SHIV DARSHAN SINGH versus RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS. on 9 July 2019

[2019] 9 S.C.R. 153

SHIV DARSHAN SINGH

v.

RAKESH TIWARI, DIRECTOR GENERAL,ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.

(Contempt Petition (Civil) No. 697 of 2017)

in

(Civil Appeal No. 2431 of 2006)

JULY 09, 2019

[UDAY UMESH LALIT AND INDIRA BANERJEE, JJ.]

Contempt of Court:

Civil contempt – Contempt petition – Alleging violation ofjudgment dated 16.1.2012 passed by Supreme Court – Constructionof multi-storey building by respondent Nos.4 and 5 (builders) afterdemolition of old structure on the subject land, pursuant to sanctionof plan by New Delhi Municipal Corporation (NDMC) –Subsequently NDMC stopped the on-going construction workdirecting to obtain requisite permission from Archaeological Surveyof India (ASI) as the subject plot being within 100 metres of ancientmonument Jantar Mantar, in view of Notification dated 5.5.1991,was a prohibited and regulated area for the purpose of mining andconstruction – Builders filed suit seeking injunction against NDMC– Suit was decreed – Appeal before Division Bench of High Court –Also a writ petition was filed in public interest for protection of themonument Jantar Mantar – Division Bench of High Court dismissedthe suit, but while dealing with the writ petition directed the CentralGovernment to review the Notification dated 15.5.1991 to considerwhether the stipulation of 100 meters prescribed by the notificationhad any scientific, pragmatic or logical basis – Appeal to SupremeCourt by ASI as well as the builder – Appeal of ASI was dismissedby judgment/order dated 16.1.2012 – It was made clear in thejudgment that in future Central Government or Director Generalnot to take any action or pass any order u/ss.20A(3) and 20C –After the judgment of Supreme Court, on the recommendations ofNational Monument Authority, ASI gave permission for renovationof the building in question which was later cancelled by ASI –

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AHowever, subsequently ASI, revived the permission for renovation– This gave rise to suit against the builders seeking permanentinjunction and to writ petition by the owner of the property(petitioner) – Suit as well as petition are pending – Contempt petitionbefore Supreme Court alleging non-compliance of its order dated16.1.2012 – Local inspection of the site conducted on the directionBof Supreme Court – Held: On the date when the matter wasconsidered and judgment was delivered, as per the spot panchnamadated 7.5.2003, the builders had completed the ground floor plusfour upper floors including two levels of basement and only finishingwork was yet to be completed – Supreme Court had passed no specificCdirection as to the status of structure or that the structure was to bepulled down or not – In the inspection held, after the contemptpetition was filed, no vertical or horizontal expansion of the buildingwas found as against what obtained in the year 2003 and onlyfinishing work was completed – The permissions granted forrenovation was also revoked even before filing of contempt petitionD– Therefore, it cannot be said that the authorities were in violationof the orders passed by Supreme Court – Hence the contempt petitionis closed.

Closing the Contempt Petition, the Court

Closing the Contempt Petition, the Court EHELD: 1. On the date when the matter was consideredand the Judgment was delivered by this Court, the structure asindicated in the Spot Panchnama dated 07.05.2003 was inexistence. In the local inspection held on 07.05.2003 it was foundthat Respondents 4 and 5 had structurally completed the groundfloor plus four upper floors including two levels of basementFhaving height of 61 ft and 6 inches from the ground level to theterrace level of the 4[th] floor. However, the finishing work in thelower basement, upper basement, ground floor, first, second, thirdand fourth floors as well as terrace was yet to be completed.Though the challenge raised by Respondents 4 and 5 wasGnegatived in the Judgment, no specific direction was passed asto the status of structure that was in existence on the date of theJudgment and whether that structure be pulled down or not.[Para 17] [178-F-H; 179-A]

2. As evident from the affidavit of the Chief Architect ofHNDMC and the inspection held on 09.10.2018, though there was no vertical or horizontal expansion of the building as against whatobtained in the year 2003, the building was found to be habitablein the inspection held on 09.10.2018 whereas it was not so in theyear 2003. The aforesaid affidavit further indicates that apartfrom cancellation of Sanction Plans on 27.01.2017, action in theform of a Show Cause Notice dated 07.09.2017 and Sealing Orderdated 09.09.2017 was undertaken by NDMC. [Para 17][179-B-C]

3. After the Judgment was passed by this Court, ASI hadinitially given permission for renovation/ repair of the structurethat was in existence, based on which appropriate permissionwas also granted by the NDMC. However, those permissionsnow stand revoked in terms of order dated 27.06.2016 i.e. evenbefore the filing of the present Contempt Petition. A Writ petitionfiled by Respondents 4 and 5 challenging said order dated27.06.2016 is still pending consideration by the High Court.[Para 18] [179-E-F]

4. The permissions by ASI and by NDMC were only forcompleting the finishing work of the existing building withoutany vertical or horizontal extension of the structure. Though theconcerned authorities ought to have been careful when the matterin that behalf was considered, since the challenge is pendingconsideration before the High Court, this Court is not inclinedto go into the matter. As this Court had not dealt with the matteras regards status of the construction which was in existence onthe day when the matter was considered by this Court, it wouldnot be possible in these proceedings to direct demolition of theexisting structure as is sought by contempt petitioners. Thedirection in the judgment (violation whereof is alleged) that theauthorities must not take any action or pass any order underSection 20A(3) and 20C of the Ancient Monuments andArchaeological Sites and Remains Act, 1958 except in accordancewith the observations made in the Judgment is definitely capableof being implemented. But, whether the permissions were rightlygranted or not and what is the affect of withdrawal or revocationof those permissions are the issues which must logically and infairness, be considered in the pending matters. In any event ofthe matter, with the passing of the order dated 27.06.2016 it cannot A

