G.S. SINGHVI, J. - (1.) THESE appeals are directed against the judgment of the Division Bench of the Delhi High Court 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 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 construction up to the height of 55 feet on plot No. 14, Janpath Lane, New Delhi was set aside and Writ Petition 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').
(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 which the Division Bench vacated the order of injunction passed by the learned Single Judge. Archaeological and historical pursuits in India started with the efforts of Sir William Jones, who put together a group of antigurians to form the Asiatic Society on 15th January 1784 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 of Patliputra (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 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 the abolition of the Archaeological Survey in 1866, this work came to a grinding halt. In the meanwhile, an Act was passed 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 Ancient Monuments Preservation Act, 1904 (for short, the 1904 Act') was enacted for the preservation of ancient monuments and objects of 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 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.- (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- (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 or otherwise preserving such monument; and (c) the means of access to and convenient inspection of an ancient monument: **** 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. (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 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. (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." 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 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 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 spoliation, disfigurement, destruction, removal, disposal or export, as the case may be."
(3.) IN 1951, Parliament enacted the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951, whereby certain monuments etc. were declared to be of national 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 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 II of the Seventh Schedule of the Constitution. The definition of "ancient monument" contained in Section 2(a) and Sections 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 requires,- (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 been in existence for not less than 100 years, and includes- (i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an 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; **** 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 (Declaration of National Importance) Act, 1951 (71 of 1951), or by section 126 of the States Reorganisation Act, 1956 (37 of 1956), to be of national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of 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 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 affixed in a conspicuous place near the monument or site and remains, as the case may be. (2) Any person interested in any such ancient monument or archaeological site and remains may, within two months 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 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. (4) A notification published under sub-section (3) shall, 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. 38. Power to make rules.-(1) The Central Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rule 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 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 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 licensees and the fees that may be charged for such licences. 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. (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 importance, except as respects things done or omitted to be done before the commencement of this Act." IN exercise of the power vested in it under Section 38 of the 1958 Act, the Central Government enacted the Rules, the relevant provisions whereof are extracted below: "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 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 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 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. 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 the terms and conditions of a licence granted by the Director- General." ;