C.W.P No. 15645 of 2007 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 15645 of 2007 Date of decision : November 25, 2010 Raj Kumar and another, ...... Petitioners v. State of Punjab and others, ...... Respondents *** CORAM : HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.L.Sharma, Advocate for the petitioners. Mr. Rupinder S.Khosla, Addl. A.G Punjab for respondents No.1 to 3. Mr. Ashok Aggarwal, Sr. Advocate with Mr. Vivek Bhandari, Advocate for respondent No.4. Mr. O.S.Batalvi, Standing Counsel for UOI. Mr. Jasbir .Rattan, Advocate Mr. Ashok Singla, Advocate and Mr. Ravish Bansal, Advocate for the applicants. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** MUKUL MUDGAL, CHIEF JUSTICE The challenge in this writ petition filed in public interest is to the C.W.P No. 15645 of 2007 ::2:: proceedings dated 17.4.2007 (Annexure P-6), vide which it was decided to lease out Qila Mubarak, Nabha District Patiala for 66 years to respondent No.4. The facts of the case briefly stated are that the Qila Mubaraq Nabha is situated in an area of 95 kanals 10 marlas in the heart of City Nabha. Its building is lying vacant and there is no office or institute functioning. However, in the outside premises and within its boundary wall, there exist Sanskrit Vidhyalya, Govt. Primary School, Post Office, Art and Craft Institute, Judicial Courts Complex and some other offices along with certain quarters for the employees of the Punjab Police Department. The said Qila was declared to be an Ancient Historical Monument under the Punjab Ancient Historical Monument Act, 1964 (for short “the Act”) by the Director of Archeology, Punjab. Respondent No.4, a private organization, is stated to be allegedly formed to restore the heritage of Nabha especially Qila Mubarak. It is averred in the writ petition that on 17.11.2005, on the proposal a decision was taken by the Punjab Government to lease out the said Qila alongwith its area to respondent No.4 for a period of 66 years. Accordingly, a memorandum was prepared for the meeting to be held on 13.8.2007 under the Chairmanship of the then Chief Secretary, Punjab. The proposal was accepted, despite the comments submitted by the PWD Building and Roads Department indicating the existence of various institutions within the boundary wall of the Qila. Thereafter, in a meeting held on 17.4.2007, the Deputy Commissioner Patiala decided that all the public and private institutions located in the area of the said Qila be handed over to respondent No.4. It is further averred that all the said institutions are being forced to be shifted to some other places thereby causing C.W.P No. 15645 of 2007 ::3:: inconvenience not only to the public but also to the institutions themselves as no proper alternative arrangements have been made. Certain employees of the Police Department, who are in occupation of quarters built within the area of the Qila, are also being forced to vacate the quarters immediately. Some land, allegedly occupied by one Sher Mohmad and is stated to be within the area of the Qila, is subject matter of civil litigation and an appeal is pending before the District Judge, Patiala. In their reply, respondents No.1 to 3 have stated that respondent No.4-Nabha Foundation is a public charitable trust which is working on several good projects in the region including the fields of organic farming, philanthropic projects in the field of education, and help for the people of Nabha. It is further averred that shifting of various institutions mentioned in the writ petition is an internal matter of the State Government and alternative suitable sites are being provided to the said institutions. It is also averred that only the Rani Hall in the Qila Androon has been declared to be a protected monument under the Punjab Ancient and Historical Monuments and Archeological Remains and Sites Act 1964, as it has old monuments and paintings depicting various scenes from the Ramayana and Mahabharta and of the Sikh Gurus. The said Qila was and is the property of the State Government and the Director of Archeology under the Act is the employee of the State Government. The proposal submitted by respondent No.4 was accepted by the Government of Punjab and opened to transparent, open and competitive bidding process under Section 37 of the Punjab Infrastructure (Development and Regulation) Act, 2002. Thereafter, the Council of Ministers accorded its approval in principle to undertake restoration, conservation, maintenance and reuse of Qila Nabha through C.W.P No. 15645 of 2007 ::4:: private sector participation on 17.11.2005. While deciding the request for proposal based on the detailed project report submitted by respondent No.4, some deletions/modifications/alterations were made in order to safeguard interest of the government and make project more competitive for other parties. The proposal was approved by the Executive Committee with some changes as mentioned in the reply. Respondent No.4 has been selected