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Abe said that the authorities were in violation of the orders passedby this Court. Therefore, there is no reason to entertain thisContempt Petition any longer and the present Contempt Petitionis closed. [Para 19] [179-G-H; 180-A-D]

INHERENT JURISDICTION: Contempt Petition (Civil) No. 697Bof 2017 in Civil Appeal No.2431 of 2006

Petition filed for contempt of this Court’s Order dated 16.01.2012in Civil Appeal No. 2431 of 2006

Nidhesh Gupta, Parag Tripathi, Gourab Banerji, Sr. Advs.,Harvinder Singh, Ms. Japneet Kaur, Ms. Sampa Sangupta, Ms. VritiCGujral, Ms. Pallavi Singh (for Abhijit Sengupta), Aseem Chaturvedi (forV. C. Chaturvedi), Ms. Manisha Singh, Sahil Tagotra (for Prof. HimanshuPrabha Ray), Yoginder Handoo, Nishant Kumar, Prashant Bhatnagar,Gopal Shankar Narayanan, Jasmeet Singh, Ms. Bobby Anand, NamanJoshi, Hemant Jain, Ms. Ruhsheet J. Saluja, Ms. Sobha Gupta, Saif Ali,DMs. Vijay Lakshmi, Divjot Singh Bhatia, Neel Mani, Ajay Veer SinghJain, Ms. Mamta Jain, Uday Ram Bokadia, Ms. Divya Garg (for SonalJain), Annam D.N. Rao, A. Venkatesh, Rahul Mishra, Amber Sachdeva,Advs. for the appearing parties.

Pramod Sharma, A.E.,BP (NDMC)-in-person.EThe Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. This contempt petition, inter alia,seeks initiation of action against the Respondents for alleged violation ofthe judgment and order dated 16.01.2012 passed by this Court in CivilAppeal No.2431 of 2006 (‘the Judgment’, for short) and also seeks ordersFdirecting Respondent Nos.4 and 5 to demolish the structure raised bythem.

2. While dealing with an ancient monument popularly known asJantar Mantar in New Delhi, it was observed by this Court in the Judg-ment:-G

“7. Jantar Mantar, New Delhi is one of the five uniqueobservatories built between 1699 and 1743 by Maharaja Jai Singh(II) of Jaipur, who was a great Mathematician and Astronomer.The other observatories are at Jaipur, Ujjain, Varanasi and Mathura.Jantar Mantar, New Delhi, like other observatories has several H

instruments that can graph the path of the astronomical universe.There is a colossal Samrat Yantra at the periphery of JantarMantar. To the South of Samrat Yantra, there is an amazinginstrument called Jai Prakash, which has two concavehemispherical structures used for determining the position of theSun and celestial bodies. The other important yantras are MisraYantra, DaksinovarttiBhitti Yantra, KarkaRasivalaya, Niyat Cakra,Rama Yantra, Brhat Samrat and Sasthamsa Yantra. Unfortunately,some of these yantras have been rendered unworkable or havebecome non-functional. One of the main reasons for this is theconstruction of multistoried structures which have come up in thevicinity of Jantar Mantar in the last 25 to 30 years.”

3. In exercise of power conferred by Section 3(1) of theAncientMonuments Preservation Act, 1904 (7 of 1904), the Central Governmenthad issued Notification dated 04.10.1956 which was published in theGazette of India dated 13.10.1956, declaring Jantar Mantar, New Delhito be a “protected monument.”

4. The Ancient Monuments and Archaeological Sites and RemainsAct, 1958 (hereinafter referred to as ‘the Act’) was enacted to providefor the preservation of ancient and historical monuments andarchaeological sites and remains of national importance, for the regulationof archaeological excavationsand for the protection of sculptures,carvings and other like objects. The term ‘ancient monument’ is definedby Section 2(a) of the Act as under:

“2(a) “ancient monument” means any structure, erection ormonument, or any tumulus or place of interment, or any cave,rock, sculpture, inscription or monolith, which is of historical,archaeological or artistic interest and which has been in existencefor not less than one hundred years, and includes –

(i) the remains of an ancient monument,

(ii) the site of an ancient monument,

(iii) such portion of land adjoining the site of an ancientmonument as may be required for fencing or covering inor otherwise preserving such monument, and

(iv) the means of access to, and convenient inspection of anancient monument.”

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5. By virtue of Section 3 of the Act, all protected monumentsdeclared under the erstwhile statutory regime, were deemed to be ancientmonuments under the Act.Sub-Sections (1) and (2) of Section 38 of theActare as under:

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“38. Power to make rules.¯(1) The Central Government may,by notification in the Official Gazette and subject to the conditionof previous publication, make rules for carrying out the purposesof this Act.

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(2) In particular, and without prejudice to the generality of theforegoing power, such rules may provide for all or any of thefollowing matters, namely:¯

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(a) the prohibition or regulation by licensing or otherwise ofmining, quarrying, excavating, blasting or any operation of alike nature near a protected monument or the construction ofbuildings on land adjoining such monument and the removal ofunauthorised buildings; D

(b) the grant of licences and permissions to make excavationsfor archaeological purposes in protected areas, the authoritiesby whom, and the restrictions and conditions subject to which,such licences may be granted, the taking of securities fromlicensees and the fees that may be charged for such licences.

