F THE fflGH COURT OF DELffl AT NEW DELHI FAQfOS) 414/2002 Judgmentdeliveredon;^5.07.2004 ARCHAEOLOGICAL SURVEY OF INDIA ...Petitioner - versus - SHRINARENDER ANAND AND OTHERS ...Respondents Advocates who appeared in this case: For the Appellant For Respondents : MrSanjayJain : Mr P. N. Lekhi, Sr. Advocate with Mr R. K. Aggarwal Ms Hima KohliforNDMC Mr K.K. Buchar for the DDA. with W (C) 2635/2002 HERITAGE AND CULTURE FOEUM ...Petitioner - versus - UNION OF INDIA & ORS ...Respondents. Advocates who appeai'ed in this case: For the Petitioner ; Ms Usha Kiinnai For Respondents : Mr Sanjay Jtiin for Respondent No.2 (AST) Mr R, K. Aggarwal for Respondent No.8 Ms Hima Kohli for NDMC Mr K.K. Buchar for the DDA. Amicus Ciiriae : iVIr P.N. Lekhi. Sr. Advocate. FAO(OS) 414.02 & WPiQ 2635.02 Page no.l of 45 / Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified r ft COEAM;- HON'BLE MR JUSTICE B.C. PATEL, CHIEF JUSTICE HON'BLE MR. JUSTICE BADAE DUEEEZ AHMED 1. Whether Reporters of local papers may be allowed to see tliejudgment? ^ , r' To be referred to the Reporter or not? ' ^ 3. Whetlier tliejudgment should be reported in Digest? BADAE DUEEEZ AHMED. .1 V . • 1. This judgment will dispose of FAO (OS) 414/2002 as well as the writpetition(CW 2635/2002). Both were heard togetheras both deal with the famous monument known as the Jantar Mantar at New Delhi. 2. Tlie FAO, which has been filed by the ArchaeologicalSurvey of India (appellant) (hereinafter referred to as "the ASI"), arises from an ad-interiminjunctiongranted in favour of respondentNos 1 & 2 in suit i'' i no. 645/2002for perpetualinjunctionwhichwas filed by them. The suit had been filed because by a letter dated 23.5.2001 the New Delhi MunicipalCommittee (NDMC) had asked the respondent nos. 1& 2 to immediatelystop constructionat plot No. 14, Janpath Lane, New Delhi and obtain the requisitepermissionfrom the ArchaeologicalSurvey of India (appellant) (hereinafterreferred to as tlie ASI) in the first instance. By the interim order passed under order XXXIX rales 1&2 of the Code of FAO{OS)414.02 &WP{C)2635M * Fageno2of45 Civil Procedure, 1908 (hereinafter referred to as "the CPC"), the operation of this letter dated 23.5.2001 was stayed. The result being that the Respondent Nos. 1 & 2 could continue with tlie constmction of the new building (after demolishing the old one). This building is coming,up at plot no.14, Janpath lane. New Delhi and it is within 100 meters of Jantar Mantar and this is being objected to by ASI. 3. The writ petition has been filed in Public Interest seeking ^ orders/dii-ectionsfrom this Court for the protection of the said monument (Jantar Mantar) by, inter alia, preventingany newbuilding or constmction coming up in the vicinity. In particular, the writ petition was directed againstthe constructionbeingcarried out on the said Plot No.14, Janpath Lane, New DeUii. • ^ V 4. The Jantar-Mantar^is an observatoiyconsistingof masonry- built astronomicalinstrumentswhich wereerectedby MaharajaJai Singh ( II of Jaipur (1699-1743). Though there is some disputeas to the exact year when the Jantar Mantar was built, it is generallyacceptedtliat it was establishedin 1724. This is the first of the five observatories^ncluding 1 See: [1] Delhi and its Neighourhood- Y.- D. Sharma: published by the Director-General ArchaeologicalSurveyofIndia,New Delhi,2001 (p 97); [2] StoneObsermtoriesin India erected by MaharajaSawai Jai Singh of Jaipur (1686-1743A D.) at Deihi, Jaipur, Ujjain, Varanasi, Mathura:PrahladSingh: BharataManisha:Varanasi; 197S.