and shortlisted in the bidding process for the award of the project after following the entire procedure prescribed under the Act. It is further averred that some employees of the Police and Home Guards have illegally encroached upon the government property and legal action is being taken against them. Respondent No.4 in its reply has stated that it has addressed issues of community health including immunization of children through schools and public camps, specific issues like eye diseases and surgeries are tackled and facilitated using public health system and through cooperation with the government hospitals. It has also worked in the field of HIV awareness and education and has carried out required assessments as also preventive strategies with the aid of FXB, a Swiss NGO working in the field. In other sectors viz education, agriculture etc., respondent No.4 has taken various initiatives and conducted good work. The learned counsel for the petitioners has argued that once the Qila has been declared as Ancient Historical Monument, the State Government has no control or right to lease it out to respondent No.4. It is the Director of Archeological Department who is vested with the power to maintain control and supervise the same, under the Act. He has further argued that the said Qila is also a Monument of Art and Culture and once C.W.P No. 15645 of 2007 ::5:: the Qila is leased out, the very purpose to preserve Monument of Art and Culture will be defeated. It is his argument that 95 kanals 10 marlas of land has been leased out for 66 years at a very paltry sum and there is no safeguard that respondent No.4 will not use the same for commercial benefit. On 4.10.2010, the following order was passed :- “ xx xx xx xx CWP No.15645 of 2007 In principle we are satisfied with the private participation in public ventures for preserving the state level sites of public/historic importance, the condition whereof is deteriorating, as indicated by Archeological Survey of India, because of non-availability of sufficient funds required for the purpose. However, we are only concerned with the fact that the venture should not turn into instrument of commerce. Learned Addl. AG Punjab seeks time to put on affidavit explaining expected number of seats relating to Management, Information Technology, Agriculture and Commerce Courses and seats which will be available for Art and Craft and Archeological streams. Both respondent No.4 and State will file affidavit to that effect. List again on 26.10.2010.” Consequent to the aforesaid order, additional affidavits have been filed by the State of Punjab and respondent No.4 which are to the following effect :- “ Affidavit filed by respondent No.1 : 1. That Part A(3) of Section 6 of the Request for Proposal document allows reuse of Qila complex for the purpose of High Education at Graduate and Post Graduate Level of maximum total capacity of not more than 200 students. The disciplines which may be allowed shall include Arts & Crafts, Archeology, Management, Agriculture, Commerce and Information Technology. The disciplines not to be permitted include dental college, engineering branches and science subjects which require laboratories with heavy equipments and machinery and chemical laboratories. C.W.P No. 15645 of 2007 ::6:: 2. That the Nabha Foundation has informed that there is no concrete proposal to establish educational institutions in the Qila premises as of today. However, as and when any such educational institution/s are established, not more than 50% of the permitted maximum total capacity of students will be allotted for management, commerce, agriculture and information technology. This clause shall be made part of the concession agreement to be signed with the Nabha Foundation.” Affidavit filed by respondent No.4 : “ The respondent No.4, the Nabha Foundation is a Public Charitable Trust funded by the Khemka Family and has been carrying out various philanthropic activities in and around Nabha particularly in the fields of education, healthcare and agriculture. The details of the same are set out in the written statement and affidavit filed earlier. 2. Part A(3) of Section 6 of the Request for Proposal document allows reuse of the Quila Complex for the purpose `Higher Education at Graduate and Post Graduate Level of maximum total capacity of not more than 200 students. The disciplines which may be allowed shall include Arts and Crafts, Archaeology, Management, Agriculture, Commerce and Information Technology. The disciplines not to be permitted include dental college, engineering branches and science subjects which requires laboratories with heavy equipments and machinery and chemical laboratories.' 