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(c) the right of access of the public to a protected monumentand the fee, if any, to be charged therefor; (ca) the categories of ancient monuments or archaeologicalsites and remains, declared as of national importance, underFsub-section (1) of section 4A; (cb) the manner of making application for grant of permissionunder sub-section (1) of section 20D;

(cc) the category of applications in respect of which thepermission may be granted and applications which shall bereferred to the Authority for its recommendation, under sub-section (2) of section 20D; G

(cd) the other matters including heritage controls such aselevations, facades, drainage systems, roads and service infrastructure (including electric poles, water and sewerpipelines) under sub-section (2) of section 20E; (ce)the manner of preparation of detailed site plans in respectof each prohibited area and regulated area and the time withinwhich such heritage bye-laws shall be prepared and particularsto be included in each such heritage bye-laws under sub-section(3) of section 20E; (cf) salaries and allowances payable to, and the other termsand conditions of service of, the whole-time Chairperson andwhole-time members, or fees or allowances payable to thepart-time members, of the Authority under sub-section (1) ofsection 20H; (cg)the form in which and time at which he Authority shallprepare an annual report giving full description of its activitiesfor the previous year under section 20P; (ch)the form and manner in which the Authority andcompetent authority shall furnish information to the CentralGovernment under Section 20Q; (d) the form and contents of the report of an archaeologicalofficer or a licensee under clause (a) of sub-section (1) ofsection 23; (e)the form in which applications for permission undersection 19 or section 25 may be made and the particulars whichthey should contain; (f)the form and manner of preferring appeals under thisAct and the time within which they may be preferred; (g)the manner of service of any order or notice under thisAct; (h)the manner in which excavations and other likeoperations for archaeological purposes may be carried on;

(i) any other matter which is to be or may be prescribed.”6. In exercise of power conferred by Section 38, the CentralGovernment enacted the Ancient Monuments and Archaeological Sites A

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Aand Remains Rules, 1959 (‘the Rules’, for short). Rules 31, 32 and 33of the Rules are to the following effect:

“31. Notice or intention to declare a prohibited or regulatedarea. – (1) Before declaring an area near or adjoining a protectedmonument to be a prohibited area or a regulated area for purposesof mining operation or construction or both, the Central Governmentshall, by notification in the Official Gazette, give one month’s noticeof its intention to do so, and a copy of such notification shall beaffixed in a conspicuous place near the area.

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(2) Every such notification shall specify the limits of the areawhich is to be so declared and shall also call for objection, if any,from interested persons.

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32. Declaration of prohibited or regulated area.- After theexpiry of one month from the date of the notification under rule31 and after considering the objections, if any, received within thesaid period, the Central Government may declare, by notificationin the Official Gazette, the area specified in the notification underrule 31, or any part of such area, to be a prohibited area, or, as thecase may be, a regulated area for purposes of mining operation orconstruction or both.

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33. Effect of declaration of prohibited or regulated area. –No person other than an archaeological officer shall undertakeany mining operation or any construction, - E

(a) in a prohibited, area, or

(b) in a regulated area except under and in accordance withFthe terms and conditions of licence granted by the Director-General.”

7. In terms of power conferred under Rule 31 of the Rules, theCentral Government issued a Notification dated 15.05.1991 which waspublished in the Gazette of India dated 25.05.1991 and gave notice ofGintention to declare an area of 100 meters from the protected limits andfurther beyond it upto 200 meters from the protected monument(s) asprohibited and regulated areas respectively. After considering objectionsand suggestions received from the general public, the Central Governmentissued Notification dated 16.06.1992 (“the Notification” for short) whichreads as under:-H

“DEPARTMENT OF CULTURE (Archaeological Survey ofIndia) New Delhi, the 16th June, 1992. (ARCHAEOLOGY)

S.O. 1764-Whereas by the notification of the Government of Indiain the Department of Culture, Archaeological Survey of India No.S.O. 1447 dated the 15th May, 1991 published in Gazette of India,Part-II Section 3 sub-section (ii) dated 25th May, 1991, the CentralGovernment gave one month’s notice of its intention to declarearea upto 100 metres from the protected limits, and further beyondit upto 200 meters near or adjoining protected monuments to beprohibited and regulated areas respectively for purposes of bothmining operation and construction.

And whereas the said Gazette was made available to the publicon the 5th June, 1991.

And whereas objections to the making of such declaration receivedfrom the person interested in the said areas have been consideredby the Central Government.

Now, therefore, in exercise of the powers conferred by Rule 32of the Ancient Monument and Archaeological sites and RemainsRules, 1959, the Central Government hereby declares the saidareas to be prohibited and regulated areas. This shall be in additionto and not in any way prejudice the similar declarations alreadymade in respect of monuments at Fatehpur Sikri; Mahabalipuram;Golconda Fort, Hyderabad (Andhra Pradesh); Thousands PillaredTemple, Hanamkonda, Distt. Warangal (Andhra Pradesh);Shershah’ Tomb, Sasaram (Bihar); Rock Edict of Ashoka, Kopbal,Distt. Raichur (Karnatka); Gomateshwara Statue at Sravanbelgola,District Hassan (Karnataka); Elephanta Caves, Gharapur, DistrictKolba (Maharashtra).”

