Vijaya Laxmi vs Archaeological Survey Of India & ...
2011 Latest Caselaw 4980 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 10th October, 2011
+                                  W.P.(C) 4357/2011
         VIJAYA LAXMI                                         ..... Petitioner
                            Through:      Mr. Anil Sapra, Sr. Adv. with Ms.
                                          Shama Sharma, Adv.
                                   Versus
    ARCHAEOLOGICAL SURVEY OF INDIA
    & ORS                                     .... Respondents
                 Through: Mr. J. Tripathi, Adv. for R-1 ASI.
                           Mr. Shivram, Mr. Nikilesh & Mr.
                           Shantanu Singh, Advocates for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may        yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             yes

3.       Whether the judgment should be reported            yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the letter dated 8th June, 2011 of the

respondent no.1 Archaeological Survey of India (ASI) extending the time

for construction activity on property No. A-10, Nizamuddin (East), New

Delhi and further seeks to prohibit any further construction activity on the

said property for the reason of the same being situated within the 100 mtrs.

"prohibited area" from the ancient monument of Humayun Tomb.

2. Notice of the petition was issued and vide ex parte order dated 17th

June, 2011 the respondent no.2 M/s Emca Construction Company (ECC)

raising construction on the said property was restrained from carrying out

any further construction; the respondent no.4 MCD was also directed to

ensure compliance of the order. The respondent no.2 ECC has applied for

vacation of the said interim order. Pleadings have been completed and

counsels have been heard.

3. The petitioner claims to be a practicing Advocate having her office

at A-14, Nizamuddin (East), New Delhi and thus affected by the

construction on property No.A-10 in her neighbourhood.

4. The construction on property No.A-10 has a chequered history.

Earlier W.P.(C) 7889/2009 titled Gaurang Kanth v. Archaeological

Survey of India & Ors. was filed for restraining the said construction

permission wherefor had then been granted by respondent no.1 ASI vide

letter dated 1st August, 2008. Interim orders dated 31st March, 2009 and 4th

August, 2009 directing status quo to be maintained qua the construction

were issued. Aggrieved therefrom the respondent no.2 ECC preferred LPA

No.417/2009 which was decided on 30th October, 2009. The Division

Bench of this Court held:-

a. that the challenge to the construction was for the reason

of the Central Government having vide Notification

dated 16th June, 1992 prohibited any construction

within 100 mtrs. of a "protected monument". The said

Notification was subject matter inter alia of order dated

23rd July, 2004 of the Division Bench of this Court in

FAO (OS) No.414/2002 titled Archaeological Survey

of India v. Narendra Anand. The Division Bench

directed the Central Government to review the

Notification in the light of the discussion in the

judgment;

b. in compliance with the said directions of the Division

Bench the Director General of the respondent no.1 ASI

vide note dated 8th June, 2006 constituted a Committee

to recommend grant of permissions for construction

within the prohibited / restricted areas of the protected

monuments. The said Committee started making

recommendations for allowing construction within the

prohibited area on case to case basis and on the basis of

which recommendations the respondent no.1 ASI

started giving no objections for constructions within the

said area. One such permission was granted to the

respondent no.2 ECC also for raising construction on

property No.A-10;

c. the Division Bench however found the constitution of

the Committee to be ultra vires the Ancient Monuments

Archaeological Sites and Remains Act, 1958. The

Division Bench however noted that the Committee had

processed over 400 applications from all over the

country and of which 150 were from Delhi itself. The

Division Bench accordingly while prohibiting the

Committee from processing any further application(s),

also directed the respondent no.1 ASI to take steps to

re-consider all permissions granted in pursuance to the

recommendations of the Committee and take

consequential steps after giving the affected parties an

opportunity of being heard;

The Division Bench accordingly directed status quo to be

maintained with respect to property No.A-10 till re-consideration by the

respondent no.1 ASI.

5. To resolve the situation which had arisen owing to the judgment

aforesaid of the Division Bench, first an Ordinance dated 23rd January,

2010 to amend the provisions of the Act was promulgated and thereafter on

30th March, 2010 an amending Act enacted. When W.P.(C) No. 7889/2009

aforesaid preferred by Mr. Gaurang Kanth came up before this Bench on

23rd September, 2010, all counsels agreed that in view of the said

Ordinance and amendment to the Act, the said writ petition did not survive;

the same was accordingly disposed of. However while doing so this Court

also observed that merely because the interim order in force till then would

stand vacated on the disposal of the writ petition, would not entitle the

respondent no.2 ECC to continue with the construction if required to obtain

any fresh permission therefor.

