Nahata Traders & Builders Pvt. ... vs Director General, ...
2010 Latest Caselaw 4931 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                          W.P.(C) 9886/2003

                                               Reserved on: 16th September 2010
                                               Decision on: 26th October 2010

         NAHATA TRADERS & BUILDERS PVT. LTD.            .. Petitioner
                    Through Mr. U.N. Bhachawat, Senior Advocate
                    with Mr. Abhisheik Baid, Mr. Syed Hasan
                    Isfahani, Mr. V.K. Singh and
                    Mr. Jainul Abidi, Advocates.

                        versus

        DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY
        OF INDIA & ORS                        ..... Respondents
                       Through Mr. Jayant Tripathi, Advocate for ASI.
                       Ms. Barkha Babbar, Advocate for UOI.
                       Dr. Ashwani Bhardwaj, Advocate.


                                 W.P.(C) 9887/2003

         NAHATA GROUP OF BUILDERS & FINANCIERS
         PVT. LTD.                                .... Petitioner
                    Through Mr. U.N. Bhachawat, Senior Advocate
                    with Mr. Abhisheik Baid, Mr. Syed Hasan
                    Isfahani, Mr. V.K. Singh and Mr. Jainul Abidi,
                    Advocates.

                        versus

        DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY
        OF INDIA & ORS                        ..... Respondents
                       Through Mr. Jayant Tripathi, Advocate for ASI.
                       Ms. Barkha Babbar, Advocate for UOI.
                       Dr. Ashwani Bhardwaj, Advocate.


    CORAM: JUSTICE S. MURALIDHAR

        1. Whether Reporters of local papers may be
             allowed to see the judgment?                                No
        2. To be referred to the Reporter or not?                       Yes
        3. Whether the judgment should be reported in Digest?           Yes

                                   JUDGMENT

26.10.2010

1. The background facts in Writ Petition (Civil) No. 9886 of 2003 filed by

Nahata Traders & Builders Pvt. Ltd. („NTBPL‟) and Writ Petition (Civil)

No. 9887 of 2003 by Nahata Group of Builders & Financiers Pvt. Ltd.

(„NGBFPL‟) are more or less similar. The questions for determination in

both writ petitions are also based on a common set of facts. Accordingly,

these two writ petitions are disposed of by this common judgment.

Background facts in W.P. (C) No. 9886 of 2003

2. The relevant facts are that way back in 1982, NTBPL the Petitioner in

Writ Petition (Civil) No. 9886 of 2007 purchased land comprised in khasra

No. 564/87 situated in Village Kotla Mubarakpur, New Delhi (hereinafter

referred as the „property in question‟) by way of five sale deeds dated 2nd

June 1984. It is stated that the property in question was given Municipal No.

D-46A. It is stated that after being put into possession of the property in

question, NTBPL got the occupants vacated on payment of some

compensation and raised a boundary wall. On 20th September 1984, the

name of NTBPL was mutated in the records of the Municipal Corporation of

Delhi („MCD‟) and also in the revenue records. It is stated that after

demolition of the construction raised by the encroachers, there were 7

rooms, 2 bathrooms, one kitchen and 3 toilets left untouched for the use of

the NTBPL and for occupation of the caretaker. It is stated that NTBPL also

obtained telephone, water and electricity connections in the property. One

room was in the occupation of Mr. Hans Raj Malhotra, the caretaker of the

NTBPL.

3. It is stated that there are two ancient monuments in the vicinity of the

property in question. One is on the northern side known as Chhote Khan and

the other on the southern side known as Bhure Khan. On 22nd October 1984,

proceedings were initiated by the Income Tax Department in relation to the

purchase of the property in question on the ground that transaction was

undervalued. Subsequently, these proceedings were dropped. On 23 rd

February 1988, certain search and seizure operations under Section 132 of

the Income Tax Act, 1961 were undertaken in the property in question.

Thereafter on being satisfied, the Income Tax Department released the books

of accounts and other documents seized and dropped further proceedings.

