Supreme Court of India
ARCHAEOLOGICAL SURVEY OF INDIAversusNARENDER ANAND AND OTHERS
- Citation
- 2012 INSC 30
- Decided
- 16 January 2012
- Disposal
- Disposed off
- Bench
- G S SINGHVI
Holding
The 1992 notification creating a 100‑metre prohibited area around Jantar Mantar is valid, its distance is measured from the outer boundary wall, and private construction in that area is permissible only if it serves a larger public interest; the High Court’s order to review the notification is set aside.
Summary
The Supreme Court examined whether Jantar Mantar, New Delhi, is a protected monument and whether the 1992 notification declaring a 100‑metre prohibited area around it applies to a plot where the respondents sought to construct a multistoried building. The Court held that the 1956 notification declaring Jantar Mantar a protected monument remains effective, the 1992 prohibition is valid and the distance must be measured from the outer boundary wall of the protected area. It interpreted the 2010 amendment to the Ancient Monuments Act, concluding that ‘renovation’ is limited to repair and that private construction can be permitted only if it serves a larger public interest, not merely private gain. The Court also rejected the High Court’s direction to review the 1992 notification, stating that the Act and Article 49 mandate preservation of monuments over developmental interests. Consequently, the appeal by the Archaeological Survey of India was allowed and the High Court’s order for review was set aside.
Issues considered
- The legal status of Jantar Mantar as a protected monument under the 1904 and 1958 Acts
- Whether the 16 June 1992 notification declaring a prohibited area around Jantar Mantar is valid and applicable to plot No. 14, Janpath Lane
- How the distance for the prohibited area is to be measured – from the outer boundary wall or from the structures
- The effect of the 2010 amendment (sections 20A, 20C, 20F, 208) on the scope of ‘renovation’ and on private construction in prohibited areas
- Whether the High Court could direct the Central Government to review the 1992 notification
- The relationship between the Delhi Development Authority Act, 1957 and the Ancient Monuments Act, 1958
- The validity of the 3 May 1957 notification that was not published in the Official Gazette
Legislation cited
- Ancient Monuments and Archaeological Sites and Remains Act, 1958s. 19, s. 2, s. 208, s. 20A, s. 20C, s. 20F, s. 3, s. 39
- Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010s. 208, s. 20A, s. 20C, s. 20F
- Ancient Monuments and Archaeological Sites and Remains Rules, 1959s. Rule 31, s. Rule 32, s. Rule 33
- Ancient Monuments Preservation Act, 1904s. 3, s. 39
- Constitution of Indias. Article 49
- Delhi Development Authority Act, 1957
Subjects
protected monumentprohibited arearenovationpublic interestArticle 49Ancient Monuments ActJantar Mantarconstruction restrictionheritage preservationpublic interest litigation
Judgment
[2012] 1 S.C.R. 260
A ARCHAEOLOGICAL SURVEY OF INDIA
v.
NARENDER ANAND AND OTHERS
(Civil Appeal No. 2430 of 2006)
JANUARY 16, 2012
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Ancient Monuments and Archaeological Sites and
Remains Act, 1958:
c
ss. 20"A, 20-B, 20-C and 20-Q (as inserted by
Amendment Act, 2010) rlw Notification dated 16.6.1992 -
Protected monuments - Janter Manter - Carrying out
construction works in prohibited area - He/d:The term
D "renovation" appearing in s. 20C will take its colour from the
word "repair" appearing in that section - In the garb of
renovation, the owner of a building cannot demolish the
existing structure and raise a new one and the competent
authority cannot grant permission for such reconstruction -
The use of the expression "such other work or project" in
E clause (b) of s. 20A(3) has to be interpreted keeping in view
the mandate of Article 49 of the Constitution and the objects
of the Act, i.e. preservation of ancient and historical
monuments, archaeological sites and remains of national
importance - Thus, 'such other work or project' must be in
F larger public interest in contrast to private interest and any
construction by a private person de hors public interest
cannot be permitted - In future, Central Government or the
Director General shall not pass any order except in
accordance with the observations made in the judgment -
G Constitution of India, 1950 - Article 49 - Ancient Monuments
and Archaeological Sites and Remains (Amendment and
Validation) Act, 2010 - Public interest litigation.
H 260
ARCHAEOLOGICAL SURVEY OF INDIA v. 261
NARENDER ANAND & ORS.
Ancient Monuments and Aichaeo/ogica/ Sites and A
Remains Rules, 1959:
r.32 - Ancient monument - Protected limits - Prohibition
contained in notification dated 16.6. 1992 - HELD: The
distance of 100 meters has to be counted from the outer 8
boundary wall of Jantar Mantar, which has the protected area
of 5.39 acres, and not from the physical structures of the
observatory - Ancient Monuments Preservation Act, 1904 -
s.3.
Jan.tar Mantar, New Delhi was declared as a C
protected monument as per. Notification dated 4.10.1956,
issued by the Central Government in terms of s.3(1) of the
Ancient Monuments P;eservation Act, 1904, which was
published ·in the Gazette of India dated 13.10.1956. By a
subsequent Notification dated 3.5.1957, the Government D
of Rajasthan was shown as owner of Jantar Mantar. In
exercise of the power under r. 32 of the Ancient
Monuments and Archaeological Sites and Remains Rules,
1959, the Central Government issue~ Notification dated
16.6.1992, duly published in the official Gazette, declaring E
an area of 100 meters fram the protected limits and
further beyond it upto 200 meters near or adjoining
protected monuments to be prohibited and regulated
areas. When respondefl~ nos. 1 and 2 demolished the
existing structure on plot No.14, Janpath Lane (the plot F
in question) and started digging foundation for the new
building, the Conservation Assistant of Archaeological
Survey of India lodged a complaint on 5.5.2001. The
Corporation issued notice dated 23.5.2001 to respondent
nos. 1 and 2 and directed them to stop the construction G
and obtain the requisite permission from the
Archaeological Survey of India. Respondent nos. 1 and
2 challenged the letter of the Corporation in Suit No. 645
of 2002. The Single Judge of the High Court passed an
H
262 SUPREME COURT REPORTS [2012f 1 S.C.R.
A ex parte injunction restraining the Corporation from
giving effect to the letter dated 23.5.2001 subject to the
condition that respondent nos. 1 and 2 would furnish an
undertaking that they would raise construction up to the
height of 55 feet only. During the pendency of the appeal
B filed against the order of the Single Judge, the Heritage
and Culture Forum, Delhi filed Writ Petition No.2635 of
2002 by way of public interest litigation and prayed for a
mandamus to stop the construction of multistoried
building on the plot in question. The Division Bench of
c the High Court vacated the order of injunction passed by
the Single Judge but directed the Central Government to
review the Notification dated 16.6.1992.
