Shri Girdhar Memorial ... vs The Union Of India
2021 Latest Caselaw 8693 Raj

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
                   D.B. Spl. Appl. Writ No. 302/2019

Shri     Girdhar   Memorial       Charitabale         Trust,     Jaisalmer    Fort,
Jaisalmer Through Its Managing Trustee Smt. Mukut Raje
Lakshmi W/o Late His Highness Maharawal Raghunath Singhji,
R/o Mandir Palace, Jaisalmer.
                                                                      ----Appellant
                                    Versus
1.       The Union of India, through The Secretary Archaeological
         Department, Government Of India, New Delhi.
2.       The Superintending Archaeologist, Jaipur Circle, 70/133-
         140, Patel Marg Mansarover, Jaipur (Raj.).
                                                                 ----Respondents


For Appellant(s)          :     Mr. Siddharth Joshi with Mr. Khet
                                Singh Rajpurohit
For Respondent(s)         :     Mr. Nitesh Mathur on behalf of
                                Mr. B.S. Sandhu



            HON'BLE MR. JUSTICE SANGEET LODHA
            HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                 Judgment

1st April, 2021

PER HON'BLE MR. SANGEET LODHA,J.

1. This intra-Court appeal is directed against order dated

26.2.19 passed by the learned Single Judge of this Court, whereby

the writ petition preferred by the appellant challenging the notice

dated 16.5.20 issued by the respondents to remove the

construction work of wooden doors and plaster work etc. from

Suraj Prol Gate inside the Jaisalmer Fort being violative of sub-

section (1) of Section 19 of the Ancient Monuments and

Archaeological Sites and Remains Act, 1958 (for short "the Act of

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1958') and Rules 19(1) & 33 of the Ancient Monuments and

Archaeological Sites and Remains Rules, 1959 (for short "the

Rules"), has been dismissed.

2. The appellant, a charitable trust, owns a property known as

Suraj Prol which forms part of Jaisalmer Fort in the State of

Rajasthan, is an archaeological monument. According to the

appellant, it was in dilapidated condition and was requiring

immediate repairs, had timely repair not carried out by the Trust,

there was apprehension of said part of the building and structure

collapsing and therefore, immediate steps were taken to get the

plaster work done for reinforcing the existing structure so as to

avoid further damage. Besides, the Trust also put wooden doors to

stop entry of stray cattles in the open space of Suraj Prol.

According to the appellant, no structural changes were made in

the property and therefore, the provisions of Section 19 of the Act

of 1958, which prohibits construction of building within the

protected area without permission of the Central Government, are

not attracted, however, the appellant Trust was served with a

notice dated 16.5.2000 issued by the Superintending

Archaeologist, the respondent no.2 herein, calling upon it to

remove the said wooden doors and plaster work etc. from the

Suraj Prol Gate on or before 25.5.2000. The appellant was

informed that in the event of refusal or failure to comply with the

notice within the period specified, order will be passed for removal

of such unauthroised construction under the provisions of the Act

of 1958 and the Rules. A reply to the notice was filed by the

appellant on 20.5.2000.

3. The appellant apprehending the demolition of the repair

works done, challenged the legality of the notice by way of writ

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petition before this Court, on the ground that the respondent no.2

has miserably failed to make out a case for passing an order under

Section 19(2) of the Act of 1958. The appellant contended that

what is prohibited by Section 19(1) is the construction of a

building and thus, the repair works done for saving the building

from further damage, does not warrant any action under the said

provision. According to the appellant, the construction of building

would always involve structural changes and the repair works does

not fall within the definition of words "construction of the

building".

4. On 2.4.02, the learned Single Judge while admitting the writ

petition directed the parties to maintain the status quo as existing

on that day.

5. A reply to the writ petition was filed on behalf of the

respondents, taking the stand that name of 'Suraj Prol' being

gateway of main approach road to Jaisalmer Fort, a place of public

utility, is not included in the inventory of the erstwhile Ruler of

Jaisalmer. Besides, in the inventory, it is specifically mentioned

that the easements of way as were enjoyed by the people will

continue to be enjoyed by them without let or hindrances. The

said structure was never closed by the wooden doors and

remained open for public. It was denied that the said Prol was in

dilapidated condition and in any case, if such construction was

required to be carried out, the appellant was under an obligation

to take permission from Archaeological Survey of India for

necessary repairs, which is granted at the local level by a

committee under the Chairmanship of District Collector, Jaisalmer.

It was averred that the wooden doors and the plaster work both

have been introduced for the first time in the building and it is not

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clear as to how, it will save the building if the same is in

dilapidated condition. According to the respondents, total five new

doors have been put up at this monument which are sufficient to

change the facade of the monument and thus, the action of the

appellant is apparently violative of provisions of Section 19 of the

Act of 1958.

