JUDGMENT :

Sangeet Lodha, J.

1. This intra-Court appeal is directed against order dated 26.2.19 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant challenging the notice dated 16.5.20 issued by the respondents to remove the construction work of wooden doors and plaster work etc. from Suraj Prol Gate inside the Jaisalmer Fort being violative of sub-section (1) of Section 19 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short "the Act of 1958') and Rules 19(1) & 33 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (for short "the Rules"), has been dismissed.

2. The appellant, a charitable trust, owns a property known as Suraj Prol which forms part of Jaisalmer Fort in the State of Rajasthan, is an archaeological monument. According to the appellant, it was in dilapidated condition and was requiring immediate repairs, had timely repair not carried out by the Trust, there was apprehension of said part of the building and structure collapsing and therefore, immediate steps were taken to get the plaster work done for reinforcing the existing structure so as to avoid further damage. Besides, the Trust also put wooden doors to stop entry of stray cattles in the open space of Suraj Prol. According to the appellant, no structural changes were made in the property and therefore, the provisions of Section 19 of the Act of 1958, which prohibits construction of building within the protected area without permission of the Central Government, are not attracted, however, the appellant Trust was served with a notice dated 16.5.2000 issued by the Superintending Archaeologist, the respondent no. 2 herein, calling upon it to remove the said wooden doors and plaster work etc. from the Suraj Prol Gate on or before 25.5.2000. The appellant was informed that in the event of refusal or failure to comply with the notice within the period specified, order will be passed for removal of such unauthorized construction under the provisions of the Act of 1958 and the Rules. A reply to the notice was filed by the appellant on 20.5.2000.

3. The appellant apprehending the demolition of the repair works done, challenged the legality of the notice by way of writ petition before this Court, on the ground that the respondent no. 2 has miserably failed to make out a case for passing an order under Section 19(2) of the Act of 1958. The appellant contended that what is prohibited by Section 19(1) is the construction of a building and thus, the repair works done for saving the building from further damage, does not warrant any action under the said provision. According to the appellant, the construction of building would always involve structural changes and the repair works does not fall within the definition of words "construction of the building".

4. On 2.4.02, the learned Single Judge while admitting the writ petition directed the parties to maintain the status quo as existing on that day.

5. A reply to the writ petition was filed on behalf of the respondents, taking the stand that name of 'Suraj Prol' being gateway of main approach road to Jaisalmer Fort, a place of public utility, is not included in the inventory of the erstwhile Ruler of Jaisalmer. Besides, in the inventory, it is specifically mentioned that the easements of way as were enjoyed by the people will continue to be enjoyed by them without let or hindrances. The said structure was never closed by the wooden doors and remained open for public. It was denied that the said Prol was in dilapidated condition and in any case, if such construction was required to be carried out, the appellant was under an obligation to take permission from Archaeological Survey of India for necessary repairs, which is granted at the local level by a committee under the Chairmanship of District Collector, Jaisalmer. It was averred that the wooden doors and the plaster work both have been introduced for the first time in the bu