Disposing of the appeals, the Court
D HELD: 1.1. The Ancient Monuments and
Archaeological Sites and Remains Act, 1958 was
, amended by the Ancient Monuments and Archaeological
Sites and Remains (Amendment and Validation) Act, 2010
and ss. 20A and 208 were inserted with effect from
E 16.6.1992 and ss. 20C to 20Q were inserted with effect
from 29.3.2010. In terms of s. 20A(2), it has been made
clear that no person other than an Archaeological Officer
shall carry out any construction in any prohibited area.
This is subject to s.20C, which can be treated as an
F exception to s. 20A(2). That section lays down that any
person who owns a.1y building or structure, which
existed in a prohibited area before 16.6.1992 or had been
subsequently constructed with the approval of the
Director General, may carry out any repair or renovation
G of such building or structure by making an application to
the competent authority. The term "renovation" appearing
in s. 20C will take its colour from the word "repair"
appearing in that section. This would mean that in the
garb of renovation, the owner of a building cannot
H
ARCHAEOLOGICAL SURVEY OF INDIA v. 263
NARENDER ANAND & ORS.
demolish the existing structure and raise a new one and A
the competent authority cannot grant permission for such
reconstruction. The use of the expression "such other
work or project" in clause (b) of s. 20A(3) has to be'
interpreted keeping in view the mandate of Article 49 of
the Constitution and the objects sought to be achieved B
by enacting 1958 Act, i.e. preservation of ancient and
historical monuments, archaeological sites and remains
of national importance. This would necessarily imply that
'such other work or project' must be in larger public
interest in contrast to private interest. Thus, in exercise c
of power u/s 20A(3), the Central Government or the
Director General cannot pass an order by employing the
stock of words and phrases used in that section and
permit any construction by a private person de hors
public interest. It also needs to be emphasized that public 0
interest must be the core factor to be considered by the
Central Government or the Director General before
/allowing any construction and .in no case the
construction should be allowed if the same adversely
affects the ancient and historical monuments or E
archaeological sites. [para 28-..!9) [285-F-H; 286-A; 290-A-
H; 291-A-H; 292-A-B]
1.2. Notification dated 16.6.1992 was issued by the
Central Government for implementing the policy
enshrined in Article 49 of the Constitution and the 1958 F
Act. Section 19 of the 1958 Act contains a restriction
against construction of any building within the protected
area or carrying out of any mining, quarring, excavating,
blasting or any other operation of similar nature in such
area. Rules 31 and 32 of the Ancient Monuments and G
Archaeological Sites and Remains Rules, 1959, empower
the Central Government to declare an area near or
adjoining a protected monument to be a prohibited area
or a regulated area for the purposes of mining operation
H
264 SUPREME COURT REPORTS (2012] 1 S.C.R.
A or construction. The Central Government must have
issued notification dated 16.6.1992 after consulting
experts !n the field and keeping in view the object of the
1958 Act. Therefore, in the name of development and
accommodating the need for multistoried structures, the
B High Court could not have issued a mandamu.s to the
Central Government to review/reconsider the Notification
dated 16.6.1992 and that too by ignoring that after the
independence, a large number'of protected monuments
have been facing the threat of extinction and if effective
c steps are not taken to check the same, these monuments
may become part of history. One of such monument is
Jantar Mantar, New Delhi. Some of its instruments have
become unworkable/ non functional. This is largely due
to construction of multistoried structures around Jantar
0 Mantar. Therefore, the High Court was not justified in
directing the Central Government to review or reconsider
Notification dated 16.6.1992. [para 30] [292-C-H; 293-A-C]
1.3. Further, with the insertion of ss. 20A and 208, the
direction given by the High Court for review of
E notification dated 16.6.1992 has become infructuous and
the Government is no longer required to act upon the
same. [para 30) [293-C-D]
1.4. The High Court has rightly held that even though
F the notification dated 3.5.1957 did not become effective
because the same was not published in the Official
Gazette, the earlier notification issued on 4.10.1956
remained effective and the same was saved by s.39(2) of
the 1958 Act. [para 31] [293-E]
G
1.5. The High Court's interpretation of the prohibition
contained in notification dated 16.6.1992 is correct and
the distance of 100 meters has to be counted from the
outer boundary wall of Jantar Mantar which has
H protected area of 5.39 acres and not the physical
ARCHAEOLOGICAL SURVEY OF INDIA v. 265
NARENDER ANAND & ORS.
structures of the observatory. The High Court has rightly A
rejected the plea of respondent nos.1 and 2 that tlie
provisions of the DOA Act would prevail over those
contained in the 1958 Act. [para 31] [293-F-H]
1.6. The direction given by the Division Bench of the B
High Court for review of notification dated 16.6.1992 is set
aside. However, it is made clear that in future the Central
Government or the Director General shall not take action
or pass any order u/s 20A (3) and 20C except in
accordance with the observations made in this judgment. C
[para 33] [294-C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2430 of 2006.
From the Judgment & Order dated 23. 7.2004 of the High D
Court of Delhi at New Delhi in F.A.O.(OS) No. 414 of 2002 and
W.P. (C) No. 2635 of 2002.
WITH
C.A. No. 2431 of 2006. E
Mohan Parasaran, H.P. Raval, ASG, A. Mariarputham, J.S.
Attri, Ashok Bhan, Shweta Verma, Asha G. Nair, Pradeep
Kumar Bakshi, Rajat N. Bohra Anand, Anjani Aiyagiri, Pawan
Bindra, Kavita Wadia, Vishnu B. Saharya (for Saharya & Co) F
Ravindra Kumar for the appearing parties.
The Judgment of the Court was delivered by
G. S. SINGHVI, J. 1. These appeals are directed against
the judgment of the Division Bench of the Delhi High Court G
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 H
266 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 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 constructior. up to the height of 55 feet on plot No.14,
Janpath Lane, New Delhi was set aside and Writ Petition
B 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').
c
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
D 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
E 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
F 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
G 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
H the abolition of the Archaeological Survey in 1866, this work
ARCHAEOLOGICAL SURVEY OF INDIA v. 267
NARENDER ANAND & ORS. [G.S. SINGHVI, J.)
came to a grinding halt. In the meanwhile, an Act was passed A
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 B
Ancient Monuments Preservation Act, 1904 (for short, 'the
1904 Act') was enacted for the preservation of ancient
monuments and objects cf 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 c
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.-
D
(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- E
(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
F
or otherwise preserving such monument; and
(c) the means of access to and convenient inspection of
an ancient monument:
**** G
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
meaning of this Act.
H
268 SUPREME COURT REPORTS [2012] 1 S.C.R.
A (2) A copy of every notification published under sub-section
(1) shall be fixed up in a conspicuous place on or near the
monument, together with an intimation that any objections
to the issue of the notification received by Central
Government within one month from the date when it is so
B fixed up will be taken into consideration.