6. After due consideration of the rival submissions, the writ

petition preferred by the appellant has been dismissed by the

learned Single Judge. The learned Single Judge arrived at the

finding that the entire Jaisalmer Fort including Suraj Prol has been

declared to be an ancient monument and has been listed in the

world monument watch list and therefore, it requires special

protection. Relying upon a Bench decision of this Court in Hari

Shanker & Anr. vs. Union of India & Ors.: D.B.Civil Special Appeal

No.1101/98 ( AIR 2000 Raj., 26) and the provisions of Section 19

of the Act of 1958, the learned Single Judge opined that the

appellant may not have engaged in constructing any building

within the protected area but they have certainly engaged

themselves in "operation of like nature in such area" and thus,

provisions of Section 19 are attracted in the matter and the

appellant could not have proceeded with the alleged repair work

without permission of the Central Government. The learned Single

Judge observed that installation of the doors amounts to making

structural changes. Accordingly, while dismissing the writ petition,

the learned Single Judge has directed the appellant to remove the

doors which they have installed in ancient monument 'Suraj Prol'

at their own risk and cost within one month. The learned Single

Judge issued further directions in the following terms:

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"14. The respondents are therefore, directed to form a local level committee consisting under the Chairmanship of the District Collector, Jaisalmer alongwith the officials of the Archaeological Survey of Indian and the Chief Executive Officer of the Local Municipality who will coordinate with the various Government Departments including the Water Works Department, Public Works Department, Police Department, Transport Department and the Tourism Department and set up a plan for regulating the traffic in the Fort.

15. All the encroachments which have been made made in and around the Jaisalmer Fort, also known as Sonar Fort, and around the walled city, shall be removed. The district administration is directed not to allow any water or power connection to any illegal construction made in an around the Sonar Fort. The respondents shall be free to initiate proceedings under Section 30-A of the Ancient Monument Act, 1958. The Committee shall also be authorized to initiate action for imposing penalties under Section 30-A, 30-B and 30-C of the Ancient Monuments Act, 1958 which read as under:-

...............xxxx..............................xxxx.........

16. The Committee, as noticed above, shall submit its compliance report relating to the steps as directed by this Court herein above within two months and this writ petition shall be listed for the said purpose before the Court."

7. Learned counsel appearing for the appellant submitted that

the repair works undertaken to save part of the building which

was in dilapidated condition, does not fall within the definition of

the words 'construction of building' or carrying on any operation of

like nature in the protected area of the ancient monument and

thus, the provisions of Section 19 of the Act of 1958 are not

attracted in the matter. According to the learned counsel, putting

of the doors at the premises does not amount to structural change

warranting action by the Central Government under the provisions

of sub-section (2) of Section 19 of the Act of 1958. Learned

counsel submitted that since the appellant had undertaken only

the repair works, no permission was required to be taken from the

Central Government as envisaged by Rule 10 (1) of the Rules.

According to the appellant, the action of the respondent no.2 in

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directing removal of the plaster and the doors on account of

alleged violation of Section 19 of the Act of 1958 and sub-rule (1)

of Rule 10 & Rule 33 of the Rules is ex facie without jurisdiction

and thus, the learned Single Judge has seriously erred in

dismissing the writ petition and issuing directions for the removal

of the doors as aforesaid. In support of the contention, learned

counsel relied upon a decision of Supreme Court in the matter of

Moideenkutty Haji vs. Director General & Ors.: (2017) 8 Supreme

63.

8. During the course of hearing, the counsel for the appellant

produced the photograph of the site for perusal of the Court,

which are taken on record.

9. On the other hand, the counsel appearing for the

respondents while reiterating the stand taken before the learned

Single Judge contended that Suraj Prol, which forms part of

Jaisalmer Fort, a protected ancient monument, was a space meant

for public utility and thus, the appellant could not have installed

the doors and close the open space. Learned counsel submitted

that in the said part of the building, no plaster exists and thus, the

action of the respondent in putting the plaster also amounts to

structural change in the premises which could not have been

effected without permission of the Central Government. Learned

counsel submitted that as a matter of fact, Suraj Prol has been

closed by the appellant by putting the doors with an intention to

put it to commercial use, which cannot be permitted. Learned

counsel submitted that the action of the respondents being in

conformity with the provisions of Section 19 of the Act of 1958

and Rule 10 of the Rules, the learned Single Judge has rightly

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declined to interfere with and directed the appellant to remove the

doors installed at its own risk and costs.

10. We have considered the rival submissions and perused the

material on record.

11. Indisputably, the Act of 1958 has been enacted to provide for

preservation of ancient and historical monuments and

archaeological sites and remains of national importance, for the

regulation of archaeological excavation and protection of

sculptures, carvings and other like objects.

12. Section 2(d) defines 'archaeological sites and remains' to

mean any area which contains or reasonably believe to contain

ruins or relics of historical or archaeological importance, which

have been in existence for not less than one hundred years and

includes-

(i) such portion of land adjoining the area as may be requiring for

fencing or covering in or otherwise preserving it, and

(ii) the means of access to, and convenient inspection of the area.

13. As per Section 2(i), 'protected area' has been defined to

mean any archaeological site and remains which is declared to be

national importance by or under the Act.

