Delhi High Court
Asha & Ors. vs Archaeological Survey Of India & ... on 10 March, 2011
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No. 226/2011
ASHA & ORS. ....Petitioners
Through Mr. M. Tarique Siddiqui, Advocate.
VERSUS
Archaeological Survey of India & Anr. .....Respondents
Through Mr. Baldev Malik, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 10.03.2011
CM NO. 5049-50/2011 (for exemption)
Allowed, subject to all just exceptions.
LPA 226/2011 & CM No. 5048/2011 (stay)
The five appellants have claimed and prayed for direction that
the Archaeological Survey of India (ASI, for short) should be directed to
issue photo identity cards as per the order dated 30th September, 2005
in LPA No. 706/2004 and the order dated 21st November, 2008 in LPA
No. 323/2008.
2. We have examined these two orders, which have been enclosed
as Annexures A-7 and A-8 to the present appeal.
3. The order dated 21st November, 2008 passed in LPA No.
323/2008, titled Archaeological Survey of India vs. Nathoo Lal & Ors., is
detailed and sets out the relevant facts. The ASI had issued/ granted
photographic licences for still photography within the protected
monuments at Agra. These licences were issued for the first time in
1959. In August, 1997, the ASI issued an office order constituting a
committee for screening of applications and inspections of
studios/shops for grant of photographic licences. On the
recommendations of the committee, licences were issued/granted for
the period of two years i.e. till 2000. Identity cards were issued to the
licencees and to the nominated photo workers in the case of a licenced
firm.
4. On 24th August, 2000, the Superintending Arachaeologist, ASI,
Agra Circle, invited fresh applications, but it was stated that no photo
workers would be allowed to work for and on behalf of the licence
holder. Applications were examined by the committee and a final list
was prepared. However, a list of 120 photographic firms was cancelled
on the ground that the guidelines for issue of licences had been revised.
Thereafter, licences were issued in 2003 to individual photographers
and not in the name of firms. Individual identity cards were issued to
the licence holders and they were not permitted to employ photo
workers for their assistance.
5. Writ Petition (Civil) No. 8144-52/2004, Noor Jahan & Ors. vs.
Archaeological Survey of India, was filed in this Court to permit the
licenced photo firms to engage/employ one photo worker who would
be issued an identity card. The said writ petition was dismissed by the
learned Single Judge vide order dated 26th May, 2004. This order was
challenged in LPA No. 706/2004 before the appellate court. In the said
appeal, ASI filed an additional affidavit dated 11th November, 2004
stating that Clause III in guidelines dated 17th December, 2002, effective
from 1st January, 2003, does not exclude a proprietorship concern from
its ambit.
6. The Division Bench disposed of LPA No. 706/2004 vide order
dated 23rd November, 2004 directing that when an application for
photographic licence for taking still photograph was made by a firm/
company/registered/society or any proprietorship concern, a person
nominated by them should be issued a requisite licence as the
authorized representative of the said establishment. It was directed
that the appellants therein were free to approach authorities
concerned for issue of licences in favour of their representatives.
Thereafter a CM No. 3283/2005 was filed in the disposed of LPA No.
706/2004 and another order dated 30th September, 2005 was passed
stating that the nominated person of the firm/company/registered
society or the proprietorship concern would be issued identity card to
take photographs. If the nominated person was dis-associated or left
or was removed, the licencee would inform the ASI about the aforesaid
change and a fresh identity card would be issued in favour of the new
authorized representative. It was further directed that this order was
in respect of policy which was in operation and would apply to those
who have been issued licence under the existing policy.
7. Another writ petition was filed in 2006, which was disposed of on
10th October, 2007, by the Single Judge holding that there was nothing
wrong in the ASI insisting that the identity card would be issued to
licensee and no one else, but it was open to the licence holders to
approach the ASI to seek appropriate change in the policy guidelines. A
review petition was filed and vide order dated 19th November, 2007, it
was directed that for the remaining period, the licence holders were
entitled to nominate a person who would be issued a licence if he
would fulfill the terms and conditions of the guidelines. This review
order was made subject matter in LPA No. 323/2008 by the ASI. The
contention raised by the ASI was that the sole proprietorship should not
be permitted to nominate their person as this would amount to transfer
of a licence whereas the licence was not transferable. The Division Bench
did not agree and the said LPA was disposed of vide order dated 21st
November, 2008, holding that in terms of the policy even in case of a sole
proprietorship, identity card could be issued in favour of the nominee. It
was further recorded that there should not be any apprehension that this
would amount to transfer, as identity card was issued to the nominee of
the proprietorship licence. Thus there was no transfer.
8. The aforesaid decisions do not help the appellants herein. It is an
admitted case that the sole proprietors, licence holders have expired.
In fact they have expired more than six years back (see order dated 26th
August, 2010 passed in WP(C) No. 13931-74/2006). The licence is not
inheritable. On the death of the licencee/holder, the licence came to
an end. The licence was not inherited by the appellants by way of
transmission or as a legacy. Learned Single Judge has, therefore, rightly
rejected the review/clarification application CM no. 20610/10 by the
impugned order dated 11th February, 2011. There is no contradiction
between the said order and the two orders dated 30th September, 2005
and 21st November, 2008 passed in LPA Nos. 706/2004 & 323/2008.
9. Learned counsel for the appellant had submitted that they would
like to apply for fresh licence for photography in terms of the
guidelines. It is open to the appellants to apply and if any application is
filed, the same shall be disposed of expeditiously and latest within a
period of eight weeks from the date of filing of applications. However,
the applicants shall ensure that the applications are complete in all
aspects.
9. The appeal is disposed of with the aforesaid observations with no
orders as to costs.
SANJIV KHANNA, J.
CHIEF JUSTICE
March 10, 2011
kkb
