LPA 417/2009 Page 1 of 25 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision : 30th October 2009 LPA 417/2009 EMCA CONSTRUCTION CO. THR. M.P.GUPTA ..... Appellant Through: Mr. Rakesh Tiku, Adv. versus ARCHELOLOGICAL SURVEY OF INDIA & ORS. ..... Respondents Through: Mr. Jayant Tripathi, Adv. for R-1/ASI Mr. Aman Lekhi, Mr. Ashok Bhasin, Sr. Advs. with Mr. Rahul Kumar, Adv. for R-4 Mr. Ajay Arora, Mr. Kapil Dutta, Adv. for MCD Ms. Jyoti Singh, Adv. for GNCTD CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes S. MURALIDHAR, J: 1. Not very far from this Court is located the Humayun‟s Tomb. It is a historical monument. It is a mausoleum built for the Mughal emperor Humayun who ruled between 1530 and 1540 and again from 1555 till 1556 when his son Akbar took over the reins. The construction of the mausoleum was commenced by Humayun‟s senior widow Hamida Banu Begum also known as Haji Begum in 1565, nine years after his death. A Persian architect Mirak Mirza Ghiyath was commissioned to design and build it. It is stated to exemplify a synthesis of Persian and Indian traditions of architecture. The arched alcoves, corridors and the high double dome signify the Persian influence and the kiosks which give it a pyramidal outline from a distance are attributed to the Indian influence. It is believed to have inspired the design of LPA 417/2009 Page 2 of 25 the Taj Mahal, a monument built many years later in Agra by Humayun‟s great grandson Shahjahan. 2. Humayun‟s tomb is square red sandstone double-storeyed structure that rises from a 7 m. high square terrace, raised over a series of cells accessible through arches on each side. Externally on each side of the tomb are elevations decorated by marble borders and panels. Around the high marble double dome in the centre are pillared kiosks. The tomb is a beautiful sight to behold, even when viewed from a distance. The nearly 450 year old Humayun‟s tomb is a major tourist attraction in Delhi. It has been declared as a world heritage monument. It is a protected monument within the meaning of the Ancient Monuments Archaeological Sites and Remains Act, 1958 („the 1958 Act‟) and the Ancient Monuments Archaeological Sites and Remains Rules, 1959 („the 1959 Rules‟). Consequent to a notification issued on 16th June 1992 by the central government, an area of 100m surrounding the Humayun‟s tomb has been declared a “prohibited area” within which no construction activity is permitted. 3. The tomb is now located in an area of New Delhi known as Nizamuddin East. It is surrounded by a residential colony. The continuing construction activity in the said residential colony is a cause for concern. It has given rise to the present proceedings. 4. This appeal by EMCA Construction Co. is directed against the interim orders dated 31.3.2009 and 4.8.2009 passed by the learned Single Judge in LPA 417/2009 Page 3 of 25 CM No. 4260/2009 in WP(C) No. 7889/2009. By the interim order dated 31.3.2009 the parties were directed to maintain status quo with regard to the construction in respect of the property at A-10, Nizamuddin East, New Delhi (hereafter „the said property‟) and by the subsequent order dated 4.8.2009, the earlier interim order was made absolute. 5. The aforementioned writ petition was filed by Mr. Gaurang Kanth, an Advocate having his office at A-9 (Basement), Nizamuddin East, New Delhi. The grievance in the writ petition was that the Archaeological Survey of India (ASI), respondent No.1 herein, had by a communication dated 1.8.2008 granted permission to the appellant EMCA Construction Company for reconstruction of the ground, first and second floor at the said property (at A- 10, Nizamuddin East) despite the fact that the said property was located within 100 m. of Humayun‟s Tomb, 6. The appellant, EMCA Construction Company, filed a reply to the writ petition along with an application CM No. 5221/2009 seeking vacation of the interim stay granted on 31.3.2009. The ASI had also filed its reply to the writ petition on 27.5.2009. The case of the appellant in its reply to the writ petition was that it had purchased the said property in 2005. The building was an old one and so the appellant decided to reconstruct it. Since in certain other cases ASI had granted permission for reconstruction, the appellant applied to the ASI for permission for the reconstruction. This was, however, rejected by the Superintending Engineer, ASI, Delhi Circle by an order dated 28.2.2008. Aggrieved by the said order, the appellant filed an „appeal‟ before the Director LPA 417/2009 Page 4 of 25 General, ASI on 5.3.2008. The appellant, in the meanwhile, also sought permission from the Municipal Corporation of