Supreme Court of India
SHIV DARSHAN SINGHversusRAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.
- Citation
- 2019 INSC 735
- Decided
- 9 July 2019
- Bench
- UDAY UMESH LALIT
Holding
The Supreme Court held that no violation of its 2012 order occurred, as the permissions were limited to finishing work of the existing building and no demolition directive existed, therefore the contempt petition was dismissed.
Summary
The petitioners sought contempt proceedings against the Director General of the Archaeological Survey of India (ASI) and other authorities, alleging that they violated the Supreme Court's order dated 16 January 2012 which barred any construction within 100 metres of the protected monument Jantar Mantar. The Court examined whether the permissions granted by ASI and the New Delhi Municipal Council (NDMC) for renovation and finishing work of an existing multi‑storey building constituted a breach of that order. A local inspection on 9 October 2018 showed that only finishing work had been carried out and no vertical or horizontal expansion of the structure had occurred since the 2003 panchnama. The Court noted that the earlier judgment did not expressly direct demolition of the existing building and that the permissions were later revoked on 27 June 2016, before the contempt petition was filed. Consequently, the Court held that there was no violation of its earlier directions and dismissed the contempt petition. The matter was ordered to be closed, with a direction to the High Court to dispose of the pending suits and writ petitions expeditiously.
Issues considered
- The authorities' grant of renovation permission after the 2012 Supreme Court order violated the prohibition on construction in the prohibited area.
- Whether the Supreme Court's 2012 order required demolition of the existing structure.
- Whether the permission for finishing work constituted a new construction prohibited under Sections 20A(3) and 20C of the Ancient Monuments Act.
- Whether the contempt petition was maintainable in view of the factual findings.
Legislation cited
- Ancient Monuments and Archaeological Sites and Remains Act, 1958s. 20A, s. 20A(3), s. 20B, s. 20C, s. 2(a), s. 30-A, s. 30-C
- Ancient Monuments and Archaeological Sites and Remains Rules, 1959s. Rule 31, s. Rule 32, s. Rule 33
- New Delhi Municipal Council Acts. 247, s. 250
Subjects
Contempt of CourtAncient Monuments ActJantar MantarProhibited areaRenovation permissionDemolitionSupreme Court orderLocal inspectionHeritage protection
Judgment
[2019] 9 S.C.R. 153 153
SHIV DARSHAN SINGH A
v.
RAKESH TIWARI, DIRECTOR GENERAL,
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.
(Contempt Petition (Civil) No. 697 of 2017) B
in
(Civil Appeal No. 2431 of 2006)
JULY 09, 2019
[UDAY UMESH LALIT AND INDIRA BANERJEE, JJ.] C
Contempt of Court:
Civil contempt – Contempt petition – Alleging violation of
judgment dated 16.1.2012 passed by Supreme Court – Construction
of multi-storey building by respondent Nos.4 and 5 (builders) after
demolition of old structure on the subject land, pursuant to sanction D
of plan by New Delhi Municipal Corporation (NDMC) –
Subsequently NDMC stopped the on-going construction work
directing to obtain requisite permission from Archaeological Survey
of India (ASI) as the subject plot being within 100 metres of ancient
monument Jantar Mantar, in view of Notification dated 5.5.1991, E
was a prohibited and regulated area for the purpose of mining and
construction – 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 the
monument Jantar Mantar – Division Bench of High Court dismissed
the suit, but while dealing with the writ petition directed the Central F
Government to review the Notification dated 15.5.1991 to consider
whether the stipulation of 100 meters prescribed by the notification
had any scientific, pragmatic or logical basis – Appeal to Supreme
Court by ASI as well as the builder – Appeal of ASI was dismissed
by judgment/order dated 16.1.2012 – It was made clear in the G
judgment that in future Central Government or Director General
not to take any action or pass any order u/ss.20A(3) and 20C –
After the judgment of Supreme Court, on the recommendations of
National Monument Authority, ASI gave permission for renovation
of the building in question which was later cancelled by ASI –
H
153
154 SUPREME COURT REPORTS [2019] 9 S.C.R.
A However, subsequently ASI, revived the permission for renovation
– This gave rise to suit against the builders seeking permanent
injunction and to writ petition by the owner of the property
(petitioner) – Suit as well as petition are pending – Contempt petition
before Supreme Court alleging non-compliance of its order dated
16.1.2012 – Local inspection of the site conducted on the direction
B
of Supreme Court – Held: On the date when the matter was
considered and judgment was delivered, as per the spot panchnama
dated 7.5.2003, the builders had completed the ground floor plus
four upper floors including two levels of basement and only finishing
work was yet to be completed – Supreme Court had passed no specific
C direction as to the status of structure or that the structure was to be
pulled down or not – In the inspection held, after the contempt
petition was filed, no vertical or horizontal expansion of the building
was found as against what obtained in the year 2003 and only
finishing work was completed – The permissions granted for
renovation was also revoked even before filing of contempt petition
D
– Therefore, it cannot be said that the authorities were in violation
of the orders passed by Supreme Court – Hence the contempt petition
is closed.
Closing the Contempt Petition, the Court
E HELD: 1. On the date when the matter was considered
and the Judgment was delivered by this Court, the structure as
indicated in the Spot Panchnama dated 07.05.2003 was in
existence. In the local inspection held on 07.05.2003 it was found
that Respondents 4 and 5 had structurally completed the ground
floor plus four upper floors including two levels of basement
F having height of 61 ft and 6 inches from the ground level to the
terrace level of the 4th floor. However, the finishing work in the
lower basement, upper basement, ground floor, first, second, third
and fourth floors as well as terrace was yet to be completed.
