Subhash Chander Kumar vs Archaeological Survey Of India & ...
2011 Latest Caselaw 4519 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of decision: 15th September, 2011
+                           W.P.(C) 18393/2005

         REHABILITATION MINISTRY EMPLOYEES
         CO-OPERATIVE HOUSE BUILDING
         SOCIETY LTD                              ..... Petitioner
                     Through: Ms. Monika Arora, Adv.

                                Versus

         ARCHAEOLOGICAL SURVEY OF
         INDIA & ANR                            ..... Respondents
                     Through: Mr. Jayant Tripathi & Mr. Sunil
                              Rajput, Adv. for ASI.
                              Mr. Ajay Verma, Adv. for DDA.

                                    AND

+                           W.P.(C) 1735/2011

         SUBHASH CHANDER KUMAR                    ..... Petitioner
                     Through: Ms. Monika Arora, Adv.

                                 Versus

         ARCHAEOLOGICAL SURVEY
         OF INDIA & ANR                            .... Respondents
                      Through: Mr. Ajay Verma & Mr. Manu
                               Parashar, Advocates for DDA.




W.P.(C)18393/05&1735/2011                                    Page 1 of 14
 CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may     Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?          Not necessary

3.       Whether the judgment should be reported         Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner in W.P.(C) 18393/2005, a Co-operative House

Building Society was in the year 1982 allotted and granted perpetual lease

of a plot of land for development of a Residential Colony since known as

Shivalik, New Delhi. It appears, that in or about the year 1985-89 when the

petitioner was seeking sanction of the layout plan for the said colony, a

monument known as 'Sarai Shahaji' situated adjacent to the land so

allotted to the petitioner Society was also under consideration for being

declared as a protected monument under The Ancient Monuments and

Archaeological Sites and Remains Act, 1958. As such, the petitioner was

asked to also involve the respondent no.1 Archaeological Survey of India

(ASI) in the process of sanction of layout plan.

2. It is the case of the petitioner that a Tripartite Agreement was

reached amongst respondent no.1 ASI, respondent no.2 DDA and the

petitioner, as contained in the letter dated 10 th December, 1985 of the

respondent no.1 ASI to the petitioner and which is as under:-

"GOVERNMENT OF INDIA

SUPERINTENDING ARCHAEOLOGIST ARCHAEOLOGICAL SURVEY OF INDIA DELHI CIRCLE, SAFDARJUNG TOMB, NEW DELHI - 110 003 D.O.NO. 5/112/85-M-15561 Dated : 10.12.85 To, The President, Ministry of Rehabilitation, Employees Group Housing Society Ltd., Jaislmer House, Man Singh Road, New Delhi - 110 001.

Sub: Protection of monument in Sarai Shahji.

Dear Sir,

Kindly refer to the discussion held with the representative of your Society in connection with the protection of the monument noted above and the land to be left for the maintenance of the monument. In this connection it may be pointed out that the proposal of leaving a strip of land along the proposed protection line of the monument was agreed during the joint inspection of the site on 18.07.1984. The proposal has been

embodied in the blue print (Copies enclosed herewith). The Director General has also approved the proposal and we are proceeding further to declare the monument as protected in pursuance of the agreement reached at site on 18.07.84. It is requested that you may start your work keeping in view of the proposal.

Yours faithfully, SUPERINTENDING ARCHAELOGIST."

3. The petitioner further relies upon the letter dated 22 nd March, 1991

of the respondent no.2 DDA to the petitioner releasing the building activity

in the colony inter alia on the following terms:

"DELHI DEVELOPMENT AUTHORITY VIKAS SADAN I.N.A.

NEW DELHI

F.23(17)74/Bldg.

Dated: 22.03.1991 A.K. GUPTA Jt. Director (Bldg.)

The President Ministry of Rehabilitation Employees Co-Op. House Building Society Ltd. Pocket-A, Shivalik (Nr. Water Tank) New Delhi - 110 012.

Sub: Release of building activity in the colony belonging to Ministry of Rehabilitation Co-op. House Building Society Ltd. at Malviya Nagar.