(3) On the expiry of the said period of one month, the
Central Government, after considering the objections, if
any, shall confirm or withdraw the notification.
C (4) A notification published under this section shall, unless
and until it is withdrawn, be conclusive evidence of the fact
that the monument to which it relates is an ancient
monument within the meaning of this Act."
o 4. The framers of the Constitution were very much
conscious of the need of protecting the monuments and places/
objects of artistic and historic importance. This is why Article
49 was incorporated in the Directive Principles of State Policy
(Part IV of the Constitution) whereby an obligation has been
E imposed on the State to protect every monument or place or
object of artistic or historic interest ·declared by or under law
made by Parliament. For the sake of reference Article 49 is
reproduced below:
"49. Protection of monuments and places and objects of
F national importance. - It shall be the obligation of the State
to protect every monument or place or object of artistic or
historic interest, declared by or under law made by
Parliament to be of national importance, from spoilation,
disfigurement, destruction, removal, disposal or export, as
G the case may be."
5. In 1951, Parliament enacted the Ancient and Historical
Monuments and Archaeological Sites and Remains
(Declaration of National Importance) Act, 1951, whereby
H
ARCHAEOLOGICAL SURVEY OF INDIA v. 269
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
certain monuments etc. were declared to be of national A
importance. After 7 years, Parliament enacted the Ancient
Monuments and Archaeological Sites and Remains Act, 1958
(for short, 'the 1958 Act') to provide for the preservation of
ancient and historical monuments and archaeological sites and
remains of national importance, for the regulation of B
archaeological excavations and for the protection of sculptures,
carvings and other like objects. Similar legislations have been
enacted by various State legislatures with reference to entry 12
List 11 of the Seventh Schedule of the Constitution. The definition
of "ancient monument" contained in Section 2(a) and Sections C
3, 4, 38(1), (2)(a) and (b) and 39 of the 1958
Act, which are relevant for deciding the issues raised in these
appeals are reproduced below:
"2. Definitions. - In this Act, unless the context otherwise 0
req·uires,-
(a) "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 and which has E
been in existence for not less than 100 years, and
includes-
(i) the remains of an ancient monument,
F
(ii) the site of an ancient monument,
(iii) 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 G
(iv) the means of access to, and convenient inspection
of an ancient monument;
**** H
270 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 3. Certain ancient monuments, etc., deemed to be of
national importance. - All ancient and historical
monuments and all archaeological sites and remains
which have been declared by the Ancient and Historical
Monuments and Archaeological Sites and Remains
B {Declaration of National Importance) Act, 1951 {71 of
1951), or by section 126 of the States Reorganisation Act,
1956 {37 of 1956), to be ofnational importance shall be
deemed to be ancient and historical monuments or
archaeological sites and remains declared to be of
c national importance for the purposes of this Act.
4. Power of Central Government to declare ancient
monument, etc., to be of national importance. - (1) Where
the Central Government is of opinion that any ancient
D monument or archaeological site and remains not included
in section 3 is of national importance, it may, by
notification in the Official Gazette, give two months· notice
of its intention to declare such ancient monument or
archaeological site and remains to be of national
importance; and a copy of every such notification shall be
E
affixed in a conspicuous place near the monument or site
and remains, as the case may be.
(2) Any person interested in any such a11cient monument
or archaeological site and remains may, within two months
F after the issue of the notification, objects to the declaration
of the monument, or the archaeological site and remains,
to be of national importance.
(3) On the expiry of the said period of two months, the
G Central Government may, after considering the objections,
if any, received by it, declare by notification in the Official
Gazette, the ancient monument or the archaeological site
and remains, as the case my be, to be of national
importance.
H
ARCHAEOLOGICAL SURVEY OF INDIA v. 271
NARENDER ANAND & ORS. [G.S. SINGHVI, J.)
(4) A notification published under sub-section (3) shall, A
unless and until it is withdrawn, be conclusive evidence of
the fact that the ancient monument or archaeological site
and remains to which it relates is of national importance
for the purposes of this Act.
B
38. Power to make rules.-(1) The Central Government
may, by notification in the Official Gazette and subject to
the condition of previous publication, mak~ rule for carrying
out the purposes of this Act.
(2) In particular, and without prejudice to the generality of C
the foregoing power, such rules may provide for all or any
of the following matters, namely:-
(a) the prohibition or regulation by licensing or otherwise
of mining, quarrying, excavating, blasting or any operation D
of a like nature near a protected monument or the
construction of buildings on land adjoining such monument
and the removal of unauthorised buildings;
(b) the grant of licences and permissions to make E
excavations for archaeological purposes in protected
areas, the authorities by whom, and the restrictions and
conditions subject to which, such licences may be granted,
the taking of securities from licensees and the fees that
may be charged for such licences. F
39. Repeals and saving. - (1) The Ancient and Historical
Monuments and Archaeological Sites and Remains
(Declaration of National Importance) Act, 1951 (71 of
1951), and section 126 of the States Reorganisation Act,
1956 (37 of 1956), are hereby repealed. G
(2) The Ancient Monuments Preservation Act. 1904 (7 of
1904), shall cease to have effect in relation to ancient and
historical monuments and archaeological sites and
remains declared by or under this Act to be of national H
272 SUPREME COURT REPORTS [2012] 1 S.C.R.
A importance, except as respects things done or omitted to
be done before the commencement of this Act."
6. In exercise of the power vested in it under Section 38
of the 1958 Act, the Central Government enacted the Rules, the
relevant provision_s whereof are extracted below: ·
B
"31. Notice or intention to declare a prohibited or
regulated area.- (1) Before declaring an area near or
adjoining a protected monument to be a prohibited area
or a regulated area for purposes of mining operation or
c construction or both, the Central Government shall, by
·notification in the Official Gazette, give one month's notice
of its intention to do so, and a copy of such notification
shall be affixed in a conspicuous place near the area.
D (2) Every such notification shall specify the limits of the
area which is to be so declared and shall also call for
objection, if any, from interested persons.
32. Declaration of prohibited or regulated area. - After
the expiry of one month from the date of the notification
E under rule 31 and after considering the objections, if any,
received within the said period, the Central Government
may declare, by notification in the Official Gazette, the area
specified in the notification under rule 31, or any part of
such area, to be a prohibited area, or, as the case may
F be, a regulated area for purposes of mining operation or
construction or both.
33. Effect of declaration of prohibited or regulated area.-
No person other than an archaeological officer shall
G undertake any mining operation or any construction, -
(a) in a prohibited, area, or
(b) in a regulated area except under and in accordance
with the terms and conditions of a licence granted by the
H Director- General."