Though the challenge raised by Respondents 4 and 5 was
G negatived in the Judgment, no specific direction was passed as
to the status of structure that was in existence on the date of the
Judgment 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 of
H NDMC and the inspection held on 09.10.2018, though there was
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 155
ARCHAEOLOGICAL SURVEY OF INDIA (ASI)
no vertical or horizontal expansion of the building as against what A
obtained in the year 2003, the building was found to be habitable
in the inspection held on 09.10.2018 whereas it was not so in the
year 2003. The aforesaid affidavit further indicates that apart
from cancellation of Sanction Plans on 27.01.2017, action in the
form of a Show Cause Notice dated 07.09.2017 and Sealing Order
B
dated 09.09.2017 was undertaken by NDMC. [Para 17]
[179-B-C]
3. After the Judgment was passed by this Court, ASI had
initially given permission for renovation/ repair of the structure
that was in existence, based on which appropriate permission
was also granted by the NDMC. However, those permissions C
now stand revoked in terms of order dated 27.06.2016 i.e. even
before the filing of the present Contempt Petition. A Writ petition
filed by Respondents 4 and 5 challenging said order dated
27.06.2016 is still pending consideration by the High Court.
[Para 18] [179-E-F] D
4. The permissions by ASI and by NDMC were only for
completing the finishing work of the existing building without
any vertical or horizontal extension of the structure. Though the
concerned authorities ought to have been careful when the matter
in that behalf was considered, since the challenge is pending E
consideration before the High Court, this Court is not inclined
to go into the matter. As this Court had not dealt with the matter
as regards status of the construction which was in existence on
the day when the matter was considered by this Court, it would
not be possible in these proceedings to direct demolition of the
existing structure as is sought by contempt petitioners. The F
direction in the judgment (violation whereof is alleged) that the
authorities must not take any action or pass any order under
Section 20A(3) and 20C of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 except in accordance
with the observations made in the Judgment is definitely capable G
of being implemented. But, whether the permissions were rightly
granted or not and what is the affect of withdrawal or revocation
of those permissions are the issues which must logically and in
fairness, be considered in the pending matters. In any event of
the matter, with the passing of the order dated 27.06.2016 it cannot
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156 SUPREME COURT REPORTS [2019] 9 S.C.R.
A be said that the authorities were in violation of the orders passed
by this Court. Therefore, there is no reason to entertain this
Contempt Petition any longer and the present Contempt Petition
is closed. [Para 19] [179-G-H; 180-A-D]
INHERENT JURISDICTION: Contempt Petition (Civil) No. 697
B of 2017 in Civil Appeal No.2431 of 2006
Petition filed for contempt of this Court’s Order dated 16.01.2012
in Civil Appeal No. 2431 of 2006
Nidhesh Gupta, Parag Tripathi, Gourab Banerji, Sr. Advs.,
Harvinder Singh, Ms. Japneet Kaur, Ms. Sampa Sangupta, Ms. Vriti
C Gujral, Ms. Pallavi Singh (for Abhijit Sengupta), Aseem Chaturvedi (for
V. C. Chaturvedi), Ms. Manisha Singh, Sahil Tagotra (for Prof. Himanshu
Prabha Ray), Yoginder Handoo, Nishant Kumar, Prashant Bhatnagar,
Gopal Shankar Narayanan, Jasmeet Singh, Ms. Bobby Anand, Naman
Joshi, Hemant Jain, Ms. Ruhsheet J. Saluja, Ms. Sobha Gupta, Saif Ali,
D Ms. Vijay Lakshmi, Divjot Singh Bhatia, Neel Mani, Ajay Veer Singh
Jain, Ms. Mamta Jain, Uday Ram Bokadia, Ms. Divya Garg (for Sonal
Jain), Annam D.N. Rao, A. Venkatesh, Rahul Mishra, Amber Sachdeva,
Advs. for the appearing parties.
Pramod Sharma, A.E.,BP (NDMC)-in-person.
E The 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 of
the judgment and order dated 16.01.2012 passed by this Court in Civil
Appeal No.2431 of 2006 (‘the Judgment’, for short) and also seeks orders
F directing Respondent Nos.4 and 5 to demolish the structure raised by
them.
2. While dealing with an ancient monument popularly known as
Jantar 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 unique
observatories 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
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 157
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
instruments that can graph the path of the astronomical universe. A
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 other important yantras are Misra
B
Yantra, DaksinovarttiBhitti Yantra, KarkaRasivalaya, 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 of multistoried structures which have come up in the
vicinity of Jantar Mantar in the last 25 to 30 years.” C
3. In exercise of power conferred by Section 3(1) of theAncient
Monuments Preservation Act, 1904 (7 of 1904), the Central Government
had issued Notification dated 04.10.1956 which was published in the
Gazette of India dated 13.10.1956, declaring Jantar Mantar, New Delhi
to be a “protected monument.” D
4. The Ancient Monuments and Archaeological Sites and Remains
Act, 1958 (hereinafter referred to as ‘the Act’) was enacted to provide
for the preservation of ancient and historical monuments and
archaeological sites and remains of national importance, for the regulation
of archaeological excavationsand for the protection of sculptures, E
carvings and other like objects. The term ‘ancient monument’ is defined
by Section 2(a) of the Act as under:
“2(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, F
archaeological or artistic interest and which has been in existence
for not less than one hundred years, and includes –
(i) the remains of an ancient monument,
(ii) the site of an ancient monument,
G
(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
(iv) the means of access to, and convenient inspection of an
ancient monument.”
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158 SUPREME COURT REPORTS [2019] 9 S.C.R.