Sir,

I am directed to inform you that the building to for 624 plots only of the above mentioned society at Malviya Nagar is hereby released. This is in response to your letter dated 19.03.91 whereby you have submitted an undertaking to comply with the conditions enumerated in this office letter of even number dated 19.03.91. Further, the release of the building activity is subject to this following:-

1. That the individual plot owners can now submit their own building plans to DDA for sanction.

2. That each plot is permitted to have 2-storeyed construction for 2 dwelling units only."

4. It is also the contention of the petitioner that the petitioner in

compliance of the conditions aforesaid laid down by the respondent no.1

ASI sacrificed a large chunk of valuable land allotted to it.

5. The Notification declaring the monument aforesaid as a protected

monument was published on 21 st May, 1988.

6. The present petition was filed when certain members of the

petitioner Society, in or about the year 2004 approached the respondent

no.2 DDA for obtaining the sanction of the plans for raising construction

on their plots; the respondent no.2 DDA upon being so approached asked

the said members of the petitioner to obtain a No Objection Certificate

(NOC) from the respondent no.1 ASI; the said NOC was refused by the

respondent no.1 ASI.

7. This petition has been filed impugning the Notification dated 21 st

May, 1988 of declaration of the monument as a protected monument and

Notification dated 16th June, 1992 regulating/prohibiting construction

within certain periphery of protected monuments. It is the contention of the

petitioner that the said Notifications are prospective and do not apply to the

construction activity on the plots in the colony developed by the petitioner

since the petitioner had as far back as in 1985 obtained permission from

the respondent no.1 ASI and the approval by the respondent no.2 DDA of

the layout plan was in consultation with the respondent no.1 ASI. It is

contended that permission having already been granted by the respondent

no.1 ASI then, the prohibition subsequently imposed is not applicable to

the petitioner. The petitioner also impugns the action of the respondent

no.2 DDA of asking the members of the petitioner to obtain NOC from the

respondent no.1 ASI and the refusal of the said NOC by the respondent

no.1 ASI. Mandamus is sought to the respondent no.2 DDA to grant

permission for construction on plots no.1, 21, 24, 46, 54, 75, 83, 84, 85,

90, 91, 107, 116 & 121 and permission for raising second floor on the

already built up plots of Block-C, Shivalik as per the approved site plan.

8. The counsel for the petitioner has invited attention to Section 20A of

the Act owing whereto the NOC has been denied by the respondent no.1

ASI and NOC has been insisted upon by the respondent no.2 DDA.

Section 20A(1) defines an area of 100 meters, in all directions, from a

protected monument as a prohibited area. Section 20A(2) prohibits

construction in prohibited area. It is not in dispute that the plots in the

colony of Shivalik with respect whereto the reliefs are sought, are situated

within the prohibited area. The counsel for the petitioner however contends

that the case of the petitioner is covered under the first proviso to Section

20A(3) of the Act which is 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).".

It is argued that the prohibition does not apply under the proviso

aforesaid to cases where ASI had earlier granted permission for

construction. It is urged that ASI having at the time of sanction of layout

plan of the colony, permitted construction on plots sanctioned in the layout

plan, construction, as permitted in accordance with law, on the said plots

cannot be said to be prohibited under Section 20A (2) of the Act.

9. The counsel for the respondent no.2 DDA has contended that the

layout plan which was sanctioned by the respondent no.2 DDA does not

permit the owners of individual residential plots sanctioned in the said

layout plan to raise construction thereon and such owners are still required

to obtain the sanction for construction/building on their respective plots. It

is contended that the owners of the plots within the prohibited/regulated

area having not raised the construction thereon prior to 16th June, 1992

(when prohibition came into force) cannot claim to be exempted from the

said prohibition on the basis of the layout plan having been sanctioned.

The argument is that the permission/sanction of layout is no sanction for

construction.

10. The counsel for the respondent no.1 ASI has contended that even the

permissions which are mentioned in the proviso aforesaid to Section

20A(3) were challenged and have been struck down by the Division Bench

of this Court in LPA No.417/2009 titled Emca Construction Co. v. ASI

decided on 30th October, 2009. He has further invited attention to Section

38(2)(a) to show the rule making power of the respondent no.1 ASI and to

Rule 2 (f) of the Ancient Monuments and Archaeological Sites and

Remains Rules, 1959 defining prohibited and regulated areas and to Rule

33 prohibiting any construction in a prohibited and regulated area.

11. The permission envisaged in the proviso aforesaid to Section 20A(3)

(supra) is the permission of the respondent no.1 ASI and not by the

respondent no.2 DDA. The counsel for the petitioner has however

contended that the respondent no.1 ASI also had in 1985 granted

permission for sanction of the layout plan.