14. As per Section 3 of the Act of 1958, all ancient and historical

monuments and all archaeological sites and remains which have

been declared by the Ancient and Historical Monuments and

Archaeological Sites and Remains (Declaration of National

Importance) Act, 1951 to be of national importance are deemed to

be ancient and historical monuments or archaeological sites and

remains declared to be of national importance for the purpose of

the Act of 1958.

(8 of 10) [SAW-302/2019]

15. The Jaisalmer Fort including ancient temples in Jaisalmer

were declared to be ancient and historical monuments under

Section 2 of the Act of 1951, which finds mentioned at Serial

No.59 in Part II of Schedule appended thereto.

16. A Bench of this Court in Hari Shanker's case (supra),

categorically held that Jaisalmer Fort with its entire precincts is a

protected area being an archaeological site and remains of

national importance for the purposes of the Act. The Court held:

"8. It is now to be seen whether the aforesaid protected area has been declared to be of national importance by or under the Act. Section 3 of the Act provides that all ancient and historical monuments and all archaeological sites and remains referred to in Part I and Part II of the Schedule appended to that Act are declared to be ancient and historical monuments and archaeological sites and remains of national importance. In Part II of the Schedule at Serial No.59 in the State of Rajasthan. Jaisalmer Fort including ancient temples has been declared to be ancient and historical monuments and archaeological sites and remains of national importance. Thus, the combined effect of clauses

(d) & (i) of Section 2 and Section 3 of the Act is that Jaisalmer Fort with its entire precincts is a protected area being an archaeological site and remains of national importance for the purposes of the Act and, therefore, the respondents are within their right to proceed against any building constructed by any person within that area in contravention of the provisions of sub-section (1) of Section 19 of the Act. For the aforesaid reason, we find that though the learned Single Judge committed an error in dismissing the petition before him on the ground that it involved disputed questions of fact on merits, there is no force in the petition from which this appeal arises. The appeal, therefore, has no force, it is dismissed."

17. Section 19 of the Act of 1958, which deals with protected

areas, prohibits any person including owner or occupier of the

protected area from constructing any building within the protected

area or carry on any mining, quarrying, excavating, blasting or

any operation of a like nature in such area or utilise such area or

any part thereof in any other manner without the permission of

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the Central Government. Sub-section (2) of Section 19, empowers

Central Government to direct removal of any building constructed

by any person within the protected area in contravention of the

provisions of sub-section (1), within the specified period and if the

person refuses or fails to comply with the order, the Collector may

cause the building to be removed and the person shall be liable to

pay the cost of such removal.

18. Rule 10 of the Rules of 1959 mandates that no person shall

undertake any construction or mining operation within the

protected area except under and in accordance with a permission

granted in this behalf by the Central Government.

19. A conjoint reading of Section 19 of the Act of 1958 and Rule

10 of the Rules of 1959, makes it abundantly clear that the

appellant could not have proceeded with the construction within

the precincts of the Jaisalmer Fort, which is a declared protected

area, without permission of the Central Government. It is not

disputed before this Court that before undertaking the alleged

repair works and the installation of doors in the Suraj Prol, an

open space, within the precincts of Jaisalmer Fort, no permission

was obtained by the appellant from the Central Government.

20. As noticed above, the allegation against the appellant is that

the doors were installed with an intention to put the premises to

commercial use. A perusal of the photographs placed on record by

the appellant showing five doors installed reveals that over the

middle gate i.e. gate no.3 from either side, a signage displaying

the name of a commercial venture 'SOFI HANDICRAFTS' is

installed and thus, the stand sought to be taken by the appellant

before this Court that the wooden doors are put just to stop entry

of stray cattle in the open space in the property known as 'Suraj

(10 of 10) [SAW-302/2019]

Prol' and not to put the same to commercial use, does not appear

to be prima facie correct.

21. It is contended on behalf of the appellant that the words

'construction of the building' have not been defined yet in the legal

terms it would always involve structural changes and the repair

work does not fall within the definition of the construction. As a

matter of fact, the word 'construction' has been defined under

Rule 2(a) of the Rules of 1959, to mean any structure including

addition to or alteration of an existing building. In considered

opinion of this Court, the conversion of an open space by putting

the doors into a premises which could be put to commercial or

other use, certainly amounts to material alteration of the building

and thus, the proceeding initiated by the respondents for removal

of the construction raised as aforesaid, in exercise of the power

conferred under Section 19(1) of Act of 1958 read with Rule 10(1)

of the Rules of 1959, cannot be faulted with and thus, the

contention of the appellant that the impugned notice issued by the

respondent authority is arbitrary and without jurisdiction, is devoid

of any merit.

22. For the aforementioned reasons, we are in agreement with

the view taken by the learned Single Judge of this Court.

23. No case for interference in exercise of intra-Court appeal

jurisdiction is made out.

24. In the result, the appeal fails, it is hereby dismissed. No

order as to costs.

                                   (RAMESHWAR VYAS),J                                          (SANGEET LODHA),J
                                    Aditya/-









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