ARCHAEOLOGICAL SURVEY OF INDIA v. 273
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
7. Jantar Mantar, New Delhi is one of the five unique A
observatories built between 1699 and 1743 by Majaraja Jai
Singh (II) of Jaipur, who was a great Mathematician and
Astronomer. The other observatories are at Jaipur, Ujjain,
Varanasi and Mathura. Jantar Maniar, New Delhi, like other
observatories has several instruments that can graph the path B
of the astronomical universe. There is a colossal Samrat Yantra
at the periphery of Jantar Mantar. To the South of Samrat
Yantra, there is an amazing instrument called Jai Prakash,
which has two concave hemispherical structures used for
determining the position of the Sun and celestial bodies. The C
other important yantras are Misra Yanira, Daksinovartti Bhitti
Yantra, Karka Rasivalaya, Niyat Cakra, Rama Yantra, Brhat
Samrat and Sasthamsa Yantra. Unfortunately, some of these
yantras have been rendered unworkable or have become non-
functional. One of the main reasons for this is the construction D
of multistoried structures which have come up in the vicinity of
Jantar Mantar in the last 25 to 30 years.
8. In exercise of the powers conferred by Section 3( 1) of
the 1904 Act, the Central Government issued notification dated E
4.10.1956, which was published in the Gazette of India dated
13.10.1956, declaring Jantar Maniar, New Delhi to be a
protected monument. That notification reads as under:
"MINISTRY OF EDUCATION
F
ARCHAEOLOGY
New Delhi, the 4th October 1956
S.R.O. 2306. - In exercise of the powers conferred by sub-
section (1) of Section 3 of the Ancient Monuments G
Preservation Act, 1904 (7 of 1904), the Central
Government hereby declares· the ancient monument
described in the Schedule annexed hereto to be a
protected monument within the meaning of the . .
said Act.
H
274 SUPREME COURT REPORTS [2012] 1 S.C.R.
A SCHEDULE
SI. Dist- Loe- Name Area Boundary: Whe- Owner- Rem-
No. rict ality of East, thef ship arks
Monu- South, religi-
ment North, ous
West use
B
Delh New Jantar Prot- South: No Maharaja
Delhi Maniar ected South of Jaipur
area India
5.39 Club,
9, Jantar
c Maniar
Road
East: Low
Land with
a modern
temple &
D well
West:
Jantar
Mantar
Road
North-East:
E Partap
Singh
Building
North-West:
Parliament
F Street
[No.F-3-76/50-C-1]
D. CHAKRAVARTI
Under Secretary"
G 9. With a view to correct an obvious mistake committed
by showing Maharaja of Jaipur as the owner of Jantar Mantar
in the Schedule of the aforesaid notification, the Central
Government issued notification dated 3.5.1957 under Section
3(1) of the 1904 Act, which reads as under:
H
'
ARCHAEOLOGICAL SURVEY OF INDIA v. 275
l\JARENDER ANAND & ORS. [G.S. SINGHVI, J.)
'TO BE PUBLISHED IN THE GAZETTE OF INDIA A
PART II SECTION Ill.
No. F.3-76/50-0.1
Government of India,
Ministry of Education. B
New Delhi, dated the 3rd May, 1957.
NOTIFICATION
(ARCHAEOLOGY)
· In exercise of powers conferred by sub-section (1) of C
section 3 of the Ancient Monuments Preservation Act,
1904 (7 of 1904) and in supersession of notification of the
Government of India Ministry of Education No.F.3-76/50/
0.1 dated the 4th October, 1956, the Central Government
hereby declares the ancient mor1ument described in the D
Schedule annexed hereto to be a protected monument
within the meaning of the said Act.
(Sd/-
(Rameshwar Dass) E
Under Secretary
The Publisher,
Gazette of India,
New Delhi."
The Schedule annexed with that notification is reproduced F
below:
"Ct. Loca- Name Area Boundary: Ownership
lily of Mo- East, South,
nument North, West G
1 2 3 4 5 6
Delhi New Jantar Protected South: South Government of
Delhi Maniar area 5.39 India Club, Raja&han
H
276 SUPREME COURT REPORTS (2012) 1 S.C.R.
A 9, Jantar
Mantar Road
East Low
Land with a
modem temple
B &well
West: Jantar
Maniar Road
North-East:
c Partap Singh
Building
North-West:
Parliament Street'
D 10. Although, notification dated 3.5.1957 was not published
in the Official Gazette, as was done in the case of notification
dated 4.10.1956, the only difference in the two notifications was
that in the Schedule appended to the first notification, the
ownership of Jantar Mantar was shown to be that of "Maharaja
E of Jaipur" and in the second notification, the owner of Jantar
Mantar was shown as the Government of Rajasthan. What
needs to be emphasized is that after merger of the erstwhile
State of Jaipur and formation of the State of Rajasthan,
Maharaja of Jaipur did not retain his earlier status and he no
F longer remained the owner of Jantar Mantar because it was not
his private property.
11. In exercise of the power vested in it under Rule 31 of
the Rules, the Central Government issued notification dated
G 15.5.1991, which was published in Gazette of India dated
25.5.1991, and gave notice of its intention to declare an area
of 100 meters from the protected limits and further beyond it
upto 200 meters near or adjoining protected monuments to be
prohibited and regulated areas respectively for the purposes
H of mining operations and constructions. After considering the
ARCHAEOLOGICAL SURVEY OF INDIA v. 277
NARENDER ANAND & ORS. [GS. SINGHVI, J.)
objections/suggestions received from the public, the Central A
Government issued notification dated 16.6.1992, which was
duly published in the Official Gazette. The final notification read~
thus:
"DEPARTMENT OF CULTURE
(Archaeological Survey of India) B
New Delhi, the 16th June, 1992.
(ARCHAEOLOGY)
S.O. 1764-Whereas by the notification of the Government
of India in the Department of Culture, Archaeological C
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 Central Government gave
one month's notice of its intention to declare area upto 100
metres from the protected limits, and further beyond it upto D
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 e
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 ha·1e been considered by the Central Government. F
Now, therefore, in exercise of the powers conferred
by Rule 32 of the Ancient Monument 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 G
way prejudice the similar declarations already made in
respect of monuments at Fatehpur Sikri; Mahabalipuram;
Golcunda Fort, Hyderabad (Andhra Pradesh); Thousands
Pillared Temple, Hanamkonda, Distt. Warangal (Andhra
Pradesh); Shershah' Tomb, Sasaram (Bihar); Rock Edict H
278 SUPREME COURT REPORTS [2012] 1 S.C.R.
A of Ashoka, Kopbal, Distt. Raichur (Karnatka);
Gomateshwara Statue at Sravanbelgola, District Hassan
(Karnataka); Elephanta Caves, Gharapur, District Kolba
(Maharashtra).