(p 186 - 187); [3] MonumentsofDelhi - LastingSplendourofthe GreatMughab and Others: compiledby MaulviZafarHasan; volume II; DelhiZail: Aryan BooksInternational,New Delhi: 1997reprint(firstpublished1919); [4] The ArchaeologyandMonumentalRemainsofDelhihyCarrStephen:1876. FAO[OS)414.02 &WP{C)2635.02 - Pageno.3of45 a V tliose at Jaipur, Ujjain, Varaiiasiand Matliura,that MaliarajaJai Singli built. Tlie need for building tlie observatory at Delhi ai-ose because Maliaraja Jai Singh wanted to prepare new astronomical tables and star cataloguesas he found some errors with the existingones. He expressed his views to the Mughal Emperor Muhammad Shall (1719-1748) who encouraged him to continue liis interest in research in the realm of astronomy in the following words: "since you, who are learned in the mysteries of science, have a public knowledge of this matter, having assembled astronomers and geometricians , of the faith of Islam and Brahmins and Pandits and astronomers of Europe and having prepar-edall the apparatus of an observatory, do you so labour for the ascertaining of the point in question Ltiat tlie disagreement between the calculated times of those phenomena, and the times at which. they aie obsei-vedto happen, may Ix: rectified." Anned with tlie support of the Muglial Emperor at DeUii, Mahaiaja Jai Singh embarked upon his mission to build the observatoryat Dellii. He was assistedby many astronomersfrom Persia,Indiaand Europe. Buthe died before the work was completed. Tlie Jantar Mantar is not just one building but an entire complex consisting of the following instmments — /r FAO(OS)414.02 WP(C)2635.02 Pageno.4 of45 No. Name of the mstmment Material Purpose Accuracy I Vlisra Yaotra ! ^compositeinstrument) ; Stone, mortar and plaster 1-A Daksinovitti Bhitti \ Yantra (Meridianal Wall Instrument) Stone, mortar, plaster,also a i metal jX)inter (gnomon) Latitude of place^lengthof Day and night, rising and setting time. Zenith distance, altitude and declination at noon, etc. 45 seconds 1-B Samrat Yantra , (equatorialdial) Stone, moitar plaster Local time, I. S. T., Meridian passtime, Zenith distance, altitude, declination etc. 12 seconds 1-C Karka Rasivalaya (Cancer Zodiac instrument) Stone, mortar and plasteralso a metal pointer(gnomon) Longitude of planets 1/10 degrees (6 minutes or 6 kalas) l-D A.graYantra(amplitude instrument) Stone, mortar and plaster Observation of sun-rise time, the difference between the sunrise time and 6 o'clock 12 seconds l-E NiyatCakraYantra(fix or stable instrument) Mari)le, stone mortar and plaster Observation of mid-day at Greenwich. Zurich, Notkey (Japan) and Seritchew (in the Pacific Ocean) 8 seconds 2- Brhat Samrat (big equatorialinstrument) Stone, mortar and plaster Local time, I. S. P. meridian pass time. Zenith distance, altitude, declination etc Not in serviceable condition (2 seconds) pr FAO[OS)414,02 & WP(C) 2635.02 Page no.5 of45 v- J No. Name of the imtmment Material Piitpose Accuracy 2-A Sasthamsa Yantra (sextant) Stone, mortar clusters. Rising and setting time, length of day and night, altitude, Zeoitli distance, declination. Meridian pass time etc No more in use. 3 Jai Prakasa Yantra (2) (The auxiliary sphere instrument) Stone, mortar and plaster, original cross- section of metal wires and the ring missing.a metal pole as gnomon. Local time, 1ST, altitude, azimuth, meridian pass time, declination, longitude. Ascendant and staiting point of per 10"" houseof the zodiac. Not in sei-viceable condition 4 Rama Yantra (2) (altitude/azi muth instrument) Stone, mortar and plaster. Altitude and azimuth of planets. 