Delhi High Court
Suresh Chand Gupta And Anr. vs Archaeological Survey Of India ... on 12 February, 2018
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1269/2018
SURESH CHAND GUPTA AND ANR. ..... Petitioners
Through: Mr Rohit Gandhi, Advocate.
versus
ARCHAEOLOGICAL SURVEY OF
INDIA AND ORS. ..... Respondents
Through: Mr Ashim Sood, CGSC with Ms
Payal Chandra, Advocate for R-1, 2, 3
& 4.
Mr Rakesh Mittal, Standing Counsel
with Ms Kamlesh Anand and Ms
Yamini Mittal, Advocates for
SDMC/R-5.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 12.02.2018
VIBHU BAKHRU, J
CM No. 5325/2018
1. Exemption is allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 1269/2018
3. The petitioners are essentially aggrieved by non-grant of permission
to construct on their land. The petitioners own a piece of land admeasuring
12 biswas in Khasra No. 541/519/170/2 of Vilage Kharera, now known as
„Green Park Extension, New Delhi‟ (hereafter „the said land‟). The said land
is in the immediate vicinity of a centrally protected monument known as
„Sakri Gumti‟ (hereafter „the Monument‟). The said land falls within the
prohibited zone of 100 meters of the Monument.
4. The petitioners state that other persons who own 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
(hereafter „the Act‟), by virtue of which any further construction in the
prohibited zone, is prohibited . However, the petitioners were unable to do,
so since the said land had been illegally occupied by respondent no.1
(hereafter „the ASI‟). The petitioners claim that the ASI was evicted from
the said land on 13.02.2017; however, by that time, the Act had been
amended to prohibit any construction within the prohibited zone.
5. In the aforesaid context, the petitioners pray that the petitioners be
granted permission as an exceptional case to construct a residential building
on the said land. In the alternative, it is prayed that 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.
6. Insofar as the petitioners‟ prayer for granting permission for
construction of a residential building is concerned, it would be necessary to
refer to Sub-section (3) and (4) of Section 20A of the Act. The same are set
out below:-
"20A. Declaration of prohibited area and carrying out
public work or other works in prohibited area.―Every
area, beginning at the limit of the protected area or the
protected monument, as the case may be, and extending to a
distance of one hundred metres in all directions shall be the
prohibited area in respect of such protected area or protected
monument:
xxxxxxxxx xxxxxxxxxxxx xxxxxxxxx xxxxxxxxx
"(3) In a case where the Central Government or the Director-
General, as the case may be, is satisfied that―
(a) it is necessary or expedient for carrying out such public
work or any project essential to the public; or
(b) such other work or project, in its opinion, shall not have
any substantial adverse impact on the preservation, safety,
security of, or, access to, the monument or its immediate
surrounding, it or he may, notwithstanding anything
contained in sub-section (2), in exceptional cases and having
regard to the public interest, by order and for reasons to be
recorded in writing, permit, such public work or project
essential to the public or other constructions, to be carried out
in a prohibited area:
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).
(4) No permission, referred to in sub-section (3),
including carrying out any public work or project essential to
the public or other constructions, shall be granted in any
prohibited area on and after the date on which the Ancient
Monuments and Archaeological Sites and Remains
(Amendment and Validation) Bill, 2010 receives the assent of
the President."
7. A plain reading of Section 20A(3) of the Act indicates that in certain
exceptional cases, permission could be granted for carrying out any work or
project. However, such permission is only permissible 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. Clearly, the petitioners‟ request does not fall under any of
those categories and, therefore, the question of granting permission to the
petitioners to carry out any construction within the prohibited zone does not
arise.
8. The provisions of Section 20A(4) of the Act also make 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 29.03.2010. Thus, thereafter, the ASI /Central
Government do not have any power to grant any permission for construction
under the prohibited area.
9. The contention that the petitioners are entitled to any compensation
for loss or damage in terms of Section 27 of the Act is also unpersuasive.
