paintings were deteriorated. The entire monument was given chemical treatment and the conservation work was undertaken to give its original look.

Tomb near Hole No. 4 in Delhi Golf Club

The monument was conserved and while executing the work, care was taken to strengthen the acient structure by applyinga suitable protective coat of lime plaster. One red sand stone Chhatri which was lying buried, was erected and reinstalled into its original position. Chemical treatment was also given to the monument.

Northern Guard House at Northern Ridge

The building contains a rectangular vaulted room with entrances on three sides which was repaired and given facelift.

Southern Guard House at Northern Ridge

It was also repaired and given facelift.

Zail at Bawana

The entire decayed outer surface of the monument was removed with atmost care and pointing was done with suitable mortar in the joints of the lakhuri bricks.

Biri Khan's Tomb at R.K. Puram, Sector-III

The whole structure was conserved and strengthened.

Tomb (Unknown) near Bijri Khan's Tomb at R.K. Puram, Sector-III

The structure was conserved and strengthened.

Minar at Hasthal Village

The conservation of this monument was taken up by the Department.

Bhuli Bhatvari ka Mahal at Southern Ridge near Karol Bagh

The conservation of this monument was taken up by the Department.

Shikargah at Jaunti Village

The conservation of this monument was undertaken by this department.

13. In addition, it has also been stated by the official respondent that 38 monuments situated within the Archaeological park, Mehrauli have also been restored. It is further stated that for the awareness of the general public, the respondent has inscribed the legend "Government Land (Serkari Zameen)" on the shutter of the shops removed from old monuments. The respondent further submits that a confirmatory statement under Section 4(3) of The Delhi Act, 2004 was issued on 1st November, 2007 in respect of the three Gateways and three "Kos Minars" situated in and around Badarpur. In this behalf, it is stated that the unauthorised shops running in the cells of Southern Gateway were removed on 26th November, 2007 and the protected area of the Gateways is now totally free from encroachments. The respondent is undertaking conservation work in the area and has also posted security guards and a sweeper for the regular upkeep of these monuments and to safeguard them from encroachments. It is submitted that the answering respondent is taking all necessary steps to prepare and collect the information in order to protect/conserve lesser known monuments in Delhi.

14. Mr. Vijay Punjwani, Amicus Curiae submitted that respondent No. 2 is duty bound to take similar steps for protection of remaining monuments in Delhi by declaring them as protected under The Delhi Act, 2004. He further submitted that restrictions as required under The Delhi Act, 2004 in relation to prohibited area and regulated area ought to be imposed around monuments that are declared protected. Mr.Punjwani also invited our attention to the projects being undertaken by (a) the NHAI for an Elevated Highway Project at Badarpur and (b) by DMRC for the purposes of Metro Rail Project, Phase-II and urged that these projects have negative environmental impact on cultural monuments and heritage buildings on Mathura Road and at Badarpur.

15. From the above, it is apparent that the principal grievances agitated in the present petition, namely, the absence of any legislation for the protection and restoration of monuments in Delhi, and the neglect of the monuments at Badarpur, have, during the pendency of this petition been addressed by the concerned respondent. There is no gain saying that a lot more needs to be done, but having said that, it is also eminently clear that the respondents are taking all necessary steps for the preservation and protection of old monuments in Delhi under the provision of The Delhi Act, 2004, that came into force during the pendency of the present petition. The petitioners' efforts in highlighting the issue of protection of old monuments and their restoration in order to preserve the rich cultural heritage of Delhi are undoubtedly stellar. Moreover, it has been expressed on their behalf that they would continue to take all necessary steps for the protection and conservation of old monuments in Delhi, including bringing to the notice of the concerned authorities, any and every instance of monuments in Delhi in need of protection, maintenance or repair.

16. Mr. V.K. Tandon, Advocate submits on behalf of the second respondent that the Director of Archeology of Government of NCT of Delhi or any other officer authorised to exercise the powers and perform all or any of the functions prescribed under The Delhi Act, 2004 for the purposes of protection maintenance, repair and restoration of old monuments, shall take all necessary steps to carry out the purposes of The Delhi Act, 2004, on receipt of information in this behalf from the petitioners.

17. Insofar as the projects being undertaken by the DMRC and the NHAI are concerned, it is seen the submissions in this regard are dehors the pleadings in the present petition. Therefore, these issues do not fall within the zone of consideration and adjudication of the present petition. In any event, it has been submitted that insofar as the project being undertaken by NHAI is concerned, it is being agitated and considered in another pending writ petition. Therefore, we do not consider it necessary to deal with these unrelated issues in the present petition.

18. In view of the above, we are of the opinion that the issues raised in the present public interest petition have been suitably addressed and, consequently, this petition is, accordingly, disposed of. However, the petitioners herein, are at liberty to take up the issues in relation to the protection and restoration of old monuments in Delhi with the competent Authority under the provision of The Delhi Act, 2004, who is expected to examine the representation if any received by it and take appropriate action in relation to the same. Liberty is, however, given to the petitioners to initiate appropriate proceedings in the event the authority fails to discharge its duties within the mandate of the Act. We leave the parties to bear their own costs.