3. That if and when any educational institution/s are established as per the RFP Document, not more than 50% of the total 200 seats in the educational institution/s will be allotted for management, commerce and information technology.” Respondent No.4 has, thereafter, also filed an additional affidavit to the effect that the following heritage building/fort in this country have been resurrected/restored/maintained by virtue of public private partnership :- “ 1. Gardens of Emperor Humayun's Tomb : The first privately funded restoration of a World Heritage Site in India was completed in March 2003 through the joint efforts of the The Aga Khan Trust for C.W.P No. 15645 of 2007 ::7:: Culture (AKTC) and the Archaeological Survey of India (ASI), under the aegis of the National Culture Fund. The objective of the project was to revitalise the gardens, pathways, fountains and water channels of the chahar-bagh, or four-part paradise garden, surrounding Humayun's Tomb in Delhi, according to the original plans of the builders. Work was completed in March 2003. In addition to the National Culture Fund and the implementing organisations- ASI and the Trust- two other parties also played a role : the Indo-British Fiftieth Anniversary Trust and the Oberoi Group of Hotels. 2. Jal Mahal, Jaipur After heritage restoration, conservation and new designing, the famous Manager lake and its legendary over 200 year old “Jal Mahal” will be reopened in October 2010. Jal Mahal Resorts Pvt Ltd (JMRPL) funded the heritage conservation and renovation of Jal Mahal monument and Manasagar lake as part of a PPP in the form of a 99 year lease signed with the Department of Tourism, Government of Rajasthan. Jal Mahal Resorts Pvt Ltd is allowed to operate activities relating to tourism, recreation, culture, arts and entertainment including hotels and convention centres. 3. Jaisalmer Fort, Rajasthan In 1997, World Monuments Fund partnered with the Indian National Trust for Art and Cultural Heritage (INTACH) to conserve and re-build a collapsed wing of the Queen's Palace and in 2001 began work on the courtyard of the King's Palace. Both buildings were conserved, the Queen's Palace was converted into a heritage interpretive center and the King's Palace now functions as part of the fort palace museum. 4. Isa Khan's Complex, New Dellhi World Monuments Fund has joined the Aga Khan Trust for Culture's Urban Renewal Initiative, which worked at Humayun's Tomb in partnership with the Archaeological Survey of India and the Municipal Corporation of Delhi. WMF's work will expand the Humayun's Tomb conservation project to the Isa Khan Complex, which is the first historic monument visitors encounter when they visit Humayun's Tomb. WMF envisioned a three-year project to protect the mosque, tomb and nearby gateway and tomb of Bu Halima. C.W.P No. 15645 of 2007 ::8:: WMF's intervention will include the repair of leaks, use of traditional lime plaster to restore the mosque dome and tile work of the inner tomb. 5. Sumda Chun Monastery, Ladakh World Monuments Fund is providing funding and project management support to a four-year program with the preparation of a site survey; conditions mapping of the temple structure, wall paintings, and sculptures; provisional repairs to the leaking mud roof; and the preparation of a conservation plan to guide all future work. 6. Dalhouse Square, Kolkata World Monuments Fund arranged a strategy- planning workshop for stake holders and also contributed funding for a pilot project: the restoration of St. John's Church WMF coordinated and financed the first phase of work in 2007, which required stabilizing the church's foundations and repairing the drainage system. 7. Paradesi Synagogue, Cochin World Monuments Fund's work at Paradesi Synagogue began in 1996, documenting the condition of the complex and establishing a master conservation plan. In 2001, WMF started to work predominantly on the synagogue's clock tower, a prominent feature that rises 45 feet and dates from 1761. In early 2006, the conservation team completed its work, which included repairs to unsound masonry and replacement of rotted structural elements within the teak-framing system. Additionally, WMF oversaw the cleaning and painting of the clock tower, installation of a mechanism to replace missing mechanical clock works, and re-hanging the large brass bell, which had rested for years on the floor of the synagogue's entry building. 8. Bhau Daji Lad Museum Major restoration under the supervision of the Mumbai chapter of the Indian National Trust for Art and Cultural Heritage (INTACH) and financed by the Jamnalal Bajaj Trust. For the first time in India, a public-private partnership has been established for the management of a cultural institution. In February 2003, an agreement was signed between the Municipal Corporation Greater Mumbai (MCGM), the Jamnalal Bajaj Foundation and C.W.P No. 15645 of 2007 ::9:: the Indian National Trust for Art and Cultural Heritage (INTACH) to restore and revitalise the Dr. Bhau Daji Lad Mumbai City Museum, which was in a derelict condition. The Jamnalal Bajaj Foundation has enabled this restoration with a contribution that catalysed the project. The Municipal Corporation Greater Mumbai has not only contributed to the restoration in equal measure, but in addition has provided a corpus to help the Museum become administratively autonomous and to facilitate exhibition, educational and outreach programs. Ownership continues to vest with the M.C.G.M which has the veto right in the Trust constitution. 