- (1.) This writ petition by Hotel Jawahar International Pvt. Ltd., hereinafter referred to as the Petitioner, challenges the show-cause notice dated 14.12.2009, issued by the Director General, Archaeological Survey of India (for short, A.S.I.), by means of which the permission granted by the A.S.I. to carry out construction at property No. 36/18-4, Sapru Marg, Lucknow, U.P. has been suspended and the Petitioner has been restrained from raising any further construction henceforth. The notice required an explanation from the Petitioner as to why the constructions raised be not removed or demolished as they have been carried out in violation of Rule 33 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (for short, the Rules). 2. In substance, the notice recites that the constructions have been raised within a distance of 100 metres from the protected limit of the monument, namely, Chiria Jhil Cemetrey, Lucknow, which falls within the area declared as 'prohibited area' and that no constructions could have been raised there without permission of the competent authority. 3. In brief, the facts which have given rise to the aforesaid controversy are that the Petitioner started construction of the hotel on the subject property, for which permission was granted by the prescribed authority on 5.5.2000. The Petitioner applied for sanction of lay out plan to the Lucknow Development Authority under simple compounding scheme on 18.10.2002. The Lucknow Development Authority asked for 'No Objection Certificates' from various departments in respect of the subject property on 7.7.2003 and the Petitioner submitted 'No Objection Certificates' from Fire Department, Nagar Nigam and Jal Sansthan, which were granted on different dates. However, A.S.I., declined to issue 'No Objection Certificate'. 4. On 25.1.2005, the Lucknow Development Authority also requested the Ministry of Culture, Government of India not to treat the Chiria Jhil Cemetrey as a centrally protected monument and in the same letter, 'No Objection Certificate' was requested in favour of another building named as Carlton Hotel. 'No Objection Certificate' was issued in favour of Carlton Hotel by the A.S.I. on 15.6.2005. The Petitioner, on 25.7.2005, submitted an application before the A.S.I. giving reasons for issuance of 'No Objection Certificate'. 5. A meeting of the Expert Advisory Committee under the chairmanship of the Director General, A.S.I. was held on 10.11.2008 to examine and make recommendations in respect of constructions in the prohibited and regulated area of centrally protected monuments. The Expert Advisory Committee in item No. 10 took into consideration the case of the Petitioner and mentioned in its report that this part of Lucknow is already fairly commercialized and keeping 100 metre area around the monument free from construction is neither achievable nor practicable. Hence, the Director General, A.S.I. granted ex post facto permission for construction of the M/s. Jawahar International Hotel building at property No. 36/18-4, Sapru Marg, Lucknow (U.P.) in favour of Shri Jawahar Lal Jaiswal and others. 6. It is pertinent to mention here that according to the own case of the Petitioner, the construction of the hotel was completed sometime in the year 2004 and the application seeking permission was moved on 25.7.2005. This application itself stated that the construction work already stands completed long back, and no objection certificate be issued to the Petitioner in the same way as it has already been granted to Carlton Hotel. It was in view of this application that the matter was considered by the Expert Advisory Committee and thereafter ex post facto permission was granted to the Petitioner. 7. It is the case of both the sides that the impugned notice has been issued in pursuance of the directives issued by the Delhi High Court in, E.M.C.A. Construction Co. v. Archaeological Survey of India L.P.A. No. 417 of 2009 decided on 30.10.2009. The Appellant, in that case, felt aggrieved by an interim order passed by a learned single Judge directing the parties to maintain status quo with regard to the construction in respect of the property lying within the prohibited distance of a squarely protected monument, which became the subject-matter of consideration in the said case. The Court took an over all view of the buildings which were constructed within the prohibited distance from the squarely protected monument as also the report of the expert advisory committee including the ex post facto permission so granted. 8. Dr. Ashok Nigam, appearing for the Respondents, clarified that before the Delhi High Court, a list of 400 or so, such cases was given including the case of the Petitioner, where ex post facto permission was granted for constructing the hotel building. The Delhi High Court passed the following order: We direct the A.S.I, through its D.G. to forthwith stop accepting and processing any application for grant of permission for construction/renovation of any structure or buildings in a prohibited area and to also stop accepting appeals against any orders that may have been issued refusing such permissions. The A.S.I. will also take steps within a period of four weeks, to reconsider all permissions granted pursuant to the setting up of the Committee and take consequential steps after giving the affected parties an opportunity of being heard. 