6. Since the property No.A-10 is situated within the prohibited area of

100 mtrs. from the ancient protected monument of Humayun Tomb, the

respondent no.2 ECC for raising construction thereon, besides requiring

the permission from the respondent no.4 MCD also required the

permission from the respondent no.1 ASI. The Committee constituted by

the respondent no.1 ASI pursuant to judgment supra in Narendra Anand

for considering the applications for such permission, considered the case of

the respondent no.2 ECC for construction on the said property and the

Superintending Archaeologist of the respondent no.1 ASI vide letter dated

1st August, 2008 (supra) intimated to the respondent no.2 ECC the accord

of permission on 26th June, 2008 to raise construction of a building

comprising ground, first and second floors at property No.A-10,

Nizamuddin (East), New Delhi subject to the compliance by the

respondent no.2 ECC of the conditions mentioned therein. It was further

stated in the said letter that the said permission/licence was valid for a

period of one year only from the date of issuance thereof.

7. It has emerged that the respondent no.2 ECC being not satisfied with

the aforesaid permission/licence, represented and which representation

resulted in the letter dated 6th March, 2009 of the Director General of the

respondent no.1 ASI to the Superintending Archaeologist, Delhi Circle.

The said letter records that the case was examined by the members of the

Expert Advisory Committee (EAC) in the meeting held on 22nd January,

2009 and the said Committee had recommended that respondent no.1 ASI

may accord permission for re-construction up to the maximum height at

par with the height of the neighbouring authorized buildings which exist as

on date and may consider allowing the construction of basement provided

the neighbouring buildings have a similar feature. Finding the residential

buildings adjoining property no.A-10 on the North & South sides to be

having a height of 12.5 mtrs. and 9.5 mtrs. respectively, the Director

General of the respondent no.1 ASI permitted re-construction on property

No.A-10 up to a maximum height of 12.5 mtrs. only besides mumty over

the terrace. The counsel for the respondent no.1 ASI has during the hearing

handed over a copy of letter dated 6th March, 2009 addressed by the

respondent no.1 ASI to the respondent no.2 ECC on the same lines.

8. On the basis of the said NOC of the respondent no.1 ASI, the

respondent no.4 MCD also on 20th March, 2009 passed the plans valid up

to the year 2014 for construction on the said property up to the height of

12.5 mtrs. with 2.5 mtrs. mumty.

9. However, notwithstanding the aforesaid permissions, the

construction could not be completed owing to the stay orders in the earlier

writ petition aforesaid. However in the interregnum when the stay was not

in force, it is informed that construction up to a height of 9 mtrs. has

already been raised on the property which is lying half built.

10. Though the Division Bench of this Court in judgment dated 30th

October, 2009 (supra) held the constitution of EAC to be ultra vires the

Act and directed ASI to re-consider the cases but as aforesaid, to get over

the said situation, the Act itself was amended. The first proviso to Section

20A(3) of the amended Act provides as under:-

"Provided that any area near any protected monument or its adjoining area declared, during the period beginning on or after the 16th day of June, 1992 but ending before the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010, receives the assent of the President, as a prohibited area in respect of such protected monument, shall be deemed to be the prohibited area declared in respect of that protected monument in accordance with the provisions of this Act and any permission or licence granted by the Central Government or the Director-General, as the case may be, for the construction within the prohibited area on the basis of the recommendation of the Expert Advisory Committee, shall be deemed to have been validly granted in accordance with the provisions of this Act, as if this Section had been in force at all material times:

Provided further that nothing contained in the first proviso shall apply to any permission granted, subsequent to the completion of construction or re- construction of any building or structure in any prohibited area in pursuance of the notification of the Government of India in the Department of Culture (Archaeological Survey of India) number S.O. 1764,

dated the 16th June, 1992 issued under rule 34 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, or, without having obtained the recommendations of the Committee constituted in pursuance of the order of the Government of India number 24/22/2006-M, dated the 20th July, 2006 (subsequently referred to as the Expert Advisory Committee in orders dated the 27th August, 2008 and the 5th May, 2009).".

11. The only ground on which the senior counsel for the petitioner now

impugns the construction is that the proviso aforesaid validates only those

permissions which were in force as on 30th March, 2010 being the date of

coming into force of the amending Act. It is contended that the permission

granted on 1st August, 2008 for a period of one year only which expired on

31st July, 2009 would not stand re-validated notwithstanding the

amendment to the Act. It is further contended that when the letter dated 1 st

August, 2008 specified the period of one year only for completing the

construction, the letter dated 6th March, 2009 without any such limitation is

bad in law.

12. I have at the outset enquired from the counsel for the respondent

no.1 ASI whether the proviso aforesaid is intended to validate only the

constructions already completed in pursuance to the recommendation of

the EAC or can be made applicable also to the permissions though granted

on the recommendation of the EAC but in pursuance whereto no

construction had been carried out.