8. By virtue of the Notification, areas of 100 and 200 metres fromthe ancient monument Jantar Mantar, New Delhi stood declared to beprohibited and regulated areas respectively for the purposes of miningand construction. The concept of “prohibited area” and “regulated area”got further elaborated by amendment to the Act effected in the year2010 defining these two expressions by Section 2(ha) and 2(l) respectivelyand by inserting Sections 20A to 20Q in the Act. Sections 2(ha), 2(l) and2(m) as well as Sections 20A and 20B were given retrospective effect AB

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Afrom the date of the Notification i.e. from 16.06.1992 while Sections20C to 20Q were inserted with effect from 29.03.2010. Sections 2(ha),(l), (m), 20A and 20B are as under:- “Section 2(ha) “prohibited area” means any area specified ordeclared to be a prohibited area under Section 20A.

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Section 2(l) “regulated area” means any area specified or declaredunder section 20B; Section 2(m) “repair and renovation” means alterations to a pre-existing structure or building, but shall not include construction orre-construction; C

20A. Declaration of prohibited area and carrying out publicwork or other works in prohibited area.¯Every area, beginningat the limit of the protected area or the protected monument, asthe case may be, and extending to a distance of one hundredmetres in all directions shall be the prohibited area in respect ofsuch protected area or protected monument:

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Provided that the Central Government may, on therecommendation of the Authority, by notification in the OfficialGazette, specify an area more than one hundred metres to be theprohibited area having regard to the classification of any protectedmonument or protected area, as the case may be, under section4A.

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(2) Save as otherwise provided in section 20C, no person,other than an archaeological officer, shall carry out any constructionin any prohibited area.

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(3) In a case where the Central Government or the Director-General, as the case may be, is satisfied that¯

(a) it is necessary or expedient for carrying out such publicwork or any project essential to the public; or (b) such other work or project, in its opinion; shall not haveany substantial adverse impact on the preservation, safety,security of, or, accessto, the monument or its immediatesurrounding, G

it or he may, notwithstanding anything contained in sub-section(2), in exceptional cases and having regard to the public interest, H

by order and for reasons to be recorded in writing, permit, suchpublic work or project essential to the public or other constructions,to be carried out in a prohibited area:

Provided that any area near any protected monument or itsadjoining area declared, during the period beginning on or afterthe 16th day of June, 1992 but ending before the date on whichthe Ancient Monuments and Archaeological Sites and Remains(Amendment and Validation) Bill, 2010, receives the assent of thePresident, as a prohibited area in respect of such protectedmonument, shall be deemed to be the prohibited area declared inrespect of that protected monument in accordance with theprovisions of this Act and any permission or licence granted bythe Central Government or the Director-General, as the case maybe, for the construction within the prohibited area on the basis ofthe recommendation of the Expert Advisory Committee, shall bedeemed to have been validly granted in accordance with theprovisions of this Act, as if this section had been in force at allmaterial times:

Provided further that nothing contained in the first provisoshall apply to any permission granted, subsequent to the completionof construction or re-construction of any building or structure inany prohibited area in pursuance of the notification of theGovernment of India in the Department of Culture (ArchaeologicalSurvey of India) number S.O. 1764, dated the 16th June, 1992issued under rule 34 of the Ancient Monuments and ArchaeologicalSites and Remains Rules, 1959, or, without having obtained therecommendations of the Committee constituted in pursuance ofthe order of the Government of India number 24/22/2006-M, datedthe 20th July, 2006 (subsequently referred to as the Expert AdvisoryCommittee in orders dated the 27th August, 2008 and the 5thMay, 2009).

(4) No permission, referred to in sub-section (3), including carryingout any public work or project essential to the public or otherconstructions, shall be granted in any prohibited area on and afterthe date on which the Ancient Monuments and ArchaeologicalSites and Remains (Amendment and Validation) Bill, 2010 receivesthe assent of the President.

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20B. Declaration of regulated area in respect of everyprotected monument.¯Every area, beginning at the limit ofprohibited area in respect of every ancient monument andarchaeological site and remains, declared as of national importanceunder sections 3 and 4 and extending to a distance of two hundredmetres in all directions shall be the regulated area in respect ofevery ancient monument and archaeological site and remains:

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Provided that the Central Government may, by notificationin the Official Gazette, specify an area more than two hundredmetres to be the regulated area having regard to the classificationof any protected monument or protected area, as the case maybe, under section 4A:

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Provided further that any area near any protected monumentor its adjoining area declared, during the period beginning on orafter the 16th day of June, 1992 but ending before the date onwhich the Ancient Monuments and Archaeological Sites andRemains (Amendment and Validation) Bill, 2010, receives theassent of the President, as a regulated area in respect of suchprotected monument, shall be deemed to be the regulated areadeclared in respect of that protected monument in accordancewith the provisions of this Act and any permission or licence grantedfor construction in such regulated area shall, be deemed to havebeen validly granted in accordance with the provisions of this Act,as if this section had been in force at all material times.”

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9. The effect of this statutory regime was considered in theJudgment and this Court had issued certain directions, which as per thisFContempt Petition have been violated by the Respondents.

10. However, before coming to the directions issued by theJudgment, the facts leading to the filing of this contempt petition, in brief,may be set out as under:- (a) On 25.07.1985 a Collaboration Agreement was entered intobetween the petitioner, owner of Plot No.14, Janpath Lane, NewDelhi (hereinafter referred to as “the subject plot”) andRespondent No.5– M/s Rawal Apartments Pvt. Ltd. for G

construction of a multi-storey building. A General Power ofAttorney was given to Respondent No.4 – Narender Anand,Director of Respondent No.5.