A 5. By virtue of Section 3 of the Act, all protected monuments
declared under the erstwhile statutory regime, were deemed to be ancient
monuments under the Act.Sub-Sections (1) and (2) of Section 38 of the
Actare as under:
“38. Power to make rules.¯(1) The Central Government may,
B by notification in the Official Gazette and subject to the condition
of previous publication, make rules for carrying out the purposes
of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
C following matters, namely:¯
(a) the prohibition or regulation by licensing or otherwise of
mining, quarrying, excavating, blasting or any operation of a
like nature near a protected monument or the construction of
buildings on land adjoining such monument and the removal of
D unauthorised buildings;
(b) the grant of licences and permissions to make 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
E licensees and the fees that may be charged for such licences.
(c) the right of access of the public to a protected monument
and the fee, if any, to be charged therefor;
(ca) the categories of ancient monuments or archaeological
sites and remains, declared as of national importance, under
F sub-section (1) of section 4A;
(cb) the manner of making application for grant of permission
under sub-section (1) of section 20D;
(cc) the category of applications in respect of which the
permission may be granted and applications which shall be
G referred to the Authority for its recommendation, under sub-
section (2) of section 20D;
(cd) the other matters including heritage controls such as
elevations, facades, drainage systems, roads and service
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SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 159
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
infrastructure (including electric poles, water and sewer A
pipelines) under sub-section (2) of section 20E;
(ce) the manner of preparation of detailed site plans in respect
of each prohibited area and regulated area and the time within
which such heritage bye-laws shall be prepared and particulars
to be included in each such heritage bye-laws under sub-section B
(3) of section 20E;
(cf) salaries and allowances payable to, and the other terms
and conditions of service of, the whole-time Chairperson and
whole-time members, or fees or allowances payable to the
part-time members, of the Authority under sub-section (1) of C
section 20H;
(cg) the form in which and time at which he Authority shall
prepare an annual report giving full description of its activities
for the previous year under section 20P;
(ch) the form and manner in which the Authority and D
competent authority shall furnish information to the Central
Government under Section 20Q;
(d) the form and contents of the report of an archaeological
officer or a licensee under clause (a) of sub-section (1) of
section 23; E
(e) the form in which applications for permission under
section 19 or section 25 may be made and the particulars which
they should contain;
(f) the form and manner of preferring appeals under this
F
Act and the time within which they may be preferred;
(g) the manner of service of any order or notice under this
Act;
(h) the manner in which excavations and other like
operations for archaeological purposes may be carried on; G
(i) any other matter which is to be or may be prescribed.”
6. In exercise of power conferred by Section 38, the Central
Government enacted the Ancient Monuments and Archaeological Sites
H
160 SUPREME COURT REPORTS [2019] 9 S.C.R.
A and Remains Rules, 1959 (‘the Rules’, for short). Rules 31, 32 and 33
of the Rules are to the following effect:
“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
B of mining operation or 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.
(2) Every such notification shall specify the limits of the area
C 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 under rule
31 and after considering the objections, if any, received within the
D 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 be, a regulated area for purposes of mining operation or
construction or both.
E 33. Effect of declaration of prohibited or regulated area. –
No person other than an archaeological officer shall undertake
any mining operation or any construction, -
(a) in a prohibited, area, or
(b) in a regulated area except under and in accordance with
F the terms and conditions of licence granted by the Director-
General.”
7. In terms of power conferred under Rule 31 of the Rules, the
Central Government issued a Notification dated 15.05.1991 which was
published in the Gazette of India dated 25.05.1991 and gave notice of
G intention to declare an area of 100 meters from the protected limits and
further beyond it upto 200 meters from the protected monument(s) as
prohibited and regulated areas respectively. After considering objections
and suggestions received from the general public, the Central Government
issued Notification dated 16.06.1992 (“the Notification” for short) which
reads as under:-
H
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 161
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
“DEPARTMENT OF CULTURE (Archaeological Survey of A
India) 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 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 B
Government gave one month’s notice of its intention to declare
area upto 100 metres from the protected limits, and further beyond
it upto 200 meters near or adjoining protected monuments to be
prohibited and regulated areas respectively for purposes of both
mining operation and construction.
C
And whereas the said Gazette was made available 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 have been considered
by the Central Government. D
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 way prejudice the similar declarations already E
made in respect of monuments at Fatehpur Sikri; Mahabalipuram;
Golconda Fort, Hyderabad (Andhra Pradesh); Thousands Pillared
Temple, 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, District F
Kolba (Maharashtra).”
8. By virtue of the Notification, areas of 100 and 200 metres from
the ancient monument Jantar Mantar, New Delhi stood declared to be
prohibited and regulated areas respectively for the purposes of mining
and construction. The concept of “prohibited area” and “regulated area” G
got further elaborated by amendment to the Act effected in the year
2010 defining these two expressions by Section 2(ha) and 2(l) respectively
and by inserting Sections 20A to 20Q in the Act. Sections 2(ha), 2(l) and
2(m) as well as Sections 20A and 20B were given retrospective effect
H
162 SUPREME COURT REPORTS [2019] 9 S.C.R.
A from the date of the Notification i.e. from 16.06.1992 while Sections
20C 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 or
declared to be a prohibited area under Section 20A.
B Section 2(l) “regulated area” means any area specified or declared
under section 20B;
Section 2(m) “repair and renovation” means alterations to a pre-
existing structure or building, but shall not include construction or
re-construction;
C
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
D such protected area or 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 metres to be the
prohibited area having regard to the classification of any protected
E monument or protected area, as the case may be, under section
4A.
(2) Save as otherwise provided in section 20C, no person,
other than an archaeological officer, shall carry out any construction
in any prohibited area.
