W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 1 of 23 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 9886/2003 Reserved on: 16th September 2010 Decision on: 26th October 2010 NAHATA TRADERS & BUILDERS PVT. LTD. .. Petitioner Through Mr. U.N. Bhachawat, Senior Advocate with Mr. Abhisheik Baid, Mr. Syed Hasan Isfahani, Mr. V.K. Singh and Mr. Jainul Abidi, Advocates. versus DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA & ORS ..... Respondents Through Mr. Jayant Tripathi, Advocate for ASI. Ms. Barkha Babbar, Advocate for UOI. Dr. Ashwani Bhardwaj, Advocate. W.P.(C) 9887/2003 NAHATA GROUP OF BUILDERS & FINANCIERS PVT. LTD. .... Petitioner Through Mr. U.N. Bhachawat, Senior Advocate with Mr. Abhisheik Baid, Mr. Syed Hasan Isfahani, Mr. V.K. Singh and Mr. Jainul Abidi, Advocates. versus DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA & ORS ..... Respondents Through Mr. Jayant Tripathi, Advocate for ASI. Ms. Barkha Babbar, Advocate for UOI. Dr. Ashwani Bhardwaj, Advocate. CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes JUDGMENT 26.10.2010 W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 2 of 23 1. The background facts in Writ Petition (Civil) No. 9886 of 2003 filed by Nahata Traders & Builders Pvt. Ltd. („NTBPL‟) and Writ Petition (Civil) No. 9887 of 2003 by Nahata Group of Builders & Financiers Pvt. Ltd. („NGBFPL‟) are more or less similar. The questions for determination in both writ petitions are also based on a common set of facts. Accordingly, these two writ petitions are disposed of by this common judgment. Background facts in W.P. (C) No. 9886 of 2003 2. The relevant facts are that way back in 1982, NTBPL the Petitioner in Writ Petition (Civil) No. 9886 of 2007 purchased land comprised in khasra No. 564/87 situated in Village Kotla Mubarakpur, New Delhi (hereinafter referred as the „property in question‟) by way of five sale deeds dated 2nd June 1984. It is stated that the property in question was given Municipal No. D-46A. It is stated that after being put into possession of the property in question, NTBPL got the occupants vacated on payment of some compensation and raised a boundary wall. On 20th September 1984, the name of NTBPL was mutated in the records of the Municipal Corporation of Delhi („MCD‟) and also in the revenue records. It is stated that after demolition of the construction raised by the encroachers, there were 7 rooms, 2 bathrooms, one kitchen and 3 toilets left untouched for the use of the NTBPL and for occupation of the caretaker. It is stated that NTBPL also obtained telephone, water and electricity connections in the property. One room was in the occupation of Mr. Hans Raj Malhotra, the caretaker of the NTBPL. 3. It is stated that there are two ancient monuments in the vicinity of the W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 3 of 23 property in question. One is on the northern side known as Chhote Khan and the other on the southern side known as Bhure Khan. On 22nd October 1984, proceedings were initiated by the Income Tax Department in relation to the purchase of the property in question on the ground that transaction was undervalued. Subsequently, these proceedings were dropped. On 23rd February 1988, certain search and seizure operations under Section 132 of the Income Tax Act, 1961 were undertaken in the property in question. Thereafter on being satisfied, the Income Tax Department released the books of accounts and other documents seized and dropped further proceedings. 4. In the year 1991, NTBPL filed a suit for permanent injunction against one Mr. K.Y. Yelliah seeking to restrain him from interfering with the Petitioner‟s possession, inter alia, of the property in question. A Local Commissioner (LC) was appointed by the civil court to inspect the property in question and submit a report. An interim stay was granted to the Petitioner. The suit for permanent injunction was ultimately decreed on 30th May 1998. 5. Meanwhile, in August 1996, the Director of NTBPL Shri Lalit Kumar Nahata received an order dated 7th August 1996 addressed in his personal name under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 („PP‟ Act) alleging that the Director was in unauthorised occupation of the Government land in khasra Nos. 563/87 and 564/87 and required him to vacate the premises forthwith. On 14th February 1997, an appeal was filed by Mr. Nahata, the Director of NTBPL, which was allowed by the District Judge and the impugned order dated 7th August 1996 W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 4 of 23 directing eviction of the NTBPL was quashed. 