B (No.F.8/2/90-M-M.C.
M.C. Joshi, Director General"
12. Respondent Nos. 1 and 2, who own plot No. 14,
Janpath Lane submitted an application to the New Delhi
C Municipal Corporation (for short. 'the Corporation') sometime
in August 1986 for sanction of the building plan for the
construction of multistoried commercial building. The same was
rejected vide letter dated 15.9.1986 on the ground that the area
was under comprehensive development and the details of
D redevelopment controls/drawings, if any, finalized by the Delhi
Development Authority (for short, 'the ODA') were not available
with the Corporation. After about 7 years, respondent Nos.1 and
2 again submitted application dated 24.6.1993 for sanction of
the building plan. The ODA vide its letter dated 1.10.1993
· E suggested to the Corporation that plot No.14, Janpath Lane form
part of redevelopment scheme and the building plan should be
approved as per the Development Control Norms. The building
plan was finally sanctioned by the Corporation sometime in
September 2000 and was released on 5.3.2001. Thereafter,
F respondent Nos. 1 and 2 demolished the existing structure and
started digging foundation for the new building. On 5.5.2001,
the Conservation Assistant of Archaeological Survey of India
lodged a complaint about the excavation and construction being
undertaken by respondent Nos. 1 and 2 in violation of the
G 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
the sanction given by it was contrary to notification dated
16.6.1992. Thereupon, the Corporation issued notice dated
H 23.5.2001 to respondent Nos. 1 and 2 and directed them to
ARCHAEOLOGICAL SURVEY OF INDIA v. 279
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
stop the construction and obtain the requisite permission from A
the Archaeological Survey of India.
13. Respondent Nos. 1 and 2 challenged the letter of the
Corporation in Suit No. 645 of 2002 and prayed that the
restriction imposed on the construction of building be declared 8
as nullity. They also filed I.A. No. 2912 of 2002 under Order 39
Rules 1 and 2 CPC for temporary injunction. On 22.3.2002, the
learned Single Judge directed registration of the suit and
passed an ex parte injunction order whereby the Corporation
was restrained from giving effect to letter dated 23.5.2001 C
subject to the condition that respondent Nos. 1 and 2 shall
furnish an undertaking that they will raise construction up to the
height of 55 feet only. On notice, Archaeological Survey of India
filed l.A.No.4479 of 2002 for modification of order dated
22.3.2002. The same was disposed of by the learned Single
0
Judge with a direction to respondent Nos. 1 and 2 not to raise
construction beyond the DPC level.
14. The injunction application was finally allowed by the
learned Single Judge vide order dated 30.10.2002 and order
dated 22.3.2002 was made absolute. The learned Single Judge E
noted that despite several opportunities, counsel representing
Archaeological Survey of India failed t'l produce a copy of the
Official Gazette in which notification dated 3.5.195"1 was
published and held that in the absence of such publication, the
notification cannot be treated as effective. The learned Single F
Judge further held that subsequent notification dated 8.1.1958
in which reference was made to earlier notification dated
3.5.1957 was also ineffective and in the absence of a legally
binding notification having been issued under Section 3( 1) of
the 1904 Act, the prohibition contained in notification dated G
16.6.1992 cannot be made applicable to the plot of respondent
Nos.1and2.
15. l.A.No.10985/2002 filed by Archaeological Survey of
India for review of the injunction order was disposed of by H
280 SUPREME COURT REPORTS [2012] 1 S.C.R.
A learned single Judge on 27 .11.2002 by taking cognizance of
the concession made by the counsel appearing on its behalf
that notification dated 3.5.1957 had not been published in the
Official Gazette.
B 16. Archaeological Survey of India challenged the order of
injunction in FAO (OS) No.414 of 2002 mainly on the ground
that while deciding the application for injunction, the learned
Single Judge had misinterpreted the notifications issued under
Section 3( 1) of the 1904 Act and Section 39 of the 1958 Act.
c 17. During the pendency of the appeal filed against the
order of the learned Single Judge, Heritage and Culture Forum,
Delhi filed Writ Petition No.2635 of 2002 by way of public
interest litigation and prayed for issue of a mandamus for
stopping the construction of multistoried t.uilding on the plot
D owned by respondent Nos. 1 and 2 by asserting that the same
was contrary to the provisions of the 1958 Act and the Rules
framed thereunder and the prohibition imposed on the
construction of buildings within 100 meters of the protected
monument.
E
18. In their counter affidavit, respondent Nos. 1 and 2 not
only questioned the locus standi of the Heritage and Culture
Forum to challenge the permission granted to them for the
construction of building, but also pleaded that the prohibition
F contained in notification dated 16.6.1992 was not applicable
to their plot. On behalf of Archaeological Survey of India, the
Superintending Archaeologist filed counter affidavit and
pleaded that the building plan sanctioned by the Corporation
which enabled respondent Nos. 1 and 2 to construct the building
G was violative of the prohibition contained in notification dated
16.6.1992.
19. At the hearing of the appeal, learned counsel for
respondent Nos. 1 and 2 reiterated the plea taken before the
H learned Single Judge that Jantar Mantar, New Delhi cannot be
ARCHAEOLOGICAL SURVEY OF INDIA v. 281
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
treated as a protected monument because notification dated A
3.5.1957 had not been published in the Official Gazette and,
as such, the prohibition contained in notification dated
16.6.1992 was not applicable to his clients. He then argued that
there was no justification to enforce the prohibition qua plot No.
14, Janpath Lane because a number of other buildings B
including Phase-II of the Corporation's building had already
been constructed around Jantar Maniar in violation of the
restriction of 100 meters.
20. The Division Bench of the High Court took cognizance c
of the fact that the Corporation had constructed Phase-II
building in violation of the prohibition contained in notification
dated 16.6.1992 and directed Archaeological Survey of India
to explain why such construction of that building was not
stopped. Thereupon, the Superintending Archaeologist filed D
affidavit dated 26.5.2003. In paragraph 111(1) and (2) of his
affidavit, the deponent spelt out the details of the objections
raised by Archaeological Survey of India against the
construction of Phase 11 building of the Corporation and claimed
that the officers of the Corporation continued with the E
construction despite objections. In paragraph IV of his affidavit,
the deponent made the following sta;ament:
"IV) That it is evident from the above-stated chronology of
events that in so far as ASI is concerned, it pursued the
matter with NDMC and Government of NCT of- Delhi F
vigorously with the hope that NDMC would stop the
construction. However, despite best efforts of ASI, nothing
.was being done to ensure that the construction activity at
the site takes place in accordance with the provisions of
Law. It is only on 26th August, 2003 that an application in G
the prescribed form has been submitted by NDMC,
seeking the permission of Archaeological Survey of India
to sanction the construction in the regulated area. It is
respectfully submitted that Archaeological Survey of India
does not have any machinery, either to demolish the H
282 SUPREME COURT REPORTS (2012] 1 S.C.R.
A construction or to stop the construction and therefore it
could do only as much in the present case, since it involved
a local authority, and for the purposes of execution of its
orders ASI has to depend upon the assurance of Local
Government only. It is significant to note that in the present
B case the construction was carried cut by none other than
the municipal authority, and, as such, there was nothing that
Archpeological Survey of India could do except to
persuade the concerned authority to dissuade from
persisting with the same. Towards the said directions, best
c efforts were made by the ASI, but to no avail."