4. In the year 1991, NTBPL filed a suit for permanent injunction against one

Mr. K.Y. Yelliah seeking to restrain him from interfering with the

Petitioner‟s possession, inter alia, of the property in question. A Local

Commissioner (LC) was appointed by the civil court to inspect the property

in question and submit a report. An interim stay was granted to the

Petitioner. The suit for permanent injunction was ultimately decreed on 30th

May 1998.

5. Meanwhile, in August 1996, the Director of NTBPL Shri Lalit Kumar

Nahata received an order dated 7th August 1996 addressed in his personal

name under Section 5(1) of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 („PP‟ Act) alleging that the Director was in

unauthorised occupation of the Government land in khasra Nos. 563/87 and

564/87 and required him to vacate the premises forthwith. On 14th February

1997, an appeal was filed by Mr. Nahata, the Director of NTBPL, which was

allowed by the District Judge and the impugned order dated 7th August 1996

directing eviction of the NTBPL was quashed.

6. On 1st April 1997, a fresh show cause notice was issued under the PP Act

in the name of Director of NTBPL Mr. Nahata, wherein it was alleged that

he had encroached upon a piece of the land belonging to the Archaeological

Survey of India („ASI‟) which was attached to Chhote Khan, Bade Khan and

Bhure Khan in khasra Nos. 563/87 and 564/1987. These notices were

contested by filing a detailed reply. It was pointed out that the lands in

question belonged to two other companies and the notice in the name of the

addressee was bad in law.

7. It is stated that on 16th August 2003, officials of Indian Tourism

Development Corporation („ITDC‟) armed with cameras along with a group

of workers tried to enter into the property in question. The NTBPL is stated

to have reported the matter to the police. On 26th September 2003 a notice

dated 24th September 2003 addressed to M/s Nahata Group of Traders

(„NGT‟) was received by an employee of NGT which was purportedly in

"suppression to all preceding notices issued by the ASI." On 1st October

2003, NGT sent a reply stating that it has no relation to the property in

question.

8. It is stated that on 23rd December 2003 at about 3.00 pm, 10-11 persons

led by the Deputy Superintendent, ASI and two other officials accompanied

by about 50 labourers and the local police came to the property in question

and started demolition of the boundary wall and the rooms. Despite a

demand being made in this regard, no order for demolition was produced by

the ASI officials. The entire boundary wall was pulled down along with the

old rooms in occupation of the NTBPL. A police complaint is stated to have

been lodged by the NTBPL with the local police about the said incident.

9. After the ASI refused to permit the Petitioner NTBPL on the basis of

which the demolition had purportedly taken place, W.P (C) No. 9886 of

2003 was filed on 29th December 2003. By an interim order dated 12th May

2004 passed by this Court, it was directed that "any action taken by the

Respondents of merging the land which is alleged to be that of the Petitioner

shall be subject to the final outcome of the writ petition and at the risk and

cost of the Respondents." It was further directed that the Respondents would

not claim any special equity in case subsequently any structure is directed to

be removed. Records were later directed to be produced and inspected by the

Petitioner as well.

Background facts in W.P. (C) No. 9887 of 2003

10. Writ Petition (Civil) No. 9887 of 2003 filed by NGBFPL concerns the

property situated in khasra No. 86 admeasuring 1 bigha and 19 biswas which

was purchased by NGBFPL by virtue of four sale deeds. The property in

question has been given Municipal No. D-46 B in the municipal records. In

the property in question, there were 8 shops, 38 rooms, 16 huts, 4 toilets and

4 bathrooms. It is stated that the property in question i.e. D-46B was in

occupation of 55 tenants who were paid compensation by NGBFPL for

getting them vacated. It is stated that immediately thereafter NGBFPL got a

boundary wall constructed to protect the property in question from

encroachers. Upon an application made by the NGBFPL, the property was

mutated in the name of NGBFPL in the MCD records. One room of the

property was in the occupation of the caretaker Mr. Kewal Yadav. It is stated

that on the northern side of the property at No. D-46B, there are two ancient

monuments known as Chhote Khan and Bhure Khan. It is stated that in a

search and seizure operation under Section 132 of the Income Tax Act, 1961

the books of accounts of NGBFPL were seized and later released by the

Commissioner of Income Tax (Central)-1, New Delhi by an order dated 3rd

May 1989 , after having accepted as guarantee the pledge of the property in

question. The said order is stated to be continuing.

