1. The Additional Solicitor General has filed an affidavit on behalf of respondent nos.1 and 3 pursuant to the court’s direction. The subject matter can be considered in two parts. The first part which requires to be given top priority is in respect of problems of unauthorised constructions and illegal occupants which are within the prohibited area. It is stated in the affidavit in reply that in so far as the removal of encroachments and unauthorised constructions in the prohibited area is concerned, the ASI has already taken steps by informing the local authorities like the Municipal Commissioner MCGM and the Collector of the Region to extend all necessary aid and assistance to the officials of the ASI in the matter.

2. It has been expressed that land around the monument which falls in the prohibited area does not belong to ASI and is owned by private individuals and other agencies and that The Ancient Monuments and Archaeological Sites and Remains Act, 1958 does not enable the ASI to remove illegal constructions in prohibited area and that such provisions are only available under sub section 2 of section 19 of the said Act which relate to removal of constructions from prohibited area only.

3. This court has no hesitation to arrive at a conclusion that such misreading of the provisions by the ASI is detrimental to the object and purpose of the act itself i.e. the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the rules framed therein i.e. the Ancient Monuments and Archaeological Sites and Remains Rules, 1959. If the Act and the Rules are read together, no construction is permitted within the prohibited area and, therefore, any constructions made within the prohibited area or illegal occupants within the prohibited area or occupying protected monument can be removed by the ASI in co-ordination with the local authorities ie. local statutory body, be it Municipal Corporation, Municipal Council or Gram Panchayat with the assistance of the revenue and the police authorities.

4. We are informed by the learned counsel for the parties that insofar as Jogeshwari Caves are concerned, even the MCGM has granted sanction for construction of building after the notification dated 16th June, 1992 came to be issued by the Government of India which has been published in Gazette of India dated 4th July, 1992, Rule 38 of which reads as under:

"38. Removal of unauthorised buildings –

(1) The Central Government may, by order, direct the owner or occupier of an unauthorised building in a prohibited area or in a regulated area or of a building or part thereof which has been constructed in contravention of any of the conditions in contravention on of any of the conditions or a licence granted under rule 35 to remove such building or part thereof within a period specified in that order. (2) If the owner or occupier refuses of fails to comply with an order made under sub-rule (1), the Central Government may direct the District Magistrate to cause the building or part thereof to be removed, and the owner or occupier shall be liable to pay the cost of such removal."

5. In view of this, even in cases where the local planning authority has granted sanction for constructions in ignorance of provisions of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 and the notification dated 16.6.92 published by the Department of Culture (Archaeological, Survey of India), New Delhi, the said construction will be an unauthorised construction. In so far as the aforesaid provisions are concerned, the person has undertaken such construction by obtaining sanction from the local planning authority at his own peril. The only right, owner of such unauthorised structures or illegal occupants has, is to be given due notice before action for demolition or removal of unauthorised constructions and illegal occupants is undertaken by ASI.

6. In so far as other