Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(SC) 45

2012 (2) SCC 562
Supreme Court of India
THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
Archaeological Survey of India & Others
Versus
Narender Anand & Others
CIVIL APPEAL NO. 2430 OF 2006 WITH CIVIL APPEAL NO. 2431 OF 2006
Decided on : 16-01-2012

Advocates appeared:
For the Appearing Parties :Mohan Parasaran and H.P. Raval, Additional Solicitors General, A. Mariarputham, J.S. Attri, Senior Advocates {Ashok Bhan, Ms. Shweta Verma, Ms. Asha G. Nair, Pradeep Kr. Bakshi, Rajat N., Ms Bohra Anand, Ms. Anjani Aiyagiri, Pawan Bindra, Ms. Kavita Wadia, Vishnu B. Saharya (for M/s. Saharya & Co.) and Ravindra Kumar, Advocates.

IMPORTANT POINT
Prohibition under act, 1958 regarding protected monuments/areas has to be complied with.

Headnote:(a) Ancient Monuments and Archaeological Sites and Remains Act, 1958 – Section 19 r/w Article 49 – Protected monuments/ areas – Notification dated 16.6.1992 prohibiting construction activities within 100 mts – High Court directing to review the notification – Not proper insertion of section – Moreover, with insertion of sections 20A and 20B the direction has become infructuous. (Para 30)
       (b) Ancient Monuments and Archaeological Sites and Remains Act, 1958 – Sections 19 and 39(2) – Notification dated 4.10.1956 – Declaring Jantar Mantar a protected monument – Notification dated 3.5.1957 stating the same and correcting the ownership of the plots – Later notification not published in Gazette – Does not alter the nature of the monument as per earlier notification which is saved by section 39(2) – High Court’s prohibition on the basis of notification dated 16.6.1992 is correct. (Para 31)
       Facts of the case:
       In exercise of the powers conferred by Section 3(1) of the Ancient Monuments Preservation Act, 1904, the Central Government issued notification dated 4.10.1956, declaring Jantar Mantar, New Delhi to be a protected monument. Further, by notification dated 16.6.1992 any construction within 100 metres of heritage sites were prohibited.
       Respondent nos. 1 and 2, after getting the building plan sanctioned from the Corporation started construction which was objected to by the ASI and the work was stopped.
       The High Court allowed construction up to DPC level (55 ft.).
       The Division Bench vacated the injunction but directed the Union Govt. to review notification dated 16.6.1992 by observing that a provision could be made for relaxation of the prohibition on case to case basis because the degree and type of protection depends upon variables such as the nature of protected monument, its location, the weather conditions, the topography, the soil etc. and there has to be application of mind on these and other issues linked with preservation of monuments and Archaeological Survey of India cannot take shelter of the notification prohibiting construction within 100 meters from the boundary of the protected monument in each and every case for refusing permission or license for construction.
       Finding of the Court:
       Impugned judgment cannot be sustained. Even otherwise, with amendment in the act, 1958, it has become infructuous.
       Result: Civil Appeal No.2430 of 2006 is allowed. Civil Appeal No.2431 of 2006 is dismissed.

Judgment :-

G.S. Singhvi, J.

1. These appeals are directed against the judgment of the Division Bench of the Delhi High Court whereby the appeal filed by Archaeological Survey of India (appellant in C.A. No. 2430 of 2006 and respondent No.1 in C.A. No. 2431 of 2006) was allowed and the order of injunction passed by the learned Single Judge in IA No. 2912 of 2002 in Suit No. 645 of 2002 allowing Shri Narender Anand and M/s. Raval Apartments Pvt. Ltd. (respondent Nos. 1 and 2 in C.A. No.2430 of 2006 and appellants in C.A. No. 2431 of 2006) to raise construction up to the height of 55 feet on plot No.14, Janpath Lane, New Delhi was set aside and Writ Petition No.2635 of 2002 filed by Heritage and Cultural Forum was disposed of with a direction to the Central Government to review notification dated 16.6.1992 issued under Rule 32 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (for short, `the Rules').

2. While Archaeological Survey of India has questioned the direction given by the Division Bench of the High Court for review of notification dated 16.6.1992, respondent Nos. 1 and 2 have challenged that portion of the impugned judgment by which the Division Bench vacated the order of injunction passed by the learned Single Judge.

3. Archaeological and historical pursuits in India started with the efforts of Sir William Jones, who put together a group of antiquarians to form the Asiatic Society on 15th January 1784 in Calcutta. He was supported by many persons who carried out survey of monuments in various parts of India. The identification of Chandragupta Maurya with Sandrokottos of Greek historians by Jones helped in fixing a chronological horizon of Indian history. This was followed by the identification of Pataliputra (Palibothra of classical writings) at the confluence of the Ganga and Sone. The decipherment of Gupta and Kutila script by Charles Wilkinson was a landmark in this regard. Thereafter, many individuals made contribution in surveying different monuments in India. In 1861, Alexander Cunningham was appointed as the first Archaeological Surveyor. He surveyed areas stretching from Gaya in the east to the Indus in the northwest, and from Kalsi in the north to the Narmada in the south, between 1861 and 1865. For this, he largely followed the footsteps of the Chinese pilgrim Hieun Tsang. However, with the abolition of the Archaeological Survey in 1866, this work came to a grinding halt. In the meanwhile, an Act was passed in 1863 empowering the Government to prevent injury to, and preserve the buildings remarkable for their antiquity and historical or architectural value. In 1878, Treasure Trove Act was enacted which enabled the Government to confiscate treasures and antiques found during chance digging. After 26 years, the Ancient Monuments Preservation Act, 1904 (for short, `the 1904 Act') was enacted for the preservation of ancient monuments and objects of archaeological, historical or artistic interest. Section 2(1) of that Act, which contains the definition of "ancient monuments" and Section 3 under which the Central Government was empowered to declare an ancient monument to be a protected monument were as under:

"2. Definitions.-- In this Act, unless there is anything repugnant in the subject or context.--

(1) "ancient monument" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest, or any remains thereof, and includes --

(a) the site of an ancient monument;

(b) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument; and

3. Protected monuments.--(1) The Central Government may, by notification in the Official Gazette, declare an ancient monument to be a protected monument within the me

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2012 Supreme(SC) 45

2012 (2) SCC 562 Supreme Court of India THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY Archaeological Survey of India & Others Versus Narender Anand & Others CIVIL APPEAL NO. 2430 OF 2006 WITH CIVIL APPEAL NO. 2431 OF 2006Decided on : 16-01-2012

IMPORTANT POINTProhibition under act, 1958 regarding protected monuments/areas has to be complied with.

2012 (2) SCC 562
Supreme Court of India
THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
Archaeological Survey of India & Others
Versus
Narender Anand & Others
CIVIL APPEAL NO. 2430 OF 2006 WITH CIVIL APPEAL NO. 2431 OF 2006
Decided on : 16-01-2012

IMPORTANT POINT
Prohibition under act, 1958 regarding protected monuments/areas has to be complied with.