Delhi (MCD) for carrying out construction on the said property. The case of the appellant was placed before an Expert Advisory Committee („Committee‟) of the ASI on 7.5.2008. The Committee recommended that permission could be granted. Accordingly the Director General, ASI by the communication dated 1.8.2008 accorded the appellant permission for reconstruction of the building comprising ground, first and second floor at the said property. This was challenged in the above writ petition by Gaurang Kanth. The appellant again applied to the ASI on 19.8.2008 for constructing ground plus three floors along with the basement on the said property. In response thereto, the ASI by its letter dated 6.3.2009, granted the appellant permission to reconstruct up to a maximum height of 12.5 m. besides mumty over the terrace up to maximum height of 2.5 m. Thereafter, the appellant applied for and was granted building sanction by the MCD on 20.3.2009. It is contended that since there was no violation of any statutory provision of law, no interference was called for with the proposed construction by the appellant on the said property. 7. In its affidavit dated 27.5.2009 before the learned single Judge, the ASI pointed out that the writ petitioner Mr. Gaurang Kanth had not come to the Court with clean hands. According to the ASI, the entire building at A-9, Nizamuddin East had been constructed illegally without taking any permission from the ASI as required by law and as such, the entire building was liable to be demolished. Since this fact had not been disclosed in the petition, it deserved to be dismissed. It was submitted that the petition was motivated and was “essential to stop construction in the building adjacent to LPA 417/2009 Page 5 of 25 that of the neighbour” and was therefore an abuse of the process of Court. It was further submitted that the writ petitioner‟s building was “closer to the Humayun‟s Tomb” and therefore there was no question of any view of the Tomb being blocked if the proposed construction was allowed. 8. In the said affidavit of the ASI, a reference was made to an order dated 23.7.2004 passed by a Division Bench of this Court in Archaeological Survey of India v. Narendra Anand [FAO(OS) 414/2002] and Heritage & Cultural Forum v. Union of India [WP(C) No. 2635/2002]. According to the ASI, in view of the directions of the Division Bench and in view of the fact that there were a number of cases where persons desired to construct/reconstruct upon their property falling within the 100 m. Zone of a protected monument, an Expert Advisory Committee (Committee) comprising eminent experts was constituted to aid and advise the Director General, ASI for dealing with such cases. The Committee was headed by the Director General, ASI and a renowned historian and archaeologist, an expert in urban planning, and a leading expert on the history of Delhi. ASI explained that the Committee “examines all proposals where a relaxation of the rule prohibiting construction within the 100 mts. area is asked for, and decides on a case to case basis such applications.” It was pointed out that the case relating to the construction at the said property was decided by the Committee at its meeting held on 22.1.2009. The ASI defended the permission granted to the appellant herein for carrying on construction in the said property. It was submitted that Rule 37 of the Rules provided for an appellate mechanism and since the Committee had examined the proposal and opined that the proposed construction did not threaten the integrity of the monument, did not affect the access of the public LPA 417/2009 Page 6 of 25 to the monument or otherwise impair the skyline in relation to the monument, permission was granted “as per the norms.” It was further stated that “there is no threat or danger of any kind to the monument of Humayun‟s Tomb on account of the construction at A-10, Nizamuddin East which is at a distance of 88 metres from the said monument.” According to the ASI, the writ petitioner had not produced any material, scientific or expert evidence to substantiate his allegation of danger to the monument. 9. It may be mentioned that initially by an order dated 28.8.2009 in the present appeal, while granting a stay of the orders dated 31.3.2009 and 4.8.2009, it was prima facie observed by this Court that the writ petitioner Mr. Gaurang Kanth had no locus standi to maintain a writ petition as “he himself is occupying the adjoining building which has been constructed admittedly without any permission from the ASI.” This Court also expressed a prima facie opinion that “appellant company who had obtained mandatory prior approval of the ASI could not have been restrained from carrying out construction without either disposing of appellant-Company‟s application for vacation of ex-parte ad-interim stay or without giving reasons.” 