11. On 15th September 2002, a notice dated 13th September 2002 was

received by NGBFPL under Rule 38 of the AMASR Rules alleging that

NGBFPL was carrying on unauthorised construction within prohibited limits

of a centrally protected monument Chhote Khan in contravention of Rule 33

of the AMASR Rules. The NGBFPL replied to the notice denying that any

unauthorised construction was being carried on. It was further pointed out

that the new construction of a 3-storeyed building was being carried out in

the vicinity of the property in question belonging to NGBFPL.

12. Thereafter on 2nd August 2003 another notice dated 29th July 2003 was

received by NGBFPL from the ASI under Rule 38 of the AMASR Rules

which was stated to have superseded all the previous notices issued by the

ASI. In reply to this notice, it was stated that the unauthorised constructions

were related to M/s CMS Computers Limited and the Sanathan Dharam

Sabha Satyanarain Temple, both of which were outside the boundary wall of

the land of NGBFPL. On 16th August 2003, a group of ASI officials and

workers from the office of the ITDC were stated to have come with cameras

and tried to enter into the property in question belonging to NGBFPL. No

order authorising such demolition was produced by the officials. A

complaint was accordingly lodged with the police. On 26th September 2003,

a notice dated 24th September 2003 addressed to NGT was received by Mr.

Jayanti Lal Yadav, an employee of NGT on its behalf. It is stated that NGT

is a different entity from NGBFPL and NTBPL. NGT is stated to have no

interest, title or right in the property in question of khasra No. 86 which is

exclusively owned by NGBFPL. The notice dated 24th September 2003

mentioned that it superseded all previous notices issued by ASI.

13. The NGT replied to the notice dated 24th September 2003 stating that it

did not own the property in question at khasra No. 86. It is stated that on 23 rd

December 2003 at about 3.00 pm, 10-11 persons led by the Deputy

Superintendent, ASI and two other officials accompanied by about 50

labourers and the local police from Police Station Kotla Mubarakpur came to

the plot at D-46 B and started demolition of the boundary wall and the

rooms. The order authorising demolition was not produced despite demands.

It is stated that the entire demolition proceedings were recorded on video by

the NGBFPL and a complaint was also lodged with the Police. Inspection of

the files was also not permitted to the NGBFPL.

14. It is in these circumstances that Writ Petition (C) No. 9887 of 2003 was

filed by NGBFPL in this Court on 30th December 2003. By an interim order

dated 12th May 2004 passed by this Court, it was directed that "any action

taken by the Respondents of merging the land which is alleged to be that of

the Petitioner shall be subject to the final outcome of the writ petition and at

the risk and cost of the Respondents." It was further directed that the

Respondents would not claim any special equity in case subsequently any

structure was directed to be removed.

Reply by the ASI

15. A counter- affidavit has been filed by the ASI in Writ Petition (Civil)

No. 9887 of 2003 only. However, it has dealt with the facts of both the writ

petitions. It is stated that the three monuments Chhote Khan, Bade Khan and

Bhure Khan were built as a group of three monuments and are located inside

a fully developed, regularised, urbanised and well-planned colony, known as

New Delhi South Extension Part-I (NDSE-I) and that their protected limits

are enveloped by Blocks C and D of NDSE-I. It is stated that Bade Khan and

Chhote Khan were declared as protected monuments by a Notification dated

25th March 1918 even under the Ancient Monuments Preservation Act, 1904

(AMP Act, 1904). By a Notification dated 11th November 1926 issued under

Section 3(3) of the AMP Act 1904, the tomb of Bhure Khan was also

declared as a protected monument. It is stated that land measuring 5 bighas

and 17 biswas in khasra No. 564/87 in Village Kotla Mubarakpur formed

part of the protected limits of the protected monuments of Bade Khan and

Chhote Khan, while land admeasuring 1 bigha and 7 biswas in khasra No.