1/10 degrees (6 minutes or 6 kalas) 5. The Jantar Mantai' represented tlie attainment of scientific excellencein the field of astronomy in 18'" century India. It is anoflier y jewel in our treasure-chestheritage. Undoubtedly,it needs preservation for posterity. How do we preserve it and at what cost ? On the one hand we have argumentsfor the preservationofour heritageat anycostand, on the other, there is view tliat any preservationmust be tempered by the growing need for new and high-risebuildingsoccasionedby the steep growthinpopulationand the non-availabilityof vacantland. The matters at handrelateto this tusslebetweenpreseivationand development. FAO(OS) 414.02 & WP(C) 263X02 Page no.6 of45 FAQ (OS) 414/2002; 6.1 This is an appealdirectedagainstthe impugnedjudgmentand orderdated 30.10.2002passedby a LearnedSingleJudge(K. S.Gupta,J.) of this Court while disposing of LA. No.2912/2002 filed under Order XXXIX Rules 1 and 2 of the CPC by tlie Plaintiffs(respondents1 and 2 herein) and LA. No. 4479/2002 filed under Order XXXIX Rule 4 of the CPC by the DefendantNo.4 (the appellantherein). These applications ^ whichwere disposedof by the impugnedorder dated 30.10.2002had been filed in Suit No. 645/2002for perpetualinjunctionwhich had been filed by theplaintiffs (respondents1 and 2 herein). J 6.2 It was alleged in the'plaintthat tlie plaintiffs (respondents1 and 2) were the owners of plot.No. 14, JanpatliLane, New Delhi. It is alleged that on 11.2.2002^8.9.2002, the defendants Nos. 1 and 2 (respondents3 and 4 herein)(hereinafterjointlyreferredto as the NDMC) had conveyedthe sanctionofbuildingplans whichhad beensubmittedby tlie plaintiffsfor constractionof a buildingon the said plot No. 14 after demolition of the old building which was tlien standing on the plot. Certainconditionswere imposedand were requiredto be compliedwitli by the Plaintiffs (Respondents 1 and 2). The Sanctioned Plans were releasedby the NDMC on 5.3.2001and the Raintiffs(Respondents1and 2), after demolishingthe old buildingstandingon the said plot No. 14, FAO(OS)414.02 WP(C)2635.02 ^ Pageno.7of45 > J commenced digging operations. Appai-ently,while excavation was in progress,the Plaintiffs(Respondents1 and 2) receiveda letter No. D-29- 31/CA/STC/N dated 23.5.2001 from the NDMC requiring them to stop construction at the site immediately and obtain the requisite permission from the AS I in the first instance. In tlie said letter of 23.5.2001, it was indicated tiiat the Superintending Archaeologist, Archaeological Survey of India, Delhi Circle, New Delhi by a letter dated 10.5.2001 had informed the NDMC that unauthorised construction was being carried out at tlie said plot No.14, Janpath Lane, New DeUii which fell in the prohibited/regulated area of Jantar Mantar which was Centrally Pi'otected Monument. 6.3 The plaint reveals tliat when the plaintiffs met with defendant No.2 (respondent No.4) they were told that the ASI had objection to the raising of the construction. It was submitted on behalf of the plaintiffs that after the sanctioning of the building plan by the NDMC, the latter had no authority to interfere with the construction of the building which was as per the sanctioned plans. Accordingly, the Plaintiffs (respondents 1 and 2), in the said suit, prayed that a decree of perpetual injunction be granted restraining the NDMC, the ASI and the Lt. Governor, Raj Bhawan, Rajpur Road, Delhi from interfering with the construction to be made by the Plaintiffs in accordance with the sanctioned building plans FAOiOS) 414.02 ^ WP(C)2635.02 Page no.8 of 45 4 •j and/or to resti-ainthem from demolishing any part thereof. 6.4 Along with the plaint, the Plaintiffs also filed an LA. No. 2912/2002 under Qi'der XXXIX Rules 1 and 2 of the CPC read witli Section 151 of the CPC. By an order dated 22.3.2002, while issuing notice for 6.5.2002, the learned Single Judge passed an order restraining the NDMC from giving effect to its letter of 23.5.2001 subject to the plaintiffs" fihng an undertaking witliin ten days that the construction on tlie plot in question would be carried out strictly in accordance with the sanctioned plans upto the height not exceeding 55 ft. It is pertinent to note that this order dated 23.2.2002 had been passed in the absence of defendant No.4 (appellant) (ASI). 