10. This court has perused the record of the case as available with the ASI and with the consent of the parties has heard the appeal finally. The submissions of Mr.Rakesh Tiku, learned counsel for the Appellant, Mr.Aman Lekhi and Mr.Ashok Bhasin learned Senior Counsel for Mr.Gaurang Kanth, Mr.Jayant Tripathi, learned counsel for the ASI, Mr.Ajay Arora, learned counsel for the MCD and Ms.Jyoti Singh learned counsel for the GNCTD have been heard. LPA 417/2009 Page 7 of 25 11. The genesis of the present case is the Notification dated 16.9.1992 issued by the central government Union of India prohibiting any construction within 100 mts. of a protected monument. The said notification reads as under: “THE GAZETTE OF INDIA DEPARTMENT OF CULTURE (ARCHAEOLOGICAL SURVEY OF INDIA) NEW DELHI, THE 16TH JUNE 1992 (ARCHAEOLOGY) S.O. 1764. – Whereas by the notification of the Government of India in the Department of Culture, Archeological Survey of India no. S.O. 1447 dated the 15th May 1991, published in the Gazette of India, part II, Section 3, sub-section (ii) dated the 25th May 1991, the Central Government gave one month‟s notice of its intention to declare areas up to 100 meters from the protected limits and further beyond it up to 200 meters near or adjoining protected monuments to be prohibited and regulated areas respectively for purposes of both mining operation and construction; And whereas the said Gazette was made available to the public on the 5th June 1991; And whereas objections to the making of such declaration received from the person interested in the said areas have been considered by the Central Government. Now, therefore, in exercise of the powers conferred by rule 32 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, the Central Government hereby declares the said areas to be prohibited and regulated areas. This shall be in addition to and not in any way prejudice to similar declarations already made in respect of monuments at Fatehpur Sikri; Mamallapuram; Golconda Fort, Hyderabad, Andhra Pradesh; Thousand Pillared Temple, Hanamkonda, district Warangal, Andhra Pradesh; Sher Shah‟s Tomb, Sasaram, Bihar; Rock Edict of Ashoka, Kopbal, district Raichur, Karnataka; Fort Wall, Bijapur, Karnataka; Gomateswara Statute at Sravanabelagola, district Hassan, Karnataka; Elephanta Caves, Gharapuri, district Kolaba, Maharashtra. [No. F.8/2/90-M] M.C. JOSHI, Director General.” 12. It is disputed by the ASI that vis-à-vis the Humayun‟s Tomb an area “up LPA 417/2009 Page 8 of 25 to 100 metres” from its limits is a “prohibited area” and beyond it up to 200 meters is a “regulated area” respectively for purposes of construction. The recognition of Humayun‟s tomb as a protected monument has itself a long history. The first step towards legislative protection of monuments in India was contemplated under the Ancient Monuments Act, 1904. Under Section 3 of that Act, the Central Government was given the power to declare any ancient monument as a “protected monument”. This was followed by the Act of 1951. Under Section 126 of the States Reorganization Act, 1956, monuments protected under the 1904 Act situated in Part C States (including Delhi) were declared monuments of national importance. In 1958, The Ancient Monuments and Archaeological Sites and Remains Act was enacted. Under Section 2(j) of the 1958 Act, “protected monument” means any ancient monument which is declared to be of national importance by or under the 1958 Act. Under Section 3 of the 1958 Act, all ancient and historical monuments which have been declared as such under the 1951 Act or by Section 126 of the States Reorganization Act, 1956 “shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purpose of this Act.” Rule 2(f) of the 1959 Rules defines a „prohibited area‟ or „regulated area‟ to mean “an area near or adjoining a protected monument which the Central Government has, by notification in the Official Gazette, declared to be a prohibited area, from as the case may be, a regulated area, for purposes of mining operation or construction or both.” 13. We may at this stage notice the provisions under Articles 49 and 51A (f) LPA 417/2009 Page 9 of 25 of the Constitution of India which reads as under:- “49. Protection of monuments and places and objects of national importance.___It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be.” “51A. Fundamental duties.___It shall be the duty of every citizen of India____ xxx xxx (f) to value and preserve the rich heritage of our composite culture.” 