Rajeev Suri vs Archaeological Survey Of India ...
2019 Latest Caselaw 1139 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: February 06, 2019
                            Judgment delivered on: February 20, 2019

+      W.P.(C) 4099/2018, CM Nos. 16145/2018 & 46395/2018

       RAJEEV SURI                                                ..... Petitioner
                             Through:    Mr. Jayant Tripathi, Mr. Mayantara
                                         Roy and Mr. Dinesh Dahiya, Advs.
                             versus


       ARCHAEOLOGICAL SURVEY OF INDIA
       AND ORS.                                 ..... Respondents
                    Through: Mr. Vikas Mahajan, CGSC with
                              Mr. Deepak Goyal, Adv. for UOI
                              Mr. Rakesh Sinha, Mr. Jeemon Raju,
                              Advs. with AR for R4
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V. KAMESWAR RAO
                                JUDGMENT

V. KAMESWAR RAO, J

1. This writ petition has been filed by the petitioner with the

following prayers:

"That in the facts and circumstances set out in the petition, and the Grounds taken therein, it is most respectfully prayed that this Hon'ble Court be graciously pleased to:-

A. Issue a Writ of Certiorari calling for the records pertaining to the monument of "Shaikh Ali Gumti" in Defence Colony

available with the Respondents, and especially the records pertaining to the proposal to declare the same to be a monument of national important as available with the Respondent Nos.1 and 2;

B. Issue a Writ of Mandamus, or any other appropriate Writ, Order or Direction as may be deemed appropriate, commanding the respondent Nos.1 and 2 to carry out its statutory duty and issue a Gazette Notification under Section 4(3) of the Ancient Monuments and Archaeological Sites and Remains Act, 1956, declaring the ancient monument of "Shaikh Ali Gumti" in Defence Colony as a monument of national importance;

              OR IN THE ALTERNATIVE
              B.        Issue a Writ of Mandamus, or any other

appropriate Writ, Order or Direction as may be deemed appropriate, commanding the respondent No.5 to carry out its statutory duty and issue a Gazette Notification under Section 4 of the Delhi Ancient and Historical Monuments and Archaeological Sites and Remains Act, 2004, declaring the ancient monument of "Shaikh Ali Gumti" in Defence Colony as a protected monument under the said Act;

C. Pass such other and further orders as may be required, binding down the Respondents to take appropriate steps for the protection, preservation and maintenance of the ancient monument of "Shaikh Ali Gumit" in Defence Colony.

D. Pass such other and further orders as may considered appropriate in the present case."

2. In substance, the present petition has been filed by the

petitioner seeking protection under the provisions of the Ancient

Monuments and Archaeological Sites and Remains Act, 1958 (in

short "AMASR Act") of a monument situated in Defence Colony

which is called as "Gumti of Shaikh Ali".

3. The petitioner through his counsel Mr. Jayant Tripathi

had contended that "Gumti" finds mention in the exhaustive and

seminal survey of the monuments of Delhi, carried out in 1920's

by Maulvi Zafar Hasan, the then Deputy Superintending

Archaeologist, published in 1926 by the ASI as "List of

Muhammadan and Hindu Monuments". According to Mr.

Tripathi, a perusal of the entry of 1926 regarding the said

monument, it was mentioned that the tomb is of the Lodi period.

There are two unknown graves, and the monument should be

protected. He made a reference to a publication of the Indian

National Trust for Art and Cultural Heritage in its book, titled

"Delhi: The Built Heritage" in 1999.

4. He has referred to the fact that in the year 2004, the

Archaeological Survey of India, Delhi Circle, had identified the

"Gumti" as of national importance and had initiated the process

of declaring it to be a monument of national importance, worthy

of protection under the AMASR Act. According to him, it was

only on inspection of the monument and its condition carried out

by the officials of the ASI, the ancient monument was found

worthy of protection as a monument of national importance.

5. Mr. Tripathi had also referred to the fact that the Defence

Colony Residents Association has been using the "Gumti" as its

office. He also refers to a Notification issued under Section 4(1)

of the AMASR Act by the Department of Cultural /

Archeological Survey of India on February 09, 2004. He made a

reference to the objections filed by the Residents Association

under Section 4(2) of the AMASR Act, objecting to "Gumti"

being declared as a monument of national importance.

6. Suffice it to state that even the comments of the

Superintending Archaeologists were also sought on the objections

filed by the Defence Colony Residents Association, wherein the

Superintending Archaeologists wrote to the Director General of

the Archaeological Survey of India inter alia stating that since

the "Gumti" under reference is under occupation of the Residents

association and certain additions / alterations have been made

over a period of time, therefore, these observations may be taken

into consideration before issuing confirmatory notification.

7. The respondent No.1 has filed the counter affidavit,

wherein they have stated that the Central Government is the

authority to take final decision with regard to declaring any

monument as a national monument or centrally protected

monument. So far as Gumti of Sheikh Ali situated in Defence

Colony, New Delhi is concerned, the Central Government has

already examined the issue and it was decided against notifying

the said monument as a protected monument under the AMASR

Act, 1958. It is their case that it is not possible to bring the

monument under protection of AMASR as the Residents

Association had carried out major additions / alterations due to

which the "Gumti" has lost its originality.

8. Having considered the issue and the stand of the Central

Government which is the Competent Authority to declare a

monument as monument of national importance and that the

"Gumti", because of the alteration made by the Defence Colony

Residents Association, has lost its originality, this Court is of the

view that it cannot substitute the decision of the Central

Government with its own view, more particularly when the

experts belonging to the Archaeological Survey of India have

undertaken the inspection of the monument in question, resulting

in the impugned decision.

9. The reliance placed by Mr. Jayant Tripathi, learned

counsel appearing for the petitioner during the course of his

submissions on the notification dated February 09, 2004 would

not help his case as that was only a notification under Section 4

of the AMASR Act which is in the nature of a provisional

decision seeking objections before declaring a monument as a

Monument of national importance. The decision having been

taken in the year 2008 by the Central Government not to declare

the "Gumti" as a monument of national importance, this Court is

of the view that the prayers as made by the petitioner cannot be

granted by this Court in exercise of its power under Article 226

of the Constitution of India.

10. The writ petition is accordingly dismissed.

CM Nos. 16145/2018 & 46395/2018 Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

FEBRUARY 20, 2019/aky