13. The counsel for the respondent no.1 ASI states that what has been

validated is the permission which had become null and void in view of the

judgment dated 30th October, 2009 supra of the Division Bench and not the

construction. It is contended that it would thus be irrelevant whether in

pursuance to the permission the construction had been carried out or was

yet to be carried out. He contends that if the intent of the legislature had

been to save only the construction already carried out, the legislature

would have validated the constructions already carried out in pursuance to

the recommendations of the EAC and not the permission itself. He has also

invited attention to the opinion obtained by the respondent no.1 ASI from

the Solicitor General in this regard. It is contended that owing to the

judgment of the Division Bench, a large number of ongoing constructions

including of several public projects had come to a standstill and it was for

this reason only that the Ordinance and the amendment to the Act was

brought about. It is contended that in pursuance to the Ordinance and the

amendment the construction activity in pursuance to the permissions

granted at the instance of the EAC has continued.

14. The counsel for the respondent no.1 ASI with reference to clause in

the letter dated 1st August, 2008 of the permission contained therein being

valid for one year only has also contended that though there was no such

time frame provided in the recommendations of the EAC or the permission

issued by the Director General of the respondent no.1 ASI but such time

frame was stipulated in the letters issued by the Superintending

Archaeologist for the reason of the said Superintending Archaeologist

being required to supervise the said construction to ensure that the same

was carried out in compliance of the conditions. It is contended that the

same clause is to be found in the letter dated 6th March, 2009 issued by the

Superintending Archaeologist to the respondent no.2 ECC even though not

in existence in the internal letter dated 6th March, 2009 under challenge in

these proceedings.

15. The senior counsel for the petitioner has contended that what has

been validated by the proviso aforesaid is only what had already been done

and no power has been granted to do anything further; that the permission

already granted was valid for one year only and the said one year having

expired, the respondent ASI in the garb of the said proviso cannot extend

the time for which permission for construction was granted. Reliance in

this regard is placed on State Inspector of Police v. Surya Sankaram

Karri (2006) 7 SCC 172 and on Sethi Auto Service Station v. Delhi

Development Authority (2009) 1 SCC 180.

16. The counsel for the respondent no.2 ECC has also contended that the

respondent no.2 ECC owing to the stay orders in the earlier writ petition

has never had the time of full one year for raising the construction. It is

contended that the respondent no.2 ECC had only 88 days without stay and

in which time the construction as now existing up to 9 mtrs. was

constructed. It is contended that the respondent no.2 ECC ought not to be

made to suffer for the reason of the orders of stay which have now become

infructuous/redundant owing to amendment aforesaid of the Act.

17. The counsel for the respondent no.2 ECC has also contended that the

petitioner is but a mere proxy for Mr. Gaurang Kanth who was earlier

targeting the respondent no.2 ECC and qua whom the Division Bench

returned adverse findings. It is contended that he has put up the petitioner

to continue targeting the respondent no.2 ECC. It is argued that when all

other similarly situated persons, in pursuance to the amendment of the Act,

have been allowed to complete their construction, it is unfair to deprive the

same benefit to the respondent no.2 ECC.

18. I am satisfied with the argument of the counsel for the respondent

no.1 ASI that the proviso aforesaid validates the permissions and not the

constructions already carried out. The question which thus arises is,

whether the said permission was time bound and if so, whether the

validation by amendment aforesaid of the Act, of the said permission

permits the extension of time for raising construction.

19. The permissions for raising construction notwithstanding the

prohibition came to be granted on case to case basis, as aforesaid, pursuant

to the direction of the Division Bench of this Court in Narendra Anand.

Neither the judgment in Narendra Anand nor the note dated 8th June, 2006

(supra) constituting EAC for recommending grant of such permissions is

shown to be containing any such condition requiring the permissions to be

time bound. It is the case as aforesaid of ASI and which I have no reason

to disbelieve that the permission as recommended by the EAC and as

granted by the Director General ASI were not time bound and such

condition of time was added by the Superintending Archaeologist while

communicating the permission to the applicant, to ensure compliance.

What is to be gauged in the said scenario is the weightage to be given to

such condition. I am of the view that the condition of time incorporated in

such backdrop cannot be said to be going to the root of the permission,

when neither the EAC nor the sanctioning authority had deemed it

appropriate to make the permission time bound and when condition of time

was introduced only by the authority which was to oversee compliance.