14. We note that the Supreme Court has in Rajeev Mankotia v Secretary to President of India AIR 1997 SC 2766 while discussing the provision of the Constitution and the Act observed as under (AIR SC @ 2767-6 & 2774): “6. It would, therefore, be manifest that all ancient and historical monuments and all archaeological sites and remains or any structure, erection or monument or any tumulus or place of interment shall be deemed to be ancient and historical monument or archaeological sites and remains of national importance and shall be so declared for the purpose of Ancient Monuments Act it they have existed for a century; and in the case of a State monument, of State importance covered by the appropriate State Act. The point of reference to these provisions is that an ancient monument is of historical, cultural or archaeological or sculptural or monolithic or artistic interest existing for a century is of national importance or of State importance. In other words, either of them are required and shall be protected, reserved and maintained as national LPA 417/2009 Page 10 of 25 monuments or State monuments for the basis which not only gives pride to the people but also gives us insight into past glory of our structure, culture, sculptural, artistic or archaeological significance, artistic skills and the vision and wisdom of our ancestors, which should be preserved and perpetuated so that our succeeding generations learn the skills of our ancestors and traditions, cultural and civilisation. They would have the advantage to learn our art, architecture, ascethetic tastes imbibed by the authors of the past and to continue the same tradition for the posterity. Preservation and protection of ancient monuments, is thus the duty of the Union of India and the State Government concerned in respect of ancient monuments of national importance or those of State importance respectively to protect, preserve and maintain them by preserving or restoring their original conditions. 21....... We avail this opportunity to direct the Government of India to maintain all national monuments under the respective Acts referred to above and to ensure that all of them are properly maintained so that the cultural and historical heritage of India and the beauty and grandeur of the monuments, sculptures secured through breathless and passionate labour workmenship, craftsmanship and the skills of the Indian architects, artists and masons is continued to be preserved. They are pride of Indians and places of public visit.” 15. In Wasim Ahmed Saeed v. Union of India 2004 (8) SCALE 159, the Supreme Court was dealing with the issue concerning 86 shops (of which 19 were shops-cum-residence) found within a 100 m radius of the Fatehpur Sikri, a protected monument near Agra. The Court ordered: “As per the report filed in the undated affidavit, which is tendered in Court today, by Archaeological Survey of India (ASI) within first 100 metres of monument, there are 86 shops LPA 417/2009 Page 11 of 25 of which 19 are shops-cum-residence. The ASI is directed to remove and/or close down within a fortnight from today all shops within 100 metres. The State of U.P. and the Police are directed to give all assistance required for such removal. It is clarified that, for the present, residents must not be disturbed. The State to consider acquiring some land for the purpose of rehabilitating the residents. The ASI and the local police to thereafter ensure that no shop either in a temporary structure or otherwise comes up within 100 metres. For that purpose both the ASI and the Police to nominate an officer each, whose names will be given to this Court. It will be the duty of these officers to supervise the area every day and ensure that no shop comes up within 100 metres. If any shop is found within 100 metres these officers will be held personally responsible and will become liable in contempt. The named officers not to be transferred without permission of this Court. Before demolition/closure takes place, the ASI to note down the names of the shopkeepers whose shops are being demolished/closed down. These shopkeepers to be given shops in Ghata No.244/2.” Similar orders have been passed in M.C. Mehta v. ASI 2005 (4) SCALE 73 in relation to constructions in the vicinity of the tombs of Zauq and Ghalib in Delhi. 