(b) On 21.07.2000, NDMC[1] – Respondent No.2 sanctioned theplans submitted by the Respondents 4 and 5 vide Scheme No.3351,whereafter the old building standing on the subject plot wasdemolished and the work for foundation for a new building to beerected on the subject plot was undertaken by RespondentNos. 4 and 5. While the construction work was in progress, aletter was issued by NDMC on 23.05.2001 requiring that theon-going construction work at the subject plot be immediatelystopped and directing the concerned persons to obtain requisitepermission from ASI[2] – Respondent No.1.

(c) This led to the filing of Civil Suit No.645 of 2002 byRespondent Nos.4 and 5 seeking injunction against NDMC, Lt.Governor and ASI that there be no interference with the on-goingconstruction. An interim order was passed by a Single Judge ofthe High Court on 22.03.2002 restraining NDMC from givingeffect to the letter dated 23.05.2001. That interim order wasmodified by the Single Judge on 31.05.2002. However, by furtherorder dated 30.10.2002, the earlier interim order dated 22.03.2002was made absolute and the later order dated 31.05.2002 wasrecalled. An appeal was preferred against the order dated30.10.2002 being FAO (OS) No.414 of 2002.

(d) Around this time, Writ Petition (C) No.2635 of 2002 was filedby Heritage and Culture Forum, in public interest seekingprotection of the ancient monument – Jantar Mantar. This writpetition was also taken up for hearing along with FAO (OS) No.414of 2002.

(e) The Division Bench of the High Court by its order dated23.07.2004 set aside the order issued by the Single Judge on30.10.2002. It was held that the subject plot was within 100meters of the ancient monument Jantar Mantar and in view of theNotification there was absolute prohibition against carrying on ofany building activity in the subject plot and the order dated 1New Delhi Municipal Corporation 2Archaeological Survey of India ABC

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A30.10.2002 passed by the Single Judge could not be sustained.While dealing with the writ petition and considering thesubmission whether the stipulation of 100 meters prescribed bythe Notification had any scientific, pragmatic or logical basis, theDivision Bench of the High Court directed the CentralGovernment to review said Notification in the light of theBdiscussion made in its judgment dated 23.07.2004.

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(f) The afore-mentioned judgment of the Division Bench was chal-lenged in this Court by ASI and by Respondent No.5 in Civil AppealNos.2430 and 2431 of 2006 respectively. While ASI had questioned thedirection of the Division Bench as regards the review of the Notifica-tion, Respondent No.5 had challenged that part of the judgment whichhad set aside the order passed by the Single Judge. The Judgment dealtwith both the appeals.The appeal of ASI was allowed while the appealpreferred by Respondent No.5 was dismissed by this Court.

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(g) The basic facts leading to the filing of appeal before theDSupreme Court were dealt with in the Judgment as under:

“12. Respondent Nos. 1 and 2, who own plot No. 14, JanpathLane submitted an application to the New Delhi MunicipalCorporation (for short, ‘the Corporation’) sometime in August 1986for sanction of the building plan for the construction of multistoriedcommercial building. The same was rejected vide letter dated15.9.1986 on the ground that the area was under comprehensivedevelopment and the details of redevelopment controls/drawings,if any, finalised by the Delhi Development Authority (for short,‘the DDA’) were not available with the Corporation. After about7 years, respondent Nos. 1 and 2 again submitted application dated24.6.1993 for sanction of the building plan. The DDA vide itsletter dated 1.10.1993 suggested to the Corporation that plot No.14, Janpath Lane formed part of redevelopment scheme and thebuilding plan should be approved as per the Development ControlNorms. The building plan was finally sanctioned by theCorporation sometime in September 2000 and was released on5.3.2001. Thereafter, respondent Nos. 1 and 2 demolished theexisting structure and started digging foundation for the newbuilding. On 5.5.2001, the Conservation Assistant of Archaeological E

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Survey of India lodged a complaint about the excavation andconstruction being undertaken by respondent Nos. 1 and 2 inviolation of the prohibition contained in notification dated 16.6.1992.The Superintending Archaeologist, Archaeological Survey of India,vide his letter dated 10.5.2001 informed the Corporation that thesanction given by it was contrary to notification dated 16.6.1992.Thereupon, the Corporation issued notice dated 23.5.2001 torespondent Nos. 1 and 2 and directed them to stop the constructionand obtain the requisite permission from the Archaeological Surveyof India.”

(h) The effect of newly introduced Sections 20A to 20F by wayof amendment was considered by this Court in the Judgment as under:- “29. … … In terms of Section 20A(2), it has been made clearthat no person other than an Archaeological Officer shall carryout any construction in any prohibited area. This is subject toSection 20C, which can be treated as an exception to Section20A(2). That section lays down that any person who owns anybuilding or structure, which existed in a prohibited area before16.6.1992 or had been subsequently constructed with the approvalof the Director General may carry out any repair or renovation ofsuch building or structure by making an application to the competentauthority. The term “renovation” appearing in Section 20C willtake its colour from the word “repair” appearing in that section.This would mean that in the garb of renovation, the owner of abuilding cannot demolish the existing structure and raise a newone and the competent authority cannot grant permission for suchreconstruction. Section 20A(3) lays down that the CentralGovernment or the Director General can, in exceptional casesand having regard to the public interest, pass a reasoned orderand permit a public work or any project essential to the public orother construction in a prohibited area provided that suchconstruction does not have substantial adverse impact on thepreservation, safety, security of, or access to the protectedmonuments or its immediate surrounding. The use of theexpression “such other work or project” in clause (b) of Section20A(3), if interpreted in isolation, may give an impression that the AB