12. Even if the letter dated 10th December, 1985 (supra) is deemed to be

the permission of the respondent no.1 ASI to the sanction of the layout

plan, the said sanction was only to the residential plots being carved out

within the prohibited area (as subsequently came into force), subject to

leaving a strip of land along the monument. It is not very clear whether in

the issuance of the subsequent letter dated 22nd March, 1991 (supra) by the

respondent no.2 DDA mentioning that each plot was permitted to have a

two storeyed construction, the respondent no.1 ASI was involved or not.

The counsel for the petitioner however contends that since as per the then

municipal laws, two storey construction was permitted on residential plots,

the consent by the respondent no.1 ASI to the layout plan ought to be

construed as a consent/permission to construction of two floors/storeyes on

the residential plots so sanctioned. The counsel for the petitioner further

states that the respondent no.1 ASI was then permitting construction up to

15 mtrs. in height.

13. I am unable to agree. The documents show consent of ASI only to

the layout plan. The layout plan though sanctioned residential plots within

prohibited distance, did not grant permission for construction thereon and

for which separate permission was necessary. I am therefore unable to

accept that any permission for construction, as now sought, was granted by

sanction of the layout plan. Further, the prohibition of construction within

100 mtrs came into force only on 16 th June, 1992. It cannot be said that

there was any application of mind on 10 th December, 1985 when ASI

consented to sanction of layout plan of the colony, to grant exemption from

the prohibition which came into force subsequently.

14. Moreover the proviso aforesaid validates only those permissions

granted between 16th June, 1992 and 29th March, 2010 (being the date on

which the Ancient Monuments & Archaeological Sites & Remains

(Amendment & Validation) Bill, 2010 received the assent of the President)

and granted by the ASI on the basis of the recommendation of the Expert

Advisory Committee. The permission relied upon by the petitioner is not

between the said dates but is of prior thereto and is not on the basis of

recommendation of the Expert Advisory Committee . In fact the Expert

Advisory Committee itself came to be formed in or about 2006 and the

proviso aforesaid was inserted only to validate the permissions granted and

which had been struck down by this Court in Emca Construction Co.

(supra). The question which arises is whether the permission even if any

granted prior to 16th June, 1992 can also be said to be exempt from the

prohibition otherwise imposed in Section 20A of the Act.

15. Though the counsel for the petitioner has contended that the proviso

to Section 20A should be interpreted to be validating permissions granted

prior to 1992 also but the settled principle of interpretation of statutes is

that a proviso to a prohibitory Section has to be strictly construed so as not

to dilute the effect of the prohibition contained in the main provision. (See

Satnam Singh v. Punjab & Haryana High Court (1997) 3 SCC 353 and

Institute of Chartered Financial Analysts of India v. Council of the

Institute of Chartered Accountants of India AIR 2007 SC 2091). The

counsel for the respondent no.1 ASI has also contended that unless the

petitioner challenges the vires of the said proviso for the reason of the

same validating permissions granted between 16th June, 1992 and 29th

March, 2010 only and not permissions prior thereto, the same cannot be

interpreted to include permissions of prior thereto. The only reason for

inserting the proviso aforesaid was to validate the permissions, granted on

recommendation of Expert Advisory Committee and which had been

struck down by this Court. That being the reason for the enactment of the

proviso, the scope thereof cannot be expanded as sought.

16. The counsel for the petitioner at this stage invites attention to the

rejoinder filed in this petition in para 6 whereof it is inter alia stated that

the prohibition treating all protected monuments alike is irrational

inasmuch the protection ought to be linked to the various parameters

concerning the monuments. However the same again constitutes a ground

for challenging the vires of the proviso aforesaid to Section 20A(3) of the

Act and which aforesaid has not been done in the present case.

17. W.P.(C) 18393/2005 therefore fails and is dismissed with liberty

however to the petitioner as sought to file another petition impugning the

vires of the Act.

18. W.P.(C) No.1735/2011 has been filed by the owner of Plot No.C-82

in the colony. It is stated that besides the arguments already dealt above, it

is inter alia his contention that the appeal preferred by him on 9 th July,

2008 against the order of ASI refusing NOC has not been adjudicated.

However in view of the factual and legal scenario being the same as

discussed above no purpose would be served in directing the disposal of

the said appeal also.

W.P.(C) No.1735/2011 is also accordingly dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 15 , 2011 pp