6.5 Defendants 1 and 2 (respondents 3 and 4) filed a joint written y statement and Defendant No.4 (the appellant) (ASI) filed a separate written statement contesting tlie suit. .The main contesting parties were the Plaintiffs on the one hand and the defendant No.4 (ASI) on the other. In the written statement filed on behalf of the ASI, it was alleged that by a Notification dated 3.5.1957 the Central Government declared the ancient monument, "Jantar Man tar" to be a protected monument within the nieaning of the Ancient Monuments Preservation Act, 1904 (hereinafter referred to as the 1904 Act). It was further contended in the written FAO(OS}414.02 & WP(C)2635.02 . ^ Page no.9 of45 fm statement that by ajiother Notification dated 8.1.1958 tlie earlier Notificationof 3.5.1957was confirmedwhereby iJie Jantar Mantar was declaredto te aprotectedmonumentwithinthe meaningof the said 1904 Act. 6.6 The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafterreferred to as the 1958 Act) came to be X enacted. In exerciseof powersconferredby Section38 of the 1958 Act, the Ancient Monuments and ArchaeologicalSites and Remains Rules, 1959(hereinafterreferredto as the 1959Rules)wereframed. UnderRule 32 of the 1959 Rules, the Central Governmentissued a Notificationon 16.6.1992declaringan areaupto100 metersfrom the protectedlimitsand furtherbeyondit upto 200 meters near or adjoiningprotectedmonuments to be prohibitedand regulatedareas respectivelyfor the purposesof botli mining operationand construction. Tlius, it was stated and submittedon behalfof the ASI that this ban onconstructionwithin 100 metersfrom tlie protectedlimitsofprotectedmonumentscannotbe given ago-by and any sanction or scheme formulated by ajiy authority, body or department permitting construction within such area would be invalid. It was contended that as the said plot i.e. Plot No. 14 Janpath Lane, New Delhi was within 100 metere of the protected Jantar Mantar Monument, no construction activity could be canied out thereon even if it were FA0(0S) 414.02 & WP(C)2635.02 /r A sanctioned by the NDMC. 6.7 It is pertinent to note that in LA. No. 4479/2002 which was filed on behalf of the ASI, tlie learned single Judge by an order dated 31.5.2002 modified the earlier order dated 22.3.2002 passed in LA. 2912/2002 to the extent that till the disposal of that application, the plaintiffswould not carry out any constiuctionat the site beyond DPC level and tliat even such constiuctionupto DPC level would be at the risk and cost of tlie plaintiffsand tliat if ultimatelythe Courtcame to the conclusion that no construction at the site could be permitted, such construction would be liable for demolition. 6.8 Before the learned Single Judge, on the strength of the Notifications dated 3.5.1957, 8.1.1958, 15.5.1991 and 16.6.1992 it was contended on behalf of the ASI (appellantherein) that the plot No. 14 JanpathLane,New Delhifell within 100 meters from the protectedlimits of the protected monument Jantar Mantar and, therefore, no construction whatsoevercould be carried out. Therefore, the ex pane ad interim injunctiongranted on 22.3.2002in LA. 2912/2002ouglit to be lifted and the applicationbeing LA. 4479/2002ought to be allowed. Accordingto tlie DefendantNo.4 (appellantherein) (ASI) no primafacie case had been made out for the grant of an interim injunction and in any event the FAOiOS)414.02 & \VP(C)2635.02 Pageno.li of45 /r balance of convenience lay against tlie grant of any such injunction.. On the other hand, it was contended on behalf of the plaintiffs before the learned Single Judge tliat the