6. On 1st April 1997, a fresh show cause notice was issued under the PP Act in the name of Director of NTBPL Mr. Nahata, wherein it was alleged that he had encroached upon a piece of the land belonging to the Archaeological Survey of India („ASI‟) which was attached to Chhote Khan, Bade Khan and Bhure Khan in khasra Nos. 563/87 and 564/1987. These notices were contested by filing a detailed reply. It was pointed out that the lands in question belonged to two other companies and the notice in the name of the addressee was bad in law. 7. It is stated that on 16th August 2003, officials of Indian Tourism Development Corporation („ITDC‟) armed with cameras along with a group of workers tried to enter into the property in question. The NTBPL is stated to have reported the matter to the police. On 26th September 2003 a notice dated 24th September 2003 addressed to M/s Nahata Group of Traders („NGT‟) was received by an employee of NGT which was purportedly in “suppression to all preceding notices issued by the ASI.” On 1st October 2003, NGT sent a reply stating that it has no relation to the property in question. 8. It is stated that on 23rd December 2003 at about 3.00 pm, 10-11 persons led by the Deputy Superintendent, ASI and two other officials accompanied by about 50 labourers and the local police came to the property in question and started demolition of the boundary wall and the rooms. Despite a demand being made in this regard, no order for demolition was produced by W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 5 of 23 the ASI officials. The entire boundary wall was pulled down along with the old rooms in occupation of the NTBPL. A police complaint is stated to have been lodged by the NTBPL with the local police about the said incident. 9. After the ASI refused to permit the Petitioner NTBPL on the basis of which the demolition had purportedly taken place, W.P (C) No. 9886 of 2003 was filed on 29th December 2003. By an interim order dated 12th May 2004 passed by this Court, it was directed that “any action taken by the Respondents of merging the land which is alleged to be that of the Petitioner shall be subject to the final outcome of the writ petition and at the risk and cost of the Respondents.” It was further directed that the Respondents would not claim any special equity in case subsequently any structure is directed to be removed. Records were later directed to be produced and inspected by the Petitioner as well. Background facts in W.P. (C) No. 9887 of 2003 10. Writ Petition (Civil) No. 9887 of 2003 filed by NGBFPL concerns the property situated in khasra No. 86 admeasuring 1 bigha and 19 biswas which was purchased by NGBFPL by virtue of four sale deeds. The property in question has been given Municipal No. D-46 B in the municipal records. In the property in question, there were 8 shops, 38 rooms, 16 huts, 4 toilets and 4 bathrooms. It is stated that the property in question i.e. D-46B was in occupation of 55 tenants who were paid compensation by NGBFPL for getting them vacated. It is stated that immediately thereafter NGBFPL got a boundary wall constructed to protect the property in question from encroachers. Upon an application made by the NGBFPL, the property was W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 6 of 23 mutated in the name of NGBFPL in the MCD records. One room of the property was in the occupation of the caretaker Mr. Kewal Yadav. It is stated that on the northern side of the property at No. D-46B, there are two ancient monuments known as Chhote Khan and Bhure Khan. It is stated that in a search and seizure operation under Section 132 of the Income Tax Act, 1961 the books of accounts of NGBFPL were seized and later released by the Commissioner of Income Tax (Central)-1, New Delhi by an order dated 3rd May 1989 , after having accepted as guarantee the pledge of the property in question. The said order is stated to be continuing. 11. On 15th September 2002, a notice dated 13th September 2002 was received by NGBFPL under Rule 38 of the AMASR Rules alleging that NGBFPL was carrying on unauthorised construction within prohibited limits of a centrally protected monument Chhote Khan in contravention of Rule 33 of the AMASR Rules. The NGBFPL replied to the notice denying that any unauthorised construction was being carried on. It was further pointed out that the new construction of a 3-storeyed building was being carried out in the vicinity of the property in question belonging to NGBFPL. 