21. In compliance of order dated 26.4.2002 passed by the
Division Bench of the High Court, the Corporation submitted a
status report containing the details of the applications made by
respondent Nos. 1 and 2 and sanction of the ~:iuilding plan. The
0 status report also made a mention of letter dated 25.9.2001
written by the DOA to the Corporation that the objections/
suggestions made by Archaeological Survey of India regarding
setbacks and heights were considered while finalizing the
Redevelopment ScheMe in 1989, which was approved by the
E ODA on 24.5.1994 and by the Ministry of Urban Development
in October 1994.
22. In compliance of another order passed by the Division
Bench on 6.8.2003, the Corporation explained its position
F regarding Phase II building by stating that approval for NDMC,
New Delhi City Centre was granted vide Resolution dated
12.2.1969 and the building was to be constructed in two
phases. That plan for Phase II was approved by the Delhi
Urban Arts Commission on 13.3.1992 and the building was
G constructed without violating the 100 meters restriction.
23. Respondent Nos.1 and 2 also filed an affidavit and
claimed that the proposed building is 218 feet away from the
outer boundary of Jantar Maniar and 101.46 meters from the
H protected monument. According to respondent Nos.1 and 2, in
ARCHAEOLOGICAL SURVEY OF INDIA v. 283
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
terms of the sanction plan they are entitled to construct building A
up to the height of 75 feet but the learned Single Judge has
allowed construction only up to 55 feet.
24. The Division Bench of the High Court first considered
the implication of the concession made before the learned B
Single Judge by the counsel appearing for Archaeological
Survey of India that notification dated 3.5.1957 had not been
published in the Official Gazette as per the requirement of
·Section 3(2) of the 1904 Act and observed that the so called
concession was inconsequential because copy of the Official c
Gazette had, in fact, not been produced before the Court. The
Division Bench then considered the question whether Jantar
Mantar is a protected monument, referred to notifications dated
4.10.1956 and 3.5.1957 and observed that the second
notification had been issued only with a view to correct the D
mistake which had been committed in mentioning the name of
Maharaja of Jaipur in the column of 'ownership' of the first
notification. The Division Bench opined that Jantar Mantar had
already been declared as a protected monument by notification
dated 4.10.1956, which was specifically saved by Section 39 E
(2) of the 1958 Act. The Division Bench then referred to
notification dated 16.6.1992 and held that in view of the
prohibition contained therein, respondent Nos. 1 and 2 were
not entitled to raise construction on plot No.14, Janpath Lane
because the same was within 100 meters of the protected
F
monument. The observations made by the Division Bench in
this respect are extracted below:
"The Notification dated 4.10.1956 clearly refers to the
protected area as comprising 5.39 acres. It is not in dispute
that the entire area within the boundary wall comprises of G
these from 5.39 acres. Thus, reading the 1956 Notification
itself makes it clear that what is protected is not just the
buildings/structures comprised within, which collectively go
by the name Jantar Mantar, but the entire area of 5.39
acres. Now, reading the Notification dated 16.6.1992, it H
284 SUPREME COURT REPORTS [2012] 1 S.C.R.
A is apparent that what has been prohibited is mining and
construction activity within 100 meters "from the protected
limits" of the protected monuments. Therefore, the
measurement that has to be obtained is not from the
structures but from the boundary wall or in other words from
B "the limits of the protected area". If that is so, then there is
no dispute that the proposed building at plot No.14,
Janpath Lane falls within 100 meters thereof."
25. The Division Bench rejected the argument of
C respondent Nos.1 and 2 that in view of the provisions contained
in the Delhi Development Authority Act, 1957 (for short, 'the
ODA Act'), which is a special law enacted for planned
development of Delhi, the prohibition contained in notification
dated 16.6.1992 issued under Rule 32 of the Rules framed
under Section 38 of the 1958 Act will not be applicable to their
D case. In the opinion of the Division Bench, there is no conflict
between the provisions of the DOA Act and the 1958 Act
because the two statutes operate in different fields and even if
there was some conflict, the 1958 Act being a special law
enacted for the preservation and protection of ancient
E monuments would prevail over the ODA Act.
26. The Division Bench then noted that several buildings
including the Phase II building of the Corporation had come up
in violation of the prohibition contained in notification dated
F 16.6.1992 but did not delve deep into the issue because an
undertaking was given on behalf of the Corporation that the
basement of the building constructed in violation of the
prohibition shall not be used. Finally, the Division Bench
vacated the order of injunction passed by the learned Single
G Judge but proceeded to direct the Central Government 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
H
ARCHAEOLOGICAL SURVEY OF INDIA v. 285
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
monument, its location, the weather conditions, the topography, A
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 B
for refusing permission or license for construction.
27. Before proceeding further, we deem it proper to
mention that in compliance of the direction given by this Court
on 29.9.2010, an additional affidavit was filed on behalf of the C
Corporation detailing the events leading to the construction of
its Phase II building. In the end, it has been stated that Director
General, Archaeological Survey of India has accorded ex-post
facto approval to the construction of that building. In support of
this assertion, copies of letter dated 11.2.2005 issued by the D
Director General, Archaeological Survey of India to the
Chairperson of the Corporation conveying ex-post facto
approval and license dated 21.2.2005 issued by the
Superintending Archaeologist, Delhi Circle, have been placed
on record. Respondent Nos.1 and 2 also filed additional E
affidavit stating therein that while they are not being allowed to
construct building, the Corporation has constructed multistoried
building within 70 meters of the protected monument and this
is in clear violation of the prohibition contained in notification
dated 16.6.1992.