F
(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 public
work or any project essential to the public; or
G (b) such other work or project, in its opinion; shall not have
any substantial adverse impact on the preservation, safety,
security of, or, accessto, the monument or its immediate
surrounding,
it or he may, notwithstanding anything contained in sub-section
H (2), in exceptional cases and having regard to the public interest,
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 163
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
by order and for reasons to be recorded in writing, permit, such A
public 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 its
adjoining area declared, during the period beginning on or after
the 16th day of June, 1992 but ending before the date on which B
the Ancient Monuments and Archaeological 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 of this Act and any permission or licence granted by C
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 section had been in force at all D
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 or structure in
any prohibited area in pursuance of the notification of the E
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 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 F
the 20th July, 2006 (subsequently referred to as the Expert Advisory
Committee in orders 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 G
constructions, shall be granted in any 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.
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164 SUPREME COURT REPORTS [2019] 9 S.C.R.
A 20B. Declaration of regulated area in respect of every
protected monument.¯Every area, beginning at the limit of
prohibited area in respect of every ancient monument and
archaeological site and remains, declared as of national importance
under sections 3 and 4 and extending to a distance of two hundred
metres in all directions shall be the regulated area in respect of
B
every ancient monument and archaeological site and remains:
Provided that the Central Government may, by notification
in the Official Gazette, specify an area more than two hundred
metres to be the regulated area having regard to the classification
of any protected monument or protected area, as the case may
C be, under section 4A:
Provided further 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 Monuments and Archaeological Sites and
D Remains (Amendment and Validation) Bill, 2010, receives the
assent of the President, 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
E for construction in such 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.”
9. The effect of this statutory regime was considered in the
Judgment and this Court had issued certain directions, which as per this
F Contempt Petition have been violated by the Respondents.
10. However, before coming to the directions issued by the
Judgment, 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 into
G between the petitioner, owner of Plot No.14, Janpath Lane, New
Delhi (hereinafter referred to as “the subject plot”) and
Respondent No.5– M/s Rawal Apartments Pvt. Ltd. for
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SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 165
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
construction of a multi-storey building. A General Power of A
Attorney was given to Respondent No.4 – Narender Anand,
Director of Respondent No.5.
(b) On 21.07.2000, NDMC1 – Respondent No.2 sanctioned the
plans submitted by the Respondents 4 and 5 vide Scheme No.3351,
whereafter the old building standing on the subject plot was B
demolished and the work for foundation for a new building to be
erected on the subject plot was undertaken by Respondent
Nos. 4 and 5. While the construction work was in progress, a
letter was issued by NDMC on 23.05.2001 requiring that the
on-going construction work at the subject plot be immediately
stopped and directing the concerned persons to obtain requisite C
permission from ASI2 – Respondent No.1.
(c) This led to the filing of Civil Suit No.645 of 2002 by
Respondent Nos.4 and 5 seeking injunction against NDMC, Lt.
Governor and ASI that there be no interference with the on-going
construction. An interim order was passed by a Single Judge of D
the High Court on 22.03.2002 restraining NDMC from giving
effect to the letter dated 23.05.2001. That interim order was
modified by the Single Judge on 31.05.2002. However, by further
order dated 30.10.2002, the earlier interim order dated 22.03.2002
was made absolute and the later order dated 31.05.2002 was E
recalled. An appeal was preferred against the order dated
30.10.2002 being FAO (OS) No.414 of 2002.
(d) Around this time, Writ Petition (C) No.2635 of 2002 was filed
by Heritage and Culture Forum, in public interest seeking
protection of the ancient monument – Jantar Mantar. This writ F
petition was also taken up for hearing along with FAO (OS) No.414
of 2002.
(e) The Division Bench of the High Court by its order dated
23.07.2004 set aside the order issued by the Single Judge on
30.10.2002. It was held that the subject plot was within 100 G
meters of the ancient monument Jantar Mantar and in view of the
Notification there was absolute prohibition against carrying on of
any building activity in the subject plot and the order dated
1
New Delhi Municipal Corporation
2
Archaeological Survey of India H
166 SUPREME COURT REPORTS [2019] 9 S.C.R.
A 30.10.2002 passed by the Single Judge could not be sustained.
While dealing with the writ petition and considering the
submission whether the stipulation of 100 meters prescribed by
the Notification had any scientific, pragmatic or logical basis, the
Division Bench of the High Court directed the Central
Government to review said Notification in the light of the
B
discussion made in its judgment dated 23.07.2004.
(f) The afore-mentioned judgment of the Division Bench was chal-
lenged in this Court by ASI and by Respondent No.5 in Civil Appeal
Nos.2430 and 2431 of 2006 respectively. While ASI had questioned the
direction of the Division Bench as regards the review of the Notifica-
C tion, Respondent No.5 had challenged that part of the judgment which
had set aside the order passed by the Single Judge. The Judgment dealt
with both the appeals.The appeal of ASI was allowed while the appeal
preferred by Respondent No.5 was dismissed by this Court.
(g) The basic facts leading to the filing of appeal before the
D Supreme Court were dealt with in the Judgment as under:
“12. Respondent Nos. 1 and 2, who own plot No. 14, Janpath
Lane submitted an application to the New Delhi Municipal
Corporation (for short, ‘the Corporation’) sometime in August 1986
for sanction of the building plan for the construction of multistoried
E 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 redevelopment controls/drawings,
if any, finalised by the Delhi Development Authority (for short,
‘the DDA’) were not available with the Corporation. After about
F 7 years, respondent Nos. 1 and 2 again submitted application dated
24.6.1993 for sanction of the building plan. The DDA vide its
letter dated 1.10.1993 suggested to the Corporation that plot No.