12. Thereafter on 2nd August 2003 another notice dated 29th July 2003 was received by NGBFPL from the ASI under Rule 38 of the AMASR Rules which was stated to have superseded all the previous notices issued by the ASI. In reply to this notice, it was stated that the unauthorised constructions were related to M/s CMS Computers Limited and the Sanathan Dharam Sabha Satyanarain Temple, both of which were outside the boundary wall of the land of NGBFPL. On 16th August 2003, a group of ASI officials and W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 7 of 23 workers from the office of the ITDC were stated to have come with cameras and tried to enter into the property in question belonging to NGBFPL. No order authorising such demolition was produced by the officials. A complaint was accordingly lodged with the police. On 26th September 2003, a notice dated 24th September 2003 addressed to NGT was received by Mr. Jayanti Lal Yadav, an employee of NGT on its behalf. It is stated that NGT is a different entity from NGBFPL and NTBPL. NGT is stated to have no interest, title or right in the property in question of khasra No. 86 which is exclusively owned by NGBFPL. The notice dated 24th September 2003 mentioned that it superseded all previous notices issued by ASI. 13. The NGT replied to the notice dated 24th September 2003 stating that it did not own the property in question at khasra No. 86. It is stated that on 23rd December 2003 at about 3.00 pm, 10-11 persons led by the Deputy Superintendent, ASI and two other officials accompanied by about 50 labourers and the local police from Police Station Kotla Mubarakpur came to the plot at D-46 B and started demolition of the boundary wall and the rooms. The order authorising demolition was not produced despite demands. It is stated that the entire demolition proceedings were recorded on video by the NGBFPL and a complaint was also lodged with the Police. Inspection of the files was also not permitted to the NGBFPL. 14. It is in these circumstances that Writ Petition (C) No. 9887 of 2003 was filed by NGBFPL in this Court on 30th December 2003. By an interim order dated 12th May 2004 passed by this Court, it was directed that “any action taken by the Respondents of merging the land which is alleged to be that of W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 8 of 23 the Petitioner shall be subject to the final outcome of the writ petition and at the risk and cost of the Respondents.” It was further directed that the Respondents would not claim any special equity in case subsequently any structure was directed to be removed. Reply by the ASI 15. A counter- affidavit has been filed by the ASI in Writ Petition (Civil) No. 9887 of 2003 only. However, it has dealt with the facts of both the writ petitions. It is stated that the three monuments Chhote Khan, Bade Khan and Bhure Khan were built as a group of three monuments and are located inside a fully developed, regularised, urbanised and well-planned colony, known as New Delhi South Extension Part-I (NDSE-I) and that their protected limits are enveloped by Blocks C and D of NDSE-I. It is stated that Bade Khan and Chhote Khan were declared as protected monuments by a Notification dated 25th March 1918 even under the Ancient Monuments Preservation Act, 1904 (AMP Act, 1904). By a Notification dated 11th November 1926 issued under Section 3(3) of the AMP Act 1904, the tomb of Bhure Khan was also declared as a protected monument. It is stated that land measuring 5 bighas and 17 biswas in khasra No. 564/87 in Village Kotla Mubarakpur formed part of the protected limits of the protected monuments of Bade Khan and Chhote Khan, while land admeasuring 1 bigha and 7 biswas in khasra No. 563/87 of Kotla Mubarakpur formed part of the protected limits of the protected monument of Bhure Khan. After the enactment of AMASR Act, 1958 a Notification dated 16th June 1992 was issued under Rule 32 of the AMASR Rules declaring that the areas falling within a 100 metre radius from the peripheries of protected monuments as „prohibited areas‟ and W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 9 of 23 further declaring the area up to the extent of 200 metres as a „regulated area.‟ It is stated that the expressions “regulated area” and “prohibited area” were different from the expression “protected area”. Under Section 2(i) of the AMASR Act, 1958 “protected area” is an area which means “any archaeological site and remains which is declared to be of national importance by or under” the AMASR Act, 1958. It is accordingly submitted that whenever a notification is gazetted notifying a particular monument as a protected monument, the area shown in the notification as the location of the protected monument ipso facto becomes a protected area. 16. It is sought to be contended that such portion of the land adjoining the site of an ancient monument as may be required for fencing area covering such monument is an integral part of the ancient monument itself. Consequently, it is suggested that the relevant khasra nos. 563/87 and 564/87 became „protected areas‟. 