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Central Government or the Director General is empowered toallow any other work or project by any person in the prohibitedarea but, in our view, the said expression has to be interpretedkeeping in view the mandate of Article 49 of the Constitution andthe objects sought to be achieved by enacting 1958 Act, i.e.preservation of ancient and historical monuments, archaeologicalsites and remains of national importance. This would necessarilyimply that ‘such other work or project’ must be in larger publicinterest in contrast to private interest. In other words, in exerciseof power under Section 20A(3), the Central Government or theDirector General cannot pass an order by employing the stock ofwords and phrases used in that section and permit any constructionby a private person de hors public interest. Any other interpretationof this provision would destroy the very object of the 1958 Actand the prohibition contained in notification dated 16.6.1992 andsub-section (1) of Section 20A would become redundant and wedo not think that this would be the correct interpretation of theamended provision. It also needs to be emphasised that publicinterest must be the core factor to be considered by the CentralGovernment or the Director General before allowing anyconstruction and in no case the construction should be allowed ifthe same adversely affects the ancient and historical monumentsor archaeological sites.”

(emphasis added)

(i) As regards the directions issued by the High Court with respectto review or reconsideration of the Notification,the Judgment observedas under:- “Therefore, in the name of development and accommodating theneed for multistoried structures, the High Court could not haveissued a mandamus to the Central Government to review/reconsider notification dated 16.6.1992 and that too by ignoringthat after independence large number of protected monumentshave been facing the threat of extinction and if effective stepsare not taken to check the same, these monuments may becomepart of history. One of such monument is Jantar Mantar, NewDelhi. Some of its instruments have become unworkable/non- functional. This is largely due to construction of multistoriedstructures around Jantar Mantar. Therefore, we have no hesitationto hold that the High Court was not justified in directing the CentralGovernment to review or reconsider notification dated 16.6.1992and, to that extent, the impugned judgment is liable to be set aside.We may add that with the insertion of Sections 20A and 20B, thedirection given by the High Court for review of notification dated16.6.1992 has become infructuous and the Government is no longerrequired to act upon the same.

(j) Finally the operative part of the Judgment stated was under:

“33. In the result, Civil Appeal No.2430 of 2006 is allowed andthe direction given by the Division Bench of the High Court forreview of notification dated 16.6.1992 is set aside. However, it ismade clear that in future the Central Government or the DirectorGeneral shall not take action or pass any order under Sections20A(3) and 20C except in accordance with the observations madein this judgment. Civil Appeal No. 2431 of 2006 is dismissed.The parties are left to bear their own costs.”

(emphasis added)

(k) Soon after the Judgment, on the recommendations of NMA[3],ASI gave permission for renovation/ repairs of the building standingat the subject plot by its order dated 16.12.2013. Thereafter, ChiefArchitect of NDMC by his letter dated 05.06.2014 releasedpermission to Respondent Nos.4 and 5.

(l) On 12.01.2015, the petitioner cancelled the Power of Attorneygiven in favour of Respondent No.4 by aregistered CancellationDeed and on his representations,ASI vide letter dated 06.04.2015cancelled the permission which was granted on 16.12.2013.However, by subsequent letter dated 01.07.2015 the permissionfor repairs/renovation was revived by ASI. This led to the filingof Civil Suit No.211 of 2015 in the Court of Additional DistrictJudge – 05, Patiala House Courts, New Delhi seeking reliefs ofmandatory and permanent injunction against Respondent Nos. 4and 5 and Writ Petition No.3425 of 2016 by the petitioner in theHigh Court of Delhi seeking directions against Respondent Nos.1

3 National Monument Authority

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Ato 3 to withdraw/revoke permission given to Respondent Nos.4and 5 and for direction to stop any work or construction in thesubject plot. The Suit as well as the Writ Petition are still pending.

(m) On 29.01.2016 a show cause notice was issued by NMA toRespondent Nos.4 and 5 as to why permission granted earlier onB16.12.2013 be not cancelled since the present construction on thesubject plot was neither existing on 16.06.1992 i.e. on the day theNotification was issued nor was such construction erected withthe approval of Director General, ASI. On 27.06.2016, NMA –cancelled the earlier permission dated 16.12.2013 on the groundthat it was erroneously granted.

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(n) Respondent Nos.4 and 5, therefore challenged the ShowCauseNotice dated 29.01.2016 as well as the order dated 27.06.2016passed by the NMA by filing Writ Petition (C) No.7018 of 2016. ThisWrit Petition is still pending consideration by the High Court.

D(o) The instant Contempt Petition was filed in this Court inDecember 2016submitting as under:- “12. That it is submitted that the order dated 31/05/2002 of Ld.Single Judge in Suit No.645/02, order dated 23/07/2004 of Ld.Division Bench in FAO 414/2002 and Hon’ble Supreme CourtEorder / judgment dated 16/01/2012 when read togethercategorically prohibits any building activity, leave alone buildingconstruction, at the suit premises in question. Further theconstruction, if any done by the builder/contemnor nos. 4 & 5 hasto be demolished upto DPC level since ultimately this Hon’bleCourt came to the conclusion that no building activity can takeFplace there.

13. That all the respondents/contemnors have willfully andvoluntarily disobeyed/defied the orders of the Ld. Division Bench upheldby this Hon’ble Court. The Contemnor/Respondent Nos. 1 to 3, whoare responsible officers of Govt. Department are willfully and deliberatelyGnot complying/implementing the orders/directions of this Hon’ble Courtand are liable to the punished as per Section 30-A and 30-C of theAMSAR Act, as amended in 2010 besides being liable for contempt.”