14, Janpath Lane formed 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
G Corporation sometime in September 2000 and was released on
5.3.2001. Thereafter, 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
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SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 167
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
Survey of India lodged a complaint about the excavation and A
construction being undertaken by respondent Nos. 1 and 2 in
violation 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 the
sanction given by it was contrary to notification dated 16.6.1992.
B
Thereupon, the Corporation issued notice dated 23.5.2001 to
respondent Nos. 1 and 2 and directed them to stop the construction
and obtain the requisite permission from the Archaeological Survey
of India.”
(h) The effect of newly introduced Sections 20A to 20F by way
of amendment was considered by this Court in the Judgment as under:- C
“29. … … 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 down that any person who owns any D
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 of
such building or structure by making an application to the competent
authority. The term “renovation” appearing in Section 20C will E
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 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 F
and having 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 G
monuments or its immediate surrounding. The use of the
expression “such other work or project” in clause (b) of Section
20A(3), if interpreted in isolation, may give an impression that the
H
168 SUPREME COURT REPORTS [2019] 9 S.C.R.
A Central Government or the Director General is empowered to
allow any other work or project by any person in the 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
B
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. 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
C words and phrases used in that section 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 would be the correct interpretation of the
D
amended provision. It also needs to be emphasised 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 affects the ancient and historical monuments
E or archaeological sites.”
(emphasis added)
(i) As regards the directions issued by the High Court with respect
to review or reconsideration of the Notification,the Judgment observed
as under:-
F
“Therefore, in the name of development and accommodating the
need for multistoried structures, the High Court could not have
issued a mandamus to the Central Government to review/
reconsider notification dated 16.6.1992 and that too by ignoring
that after independence large number of protected monuments
G 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 Mantar, New
Delhi. Some of its instruments have become unworkable/non-
H
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 169
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
functional. This is largely due to construction of multistoried A
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 that extent, the impugned judgment is liable to be set aside.
We may add that with the insertion of Sections 20A and 20B, the
B
direction given by the High Court for review of notification dated
16.6.1992 has become infructuous and the Government is no longer
required 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 and C
the direction given by the Division Bench of the 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 under Sections
20A(3) and 20C except in accordance with the observations made
in this judgment. Civil Appeal No. 2431 of 2006 is dismissed. D
The parties are left to bear their own costs.”
(emphasis added)
(k) Soon after the Judgment, on the recommendations of NMA3,
ASI gave permission for renovation/ repairs of the building standing E
at the subject plot by its order dated 16.12.2013. Thereafter, Chief
Architect of NDMC by his letter dated 05.06.2014 released
permission to Respondent Nos.4 and 5.
(l) On 12.01.2015, the petitioner cancelled the Power of Attorney
given in favour of Respondent No.4 by aregistered Cancellation F
Deed and on his representations,ASI vide letter dated 06.04.2015
cancelled the permission which was granted on 16.12.2013.
However, by subsequent letter dated 01.07.2015 the permission
for repairs/renovation was revived by ASI. This led to the filing
of Civil Suit No.211 of 2015 in the Court of Additional District
Judge – 05, Patiala House Courts, New Delhi seeking reliefs of G
mandatory and permanent injunction against Respondent Nos. 4
and 5 and Writ Petition No.3425 of 2016 by the petitioner in the
High Court of Delhi seeking directions against Respondent Nos.1
3
National Monument Authority
H
170 SUPREME COURT REPORTS [2019] 9 S.C.R.
A to 3 to withdraw/revoke permission given to Respondent Nos.4
and 5 and for direction to stop any work or construction in the
subject 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 to
Respondent Nos.4 and 5 as to why permission granted earlier on
B 16.12.2013 be not cancelled since the present construction on the
subject plot was neither existing on 16.06.1992 i.e. on the day the
Notification was issued nor was such construction erected with
the approval of Director General, ASI. On 27.06.2016, NMA –
cancelled the earlier permission dated 16.12.2013 on the ground
that it was erroneously granted.
C
(n) Respondent Nos.4 and 5, therefore challenged the Show
CauseNotice dated 29.01.2016 as well as the order dated 27.06.2016
passed by the NMA by filing Writ Petition (C) No.7018 of 2016. This
Writ Petition is still pending consideration by the High Court.
D (o) The instant Contempt Petition was filed in this Court in
December 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 Court
E order / judgment dated 16/01/2012 when read together
categorically prohibits any building activity, leave alone building
construction, at the suit premises in question. Further the
construction, if any done by the builder/contemnor nos. 4 & 5 has
to be demolished upto DPC level since ultimately this Hon’ble
Court came to the conclusion that no building activity can take
F place there.
13. That all the respondents/contemnors have willfully and
voluntarily disobeyed/defied the orders of the Ld. Division Bench upheld
by this Hon’ble Court. The Contemnor/Respondent Nos. 1 to 3, who
are responsible officers of Govt. Department are willfully and deliberately
G not complying/implementing the orders/directions of this Hon’ble Court
and are liable to the punished as per Section 30-A and 30-C of the
AMSAR Act, as amended in 2010 besides being liable for contempt.”
H
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 171
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
It was prayed:- A
“a. issue contempt notices to the Contemnors;
b. punish the Contemnors for committing the contempt of the
Court for willfully disobeying the order dated 16/01/2012 passed
by this Hon’ble Court in CA No.2431/2006 titled as “Narender
Anand Vs. Archaeological Survey of India &Ors.”; B
c. Issue orders to the Contemnor Nos. 1 to 5 to immediately
demolish the unauthorized structure raised by the contemnor nos.