alleged Notification da-ted 3.1.1957 was never published in the Gazette. As it was not so published, the Notification had no effect in law and, tiierefore, the ancient monument known as Jantar Mantai*was not a protected monument. Since by tliis line of reasoning Jantar Mantar was not a protected monument, the Notification dated 16.6.1992 placing the ban on construction within 100 meters from the protected limits of protected monuments, would have no application whatsoever. That being the case, there was no impediment to the construction of the building on the site plot No. 14Janpath Lane, New Delhi, particularly in view of the fact that the Iccal body/authority concerned, i.e. the NDMC had already sanctioned their building plan. 6.9 Thus, as noted by the learned Single Judge himself, tlie controversy between the parties (the plaintiffs on tlie one hand and the defendant No.4 - ASI on the other) mainly centered around the issue as to whether Jantar Mantar was a protected monument within the meaning of Section 3 of the 1904 Act. It was noted in the impugned order that at the request of tlie counsel for the ASI the case was postponed on several dates to enable him to trace out the notification and file a copy of tlie purported Gazette Notification dated 3.1.1957. However, despite these FAO(OS)414.02 WP{C)2635,02 Page no.l2 of45 r / opportunities, no copy of the Gazette Notification was filed. It is further recorded in the impugned order that the learned counsel for the ASI failed to produce the copy of the Gazette Notification dated 3.5.1957 "'concedingtfiat the same hctcl not beenpublishedin the offtcicdgazette" Before us, also, the gazettecopy of the Notification was not produced. However,the learnedcounselfor the appellanttook seriousexceptionto the recording in the impugned order that he had conceded that the Notification dated 3.5.1957 had not been published in the Official Gazette. The learnedcounselmade it clearbeforeus that, in fact, what he had stated was that he was unable to trace out the copy of the Gazette Notificationit did not mean tliat it had not been gazetted and that the matter was yet to be established as a matter of fact in the suit itself. Tlie leai-nedcounselwas at pains to argue that no such concession,in view of the stand taken by the ASI could have been made. Beforeus, we close this issue by observingthat the purportedconcessionbe disregardedand we shall deal with this case as if no such alleged concessionhad at all been made. However,the fact remainsthat till date thereis no copy of the GazetteNotificationdated 3.5.1957. As of today,it can be safelyinfeiTed tliat the Notificationdated 3.5.1957has not been publishedin the Official Gazette. 6.10 The learned Single .Judge was of the view that as the draft FAOfpS)414.02&WP(C)2635.02 Pageno.H of45 Notificationdated 3.5.1957was not publishedin the Gazette of India, it wouldbe of no effect. For this conclusion,theleai-nedSingleJudgelelied upon MahindmLai .Mm v. State of UttarFradeshand Others:AIR 1963 SC 1019 and Rafiv Kmmr Aemrwa! y. UOI: 1996 (38) DRJ 95 (DB.) 6.11 The learnedSingleJudgeconduded as unden ts ince said draft notification was not published in Gazette as required by section 3(1), the same was ineffective and reference thereof in tlie notification issued under Section 3(3) dated 8* Januaiy, 1958 was of no consequence. As a corollary,aforesaid notificationsdated 15'^ May 1991 and 16'^ June 1992 cannot be of any help to defendantNo.4 in the matter. Decision by the Government Department to declare Jantar Mantar as a prohibited monument itself cannot tantamountto a notification under said Section 3(1)." The learned Single Judge, in view of the aforesaid observations,held that the Plaintiffs had established a prima facie case for makingthe orderdated22.3.2002absolute. He also recordedthat the balance of convenience was also in favoui* of the plaintiffs who were likely to suffer UTeparable injiuy if tliey were not permitted to raise consti'uctionon the suitplotin accordancewithsanctionedbuildingplans. Consequently,by the impugnedorderdated 30.10.2002the learnedSingle Judge disallowedLA. 