17. Further, in the counter affidavit of the ASI, it is stated as under: “20. It is a matter of common knowledge that large area forming part of the revenue estate of Kotla Mubarakpur was purchased by DLF from the villagers and was subsequently developed into the colony known as South Extension Part-I. The said colony was conceived as a plotted colony comprising of plots which were carved out and demarcated with the sanction of Municipal authorities.” 18. Thereafter, in para 22 of the counter affidavit it is stated as under: “22. In the municipal records, the area round the monuments in question is not shown as abadi area and rather it is shown as an unoccupied area and green area.” W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 10 of 23 19. It is then stated that since the DLF has left the area in and around the three monuments vacant, the MCD in its records showed the area as a vacant/green area. It is then stated that on 26th July 1996, the Superintending Archaeologist addressed the following letter to the DLF: “6/6/90-M-86 26.7.96 To, The Managing Director, D.L.F. Near Jantar Mantar, Cannaught Place, New Delhi-110001. Sir, I am to inform you that unauthorised constructions are at full swing in the areas falling under Khasra Nos. 84, 85, 86, 113, 563/87 and 564/87 near D-Block, South Extension Part-I. As per our records our protected area also falls in Khasra Nos. 563/87 and 564/87. In the revenue records Khasra Nos. 84,85,86, 113 and 564/87 has been shown in the name of D.L.F. In view of the complications involved in the demarcation of the areas, you are requested to supply the details of above Khasra nos. as per your records. A joint inspection may also be made on a mutually suitable date so as to demarcate the area on the ground. You may please fix up a date convenient to you. Yours faithfully, Sd/- Superintending Archaeologist” 20. DLF replied to the above letter on 30th July 1996 stating as under: “We have to invite a reference to your letter No. 6/6/90-M-869 dated 26th July 1996 regarding the unauthorised constructions under Khasra Nos. 84, 85, 86, 113, 563/87 and 564/87 near “D” Block, South Extension Part-I. In this connection, we have to state that we have not sold this land to anyone. The land was W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 11 of 23 also not utilised for any construction as there were Archaeological monuments in this area which were left un- disturbed. We are, however, ready to assist you in demarcating the area on the ground as desired on a date as may be fixed by you.” 21. It appears that for at least six years thereafter no action was taken even according to the ASI. It is sought to be explained that initially proceedings were sought to be commenced under the PP Act but “in view of the lack of legal knowledge on the part of the ASI officers”, they were quashed by the Appellate Court, as has been pleaded by the Petitioner. It is not denied that notice issued on 29th July 2003 was addressed only to NGBFPL regarding unauthorised constructions existing within the prohibited limits of the centrally protected monuments Chhote Khan, Bade Khan and Bhure Khan. The reply of the NGBFPL is also acknowledged. However, from the reply it is sought to be inferred that the NGBFPL had admitted itself to be the occupier of the land “within the protected and prohibited area of the monuments in question”; admitted “certain construction on the land, albeit, denying that any new construction had taken place in the recent past”; and pointed out that there was “unauthorised construction adjacent to the land occupied by the NGBFPL.” Then again it is admitted that thereafter till 27th March 2003 no steps were taken by the ASI. 22. The ASI acknowledged the receipt of the reply dated 1st October 2003 from NGBFPL but an inference was drawn that the reply of the Petitioner was attempted to “sidetrack the real issue by taking hyper technical pleas, despite comprehending and appreciating the contents of the notice fully W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 12 of 23 well.” It is stated that since the NGBFPL did not submit any document which they were relying upon, “the encroachments of the Petitioners were