563/87 of Kotla Mubarakpur formed part of the protected limits of the

protected monument of Bhure Khan. After the enactment of AMASR Act,

1958 a Notification dated 16th June 1992 was issued under Rule 32 of the

AMASR Rules declaring that the areas falling within a 100 metre radius

from the peripheries of protected monuments as „prohibited areas‟ and

further declaring the area up to the extent of 200 metres as a „regulated area.‟

It is stated that the expressions "regulated area" and "prohibited area" were

different from the expression "protected area". Under Section 2(i) of the

AMASR Act, 1958 "protected area" is an area which means "any

archaeological site and remains which is declared to be of national

importance by or under" the AMASR Act, 1958. It is accordingly submitted

that whenever a notification is gazetted notifying a particular monument as a

protected monument, the area shown in the notification as the location of the

protected monument ipso facto becomes a protected area.

16. It is sought to be contended that such portion of the land adjoining the

site of an ancient monument as may be required for fencing area covering

such monument is an integral part of the ancient monument itself.

Consequently, it is suggested that the relevant khasra nos. 563/87 and 564/87

became „protected areas‟.

17. Further, in the counter affidavit of the ASI, it is stated as under:

"20. It is a matter of common knowledge that large area forming part of the revenue estate of Kotla Mubarakpur was purchased by DLF from the villagers and was subsequently developed into the colony known as South Extension Part-I. The said colony was conceived as a plotted colony comprising of plots which were carved out and demarcated with the sanction of Municipal authorities."

18. Thereafter, in para 22 of the counter affidavit it is stated as under:

"22. In the municipal records, the area round the monuments in question is not shown as abadi area and rather it is shown as an unoccupied area and green area."

19. It is then stated that since the DLF has left the area in and around the

three monuments vacant, the MCD in its records showed the area as a

vacant/green area. It is then stated that on 26th July 1996, the Superintending

Archaeologist addressed the following letter to the DLF:

        "6/6/90-M-86                                        26.7.96

        To,

                The Managing Director,
                D.L.F. Near Jantar Mantar,
                Cannaught Place,
                New Delhi-110001.

        Sir,

I am to inform you that unauthorised constructions are at full swing in the areas falling under Khasra Nos. 84, 85, 86, 113, 563/87 and 564/87 near D-Block, South Extension Part-I. As per our records our protected area also falls in Khasra Nos. 563/87 and 564/87. In the revenue records Khasra Nos. 84,85,86, 113 and 564/87 has been shown in the name of D.L.F.

In view of the complications involved in the demarcation of the areas, you are requested to supply the details of above Khasra nos. as per your records. A joint inspection may also be made on a mutually suitable date so as to demarcate the area on the ground. You may please fix up a date convenient to you.

Yours faithfully, Sd/-

Superintending Archaeologist"

20. DLF replied to the above letter on 30th July 1996 stating as under:

"We have to invite a reference to your letter No. 6/6/90-M-869 dated 26th July 1996 regarding the unauthorised constructions under Khasra Nos. 84, 85, 86, 113, 563/87 and 564/87 near "D" Block, South Extension Part-I. In this connection, we have to state that we have not sold this land to anyone. The land was

also not utilised for any construction as there were Archaeological monuments in this area which were left un- disturbed. We are, however, ready to assist you in demarcating the area on the ground as desired on a date as may be fixed by you."

21. It appears that for at least six years thereafter no action was taken even

according to the ASI. It is sought to be explained that initially proceedings

were sought to be commenced under the PP Act but "in view of the lack of

legal knowledge on the part of the ASI officers", they were quashed by the

Appellate Court, as has been pleaded by the Petitioner. It is not denied that

notice issued on 29th July 2003 was addressed only to NGBFPL regarding

unauthorised constructions existing within the prohibited limits of the

centrally protected monuments Chhote Khan, Bade Khan and Bhure Khan.

The reply of the NGBFPL is also acknowledged. However, from the reply it

is sought to be inferred that the NGBFPL had admitted itself to be the

occupier of the land "within the protected and prohibited area of the

monuments in question"; admitted "certain construction on the land, albeit,

denying that any new construction had taken place in the recent past"; and

pointed out that there was "unauthorised construction adjacent to the land

occupied by the NGBFPL." Then again it is admitted that thereafter till 27th

March 2003 no steps were taken by the ASI.