4 & 5 since it is a settled law that the contemnor should not be
allowed to enjoy or retain the fruits of his contempt as held by this
Hon’ble Court in Delhi Development Authority Vs. Skipper C
Construction Company (P) Ltd.;”
Notice was issued by this Court on 10.07.2017. Respondents
appeared and filed their responses.
11. On 24.09.2018 following order was passed by this Court: D
“The Principal Secretary, New Delhi Municipal Council (NDMC)
is directed to conduct a local inspection with notice to all the parties
and submit a report along with an affidavit to this Court as to
whether Mr. Narender Anand (Respondent Nos.4 & 5) has done
any new construction based on the permission granted by the
E
National Monuments Authority and if so what is the construction,
which has been so undertaken, in violation of the order of the
Delhi High Court as upheld by this Court. This shall be done within
four weeks from today.”
12. Accordingly, local inspection was conducted on 09.10.2018 in
F
the presence of the concerned parties and the consequential Report
prepared on 22.10.2018 made following observations:-
“4. During inspection held on 09.10.2018, the entire building was
found completely finished and status given below reflects the work
carried out after 05.06.2014 (when the plans were released for
finishing work on the basis of approval by NMA) in comparison G
to the earlier status of construction observed during
PANCHNAMA held on 07.05.2003:
H
172 SUPREME COURT REPORTS [2019] 9 S.C.R.
A
Sl.No S tatus o f Co ns tru ction recorded as St atu s o f Con structio n
p er Pan chn am a o n 0 7.05 .200 3 as on 09 .10 .2 01 8
(after co mp letion of
fin ishin g work as per
ap prov al b y NM A o n
1 6.1 2.20 13 )
B i. P arty has structu rally com pleted Ad ditio nal structu re
t he grou nd flo or + 4 u pp ers floo rs wo rk o f M u mty , Lift
i nclud ing two l ev el bas em ents M achin e Roo m,
h avin g h eigh t 61 ’6 ’’ fro m th e W ater tank enclo sures
g rou nd lev el to terrace level of 4th at two places at
flo or. terrace; and
C Un der Grou nd W ater
T an k,un der gro un d
Fi re W ater tank , STP
T an k an d R ain W ater
Harvest ing Tan k at
Grou nd L evel are
fo un d comp leted.
D ii. P arty h as co nstru cted th e ex tern al Fi nish ing o f external
wall u pto sill lev el on all the floo rs walls inclu din g
an d has alm ost pl as tered th e win do ws/g lazin g
ex tern al s urface towards E ast and wo rk h as b een
No rth sid e. co mp leted on all the
flo ors. Com plete
fin ishin g/ plas terin g
E
o f external s urfaces
o n all s ides of the
b uild in g h as been
co mp leted.
iii. T h e fire es cap e staircas e towards The fire escape
eas t side h as been fin ish ed with s taircase towards east
F k otas ton e u pto 3 rd flo or b ut th e s ide has b een
m ain s tair cas e and oth er FE S is co mp letel y fi nish ed
u nfin ished . with k ota ston e. T he
fire escap e stair case
to ward s wes t si de an d
th e m ain stair case
h ave b een finish ed
G co mp letel y i.e.
flo oring wo rk , wall
fin ishin g, railin g et c.
co mp lete in all
resp ect.
H
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 173
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
A
iv Lower Basement:- The lower The Lower Basement
basement is totally unfinished. is found finished with
respect to flooring,
plastering etc. with B
partitions to make
enclosures and
sprinkler system, AC
ducting etc.
v Upper Basement: - The upper The Upper Basement
basement is totally unfinished is found completely C
(approx.). Party has fixed the finished. Ventilator
frame for ventilators towards East work has been found
and North side. Party has not completed on all sides
constructed the ramp from upper of the building Ramps
basement level to ground level connecting upper
towards West Side. basement level to D
ground level have
been constructed and
completely finished.
Electric equipments
pertaining to Electric
sub-station/AC plant
E
were found installed.
vi Ground Floor: - Party has Ground
finished the internal walls and roof Floor:Finishing work
ceiling with cement plaster and of all internal walls
also fixed the rolling shutter at and roof ceiling has
external façade at places, partitions been found
have been constructed at places 3 completed. All the F
ft. high without plaster. Party has rolling shutters at
constructed two small toilet blocks external façade have
which are not finished. There is been fixed. Both the
no floor finished at whole of the toilets have been
Ground Floor. completely finished.
Flooring work of the G
whole ground floor
including Lift Lobby
is found completed.
H
174 SUPREME COURT REPORTS [2019] 9 S.C.R.
A
First Floor: - Party has not First Floor: Flooring
vii finished the flooring except at part work has been found
portion of the main corridor and completed in the
has also plastered the ceiling and entire first floor
internal walls constructed at site. including Lift Lobby.
Two rolling shutters have been Ceiling and walls
B fixed near lift lobby and also fixed were found
door frames and door shutters in completely finished.
part portion. Two toilet blocks All the door frames
have been constructed and are and shutters have
unfinished. been fixed. Both the
toilets have been
C completely finished.
vii Second Floor: Party has Second floor:
i completed the internal plastering Flooring of entire
work. Flooring have not been second floor including
finished except in a part portion of lift lobby and corridor
lift lobby and corridor. Two toilet have been found
D blocks are unfinished. The door completed. Both the
frames have been provided/fixed at toilets have been
places. completely finished.