The Apex Court in V.P. State Road Transport Corpn. V. Assistant

Commissioner of Police (Traffic) Delhi 2009 (3) SCC 634 noticed the

difference between conditions imposed by the primary authority and

conditions imposed by the "countersigning authority" in that case. It was

held that the jurisdiction to cancel the permit for breach of conditions

imposed by the primary authority, is of the primary authority only and not

of the counter signing authority. Similarly the proviso to Section 20(A) 3

with which we are concerned in the present case also talks of permission

by the Director General, ASI on the recommendation of the EAC and

which permission is not found to be time bound. Thus the said permission

cannot be said to have ceased to be in existence for the reason of lapse of

time imposed by the Superintending Archaeologist.

20. Time in such circumstances cannot also be said to be of essence.

When time is not of essence, it is extendable. In the facts of the present

case there are more than sufficient reasons for the respondent no.2 ECC

having not been able to avail the permission within the time granted. Time

is even otherwise not shown to have any relevance to the permission

granted. During the course of hearing, the Minutes of the 15th and 19th

Meetings of EAC held on 7th May, 2008 and 22nd January, 2009 were

handed over. A perusal thereof shows that the conditions which weighed

with the EAC for recommending permission for construction on subject

property, were existence of several buildings between the protected

monument and subject property and allowing construction on subject

property of same height as other existing buildings not affecting the

skyline any further. The said factors which resulted in grant of permission

are not found to have any relevance to time. It is not the case of the

petitioner that the buildings earlier existing and owing whereto it was

earlier felt that construction on subject property will not affect the skyline,

have now ceased to exist.

21. Even otherwise, ASI save for within the prohibited/restricted area is

not concerned with construction which is otherwise regulated generally by

the municipal body. The Municipal body generally while granting

sanction for construction limits the time therefor but which time is

extendable. Imposition of such time is also to ensure compliances of the

conditions subject to which such sanction is granted.

22. There is nothing in the Act also to show time to be of any relevance.

Once the EAC and the Director General, ASI had in accordance with the

state of affairs then prevailing permitted construction and which

permission has now been validated by amending the Act, there is nothing

to show in the amending Act that only those permissions time whereof had

not expired were intended to be validated and not others. The Act was

amended on 30th March, 2010 to allow/validate something which had been

invalidated vide judgment dated 30th October, 2009 of the Division Bench

of this Court. The Legislature cannot be held to be oblivious of the

permissions so granted being time bound. The Legislature however chose

to validate the permissions and which include permissions validity

whereof, as fixed by the overseeing authority, had expired. The

Legislature did not make any distinction between the permissions time

whereof had expired and permissions time whereof had not expired. The

only conclusion is that the benefit of the amendment is intended for all

permissions. There is even otherwise no reason for discriminating between

the two types of permissions.

23. I am therefore of the opinion that the permission was not time bound

and the time fixed by the Superintending Archaeologist was neither part of

the recommendation of the EAC nor the permission of the Director

General, ASI.

24. Though the aforesaid is enough to dismiss the Writ Petition but I

may add that there is nothing in the Act as amended, prohibiting extension

of time. The counsel for ASI has stated and again I have no reason to

disbelieve that in other such permissions also made time bound by the

overseeing authority, extensions have been granted and construction

carried out. There is no reason for discriminating against the petitioner.

Once the Legislature has required certain state of affairs to be

deemed/imagined, what was observed by Lord Asquith in East End

Dwellings Co. Ltd v. Finsbury Borough Council (1951) 2 All ER 587 that

unless prohibited from doing so, one should also imagine as real,

consequences and incidents and one should not permit one's imagination

to boggle when it comes to inevitable corollaries of that state of affairs is

squarely applicable. The proviso to Section 20A(3) requires the

permission to be deemed to have been validly granted. If it had been

validly granted, ASI then would have also had the power to extend the

time fixed by its Superintending Archaeologist for raising the construction

and there is nothing in the Act prohibiting us from assuming so also. There

is nothing in the Act to prohibit extensions of time by which the

permission was limited.

25. There is another aspect of the matter. The respondent no. 2 ECC as

aforesaid has had only 88 days out of the one year's time granted; during

rest of the time there was a stay against construction, granted earlier at the

instance of the petitioner in W.P.(C) No. 7889/2009 and now in this

petition. The Division Bench of this Court in order dated 30th October,

2009 held the petitioner in W.P.(C) No. 7889/2009 to be not entitled to

stay. Similarly the petitioner herein is also found to have failed in the case

brought before this Court. The settled principle of law is that none should

suffer owing to the act of the Court. The respondent no.2 ECC in the

present case could not avail of the permission owing to the said interim

orders which were /are found to have been wrongfully obtained and have

ultimately not been sustained. The respondent no.2 ECC cannot be

allowed to suffer on account thereof.

25. The petition therefore fails and is dismissed. The petitioner being an

Advocate, I refrain from imposing any costs.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 10 , 2011 pp

(corrected and released on 14th November, 2011)