22. The ASI acknowledged the receipt of the reply dated 1st October 2003

from NGBFPL but an inference was drawn that the reply of the Petitioner

was attempted to "sidetrack the real issue by taking hyper technical pleas,

despite comprehending and appreciating the contents of the notice fully

well." It is stated that since the NGBFPL did not submit any document

which they were relying upon, "the encroachments of the Petitioners were

eventually cleared by the ASI with the help of local administration, pursuant

to the order dated 19th December 2003 passed by Superintending

Archaeologist (Delhi Circle)." A copy of the above letter dated 19th

December 2003 shows that it was addressed to NGBFPL and states that the

Municipal records did not contain any plot by the number of D -46A or D-

46B in NDSE-I. It was further stated that no sanctioned plan for the

construction which exists at the site was produced. It was, therefore,

concluded that NGBFPL was found violating the provisions of the AMASR

Act, 1958 and AMASR Rules, 1959 and the Notification dated 16th June

1992. The operative portion of the said order reads as under:

"As such M/s Nahata Group of Builders & Finance (Pvt.) Ltd is directed to remove all unauthorised constructions within 48 hours from the date of issue of this order so that area can immediately be landscaped as green for the preservation and maintenance of the monument in question."

23. The counter affidavit of the ASI then proceeded to analyse the

documents and concluded as under:

"...the entire claim of the petitioners is based on the sale deed executed by the so-called erstwhile owners of the land. Therefore, if it is established that the so-called vendors of the sale deeds had no right, title or interest to execute the same, the entire claim of the petitioners is bound to be rendered as fundamentally flawed and inherently misconceived."

As far as the sale deeds are concerned, only the sale deed in respect of

khasra No. 564 of 87 has been discussed by the ASI.

Submissions of counsel

24. Mr. U.N. Bhachawat, learned Senior counsel appearing for the Petitioner

submitted that as far as Writ Petition (Civil) No. 9886 of 2003 is concerned,

no notice whatsoever was given by the ASI or any other authority to the

NTBPL prior to the demolition of its property and the consequential

dispossession. It is pointed out that a notice, if at all, was given only to

NGBFPL, the Petitioner in W.P. (C) 9887 of 2003. NTBPL and NGBFPL

are two separate entities and notice to the latter could not be construed as a

notice to the former. The prior notice of the proposed demolition was

mandatory under Section 19 of the Ancient Monuments & Archaeological

Sites & Remains Act, 1958 („AMASR‟ Act). It is submitted that on this

short ground, Writ Petition (Civil) No. 9886 of 2003 ought to be allowed

and the Petitioner should be put back in possession of the land comprised in

khasra No. 564/87 in village Kotla Mubarakpur.

25. As regards Writ Petition (Civil) No. 9887 of 2003, the submissions of

Mr. Bhachawat were that the action of the ASI for demolition of the

construction of the property in question i.e. D-46 B was entirely without the

authority of law. He pointed out that Section 19 of the AMASR Act only

talks of "restrictions on enjoyment of property rights in protected areas."

Section 19(1) states that no person, including the owner or occupier of a

protected area, can construct any building within the protected area "without

the permission of the Central Government." Under Section 19(2), it is the

Central Government which has the power to direct that any building

constructed within a protected area in contravention of Section 19(1) "shall

be removed with a specified period." If the said order is not complied with,

then "the Collector may cause the building to be removed and the person

shall be liable to pay the cost of such removal." It is submitted that it is only

the Central Government which can pass any order for demolition under

Section 19 of the AMASR Act and this power has not been delegated to any

other authority, including the ASI. It is then submitted that in the instant

case, no such order of the Central Government has been produced.