4479/2002,recalledhis order dated 31.5.2002and by makingits order dated 22.3.2002absolute,allowed tlie plaintiffs" LA. FAO{OS)414.02 &WP(C)2635Ml Page.no.14 of45 No. 2912/2002- 6.12 This appeal against the impugned order dated 30.10.2002 was argued at length and in great detail. We may say that the counsel on both sides presented their case with felicity and eloquence and it was apparent that they had researched the matter in depth. We need not refer to all the submissions (oral as well as written) or to all the decisions cited at the bar. Nor is it necessaryfor us to deal with each and every detail, nuance and aspect of the matter which was unfolded before us by the learned counsel. We need to confine ourselves to the issue at hand. The issue being whetlier the plaintiffs had in fact made otit a prima facie case for the grant of ad interim injunction and secondly, whether the balance of convenience lay in favour of the plaintiffs. In the context of this case, the central issue is with regard to the controversy as to whether Jantar Mantai ls a protected monumentunder the 1904 Act and second,whetlierplot No. 14, JanpatliLane,New Delhifell within 100 metersof tlieprotectedlimits of a protected monuments? 6.13 Before we embark on a discussion on these central issues, it would be necessary to put aside certain aspects of tlie case. First of all, it is pointed out tliat we are dealing witli this appeal as if no concession had .been made by the leai'nedcounselfor tiie ASI. Secondly,it is accepted FAO(OS}414.02 & WP(C)2635.02 Pageno.15of45 J- as a matter of fact tliat till the date of this judgment neither party has been able to place before us the gazette copy of tlie Notification dated 3.5.1957. Accordingly, we proceed with this case as if the Notification dated 3.5.1957 was not published in the official gazette. Thirdly, it is assumedand acceptedthat the plansfor the buildingto be constructedby the plaintiffs (respondents 1 and 2) on the suit plot had been sanctioned (subject to certain conditions) by the respondents 3 and 4 (NDMC). Therefore, if the impediment under the Notification dated 16.6.1992 is not to apply to the suit plot, the building to be conshaicted on the suit plot, cannot be objected to. Fourthly, the scheme known as "Janpath Lane Redevelopment Scheme" which was prepared in particular under the Delhi Development Authority Act, 1957 would be applicable if the said ancient monument "Jantar Mantar" is not a protected monument. -j'' 6.14 We now considertliefirst and foremostquestiontliat has to be examinedin this appealand that is - whetherJantar Mantaris a protected monument or not? Let us examine the Notification dated 3.5.1957. Since the entire case turns upon tliis Notification,it would be appropriateto set it out in full:- "TO BE PUBLISHED IN THE GAZETTE OF INDIA PART n SECTION m. No. F.3-76/50-0.1 Government of India, Ministiy of Education. FAOfOS)414.02 WP(C)2635.02 A- Pageno.16 of43 V / New Delhi,datedthe 3rd May. 1957. NOTIHCATTON (ARCHAEOLOGY) In exeicise of powere conferred by sub-section (1) of section3of the AncientMonumentsPreservationAct, 1904 (7 of 1904) and in suf^rsessionof notificationof tlie Governmentof India Ministry of EducationNo.F.3-76/50/0.1dated the 4"^ October, 1956, the Central ijovernmenthereby declares the ancient monument described in the Scheduleannexedheretoto be aprotectedmonumentwithinthe meaning