C.W.P. No.17704 of 1997 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17704 of 1997 Date of decision: October 04, 2008. Munshi Ram ...Petitioner(s) v. State of Punjab & Ors. ...Respondent(s) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Kanwaljit Singh, Senior Advocate, with Shri Tejinder Bishnoi, Advocate for the petitioner. Shri M.S. Cheema, Advocate for the Union of India. Shri H.S. Sidhu, Additional Advocate General with Mrs. Madhu Dayal, Sr. Dy. Advocate General, Punjab. Shri Rameshwar Malik, Additional Advocate General, Punjab. Shri S.C. Pathela, Advocate, for respondent No.2. ORDER Surya Kant, J. - This writ petition was originally instituted for quashing of an eviction order dated 5.5.1992 passed by the Collector, Gurdaspur, as well as the order dated 29.5.1996 of the Commissioner, Jalandhar Division, Jalandhar, affirming the aforementioned eviction order. The subsequent C.W.P. No.17704 of 1997 -: 2 :- events, however, led to enlarging the scope of these proceedings into a public interest litigation. [2]. The facts putforth by the petitioner are that upon partition of the country in the year 1947, he settled in Batala over the piece of land in dispute measuring 3 kanal 4 marlas, owned and possessed by the Muslims who had migrated to Pakistan. The petitioner, thus, claimed that it is an 'evacuee property' whereupon he had constructed one room and a shed, etc. [3]. The Municipal Council, Batala moved an eviction petition against the petitioner under Sections 3 and 4 of the Punjab Public Premises of Land (Eviction and Rent Recovery) At, 1973 (in short the Public Premises Act) alleging that he was in possession of the municipal lands. The petitioner, however, questioned the title of the Municipal Council and contested the eviction proceedings. The Collector, Gurdaspur held that the land was gair mumkin talab not owned by the municipality and dismissed the eviction petition vide his order dated 26.10.1987. The Collector's order was set aside by the Appellate Authority and the case was remanded to decide it afresh. Thereafter, the Collector passed the impugned eviction order dated 5.5.1992. On an appeal, the said order has been upheld by the Commissioner, Jalandhar Division, Jalandhar. [4]. One of the pleas taken by the petitioner was that the subject land being an 'evacuee property', he was entitled to purchase the same in terms of the provisions contained in the Punjab Package Deal Properties (Disposal) Act, 1976. Respondents No.1 & 2, however, contested the said claim and averred that only the properties vested or owned by the Rehabilitation and Re-settlement Department could be disposed of under the 1976 Act and not the subject property which stands vested with the C.W.P. No.17704 of 1997 -: 3 :- Municipal Council, Batala. [5]. On 11.9.2000, a statement was made before this Court that the petitioner was willing to pay the price of the subject land, as assessed by the respondents. Thereafter, this writ petition was disposed of on 8.10.2001 with a direction to the Deputy Commissioner, Gurdaspur to assess the value of the land in terms of Government instructions and the petitioner was directed to make payment thereof within three months from the date of such communication. [6]. The Union of India, however, moved Review Application No.130 of 2002 for review/recall of the above stated order dated 8.10.2001. According to the Archeological Survey of India, the property in dispute is a part of the Baradari (Anarkali), Batala which had been declared a “protected monument” of national importance under the provisions of the Ancient Monument Preservation Act, 1904. It was further averred that since the property had already been vested in the Union of India, which was not a party to the writ proceedings, the order dated 8.10.2001 passed by this Court was liable to be recalled. [7]. After notice to the petitioner and other respondents and having regard to the stand taken by the UOI, noticed above, this Court vide an order dated 18.11.2004 recalled the order dated 8.10.2001. While impleading the Union of India as a party respondent, it was further ordered that the writ petition be listed for hearing afresh. [8]. A counter-affidavit has been filed by the Union of India – respondent No.3 averring that the Baradari (Anarkali), Batala was declared a 'protected monument' of national importance vide notification No.11390 dated 19.4.1933 by the Local Self-Government Department under the C.W.P. No.17704 of 1997 -: 4 :- Ancient Monument Preservation Act, 1904, now governed by the provisions of the Ancient Monument Archeological Sites and Remains Act, 1958 and the Rules framed thereunder. It is averred that in view of the Govt. of India notification dated 6.1.1959 (Annexure R-3/3), ownership of the State owned monuments and lands appurtenant thereto was required to be transferred in the name of the UOI, yet the Archeological Survey of India vide its letter dated 18.8.1987 asked the Deputy Commissioner, Gurdaspur to transfer ownership of the land to it (Archeological Survey of India). The stand taken in the counter affidavit has been duly supported by the copies of the notifications dated 9.2.1933 (Annexure R-3/1) whereby the Baradari (generally known as Anarkali) located in Batala, District Gurdaspur was proposed to be declared a protected monument under Section 1(9) of the Ancient Monuments Preservation Act, 1904 and dated 19.4.1933 (Annexure R-3/2) declaring the aforesaid property as a 'protected monument'. The schedule of the land of the Baradari (Anarkali, Batala) comprising Khasra No.1918, 1919, 1922 and 1923 measuring 126.02 kanal 02 marla (Annexure R-3/6) has also been placed on record besides the site plan. [9]. In the light of the plea taken by the Archeological Survey of India that the subject-property is a part of the 'protected monument' upon which several encroachers, including the petitioner, have unauthorizedly entered into, this Court directed to treat this petition in larger 'public interest'. [10]. On 31.5.2007, the States of Punjab & Haryana and the Union of India were directed to place on record the list of the 'protected monuments' as also their details notified by the respective State Governments, the 'status report' and photographs of the sites as well. C.W.P. No.17704 of 1997 -: 5 :- [11]. In deference to the aforesaid directions, the Archeological Survey of India filed an affidavit along with the list of monuments in Punjab and Haryana. Both the State Governments were accordingly directed to file their respective status reports with reference to the encroachments reportedly made on the 'protected monuments' and action, if any, taken by the State Governments for removal