26. It is next submitted that under Rule 38(1) of the AMASR Rules, the

Central Government has to form an opinion before passing an order that any

building or part thereof has been constructed in the prohibited area or in a

regulated area in contravention of any of the conditions of a licence granted

under Rule 35 of the AMASR Rules and such order will have to direct such

owner or occupier of the building to remove such building or part thereof

within the period specified therein. Without prejudice to the above

submission, it is submitted that the said Rule does not apply to the Petitioner

since it is not the licencee within the meaning of Rule 35 of the AMASR

Rules. It is also submitted that under Section 19(2) of the AMASR Act, no

order has been passed by the Central Government. However, under Rule

38(2) the Central Government has been empowered to direct the District

Magistrate to cause the building or part thereof to be removed, if the owner

or occupier refuses or fails to comply with an order made under Rule 38(1).

It is submitted that no direction was given to the District Magistrate in the

instant case. The power to order for removal, in any event, has to first be

passed by the Central Government. The Central Government cannot delegate

such power to the ASI. It also cannot delegate the power to remove any part

of the building to the ASI.

27. Mr. Bhachawat pointed out that by a Notification No. 50 dated 16 th June

1992 published in the Gazette of India on 4th July 1992 the prohibited area

up to 100 metres from the protected monuments and the regulated area up to

200 meters therefrom were notified. The monuments so notified included

Bade Khan, Chhote Khan and Bhure Khan. It is submitted that these

monuments are not situated either in Khasra No. 564/87 (D-46A) or Khasra

No. 86 (D-46B). The constructions in both sites as well as property in

question existed long before 16th June 1992 i.e. the date of notification. The

notification operated prospectively and was intended to prohibit

constructions raised thereafter in the vicinity of the protected monuments.

The total area of khasra No. 564 of 87 is 3400 sq. yards and out of this

NTBPL had purchased 1450 sq. yards in 1984 itself. As regards khasra No.

86, its total area was 30200 sq. yards and NGBFPL had purchased 1950 sq.

yards by four sale deeds dated 14th August 1984. Again it is stated that the

construction raised in the property in question predated the date on which

the area was notified as a prohibited and regulated area.

28. Mr. Jayant Tripathi, learned counsel appearing for ASI submitted that

only some portion of the entire records of the case were traceable. It may be

mentioned that this Court granted adjournments to enable the ASI to produce

the records despite which ultimately only a part of the record could be traced

out by the ASI. It was submitted by Mr. Tripathi that Section 19 of the

AMASR Act did not apply since it only talks of "protected area" whereas

the alleged unauthorised constructions were in a "regulated area".

Accordingly, the demolition was undertaken in accordance with Rule 38 of

the AMASR Rules. It is then submitted that even if the demolition and

taking over of the possession of the property in question is held to be

unauthorised, possession thereof cannot be restored to the Petitioner since

the property in question belongs to DLF. It is submitted that the construction

was only of three rooms and not more as submitted by the Petitioners.

Statutory Provisions

29. The above submissions have been considered by this Court. Section 19

of the AMASR Act reads as under:

"19. Restrictions on enjoyment of property rights in protected areas (1) No person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining quarrying, excavating, blasting or any operation of a like nature in such area, or utilise such area or any part thereof in any other manner without the permission of the Central Government:

Provided that nothing in this sub-section shall be deemed to prohibit the use of any such area or part thereof for purposes of cultivation if such cultivation does not involve the digging of not more than one foot of soil from the surface.

(2) The Central Government may, by order, direct that any building constructed by any person within a protected area in contravention of the provisions of sub-section (1) shall be removed within a specified period and, if the person refuses or fails to comply with the order, the Collector may cause the building to be removed and the person shall be liable to pay the cost of such removal."

30. Rule 38 of the AMASR Rules, which is also relevant for the purpose of

the present cases, reads thus:

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

(2) If the owner or 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."