It was prayed:-

“a. issue contempt notices to the Contemnors; b. punish the Contemnors for committing the contempt of theCourt for willfully disobeying the order dated 16/01/2012 passedby this Hon’ble Court in CA No.2431/2006 titled as “NarenderAnand Vs. Archaeological Survey of India &Ors.”;

c. Issue orders to the Contemnor Nos. 1 to 5 to immediatelydemolish the unauthorized structure raised by the contemnor nos.4 & 5 since it is a settled law that the contemnor should not beallowed to enjoy or retain the fruits of his contempt as held by thisHon’ble Court in Delhi Development Authority Vs. SkipperConstruction Company (P) Ltd.;”

Notice was issued by this Court on 10.07.2017. Respondentsappeared and filed their responses.

11. On 24.09.2018 following order was passed by this Court:

“The Principal Secretary, New Delhi Municipal Council (NDMC)is directed to conduct a local inspection with notice to all the partiesand submit a report along with an affidavit to this Court as towhether Mr. Narender Anand (Respondent Nos.4 & 5) has doneany new construction based on the permission granted by theNational Monuments Authority and if so what is the construction,which has been so undertaken, in violation of the order of theDelhi High Court as upheld by this Court. This shall be done withinfour weeks from today.”

12. Accordingly, local inspection was conducted on 09.10.2018 inthe presence of the concerned parties and the consequential Reportprepared on 22.10.2018 made following observations:- “4. During inspection held on 09.10.2018, the entire building wasfound completely finished and status given below reflects the workcarried out after 05.06.2014 (when the plans were released forfinishing work on the basis of approval by NMA) in comparisonto the earlier status of construction observed duringPANCHNAMA held on 07.05.2003:

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[2019] 9 S.C.R.

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[2019] 9 S.C.R.

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SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERALARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]

176SUPREME COURT REPORTS[2019] 9 S.C.R.

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xivColoured photographs taken at the Coloured photographs time of Panchnama on 07.05.2003 taken during the are enclosed at Annexure ‘R-14’. inspection on 09.10.2018 are enclosed at Annexure ‘R-15’. BColoured photographs of the building prior to building plan sanction on 05.03.2001, as Cavailable in the file records of Architect Department, are enclosed at Annexure ‘R-16.

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13. An affidavit was thereafter filed by the Chief Architect ofNDMC enclosing the aforesaid Report. The affidavit asserted:- “7. It is pertinent to mention that previously the Hon’ble HighCourt of Delhi vide order dated 02.05.2003 passed in FAO(OS)No.414/2002 had been pleased to stay the construction activitiesEat the premises and had directed NDMC and Archeological Surveyof India (ASI) to inspect the premises. Pursuant to this order, thepremises had been inspected and a panchnama was drawn07.05.2003 wherein it has been recorded that two basement +ground floor + four upper floors having height of 61’6" from theFground level to the terrace level of the 4[th] floor had been completed.

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8. That the building was not habitable at the time of preparation ofPanchnama on 07.05.2003. However, during the inspectionundertaken on 09.10.2018, it was observed that the building wasfound habitable. While the whole building was illegal afterjudgment dated 16.01.2012 in Civil Appeal No.2431 of 2006 bythis Hon’ble Court, however, even at the time of Panchnama on07.05.2003 the height of the building was found 61 ft 6 inches incontravention to the 55ft height allowed by Hon’ble High Courtvide its order dated 22.03.2002 in CS(OS) No.645/2002.

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9. That the construction of the building itself having been held tobe illegal by this Hon’ble Court vide its order dated 16.01.2012,the same being within 100 metres of the prohibited area of aprotected monument, no construction activity was permissible inthe said parcel of the land in question and the entire building isliable to be demolished and accordingly NDMC had revoked/cancelled the sanction plans on 27.01.2017. Further NDMC hasalready issued a Show Cause Notice u/s 247 of NDMC Act on07.09.2017 and passed a sealing order u/s 250(I) on 09.09.2017.The SCN and order issued by NDMC has been challenged byNarender Anand (Respondent Nos.4 & 5) by filing an applicationin W.P.(C) 7018/2016 before the Hon’ble High Court of Delhi.The Hon’ble High Court of Delhi vide order dated 11.09.2017 hasrestrained the NDMC from taking any action on the said propertyin question and stayed the Show Cause Notice issued by NDMCdated 07.09.2017. The stay order dated 11.09.2017 is stillcontinuing and the next date of hearing before the Hon’ble HighCourt of Delhi is 01.11.2018.”

14. During the course of hearing of this Contempt Petition on23.01.2019, certain developments and factual aspects came to light onperusal of the files. It appeared that though some queries were madeand doubts were raised by the Legal Advisor of NDMC in his notingdated 11.03.2014, those queries were not dealt with and yet permissionwas granted by NDMC. Notices were therefore issued to certain officialsincluding the then Chairperson and Member Secretary of NMA to explainthe circumstances in which permission to go ahead with reconstruction/repairing was granted by them. Notice was also issued to the competentauthority of ASI to explain his role in the entire matter. Appropriateresponses were thereafter filed by the concerned noticees. It is notnecessary to deal with every single response but suffice it to say that thefactual development leading to the letter dated 05.06.2014 by ChiefArchitect of NDMC releasing Sanctioned Plans for finishing the existingbuilding as per approved drawings by NMA/ASI, were dealt with indetail in the affidavit by the Deputy Chief Architect, NDMC filed in thisCourt on 19.02.2019.