thereof. On 4.10.2007, the States of Punjab and Haryana and the Archeological Survey of India, were further directed to file a complete list of the cases instituted by/against them regarding the removal of the encroachments from the 'protected monuments'. [12]. To our dismay and shock, initially the State Governments as well as the Archeological Survey of India were quite reluctant to furnish the correct and complete information. Various Deputy Commissioners and District Police Chiefs, however, have filed their affidavits enlisting the actions taken by them for removal of such encroachments. [13]. Suffice it to say that the entirely unsatisfactory manner with which the 'protected monuments' of national importance are being preserved or maintained by the State Governments or the Archeological Survey of India have prompted us to remind those who are at the helm of affairs that these 'ancient monuments' are the true mirrors of the cultural heritage of a society. Such monuments not only reflect a glorious past, but are also 'for keeps' for posterity. An indifferent attitude towards the maintenance of such precious pieces of Art shall make the culturally rich pug marks vanish from the Indian horizon. [14]. Under Section 3 of the 1958 Act, all 'ancient' and 'historical monuments' as well as archeological sites and remains are deemed to be of C.W.P. No.17704 of 1997 -: 6 :- national importance. On such declaration, an ancient monument becomes a “protected monument” under section 2(j) of the Act. Section 6 of the Act casts a duty upon the Collector of a District to comply with the directions of the Central Govt. for taking necessary steps for the maintenance of the 'protected monuments'. Section 13 empowers the Central Govt. to acquire the 'protected monument' in accordance with the provisions of the Land Acquisition Act, 1894 and Section 14 obligates it to maintain every monument so acquired. Needless to say, the 1958 Act is a self-contained Code to regulate restrictions and enjoyment of property rights, excavations in protected areas, movement of antiquities and penalties and prosecution in case of violation of any provisions of the Act. [15]. Notwithstanding the legal empowerment summarized above, we are anguished at the pathetic condition of the 'protected monuments' in both the States as maybe seen from the photographs on record. Besides being the encroachers' paradise, there are weeds grown all over the roofs and walls, and due to lack of will and efforts to repair, parts of the structures are falling down. It is manifestly clear that the Deputy Commissioners- cum-Collectors of various districts in the States of Punjab and Haryana as also the Archeological Survey of India, in particular it's Chandigarh Circle, have failed to perform their statutory duties. [16]. The dismal conditions of the protected monuments would have remained carpeted but for this writ petition, which was initially instituted for a private cause. In view of the fact that the petitioner is occupying a part of the land which stood declared as an 'ancient monument' of national importance way back in the year 1933, the story put-forth by him that the subject land is an 'evacuee property' left by the Muslims who extradited to C.W.P. No.17704 of 1997 -: 7 :- Pakistan during the partition in 1947, stands belied and is accordingly rejected. Keeping the nature of the property in view, the petitioner's prayer to allow him to purchase the land under his possession on payment at the Collector's rate, can also not be accepted. Consequently, while dismissing the writ petition qua the petitioner's challenge to the orders dated 5.5.1992 and 29.5.1996, but in the larger public interest, we dispose of this petition with the following directions:- (i) the Archeological Survey of India, Chandigarh Circle, Chandigarh shall send detailed particulars, including the area of the land underneath an ancient/protected monument to the Deputy Commissioner-cum-Collector of the district concerned where such monument is located in the State of Punjab and Haryana within a period of one month, if not sent already; (ii) the Deputy Commissioner-cum-Collector of the district concerned shall obtain a report from the revenue authorities regarding the encroachment, if any, made over the property of the ancient/protected monument within a period of one month from the date intimation regarding such ancient/protected monument is received from the Archeological Survey of India, Chandigarh Circle, Chandigarh and shall send a copy of the report to the Archeological Survey of India, Chandigarh Circle, Chandigarh; (iii) it shall be the duty of the Archeological Survey of India, Chandigarh Circle, Chandigarh and also of the Deputy C.W.P. No.17704 of 1997 -: 8 :- Commissioner-cum-Collector of the district concerned to get the ancient/protected monument or the property attached thereto retrieved from the encroachers in accordance with law. Wherever such an encroacher has got an injunction order from the civil court, the Archeological Survey of India as well as the Collector shall produce a copy of this order before the civil court to enable it to pass an appropriate order which may not be inconsistent with the directions issued hereinabove. The court concerned shall also be requested for early disposal of the pending suit/appeal, as the case may be; (iv) the Archeological Survey of India shall ensure that all the ancient or protected monuments are maintained, preserved, repaired or renovated periodically and the duty, if any, cast upon the Collector of a district in this regard under the 1958 Act shall be performed by him with or without any request from the Archeological Survey of India; (v) after removal of all encroachments from the ancient or protected monuments and/or their repair/renovations, a compliance report along with photographs of each of the said monuments shall be submitted to the Registry of this Court. The entire exercise, however, shall have to be carried out before 30.9.2009, failing which, besides suo moto, any public spirited person shall also be competent to initiate contempt of court proceedings against the erring Collector or the authorities of the Archeological Survey of India, Chandigarh Circle, Chandigarh; C.W.P. No.17704 of 1997 -: 9 :- (vi) the Archeological Survey of India, Chandigarh Circle, Chandigarh, with the assistance of the District Administration concerned, shall further ensure that no part of the ancient or protected monument in possession of the encroachers or otherwise is damaged, defaced, altered or impaired, till such encroachments are removed. [15]. No costs. [ Surya Kant ] Judge October 4, 2008. [T.S. Thakur] kadyan Chief Justice