F
28. At this stage, it is apposite to mention that during the
pendency of these appeals the 1958 A9twas amended by the
Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Act, 2010 and Sections 20A and
208 were inserted with effect from 16.6.1992 and Sections G
20C to 200 were inserted with effect from 29.3.2010. Since
the validity of the Amendment Act has not been questioned
before us, we do not propose to examine the same. However,
we would like to notice the provisions of Sections 20A, 208,
H
286 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 20C and 20F(1) and (2), the interpretation of which will have
far reaching impact on the future of protected monuments of
national and international importance including Jantar Mantar,
New Delhi. These sections read as under:
B "20A. Declaration of prohibited area and carrying out
public work or other works in prohibited area.-Every area,
beginning at the limit of the protected area or the protected
monument, as the case may be, and extending to a
distance of one hundred metres in all directions shall be
the prohibited area in respect of such protected area or
c protected monument:
Provided that the Central Government may, on the
recommendation of the Authority, by notification in the
Official Gazette, specify an area more than one hundred
D metres to be the prohibited area having regard to the
classification of any protected monument or protected
area, as the case may be, under section 4A.
(2) Save as otherwise provided in section 20C, no person,
E other than an archaeological officer, shall carry out any
construction in any prohibited area.
(3) In a case where the Central Government or the Director-
General, as the case may be, is satisfied that-
F (a) it is necessary or expedient for carrying out such public
work or any project essential to the public; or
(b) such other work or project, in its opinion, shall not have
any substantial adverse impact on the preservation, safety,
G security of, or, access to, the monument or its immediate
surrounding, it or he may, notwithstanding anything
contained in sub-section (2), in exceptional cases and
having regard to the public interest, by order and for
reasons to be recorded in writing, permit, such public work
H or project essential to the public or other constructions, to
ARCHAEOLOGICAL SURVEY OF INDIA v. 287
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
be carried out in a prohibited area: A
Provided that any area near any protected monument or
its adjoining area declared, during the period beginning on
or after the 16th day of June, 1992 but ending before the
date on which the Ancient Mqnuments and Archaeological
8
Sites and Remains (Amendment and Validation) Bill,
2010, receives the assent of the President, as a prohibited
area in respect of such protected monument, shall be
deemed to be the prohibited area declared in respect of
that protected monument in accordance with the provisions C
of this Act and any permission or licence granted by the
Central Government or the Director-General, as the case
may be, for the construction within the prohibited area on
the basis of the recommendation of the Expert Advisory
Committee, shall be deemed to have been validly granted
in accordance with the provisions of this Act, as if this D
section had been in force at all material times:
Provided further that nothing contained in the first proviso
shall apply to any permission granted, subsequent to the
completion of construction or re-construction of any building E
or structure in any prohibited area in pursuance of the
notification of the Government of India in the Department
of Culture (Archaeological Survey of India) number S.O.
1764, dated the 16th June, 1992 issued under rule 34 of
the Ancient Monuments and Archaeological Sites and F
Remains Rules, 1959, or, without having obtained the
recommendations of the Committee constituted in
pursuance of the order of the Government of India number
24/22/2006-M, dated the 20th July, 2006 (subsequently
referred to as the Expert Advisory Committee in orders G
dated the 27th August, 2008 and the 5th May, 2009).
(4) No permission, referred to in sub-section (3), including
carrying out any public work or project essential to the
public or other constructions, shall be granted in any H
288 SUPREME COURT REPORTS [2012] 1 S.C.R.
A prohibited area on and after the date on which the Ancient
Monuments and Archaeological Sites and Remains
(Amendment and Validation) Bill, 2010 receives the
assent of the President.
B 208. Declaration of regulated area in respect of every
protected monument.-(1) Every area, beginning at the limit
of prohibited area in respect of every ancient monument
and archaeological sites and remains, declared as of
national importance under sections,,3 and 4 and extending
c to a distance of two hundred metres in all directions shall
be the regulated area in respect of every ancient
monument and archaeological sites and remains:
Provided that the Central Government may, by notification
in the Official Gazette, specify an area more than two
D hundred metres to be the regulated area having regard to
the classification of any protected monument or protected
area, as the case may be, under section 4A:
Provided further that any area near any protected
E monument or its adjoining area declared, during the period
beginning on or after the 16th day of June, 1992 but ending
before the date on which the Ancient Monuments and
Archaeological Sites and Remains (Amendment and
Validation) Bill, 2010, receives the assent of the Presiden~
F as a regulated area in respect of such protected
monument, shall be deemed to be the regulated area
declared in respect of that protected monument in
accordance with the provisions of this Act and any
permission or licence granted for construction in such
G regulated area shall, be deemed to have been validly
granted in accordance
with the provisions of this Act, as if this section had been
in force at all material times.
H
ARCHAEOLOGICAL SURVEY OF INDIA v. 289
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
20C. Application for repair or renovation in prohibited A
area, or construction or re-construction or repair or
renovation in regulated area. - (1) Any person, who owns
any building or structure, which existed in a prohibited area
before the 16th day of June, 1992, or, which had been
subsequently constructed with the approval of the Director- B
General and desires to carry out any repair or renovation
of such building or structure, may make an application to
the competent authority for carrying out such repair or
renovation, as the case may be.
(2) Any person, who owns or possesses any building or
c
structure or land in any regulated area, and desires to
carry out any construction or re-construction or repair or
renovation of such building or structure on such land, as
the case may be, may make an application to the
0
competent authority for carrying out construction or re-
construction or repair or renovation, as the case may be.
20F. Constitution of National Monuments Authority. -(1)
The Central Government shall, by notification in the Official
Gazette, constitute an Authority to be called as the National E
Monuments Authority.
(2) The Authority shall consist of,-
(a) a Chairperson, on whole-time basis, to be appointed
F
by the President, having proven experience and expertise
in the fields of archaeology, country and town planning,
architecture, heritage and conservation-architecture or law;
(b) such number of members not exceeding five whole-time
members and five part-time members to be appointed, on G
the recommendation of the Selection Committee referred
to in section 20G, by the Central Government, having
proven experience and expertise in the fields of
archaeology, country and town planning, architecture,
heritage, conservation-architecture or law. H
290 . SUPREME COURT REPORTS (2012] 1 S.C.R
A (c) the Director-General as member, ex officio."
29. What has beeri done by enacting Sections 20A and
208 is to give legislative mandate to the concept of prohibited
and regulated areas respectively for the purposes of mining
8 operation and construction. Before the 2010 amendment, the
Central Government could issue notification under Rule 31 read ·
with Rule 32 and declare an area near or adjoining a protected
monument to be a prohibited area or a regulated area for the
purposes of mining operation or co·nstruction or both. With the
c insertion of Section 20A it has been made clear that every
area, beginning at the limit of the protected area or the
protected monument, as the case may be, and extending to a
distance of one hundred meters in all directions shall be the
prohibited area in respect of such protected area or protected
0 monument. Not only this, by virtue of proviso to Section 20A(1)
the Central Government has been clothed with the power to
extend the prohibition beyond 100 meters by issuing a
notification in the Official Gazette keeping in view th'
classification of any protected monument or protected area, as
E the case may be, under Section 4A. Of course, this power can
be exercised only on the recommendations of the Authority as
defined in Section 2(da) and constituted under Section 20F.