of the said Act. (Sd/- (Rameshwai-Dass) •n,e Publisher, UnderSecreta,, ' Gazette of India, New Delhi." An examinationof the Notificationdated 3.5.1957reveals that it was to be publishedin the Gazetteof IndiaPart II SectionIE. Whetheror not it was published is yet uncertain. As indicatedabove we are proceeding with the matteras ifit had not teenpublishedin tlie Gazetteof India.Tlie Notificationdated 3.5.1957 further i-eveals that it had been issued in exerciseof powers confeiTedunder Sub-Section(1) of Section 3 of tlie 1904Act and thatit had been issuedin supersessionof the Notificationof the Governmentof India, Ministiyof EducationNo. F.3-76/50/C.1dated 4.10.1956. It lastly reveals lhat by virtue of the Notification dated 3.5.1957 the Central Government declared the ancient monument describedin the schedule annexed thereto to be aprotected monument within tlie meaning of the said Act, i.e., the 1904 Act. Tlie scheduleis also ofgreatrelevanceand, therefore,is set out in fiill:- 414.02 A WPiQ 2635.02 , ^ V Ct. Locality Name of Monuments Area Boundry East, South, North West Ownership 1 2 3 4 5 6 Delhi New Dellii Jantai" Mantar Protected area 5.39 South: South India Club, 9, Jantar Manta- Road. East: Low land with a modern temple & well. West: Jantar Mantar Road. North-East: Partap Singh Building. North-West; Parliament Street Government of Rajastlian Tlie aforesaid schedule reveals that Jantar Maiitar is comprised in a protected area of 539 acres and is bounded as indicated therein. The ownershipis shownas that of the GovernmentofRajasthan. 6.15 The Notificationof 4.10.1956 which was referred to in the Notificationof 3.5.1957was publishedin the Gazetteof India in Part II, SectionIII on 13.10.1956. A copy of the said GazetteNotificationdated 4.10.1956 was placed before us. The said reads as under:- "MINISTRY OF EDUCATION ARCHAEOLOGY New Delhi, the 4'^October 1956 S.,R^. 2306. - In exercise of the powers conferred by sub section (1) of Section 3 of the Ancient Monuments Preservation Act, 1904 (7 of 1904), the Central Government hereby declares tlie ancient monuments described in the Scheduleannexedhereto to be a protected monument within the meaning of the said Act. SCHEDULE rAO(OS) 414.02 & WP{C)2635.02 Page no.18 of45 SL NO DISTRICT DELHI LOCAUTY NEW DELHI NAME OF Monument] JANTAR MANTAR AREA PROTECTED AREA 5.39 BOUNDARY: EAST SOUTH, NORTH, WEST South: South India Club, 9, Jantar Mantar Road. East; Low land with a modern temple & well. West: Jantar Mantar Road. North-East: Partap Singh Building. North-West: Parliament Street WHETHER IN REUGIOUS USE No OWNER SHIP Maharaja of Jaipur |]N'o.F-l-:7_6WO-C-_l] dTchakravar^, Under Secretary." REMARKS This Notification of 4.10.1956 althoughreferred to in the Notification of 3.5.1957 was not produced before the learned Single Judge. Under normal circumstances,we would have thought it fit and proper to have remanded the matter to the Trial Court for consideration afresh in view of this Notificationdated 4.10.1956 but as the matter had been argued threadbarebeforeus and the partieshad invited a decisionon this aspect also we are not remitting this matterto the Trial Court but ai'e deciding tlie issue here itself in appeal. FAO(OS) 414.02 & WP(C)2635.02 Page no. 19 of 45 -W V Central GovernmentdeclaredJantar Mantar,having a protectedarea of 5.39 acres and having boundariesas described in the schedule, to be a protectedmonumentwithin the meaningof the said Act of 1904. In fact, on a comparison of the two Notifications i.e., the Notificationsof 4.10.1956and 3.5.1957,it is cleai'tliat they are virtuallyidentical. Only two differences are appai-ent. One difference being that while the Notification dated 4.10.1956 was gazetted, the Notification dated 3.5.1957was not. The