16. The above provisions and the Notification dated 16.6.1992 were discussed in extenso by the Division Bench of this Court in Narendra Anand (supra). The issue there concerned illegal constructions within 100 m of Jantar Mantar, another protected monument. A plea was made in that case that the Court LPA 417/2009 Page 12 of 25 should take a “practical and pragmatic approach” to the problem. In response to that submission, this Court in para 7.6 of the judgment observed as under: “7.6 We find ourselves to be in agreement with the submissions made by Mr Lekhi in this regard that a pragmatic and practical approach must be adopted and we must not become slaves to a rule of thumb. At the same time, prima facie, we feel that as long as the Notification dated 16.6.1992 holds the field, no construction activity can be permitted within 100 meters of Jantar Mantar. However, this does not dissuade us from directing the Central Government to review the operation of its Notification dated 16.6.1992 and to consider the provision of a mechanism where the prohibition is imposed or relaxed on a case to case basis. It is true that the 100 meter stipulation brings in a certain degree of objectivity and cuts out subjectivity. But, it also introduces an element of arbitrariness inasmuch as it treats all protected monuments alike, which in fact are quite dissimilar. The degree and type of protection depends upon various variables such as the nature of the protected monument, its locale, the weather conditions, the topography, the soil etc.,. There has to be an application of mind on these and other issues linked with preservation and the ASI ought not to hide behind the said notification and abdicate this vital function of theirs. Public interest lies in protection and preservation. It also lies in development and progress. The two opposing forces have to be harmonised and balanced in the context of time and space. We feel that prohibition of construction must not be left to an inflexible rule of thumb but must be arrived at after a conscious and objective application of mind. There may be instances where larger prohibited and regulated areas are necessary, while in others smaller areas of prohibition and regulation would suffice. Therefore, we direct the LPA 417/2009 Page 13 of 25 Central Government to review its Notification dated 16.6.1992 in the light of the discussion above within a period of six months from the date of this judgment.” (emphasis supplied) 17. The highlighted portions of the above order are crucial as far as the present case is concerned since they are being interpreted to mean that the Central Government was constrained to set up a mechanism for granting permission for construction within the 100m area of a protected monument. Purportedly aggrieved by the above directions, the ASI filed SLP(C) No. (CC 1603 and 1604) of 2005, in the Supreme Court. We have been shown a copy of the said SLP paper book. The main grievance of the ASI, as set out in the grounds of the SLP are as under: “A. It is submitted that the portion of the impugned Judgment directing review of the statutory notification dated 16.6.92 is liable to be set aside in as much as Hon‟ble Delhi High Court ought to have appreciated the expert role of the Archaeological Survey of India in the preservation conservation and protection of ancient monuments, which has set the limit of 100 metres as the minimum limit after due deliberation and consideration of all factors. B. That the Hon‟ble Delhi High Court ought to have appreciated that the limit of 100 metres, being set by an expert body which is entrusted with the task of preservation of the national heritage of India, ought not to be interfered with, specially in the absence of specific prayers to that effect. C. That the Hon‟ble Delhi High Court ought to have realized that a review of the limits set under the notification dated 16.06.1992 would lead to situation where the statutory role of the Petitioner in the protection of monuments would be diluted; D. That the Hon‟ble Delhi High Court‟s order directing review of the Notification dated 16.06.1992 ought to be set aside in view of the observation made by the Hon‟ble Supreme Court in W.P. (C) 653 of 1994 dated 02.09.2004 to the effect that there should be no such reconsideration of the 100 metre limit in respect of ancient monuments. LPA 417/2009 Page 14 of 25 E. That the Hon‟ble Delhi High Court ought to have realized that the direction to carry out the review within 6 months is not feasible in as much as the exercise would entail a review of 4000 monuments, bringing out separate preliminary and confirmatory notifications in respect of each of them, with a mandatory gap of 2 months between the preliminary notification and the confirmatory notification. F. That the Hon‟ble Delhi High Court ought to have appreciated that the in as much as there is constitutional mandate contained in Article 49 of the Constitution of India, directing the preservation of monuments, and in as much as there is a statutory enactment