Vijay Shankar Goel vs Archaeological Survey Of India & ...
2014 Latest Caselaw 2025 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 6738/2013 & CM APPL. 14615/2013

       VIJAY SHANKAR GOEL               ..... Petitioner
                    Through             Mr Asheesh Jain, Advocate

                         versus

       ARCHAEOLOGICAL SURVEY OF INDIA & ORS ..... Respondents
                   Through Mr. Jayant Tripathi, CGSC for R-1.
                           Mr. Kapil Dutta, Advocate for R-2.

%                                 Date of Decision: 23rd April, 2014

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                             JUDGMENT

MANMOHAN, J: (Oral)

1. Present writ petition has been filed challenging the order dated 19th July, 2013 passed by the Monitoring Committee constituted by the Supreme Court. Petitioner also seeks de-sealing of property bearing No. 38, Chhatha Bazaar, also known as Arcade Bazar, Red Fort, Delhi and the tin shed in front thereof.

2. In pursuance to the no objection to the de-sealing of the shop in question by Archaeological Survey of India (for short 'ASI') as well as the Municipal Corporation of India (for short 'MCD'), this Court vide order dated 11th December, 2013 directed the shop-portion of the premises of the petitioner be de-sealed so that same could be used by the petitioner for

selling handicrafts, jewellery, artefacts, etc. in accordance with Memorandum of Understanding (MOU) dated 7th September. 2007. As regards other portion in occupation of the petitioner, namely, restaurant in a tin shed, this Court issued notice.

3. Mr Asheesh Jain, learned counsel for petitioner has drawn this Court's attention to the Agreement dated 1st September, 1980 executed between the Station Commander of the Indian Army and petitioner wherein petitioner was granted licence for Shop No. 38 for sale of eatable items, tea, coffee, mineral water, cigarette, sweets, snacks, fruits, handicrafts and other general merchandise items.

4. Mr. Asheesh Jain states that petitioner was entitled for possession of not only the shop-portion which had been de-sealed by this Court but also the tin shed in front of the shop admeasuring 965 sq. ft. in accordance with Clause 14 of the Agreement dated 1st September, 1980. The said Clause is reproduced hereinbelow:-

"14. The licencee will have no access to the use of land out side the premises except, of the right of passage and a portion immediately in front of the shop measuring 965 sq. ft. and marked by the MES."

5. Mr Asheesh Jain also refers to the site plan annexed with the Agreement which clearly shows an area of 965 sq. ft. as a restaurant covered by a tin shed.

6. Mr Asheesh Jain also refers to the letters exchanged between the petitioner and the Station Commander whereby petitioner's request for inclusion of additional items like jewellery and any other item of tourist interest was permitted. Since the correspondence between the parties is

heavily relied upon by Mr. Jain, the same is reproduced hereinbelow:-

A)     Letter dated 5th August, 1998

                                                      "05 Aug 1998
       To

       The Station Commander Delhi &
       Deputy General Officer Commanding
       Delhi Area,
       Delhi.

       Dear Respected Sir,

REQUEST FOR INCLUSION OF ADDITIONAL ITEMS

We run our establishment at above indicated address as per contract between Station Commander & us.

It is humbly requested that following items may also be included in the contract which may be permitted to be stocked/sold :

(a) Jewellery all type eg silver, gold, artificial with/without precious/semi precious stones.

(b) Any other items of tourist interest.

We shall be obliged. Thanking you in anticipation.

With kind regards & best wishes.

Sincerely yours For GULZARI LAL & SONS Sd/-

V.S. Goel.

 B)     Letter dated 20 August 1998
                                                  "Station Headquarters
                                                         Delhi Cantt-10
                                                           20 August 98
       50/16/1Q4

       M/s. Gulzari Lal & Sons
       38, Arcade Street, Red Fort,
       Delhi-06.

       Dear Respected Sir,

PERMISSION FOR INCLUSION OF ADDITIONAL ITEMS

1. Ref your application dt. 05 Aug 98.

2. Your plea has been examined by this HQ and you are hereby permitted to keep the following items in your shop:-

(a) Jewellery all type of eg. silver, gold, artificial with/without precious/semi precious stones.

(b) Any other items of tourist interest.

(P. Rana) Col Adm Comdt for Stn Cdr.

7. Mr. Jayant Tripathi, learned counsel for respondent-ASI points out that Red Fort is not only a national and protected monument but also a World Heritage Site.

8. He states that initially Red Fort was occupied by three different organisations, namely, Indian Army, ASI as well as MCD. However, by way of notifications dated 20th May, 2002 and 31st July, 2002 the entire Red

Fort was handed over to ASI. He points out that the monument was handed over to a single organisation in accordance with UNESCO norms.

9. He also states that no restaurant can be run in the said premises. In support of his contention, he relies upon the MOU dated 07th September, 2007 executed between the ASI and Red Fort Bazar Shopkeepers Association. The relevant portion of the MOU is reproduced hereinbelow:-

"3. That subject to the above provision, the Confirming Parties shall continue to sell their wares from the shops currently under their occupation. The First Party also undertakes that its constituent members shall sell only such items of handicrafts, jewellery, souvenirs etc. as are relevant to the history and traditional culture of India."

10. Having heard learned counsel for parties, this Court finds that site plan annexed with the Agreement is also a part of the Agreement. It clearly demarcates the area handed over to the petitioner into two parts, namely, one for running a shop and other for running a restaurant in a tin shed.

11. It is pertinent to mention that the tin shed area is distinct and separate from the shop in the site plan itself. Consequently, though the two areas are covered by the same licence agreement, yet they are separate and distinct.

12. Since running of a shop is permissible in accordance with MOU dated 07th September, 2007 executed between the ASI and Red Fort Bazar Shopkeepers Association, this Court is of the view that petitioner is entitled to run and manage the area delineated as a shop in the site plan.

13. However, as the area which is separately demarcated and earmarked as a restaurant in a tin shed admeasuring 965 sq. ft. cannot be used as a restaurant in accordance with the MOU executed between the parties, ASI is permitted to take possession of the same forthwith.

14. However, as learned counsel for petitioner states that certain goods and valuables of the petitioner are lying in the area earmarked as a restaurant in a tin shed, MCD is directed to de-seal the said area for a period of two weeks so that petitioner can remove his belongings and goods from the said premises. During this period, ASI is entitled to depute its own guard.

15. With the aforesaid observations and directions, present petition and application stand disposed of.

Order dasti.

MANMOHAN, J APRIL 23, 2014 rn