9. Projects open for Adoption in Hyderabad a. NIZAMAIAH OBSERVATORY b. KHURSHED JAH DEVDI c. MISHK MAHAL d. PAVILION IN BHAGWANDAS GARDEN, KARWAN e. SALAR JUNG HALL- NIZAM COLLEGE f. “RAHAT MAHAL” AT PURANI HAVELI 10. Excerpt from Report of the PPP Sub-Group on Social Sector- Government of India Planning Commission, November 2004, Page 26 “MoUs have been signed for preservation of National heritages of India like Humayun's Tomb (New Delhi), Taj Mahal (Agra), Qutub Minar (New Delhi) with the Agha Khan Khan Foundation and the Oberoi Group of Hotels, the Indian Hotels Company Ltd (Tata Group) and the Indian Oil Corporation, respectively. Overseas foundations/organizations, similarly, have also come forward and signed MoU for Jaisalmer Fort (Rajasthan) and for Pradeshi Synagogue Clock Tower, Cochin (Kerala).” Thus, it is evident that private participation for restoration is prevalent in the country and even the Archaeological Survey of India has permitted it in case of Humayun's Tomb. In the opinion of this Court, such C.W.P No. 15645 of 2007 ::10:: partnership is not only permissible but keeping in mind the scarcity of resources of this country even desirable if we are to save our ancient monuments from complete degeneration. It would be absolutely shortsighted to insist that such sites should not be handed over to private bodies even if they fall into complete ruins. The only safeguard to be kept in mind is that any such private person fulfills its commitment of preserving and maintaining such sites in an appropriate manner and that it should not result in any commercial benefit to such body. In this regard, the Government of Punjab while approving the Request for Proposal of respondent No.4, imposed certain conditions which are to the following effect:- “1) Lease period will be of 66 years; 2) Project shall be implemented by not for profit charitable trust. The major components of private sector participation for restoration and conservation of Quila Nabha are to undertake conservation of historical Nabha Quila complex including restoration of Rani Hall, the protected monument. The private sector will invest minimum Rs.15 crores towards conservation of building to be carried out over a period of 7 years. 3) Establish and contribute total sum of Rs.15 crores to restoration fund to ensure availability of fund for restoration and conservation of Quila. 4) Establish and maintain the conservation and maintenance fund of Rs.50 lacs throughout the concession period of 66 years to ensure adequate funds for conservation and maintenance of protected monument. This fund shall be utilized and available for Government in case Concessionaire fails to meet its obligations with respect to protected monument.” Further, in the Concession Agreement for Restoration and Conservation of Nabha Quila Complex entered between the Government of Punjab and respondent No.4, the following safeguards were incorporated :- - Following the issue of the Notice of Award and the )i) payment by the Preferred Bidder/Concessionaire to PIDB a non-refundable, irrevocable amount of Rs. 30.0 lakh (Rupees Thirty Lakh only) towards the costs and expenses of development of the Project (the “Project Development Fees”); (ii) provision of the Performance Security of Rs. 2.00 Crores (Rupees Two Crores only) by the Preferred Bidder Concessionaire, and (iii) the handing over of the Upfront Minimum Investment Commitment Amount in the form of a C.W.P No. 15645 of 2007 ::11:: demand draft by the Concessionaire/Preferred Bidder to GOP as its initial contribution towards the Restoration Fund, all within 3 (three) weeks of the date of issue of the Notice of Award, the GOP has agreed to the implementation of the Project by the Preferred Bidder/Concessionaire on the terms,conditions and covenants hereinafter set forth in this Agreement. - The Concession period shall commence from the Compliance Date and shall extend for a period of 66 (sixty six) years from such date, including extension or prior termination thereof in accordance with the provisions of this Agreement (the “Concession Period”), during which the Concessionaire is authorized to implement the Project in accordance with the provisions hereof. For the avoidance of doubt, the Concession Period shall include the Restoration Period. - The Concessionaire shall not at any time sub-lease the Project Site or any part thereof to any Person. This is an essential condition of this Agreement, the breach of which shall constitute a Concessionaire Event of Default that shall entitle the Concessioning Authority to terminate this Agreement in accordance with the provisions of Article 16. - The Concessionaire shall not, without the prior written consent of the