15. We heard Mr. Nidhesh Gupta, learned Senior Advocate forthe contempt petitioner, Mr. YogenderHandoo, learned Advocate for A

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ANDMC Respondent No.2, Mr. Gopal Shankar Narayanan, learnedSenior Advocate for Respondents 4 and 5, Mr. ADN Rao, learnedAdvocate for ASI and NMA and Mr. Parag P. Tripathi, learned SeniorAdvocate and Mr. Gourab Banerji, learned Senior Advocate for someof the other noticees.

B16. This Contempt Petition principally prays for an appropriatedirection that the structure in existence at the site or in the subject plotbe demolished and submits that action be taken against the allegedcontemnors for violation of the directions issued in the Judgment. In itsparagraph 29, the Judgment laid down “This would mean that in thegarb of renovation, the owner of a building cannot demolish theCexisting structure and raise a new one and the competent authoritycannot grant permission for such reconstruction. …… In otherwords, in exercise of power under Section 20A(3), the CentralGovernment or the Director General cannot pass an order byemploying the stock of words and phrases used in that section and Dpermit any construction by a private person de hors public interest.

…… “.

Having laid down the principles of law, in its operative part, theJudgment directed, “… … in future the Central Government or theDirector General shall not take action or pass any order underESections 20A(3) and 20C except in accordance with the observationsmade in this judgment.”

17. The facts on record need to be considered in the light of theprinciples so laid down and the direction so issued, to see if any action inexercise of Contempt Jurisdiction is called for.

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FIt is clear from the record that as on the date when the matterwas considered and the Judgment was delivered by this Court, thestructure as indicated in the Spot Panchnama dated 07.05.2003 was inexistence. In the local inspection held on 07.05.2003 it was found thatRespondents 4 and 5 had structurally completed the ground floor plusGfour upper floors including two levels of basement having height of 61 ftand 6 inches from the ground level to the terrace level of the 4[th] floor.However, the finishing work in the lower basement, upper basement,ground floor, first, second, third and fourth floor as well as terrace wasyet to be completed. Though the challenge raised by Respondents 4 and 5 was negatived in the Judgment, no specific direction was passed as tothe status of structure that was in existence on the date of the Judgmentand whether that structure be pulled down or not.

As evident from the affidavit of the Chief Architect of NDMCand the inspection held on 09.10.2018, though there was no vertical orhorizontal expansion of the building as against what obtained in the year2003, the building was found to be habitable in the inspection held on09.10.2018 whereas it was not so in the year 2003. The aforesaid affidavitfurther indicates that apart from cancellation of Sanction Plans on27.01.2017, action in the form of a Show Cause Notice dated 07.09.2017and Sealing Order dated 09.09.2017 was undertaken by NDMC, whicharesubject matter of challenge in Writ Petition (Civil) No. 7018 of 2016.

18. It is true that though no specific directions regarding demolitionof the structure that was in existence as on that date were passed in thejudgment, the authorities were directed not to take any action or passany order under Section 20A(3) and 20C of the Act except in accordancewith the observations made in the judgment. The basic submission ofthe petitioner in the contempt petition, however, is that the cumulativeeffect of all the proceedings including the Judgment passed by this Courtwould mean that the structure in existence has to be demolished andsince no action in that behalf has been taken or initiated, the concernedauthorities are guilty of contempt.

After the Judgment was passed by this Court, ASI had initiallygiven permission for renovation/ repair of the structure that was inexistence, based on which appropriate permission was also granted bythe NDMC. However, those permissions now stand revoked in termsof order dated 27.06.2016 i.e. even before the filing of the presentContempt Petition. A Writ petition filed by Respondents 4 and 5challenging said order dated 27.06.2016 is still pending consideration bythe High Court.

19. In the backdrop of these facts, we have gone through therecord and the notings in the file pursuant to which the aforesaidpermissions were granted by ASI on 16.12.2013 and by NDMC on05.06.2014. The permissions were only for completing the finishingwork of the existing building without any vertical or horizontal extensionof the structure. Though the concerned authorities ought to have beencareful when the matter in that behalf was considered, since the challenge A

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Ais pending consideration before the High Court, we refrain from goinginto the matter. For the present purposes what is crucial to consider iswhether any express direction issued by this Court in the present matterstood violated or not. As this Court had not dealt with the matter asregards status of the construction which was in existence on the daywhen the matter was considered by this Court, it would not be possibleBin these proceedings to direct demolition of the existing structure as issought to be submitted on behalf of the contempt petitioners. Thedirection that the authorities must not take any action or pass any orderunder Section 20A(3) and 20C of the Act except in accordance with theobservations made in the Judgment is definitely capable of beingCimplemented. But,whether the permissions were rightly granted or notand what is the affect of withdrawal or revocation of those permissionsare the issues which must logically and in fairness, be considered in thepending matters. In any event of the matter, with the passing of theorder dated 27.06.2016 it cannot be said that the authorities were inviolation of the orders passed by this Court. We, therefore, see no reasonDto entertain this Contempt Petition any longer and the present ContemptPetition is closed.

20. We, however, request the High Court to dispose of all pendingmatters as expeditiously as possible and preferably within six months inthe light of the law declared by this Court in the Judgment. We make itEclear that we have considered the matter only from the perspectivewhether contempt has been made out or not and leave all the issuesincluding status of the structure in existence in the subject plot and whetherthat structure needs to be demolished or not to be decided in the pendingmatters.

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Kalpana K. Tripathy

Contempt Petition closed.

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