31. Section 19 (1) AMASR Act does not impose a total prohibition on any

construction activity within a „protected area‟ but makes every such activity

subject to the „permission of the Central Government. Section 19 (2)

AMASR Act authorises the Central Government alone to exercise the

powers to remove unauthorised constructions carried on in contravention of

Section 19(1). No such powers of the Central Government have been

delegated to the ASI either under the AMASR Act or AMASR Rules. It is a

two-step process. First the Central Government has to form an opinion that

construction has taken place in the protected area without permission or

contrary to the terms and conditions of the permission granted by the Central

government. Further, in relation to the Notification dated 16th June 1992, the

Central Government will have to satisfy itself if such construction in a

prohibited or regulated area took place after the issuance of such

notification. In the next step, the Central Government will under Section

19(2) give a direction to the owner or occupier to remove, within a specified

period of time, the unauthorised portion of construction. Where there is a

failure to carry out any direction issued by the Central Government for time-

bound removal of unauthorised construction under Section 19 (2), then

power has been entrusted to the Collector to remove the authorized

construction. Therefore, even for removal of unauthorised constructions in

terms of Section 19 (1) read with Section 19 (2) AMASR Act, the ASI has

not been entrusted any powers by the legislature. This position is reflected in

Rule 38 AMASR Rules as well.

32. Under Rule 38(1) of the AMASR Rules, it is again the Central

Government which has to form an opinion whether the construction found

within the prohibited or regulated area is an unauthorised one, i.e. it has been

constructed in contravention of any of the conditions of a licence granted

under Rule 35. This, therefore, envisages that prior to commencement of

construction, the owner or occupier applied for and was granted licence by

the Director General ASI to raise construction subject to certain conditions

and that the said conditions were violated. If the owner or occupier fails to

comply with the direction issued by the Central Government under Rule 38

(1) AMASR rules, then under Rule 38 (2) the Central Government can direct

the District Magistrate to remove the unauthorised construction, at the cost

of the owner or occupier as the case may be. Here again, no role is envisaged

for the ASI as such.

Findings

33. On a careful examination of the facts and the applicable law in the

instant case, the position that emerges is:

(i) The present petitions are concerned with the properties in khasra

No. 564 of 87 and khasra No. 86. The property in khasra No. 86 is to

an extent of 30200 sq. yards out of which NGBFPL purchased 1950

sq. yards by four registered sale deeds dated 14th August 1984. The

ASI has not dealt with any of the said sale deeds in its reply.

(ii) It was also clear that prohibited and regulated area are in terms of

the Notification dated 16th June 1992 comprised in khasra nos. 563 of

87 and 564 of 87 and not khasra No. 86 at all. Therefore, there

appears to be no answer to the contention of NGBFPL as regards

khasra No. 86; there is nothing to show that the said land is located

within a protected area as envisaged in Section 19 of the AMASR

Act.

(iii) NGBFPL, which claims to have purchased the land in khasra No.

86, is a separate entity and NTBPL is another separate entity. NTBPL

had purchased 1450 sq. yards in Khasra No. 564 of 87 through five

registered sale deeds dated 2nd June 1984.

(iv) No prior notice of demolition was issued to NTBPL at any point

in time. Clearly, the notice was issued only to NGBFPL and even the

order dated 19th December 2003 was passed by the Superintending

Archaeologist in relation to NGBFPL alone. Consequently, as far as

NTBPL is concerned and its property in khasra No. 564 of 87, there

was no prior show cause notice or any opportunity of being heard as

envisaged in Section 19 of the AMASR Act. On this short ground,

Writ Petition (Civil) No. 9886 of 2003 should succeed since the entire

action of entering upon the property, demolishing the constructions

thereon and forcibly taking over possession thereof is without the

authority of law.

(v) The ASI has not produced any order of the Central Government

either in relation to the property in khasra No. 564 of 87 or khasra No.

86 concluding that the constructions in either property is unauthorised

or in contravention of Section 19(1) of the AMASR Act. Inasmuch as

the powers under Section 19(1) cannot be exercised by the ASI but

only by the Central Government, the ASI‟s action of demolishing the

construction on the properties in either khasra Nos. 564/87 or 86 and

the action of taking over forcible possession thereof is without the

authority of law.

(vi) There is no order passed by the Central Government reflecting

the formation of any such opinion in the present cases. Since this is

the foundational basis for the exercise of the powers under Rule 38(1)

of the AMASR Rules and no such order is shown to have been passed,

there could be no action taken to demolish the construction in either

khasra number, much less by the ASI.