Concessioning Authority, use the Project Site for any purpose other than for the purpose of the implementing the Project and for purposes incidental or necessary thereto as permitted under this Agreement. The Concessionaire accepts that this is an essential condition of this Agreement. - The Concessionaire shall not part with or create any Encumbrances on the whole or any part of the Project Site save and except as expressly permitted under this Agreement; provided that nothing contained herein shall be construed or interpreted as restricting the right of the Concessionaire to appoint Contractors in accordance with the terms hereof. For the avoidance of doubt, the Concessionaire shall not, under any circumstance whatsoever, mortgage, assign, transfer, sub-lease, convey or otherwise alienate or dispose off the Project Site that shall be leased to it by the Concessioning Authority. - The Concessionaire shall not make any structural or permanent changes and modifications in or to the Quila Nabha Complex save and except those that are expressly permitted herein or that have been granted prior written approval of the Concessioning Authority. - The Concessionaire shall provide the GOP within 3(three) weeks of the date of issue of the Notice of Award an unconditional and irrevocable demand bank guarantee in favour of the Concessioning Authority from any nationalised bank in the format acceptable to the Concessioning Authority for an amount of Rs.2 crores (Rupees two crores) (“Performance Security”) guaranteeing the obligations of the Concessionaire to enter into this agreement and to perform the obligations under the RFP, the Notice of Award and this Agreement, including the fulfillment of the Conditions Precedents of the Concessionaire , from the date of the Notice of Award to the date of the Restoration Completion Certificate for the Project. - In the event the Concessionaire's failure to fulfill the obligations specified in Section 5.1 above or if any moneys, fines C.W.P No. 15645 of 2007 ::12:: penalties, damages are due and payable by the Concessionaire to the Concessioning Authority under or in respect of this Agreement, the GOP shall, without prejudice to its other rights and remedies hereunder or at law, be entitled to call in, retain and appropriate the Performance Security, in full or part, as the case may be. - The Concessionaire shall not carry out any commercial activities at the Nabha Quila Complex/Project Site other than establishing a commercial outlet threat for promoting the arts and crafts of the region. - The Concessionaire shall provide access to the public to the Rani Hall Painted Chambers in the Quila Androon, in accordance with the provisions hereof and the Applicable Laws, terms of clearances and the directives and guidelines of the concerned competent authorities from time to time. The time for opening and closing and the nominal entry fees to the chambers, if any, shall be as per the stipulations/guidelines of the concerned competent authorities. In the event no such entry fees are stipulated by the concerned competent authorities, the Concessionaire may charge and collect nominal user charges for public access to the chambers; provided that such charges shall be escrowed and used for the conservation and maintenance of the Rani Hall Painted Chambers. The Concessionaire shall maintain separate records and accounts in respect of the public access to, revenue collection from and utilisation of revenues in respect of such chambers and shall be responsible for protecting such chambers from any vandalism. - No parts of revenue generated or profits earned out of reuse activities at the Project Site shall be distributed as dividends, commissions or otherwise to the equity holders/members/investors/owners of the Concessionaire or the Concessionaire. - The revenues generated and profits earned from reuse activities at the Nabha Quila Complex shall be ploughed or reinvested in the Nabha Quila Complex. Such revenues etc. could be used for expansion of similar works or activities in the district of Patiala or within the State of Punjab provided the commitments towards the Nabha Quila Complex have been met. - The Concessionaire shall contribute no less than 15.0(fifteen) crores to the Restoration Fund for carrying out the Restoration Works during the Restoration period. Such contribution and use shall be in conformity with the provision of Article 11 and elsewhere in this Agreement, including the Financing Plan. - The Concessionaire shall ensure that the net present vale of the corpus of the Conservation and Maintenance Fund (i.e. Rs. 50 lakhs) shall be maintained during the period between the date of issue of the Restoration Completion Certificate until the end of the Concession Period. In case there is a shortfall in such value, the Concessionaire shall deposit and credit the requisite amount into such escrow accent so as to maintain such value. - Section 14.2 Concessionaire Event of Default Each of the