All the door frames
and door shutters
were found fixed.
ix Third Floor: - Party has Third Floor: The
E completed the internal plastering entire third floor
work of the walls as constructed at including toilet blocks
site including the ceiling. The including Lift Lobby
toilet blocks are totally unfinished. and corridors are
Flooring has not been laid except found completely
in a part portion of corridor. finished. All the door
F Wooden door frames have been frames and door
fixed. shutters were found
fixed.
x Fourth Floor: - This floor is Fourth Floor: The
totally unfinished and is without entire fourth floor
partition walls. Shuttering has not including Lift Lobby
been removed towards outer face was found completely
G
of South East Side. finished. Partition
walls were also found
finished in all aspect.
All the door frames
and door shutters
were found fixed.
H
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 175
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
xi Terrace: - Party has constructed 3’-3” Terrace: Parap et wall A
high parapet towards north side only. has been completed on
Two RCC columns 2.6m. high and all sides of the building
two RCC columns of 1.25 m high at terrace. Lift machine
have been constructed behind the room and Mumty has
main stair case. Steel bars of various been constructed with
heights of all the structural columns complete finishing work B
are seen erected above the terrace over lift well and main
level. stair case. Lift
machines are found
installed in the machine
room. Still Frame with
louvers enclosures were
found erected around C
the overhead water
tanks at two locations.
xii The open to sk y surface are at ground Open area at ground
level has not been finished. level surrounding the
building was found
completely finished.
One generator was D
found installed in open
area on eastern side.
The south side boundary
wall & railing has been
shifted towards inside
plot for road widening,
as required/shown in the E
Sanction Plan.
(Generator was not
shown in the plans
approved by
NMA/NDMC)
xiii The building material and shuttering Almost all the floors F
material are scattered in the open area inside the building and
as well as on various floors of the open area at ground
building. One lift crane and concrete floor were found clear
mixture are lying at the site. of building material,
Scaffolding is existing at some places scaffolding and
around the building. shuttering material or
any machinery used in G
construction work,
except some unused
building material was
found stacked in small
portions in second floor,
upper basement and
lower basement. H
176 SUPREME COURT REPORTS [2019] 9 S.C.R.
A
xiv Coloured photographs taken at the Coloured photographs
t ime 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’.
B
Coloured photographs
of the building prior
to building plan
sanction on
05.03.2001, as
C available in the file
records of Architect
Department, are
enclosed at Annexure
‘R-16.
D
13. An affidavit was thereafter filed by the Chief Architect of
NDMC enclosing the aforesaid Report. The affidavit asserted:-
“7. It is pertinent to mention that previously the Hon’ble High
Court of Delhi vide order dated 02.05.2003 passed in FAO(OS)
No.414/2002 had been pleased to stay the construction activities
E
at the premises and had directed NDMC and Archeological Survey
of India (ASI) to inspect the premises. Pursuant to this order, the
premises had been inspected and a panchnama was drawn
07.05.2003 wherein it has been recorded that two basement +
ground floor + four upper floors having height of 61’6" from the
F ground level to the terrace level of the 4th floor had been completed.
8. That the building was not habitable at the time of preparation of
Panchnama on 07.05.2003. However, during the inspection
undertaken on 09.10.2018, it was observed that the building was
found habitable. While the whole building was illegal after
G judgment dated 16.01.2012 in Civil Appeal No.2431 of 2006 by
this Hon’ble Court, however, even at the time of Panchnama on
07.05.2003 the height of the building was found 61 ft 6 inches in
contravention to the 55ft height allowed by Hon’ble High Court
vide its order dated 22.03.2002 in CS(OS) No.645/2002.
H
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 177
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
9. That the construction of the building itself having been held to A
phs be illegal by this Hon’ble Court vide its order dated 16.01.2012,
the the same being within 100 metres of the prohibited area of a
on
are protected monument, no construction activity was permissible in
ure the said parcel of the land in question and the entire building is
liable to be demolished and accordingly NDMC had revoked/
B
cancelled the sanction plans on 27.01.2017. Further NDMC has
phs already issued a Show Cause Notice u/s 247 of NDMC Act on
rior
07.09.2017 and passed a sealing order u/s 250(I) on 09.09.2017.
lan
on The SCN and order issued by NDMC has been challenged by
as Narender Anand (Respondent Nos.4 & 5) by filing an application
file in W.P.(C) 7018/2016 before the Hon’ble High Court of Delhi. C
tect The Hon’ble High Court of Delhi vide order dated 11.09.2017 has
are restrained the NDMC from taking any action on the said property
ure
in question and stayed the Show Cause Notice issued by NDMC
dated 07.09.2017. The stay order dated 11.09.2017 is still
continuing and the next date of hearing before the Hon’ble High
D
Court of Delhi is 01.11.2018.”
14. During the course of hearing of this Contempt Petition on
23.01.2019, certain developments and factual aspects came to light on
perusal of the files. It appeared that though some queries were made
and doubts were raised by the Legal Advisor of NDMC in his noting
dated 11.03.2014, those queries were not dealt with and yet permission E
was granted by NDMC. Notices were therefore issued to certain officials
including the then Chairperson and Member Secretary of NMA to explain
the circumstances in which permission to go ahead with reconstruction/
repairing was granted by them. Notice was also issued to the competent
authority of ASI to explain his role in the entire matter. Appropriate F
responses were thereafter filed by the concerned noticees. It is not
necessary to deal with every single response but suffice it to say that the
factual development leading to the letter dated 05.06.2014 by Chief
Architect of NDMC releasing Sanctioned Plans for finishing the existing
building as per approved drawings by NMA/ASI, were dealt with in
detail in the affidavit by the Deputy Chief Architect, NDMC filed in this G
Court on 19.02.2019.
