Delhi High Court
Suresh Chand Gupta & Anr vs Archaeological Survey Of India & ... on 10 December, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th December, 2018
+ LPA 692/2018 & CM. Nos. 51702/2018 and 51703/2018
SURESH CHAND GUPTA & ANR ..... Appellants
Through: Mr. Rohit Gandhi, Adv.
versus
ARCHAEOLOGICAL SURVEY OF INDIA
& ORS ..... Respondents
Through: Mr. Ashim Sood, CGSC with
Ms. Payal Chandra, Adv. for R-1 to 3
Mr. Dhanesh Relan, SC for SDMC
with Ms. Gauri Chaturvedi & Mr.
Rajeev Jha, Adv. for SDMC
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM. No. 51702/2018(for exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM. No. 51703/2018 (application for condonation of 257 days
delay in re-filing the appeal)
For the reasons stated in the application, the delay of 257
days in re-filing the appeal is condoned. Application stands
disposed of.
LPA 692/2018
1. This appeal has been filed by the appellants challenging the
order of the learned Single Judge dated February 19, 2018 whereby
the learned Single Judge has dismissed the writ petition.
2. The grievance of the appellants before the learned Single
Judge was the non-grant of permission to construct on their land.
The appellants own a piece of land admeasuring 12 biswas in
Khasra No. 541/519/170/2 of Village Kharera, now known as
Green Park Extension, New Delhi. The said land is in the immediate
vicinity of a centrally protected monument known as Sakri Gumti.
The said land falls within the prohibited zone of 100 meters of the
Monument. It was the case of the appellants that the other persons
who owned land in the vicinity of the Monument had constructed
buildings prior to the amendment in the Ancient Monument and
Archaeological Site and Remains Act, 1958, by virtue of which any
further construction in the prohibited zone, is prohibited . It was
their case that they were unable to construct the land, as the land
was being illegally occupied by respondent no.1 ASI. The ASI was
evicted from the said land on February 13, 2017. By that time, the
Act was amended to prohibit any construction within the prohibited
zone. It was in this background, the appellants had filed the petition
before the learned Single Judge.
3. Two submissions were made on behalf of the appellants, (i)
for granting permission to construct a residential building on the
said land, and (ii) in the alternative, the respondents be directed to
acquire the said land by the way of private purchase at fair market
value, or provide compensation in terms of Section 27 of the Act.
4. Insofar as the plea No.1 above is concerned, the learned
Single Judge has rejected the same by relying upon Section 20A of
the aforesaid Act whereby sub Section 3 and 4 of the said Section
indicates that in certain exceptional cases, permission could be
granted for carrying out any work or project, where the Central
Government is satisfied that the permission is for carrying out any
public work or any project essential to the public or any other
works, which are in public interest. The case of the appellants does
not fall in any of those categories. Therefore, the learned Single
Judge has rejected the plea of granting permission. He also referred
to Section 20A(4) of the Act to hold that the said Section make it
abundantly clear that no permission will be granted under Section
20A(3) of the Act in the prohibited area after the date on which the
of the Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Bill, 2010 receives the assent of the
President. The said Bill received the assent of the President on
March 29, 2010. The learned Single Judge held that after that date,
the ASI /Central Government do not have any power to grant any
permission for construction under the prohibited area.
5. Insofar as plea No.2 above is concerned, in support of their
submission, appellants had placed reliance on Section 27 of the Act.
The appellants had also relied upon the judgment of the Karnataka
High Court in the case of State of Karnataka, rep., by its Chief
Secretary and Ors. v. Smt. T. Jayamma and Anr. ILR 2014 KAR
5749 wherein a direction was given if and when respondent No.1
makes an application under Section 24 of the Act or a fresh
application for license under Rule 14 of the Rules, it shall be
considered by the State Government, in accordance with law. The
learned Single Judge rejected the said plea on the ground that the
said order was passed by the Karnataka High Court on a concession
given by the learned Advocate General. We also note that the
learned Single Judge has expressed certain reservations on the said
judgment. Be that as it may, we concur with the view of the learned
Single Judge that the said order was passed on a concession made
by the learned Advocate General and such order cannot enure to the
benefit of the appellants herein.
6. During the course of his submissions, Mr. Gandhi had also
pleaded that the direction be given to the respondents to acquire the
land. Such a direction cannot be issued by the Court. It is not the
case of the appellants that their fundamental rights have been
violated, for this Court to issue a writ of mandamus to the
Government. In so far as plea related to Section 27 for award of
compensation is concerned, we agree with the conclusion of the
learned Single Judge that compensation is only contemplated in
cases of any entry or excavation or where a loss is caused by
exercise of any power under the Act. In this case, admittedly, no
exaction has been done on the said land. Further, as noticed above,
the ASI has not exercised any power, which has resulted in loss to
the petitioners. We are of the view that the learned Single Judge
was justified in rejecting the writ petition. We do not see any merit
in the appeal. The same is dismissed. No costs.
V. KAMESWAR RAO, J
CHIEF JUSTICE
DECEMBER 10, 2018/ak