Somewhat similar provision has been made in Section 208 for
the regulated area in respect of every ancient monument and
F archaeological site and remains. Proviso to that section
empowers the Central Government to issue notification in the
Official Gazette and specify an area more than two hundred
meters to be the regulated area having regard to the
classification of any protected monument or protected area, as .
G the case may be, under Section 4A. In terms of Section 20A(2),
it has been made clear that no person other than an
Archaeological Officer shall carry out any construction in any
prohibited area. This is subject to Section 20C, which can be
treated as an exception to Section 20A(2). That section lays
H down that any person who owns any building or structure, which
ARCHAEOLOGICAL SURVEY OF INDIA v. 291
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
existed in a prohibited area before 16.6.1992 or had been A
subsequently constructed with the approval of the Director
General may carry out any repair or renovation of such building
or structure by making an application to the competent
authority. The term "renovation" appearing in Section 20C will
take its colour f~om the word "repair" appearing in that section. E
This would mean that in the garb of renovation, the owner of a
building cannot demolish the existing structure and raise a new
one and the competent authority cannot grant permission for
such reconstruction. Section 20A(3) lays down that the Central
Government or the Director General can, in exceptional cases c
and havir.g regard to the public interest, pass a reasoned order
and permit a public work or any project essential to the public
or other construction in a prohibited area provided that such
construction does not have substantial adverse impact on the
preservation, safety, security of, or access to the protected o
monuments or its immediate surrounding. The use of the
expression "such other work or projecr in clause (b) of Section·
20A(3), if interpreted in isolation, may give an impression that
the Central Government or the Director General is empowered
to allow any other work or project by any person in the E
prohibited area but, in our view, the said expression has to be
interpreted keeping in view the mandate of Article 49 of the
Constitution and the objects sought to be achieved by enacting
1958 Act. i.e. preservation of ancient and historical monuments,
archaeological sites and remains of national importance. This F
would necessarily imply that 'such other work or project' must
be in larger public interest in contrast to private interest. In other
words, in exercise of power under Section 20A(3), the Central
Government or the Director General cannot pass an order by
employing the stock of words and phrases used in that section G
and permit any construction by a private person de hors public
interest. Any other interpretation of this provision would destroy
the very object of the 1958 Act and the prohibition contained
in notification dated 16.6.1992 and sub-section (1) of Section
20A would become redundant and we do not think that this H
292 SUPREME COURT REPORTS [2012] 1 S.C.R.
A would be the correct interpretation of the amended provision.
1t also needs to be emphasized that public interest must be the
core factor to be considered by the Central Government or the
Director General before allowing any construction and in no
case the construction should be allowed if the same adversely
B affects the ancient and historical monuments or archaeological
sites.
30. We may now revert to the impugned judgment in these
appeals. In our view, Archaeological Survey of India is fully
C justified in making a grievance that the Division Bench of the
High Court was not justified in directing the Central Government
to review the prohibition contained in notification dated
16.6.1992. The High Court's anxiety to maintain a balance
between the dire necessity of protecting historical monuments
of national and international importance and development of
0
infrastructures is understandable, but it is not possible to
approve the fiat issued to the Central Government to review the
prohibition contained in notification dated 16.6.1992. That
notification was issued by the Central Government for
E implementing the policy enshrined in Article 49 of the
Constitution and the 1958 Act i.e. to preserve and protect
ancient and historical monuments and archaeological si~s and
remains of national importance. Section 19 of the 1958 Act
contains a restriction against construction of any building Within
F the protected area or carrying out of any mining, quarring,
excavating, blasting or any other operation of similar nature in
such area. Rules 31 and 32 of the Rules empower the Central
Government to declare an area near or adjoining a protected
monument to be a prohibited area or a regulated area for the
G purposes of mining operation or construction. The Central
Government must have issued notification dated 16.6.1992
after consulting experts in the field and keeping in view the
object of the 1958 Act. Therefore, in the name of development
and accommodating the need for multistoried structures, the
H High Court could not have issued a mandamus to the Central
ARCHAEOLOGICAL SURVEY OF INDIA v. 293
NARENDER ANAND & ORS. [G.S. SINGHVI, J.]
Government to review/reconsider notification dated 16.6.1992 A
and that too by ignoring that after independence large number
of protected monuments have been facing the threat of
extinction and if effective steps are not taken to check the
same, these monuments may become part of history. One of
such monument is Jantar Maniar, New Delhi. Some of its B
instruments have become unworkable/non functional. This is
largely due to construction of multistoried structures around
Jantar Mantar. Therefore, we have no hesitation to hold that the
High Court was not justified in directing the Central Government
to review or reconsider notification dated 16.6.1992 and, to c
that extent, the impugned judgment is liable to be set aside.
We may add that with the insertion of Sections 20A and 20B,
the direction given by t~e High Court for review of notification
dat~ 16.6.1992 has become infructuous and the Government
is no longer required to act upon the same. D
31. The appeal of respondent Nos.1 and 2 is wholly
meritless. The High Court, in our view, has rightly held that even
though notification dated 3.5.1957 did not become effective
because the same was not published in the Official Gazette, E
the earlier notification issued on 4.10.1956 remained effective
and the same was saved by Section 39(2) of the 1958 Act. We
may add that even though notification dated 3.5.1957 was
issued in supersession of notification dated 4.10.1956, the
, same remained alive because of non compliance of Section F
3(2) of the 1904 Act. The High Court's interpretation of the
prohibition contained in notification dated 16.6.1992 is correct
and the distance of 100 meters has to be counted from the outer
boundary wall of Jantar Mantar which has protected area of 5.39
acres and not the physical structures of the observatory. The
High Court has given detailed reasons for rejecting the plea of G
respondent Nos.1 and 2 that the provisions of the DOA Act
would prevail over those contained in the 1958 Act and we
entirely agree with it.
H
294 SUPREME COURT REPORTS [2012) 1 S.C.R.
A 32. We may have dealt with the additional affidavits of the
parties in greater detail and examined whether Archaeological
Survey of India VJas justified in not taking action against
construction ctf large number of buildings in violation of the
prohibiflon contained in notification dated 16.6.1992, but do not
B consider it proper to do so because the owners of these
buildin9s are not parties to these appeals.
33. In the result, Civil Appeal No.2430 of 2006 is allowed
and the direction given by the Division Bench of the High Court
C for review of notification dated 16.6.1992 is set aside. However,
it is made clear that in future the Central Government or the
Director General shall not take action or pass any order under
Section 20A(3) and 20C except in accordance with the
observations made in this judgment. Civil Appeal No.2431 of
2006 is dismissed. The parties are left to bear their own costs.
0
R.P. Appeals disposed of.
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