15. We heard Mr. Nidhesh Gupta, learned Senior Advocate for
the contempt petitioner, Mr. YogenderHandoo, learned Advocate for
H
178 SUPREME COURT REPORTS [2019] 9 S.C.R.
A NDMC Respondent No.2, Mr. Gopal Shankar Narayanan, learned
Senior Advocate for Respondents 4 and 5, Mr. ADN Rao, learned
Advocate for ASI and NMA and Mr. Parag P. Tripathi, learned Senior
Advocate and Mr. Gourab Banerji, learned Senior Advocate for some
of the other noticees.
B 16. This Contempt Petition principally prays for an appropriate
direction that the structure in existence at the site or in the subject plot
be demolished and submits that action be taken against the alleged
contemnors for violation of the directions issued in the Judgment. In its
paragraph 29, the Judgment laid down “This would mean that in the
garb of renovation, the owner of a building cannot demolish the
C existing structure and raise a new one and the competent authority
cannot grant permission for such reconstruction. …… 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 and
D permit any construction by a private person de hors public interest.
…… “.
Having laid down the principles of law, in its operative part, the
Judgment directed, “… … in future the Central Government or the
Director General shall not take action or pass any order under
E Sections 20A(3) and 20C except in accordance with the observations
made in this judgment.”
17. The facts on record need to be considered in the light of the
principles so laid down and the direction so issued, to see if any action in
exercise of Contempt Jurisdiction is called for.
F It is clear from the record that as on the date when the matter
was considered and the Judgment was delivered by this Court, the
structure as indicated in the Spot Panchnama dated 07.05.2003 was in
existence. In the local inspection held on 07.05.2003 it was found that
Respondents 4 and 5 had structurally completed the ground floor plus
G four upper floors including two levels of basement having height of 61 ft
and 6 inches from the ground level to the terrace level of the 4th floor.
However, the finishing work in the lower basement, upper basement,
ground floor, first, second, third and fourth floor as well as terrace was
yet to be completed. Though the challenge raised by Respondents 4 and
H
SHIV DARSHAN SINGH v. RAKESH TIWARI, DIRECTOR GENERAL 179
ARCHAEOLOGICAL SURVEY OF INDIA (ASI) [UDAY UMESH LALIT, J.]
5 was negatived in the Judgment, no specific direction was passed as to A
the status of structure that was in existence on the date of the Judgment
and whether that structure be pulled down or not.
As evident from the affidavit of the Chief Architect of NDMC
and the inspection held on 09.10.2018, though there was no vertical or
horizontal expansion of the building as against what obtained in the year B
2003, the building was found to be habitable in the inspection held on
09.10.2018 whereas it was not so in the year 2003. The aforesaid affidavit
further indicates that apart from cancellation of Sanction Plans on
27.01.2017, action in the form of a Show Cause Notice dated 07.09.2017
and Sealing Order dated 09.09.2017 was undertaken by NDMC, which
aresubject matter of challenge in Writ Petition (Civil) No. 7018 of 2016. C
18. It is true that though no specific directions regarding demolition
of the structure that was in existence as on that date were passed in the
judgment, the authorities were directed not to take any action or pass
any order under Section 20A(3) and 20C of the Act except in accordance
with the observations made in the judgment. The basic submission of D
the petitioner in the contempt petition, however, is that the cumulative
effect of all the proceedings including the Judgment passed by this Court
would mean that the structure in existence has to be demolished and
since no action in that behalf has been taken or initiated, the concerned
authorities are guilty of contempt. E
After the Judgment was passed by this Court, ASI had initially
given permission for renovation/ repair of the structure that was in
existence, based on which appropriate permission was also granted by
the NDMC. However, those permissions now stand revoked in terms
of order dated 27.06.2016 i.e. even before the filing of the present F
Contempt Petition. A Writ petition filed by Respondents 4 and 5
challenging said order dated 27.06.2016 is still pending consideration by
the High Court.
19. In the backdrop of these facts, we have gone through the
record and the notings in the file pursuant to which the aforesaid G
permissions were granted by ASI on 16.12.2013 and by NDMC on
05.06.2014. The permissions were only for completing the finishing
work of the existing building without any vertical or horizontal extension
of the structure. Though the concerned authorities ought to have been
careful when the matter in that behalf was considered, since the challenge
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180 SUPREME COURT REPORTS [2019] 9 S.C.R.
A is pending consideration before the High Court, we refrain from going
into the matter. For the present purposes what is crucial to consider is
whether any express direction issued by this Court in the present matter
stood violated or not. As this Court had not dealt with the matter as
regards status of the construction which was in existence on the day
when the matter was considered by this Court, it would not be possible
B
in these proceedings to direct demolition of the existing structure as is
sought to be submitted on behalf of the contempt petitioners. The
direction that the authorities must not take any action or pass any order
under Section 20A(3) and 20C of the Act except in accordance with the
observations made in the Judgment is definitely capable of being
C implemented. But,whether the permissions were rightly granted or not
and what is the affect of withdrawal or revocation of those permissions
are the issues which must logically and in fairness, be considered in the
pending matters. In any event of the matter, with the passing of the
order dated 27.06.2016 it cannot be said that the authorities were in
violation of the orders passed by this Court. We, therefore, see no reason
D
to entertain this Contempt Petition any longer and the present Contempt
Petition is closed.
20. We, however, request the High Court to dispose of all pending
matters as expeditiously as possible and preferably within six months in
the light of the law declared by this Court in the Judgment. We make it
E clear that we have considered the matter only from the perspective
whether contempt has been made out or not and leave all the issues
including status of the structure in existence in the subject plot and whether
that structure needs to be demolished or not to be decided in the pending
matters.
F
Kalpana K. Tripathy Contempt Petition closed.
G
H
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