eventually cleared by the ASI with the help of local administration, pursuant to the order dated 19th December 2003 passed by Superintending Archaeologist (Delhi Circle).” A copy of the above letter dated 19th December 2003 shows that it was addressed to NGBFPL and states that the Municipal records did not contain any plot by the number of D -46A or D- 46B in NDSE-I. It was further stated that no sanctioned plan for the construction which exists at the site was produced. It was, therefore, concluded that NGBFPL was found violating the provisions of the AMASR Act, 1958 and AMASR Rules, 1959 and the Notification dated 16th June 1992. The operative portion of the said order reads as under: “As such M/s Nahata Group of Builders & Finance (Pvt.) Ltd is directed to remove all unauthorised constructions within 48 hours from the date of issue of this order so that area can immediately be landscaped as green for the preservation and maintenance of the monument in question.” 23. The counter affidavit of the ASI then proceeded to analyse the documents and concluded as under: “…the entire claim of the petitioners is based on the sale deed executed by the so-called erstwhile owners of the land. Therefore, if it is established that the so-called vendors of the sale deeds had no right, title or interest to execute the same, the entire claim of the petitioners is bound to be rendered as fundamentally flawed and inherently misconceived.” As far as the sale deeds are concerned, only the sale deed in respect of khasra No. 564 of 87 has been discussed by the ASI. W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 13 of 23 Submissions of counsel 24. Mr. U.N. Bhachawat, learned Senior counsel appearing for the Petitioner submitted that as far as Writ Petition (Civil) No. 9886 of 2003 is concerned, no notice whatsoever was given by the ASI or any other authority to the NTBPL prior to the demolition of its property and the consequential dispossession. It is pointed out that a notice, if at all, was given only to NGBFPL, the Petitioner in W.P. (C) 9887 of 2003. NTBPL and NGBFPL are two separate entities and notice to the latter could not be construed as a notice to the former. The prior notice of the proposed demolition was mandatory under Section 19 of the Ancient Monuments & Archaeological Sites & Remains Act, 1958 („AMASR‟ Act). It is submitted that on this short ground, Writ Petition (Civil) No. 9886 of 2003 ought to be allowed and the Petitioner should be put back in possession of the land comprised in khasra No. 564/87 in village Kotla Mubarakpur. 25. As regards Writ Petition (Civil) No. 9887 of 2003, the submissions of Mr. Bhachawat were that the action of the ASI for demolition of the construction of the property in question i.e. D-46 B was entirely without the authority of law. He pointed out that Section 19 of the AMASR Act only talks of “restrictions on enjoyment of property rights in protected areas.” Section 19(1) states that no person, including the owner or occupier of a protected area, can construct any building within the protected area “without the permission of the Central Government.” Under Section 19(2), it is the Central Government which has the power to direct that any building constructed within a protected area in contravention of Section 19(1) “shall be removed with a specified period.” If the said order is not complied with, W.P. (Civil) Nos. 9886/2003 & 9887/2003 Page 14 of 23 then “the Collector may cause the building to be removed and the person shall be liable to pay the cost of such removal.” It is submitted that it is only the Central Government which can pass any order for demolition under Section 19 of the AMASR Act and this power has not been delegated to any other authority, including the ASI. It is then submitted that in the instant case, no such order of the Central Government has been produced. 26. It is next submitted that under Rule 38(1) of the AMASR Rules, the Central Government has to form an opinion before passing an order that any building or part thereof has been constructed in the prohibited area or in a regulated area in contravention of any of the conditions of a licence granted under Rule 35 of the AMASR Rules and such order will have to direct such owner or occupier of the building to remove such building or part thereof within the period specified therein. Without prejudice to the above submission, it is submitted that the said Rule does not apply to the Petitioner since it is not the licencee within the meaning of Rule 35 of the AMASR Rules. It is also submitted that under Section 19(2) of the AMASR