10. Section 27 of the Act reads as under:-
"27. Compensation for loss or damage.―Any owner or
occupier of land who has sustained any loss or damage or any
diminution of profits from the land by reason of any entry on,
or excavations in, such land or the exercise of any other
power conferred by this Act shall be paid compensation by
the Central Government for such loss, damage or diminution
of profits."
11. It is apparent from the above 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 excavation 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.
12. Mr Gandhi, the learned counsel appearing for the petitioner contended
that failure to exercise power to grant permission to construct on the said
land should also be construed as resulting in loss, which is to be
compensated under Section 27 of the Act. This contention is also flawed as
the ASI has no power to grant any permission to construct and thus the
question of any damage/loss resulting from non exercise of such power is
plainly illusory.
13. Mr Gandhi relied upon the decision of the Karnataka High Court in
State of Karnataka, rep., by its Chief Secretary and Ors. v. Smt. T.
Jayamma and Anr.: ILR 2014 KAR 5749 and drew the attention of this
Court to Paragraph 14 and 15 of the said Judgment, which read as under:-
"14. In view of the aforesaid scheme of the Act and Rules
and decisions of the Apex Court, we are unable to endorse
the view taken by the Division Bench of this Court in State of
Karnataka v. Srikanthadatta Narasimha Raja Wodeyar
(supra). However, the issues arising herein may be addressed
in view of the fair concession made by Learned Advocate
General that the provisions of Section 24 of the Act already
provide for compensation by the Government for loss,
damage or diminution of profits being sustained by any
owner or occupier of land on account of exercise of any
power conferred by the Act. Therefore, it is admittedly open
to respondent No.1 to claim compensation in terms of the
provisions of Section 24, if she is so advised. Learned
Advocate General also fairly stated that if and when such
application for compensation is made, it would be considered
in accordance with law and decided as expeditiously as
practicable.
15. The parties having arrived at the aforesaid
understanding, the appeal is allowed by consent and the
impugned order is set-aside with the direction that if and
when respondent No.1 makes an appropriate application
under Section 24 of the Act or a fresh application for a
license under Rule 14 of the Rules, it may be considered by
the State Government in accordance with law and as
expeditiously as practicable and preferably within a period of
three months of receipt of such application. There is no order
as to cost."
14. This Court has certain reservations as to the said judgment.
Notwithstanding the same, it is also clear that the directions issued in
Paragraph 15 of the aforesaid order are pursuant to the concession made by
the learned Advocate General appearing in that case. It is also material to
note that the Court had not directed grant for any compensation, but only
directed that the representation of the respondent therein be considered in
accordance with law. Thus, if compensation was not payable in law, no
such compensation would be paid.
15. This Court is of the view that there is no ambiguity in the provisions
of the Act and as noted above, the petitioners are not entitled to
compensation under Section 27 of the Act.
16. Mr Gandhi also pled that the Central Government may be directed to
acquire the said land under Section 20 of the Act.
17. Section 20 of the Act reads as under:-
"20. Power to acquire a protected area.―If the Central
Government is of opinion that any protected area contains an
ancient monument or antiquities of national interest and
value, it may acquire such area under the provisions of the
Land Acquisition Act, 1894 (1 of 1894), as if the acquisition
were for a public purpose within the meaning of that Act."
18. It is at once clear that the provisions of Section 20 are of little
assistance to the petitioner. The question of acquiring any land would arise
only when the Central Government is of the opinion that the land in question
is in "protected area" and "contains an ancient monument or antiquities".
The said land does not contain any antiquity and does not have any
monument. It is pointed out by the learned counsel for respondent no.1 that
the said land is not in a protected area. Therefore, no direction can be issued
to the Central Government to acquire the said land.
19. In view of the above, no relief can be granted to the petitioner in this
case.
20. The petition is disposed of.
VIBHU BAKHRU, J
FEBRUARY 12, 2018
RK