34. In view of the above discussion, this Court does not find it necessary to

examine whether Rule 38 of the AMASR Rules is ultra vires Section 19 of

the AMASR Act. Inasmuch as Section 19(1) only talks of "protected area",

as defined under Section 2(i) of the AMASR Act, Rule 38 expands its scope

to include both "prohibited" and "regulated" area. Under Rule 38, it is only

the Central Government which has been empowered to form an opinion

about any construction thereon being unauthorised and to further direct

consequential steps to remove such unauthorised construction. Since this is

an essential condition and has not been satisfied, the entire action of the ASI

stands vitiated in law and, therefore, the writ petitions can be allowed on this

ground also.

35. The ASI‟s assertion that the DLF is the owner of the property in question

is based on the reply it received from the DLF way back in 1996 to the effect

that DLF had not sold the land in the different khasra numbers to anyone

else. This is however negated by the registered sale deeds produced by the

Petitioners NTBPL and NGBFPL to demonstrate that they validly purchased

the properties in question at Khasra Nos. 564/87 and 86. The said sale deeds

have not been declared to be null and void. In any event, that is a matter for

a Civil Court as and when a challenge is raised to their validity. The ASI

cannot unilaterally decide that the sale deeds are not to be acted upon. In any

event, the letter dated 26th July 1996 addressed by the ASI to DLF

mentioned several khasra numbers of which only two, 564/87 and 86, were

alleged by the ASI to be within a prohibited or regulated area. The reply by

the DLF dated 30th July 1996 was not with reference to any particular khasra

number. Therefore, this reply by itself is wholly insufficient to enable the

ASI to conclude that the sale deeds produced by the Petitioners in relation to

both khasra Nos. 564/87 and 86 ought not to be accepted. A registered sale

deed cannot be brushed aside in this arbitrary manner.

36. The Petitioners are also right in the contention that nothing has been

produced by the ASI to show that construction which stood on both

properties in question on 23rd December 2003 were „new constructions‟

which came up after the Notification No. 50 dated 16th June 1992. It appears

that the ASI made no effort to ascertain if the constructions in the properties

in question were in fact new constructions which were raised after 16th June

1992. In the absence of such factual determination, it was not open to the

ASI to have proceeded to demolish such constructions.

37. The ASI has not produced any document which shows the DLF to be the

owner of the property in question. In any event, it is rightly pointed out by

the Petitioners, if they were admittedly in possession of the property in

question on the date of demolition and forcible eviction, the ASI cannot,

after it is demonstrated that ASI‟s actions were without the authority of law,

dispute the Petitioners‟ entitlement to the restoration of possession of the

properties respectively held by them on the date of such demolition. Once

the action of the ASI is found to be illegal, then status quo has to be restored

and the Petitioners have to be restored possession of the properties

respectively held by them irrespective of the fact whether they have a perfect

title or right in them. As regards the contention that it is DLF which holds

title, the fact remains that DLF was not in possession when the impugned

demolition action took place. Moreover, in such event it is for the DLF to

seek appropriate remedies available to it in law. The DLF has made no such

grievance till date. The ASI cannot possibly be seen to plead the case of the

DLF.

Conclusion

38. For the aforementioned reasons, this Court has no hesitation in

concluding that the order dated 19th December 2003 passed by

Superintending Archaeologist (Delhi Circle) directing NGBFPL to remove

all unauthorised constructions in khasra Nos. 86 and 564/87 is entirely

without the authority of law, and the said order is hereby set aside. The

consequential actions undertaken by the ASI on 23rd December 2003 of

entering upon both the said properties in question and demolishing the

constructions thereon and forcibly taking over possession thereof are also

held to be without the authority of law.

39. The writ petitions are accordingly allowed. A direction is issued to the

Respondent ASI to put the respective Petitioners in possession of their

respective properties in question within a period of two weeks from today.

The ASI will pay each of the Petitioners ` 10,000/- as costs within the same

period. It will be open to the Petitioners to seek other appropriate remedies

for any claim they may have for damages and losses in accordance with law.

S. MURALIDHAR, J OCTOBER 26, 2010 ak