9. The Court also found that the Committee (Expert Advisory Committee) of the A.S.I., which has no legal basis for its functioning, has been examining applications and granting permissions contrary to the notification dated 16.6.1992, without any guidelines whatsoever, and further observed that setting up a committee to consider relaxation of the norm as provided in the notification dated 16.6.1992 on a case to case basis is not only unacceptable as being contradictory to its own stand, but is also clearly impermissible in law. While making the said observation, the Court took into consideration the directives issued by a Division Bench of the Delhi High Court in the case of Narendra Anand and also the stand taken by the A.S.I, before the Supreme Court wherein It was stated that the notification dated 16.6.1992 prohibiting any construction within a range of 100 metres from a protected monument is in force. 10. Sri R.N. Trivedi, learned senior advocate appearing for the Petitioner though has stated that even assuming that the distance of the present building/location is within a distance of 100 metres from the protected monument, still the impugned notice is without jurisdiction and arbitrary, as the same has been issued without application of mind and it does not take into consideration the Ordinance No. 1 of 2010 which has done away with the judgment and order passed by the Delhi High Court, as it validates the ex post facto permission granted by the A.S.I. and protects such constructions in view of proviso to Clause (4) of the said Ordinance. 11. Further argument is that the impugned notice also does not take into consideration the fact situation on the spot, where commercial and non-commercial buildings per se stand within the distance of 100 metres from the said protected monument and that the expert advisory committee has dealt with the said issue in detail in its report and it has found that to keep 100 metre area around the monument free from construction is neither achievable nor is it practicable. 12. Interpreting the judgment of the Delhi High Court, learned Counsel submitted that the judgment itself does not put a bar on giving ex post facto permission but for the fact, that no such relaxation was permissible under the Act/the Rules and the notification dated 16.6.1992 at the time, when the matter was considered by the Delhi High Court, meaning thereby that if there had been any such statutory provision, such permission could have been granted on case to case basis. In support of his submissions, he emphasized the following observations made by the Delhi High Court, which we quote as under: ... As of today, the Notification dated 16.6.1992 prohibiting construction within a range of 100 metre from a protected monument is in force. That notification has not been diluted one bit. To us it seems plain that the A.S.I. is misreading the directions contained in the judgment of the Division Bench of this Court in Narendra Anand. If the sentence in question is read as a whole, it is apparent that what the Division Bench meant was that as and when the Central Government reviews the position and considers relaxing the norm situated in the Notification dated 16.6.1992, it should also consider setting up of a mechanism whereby prohibition is imposed or relaxed on a case to case basis. 13. Explaining the aforesaid observation, it has been urged that setting up of a mechanism was thus permissible to consider the matter on case to case basis and, therefore, the Petitioner is entitled to the protection given, as under the Ordinance such a permission is permissible and relaxation to the norms set up in the Notification dated 16.6.1992 can be made. 14. Submission is that under proviso to Section 20A, Sub-clause (4) of the Ordinance, which deals with the prohibited area near or adjoining protected monuments, specifically validates and protects the permission already granted by the expert advisory committee and, therefore, the notice is per se without jurisdiction. 15. Further, submission is that even under the Act, permission so granted is saved but in any case, assuming that second proviso attached to Sub-clause (3) of Section 20A, as interpreted by the Respondents, does not protect the permission already granted, still permission can be granted where either of the two conditions, as mentioned in Sub-section (3) do exist. Placing reliance on the aforesaid provision, it has been emphasized that Sub-clause (3) of the aforesaid Section itself carved out the following exceptions for the purposes of granting permission in a case where the Central Government or the Director General, as the case may be, is satisfied that it is necessary or expedient for carrying out such public work or any project essential to the public, or such other work or project, in its opinion, shall not have any substantial adverse impact on the preservation, safety, security of, or, access to, the monument or its immediate surrounding, which means that the permission can be granted under Sub-clause (3) of Section 20A notwithstanding anything contained in Sub-section (2), in exceptional cases and/or having regard to the public interest. 16. Sri R.N. Trivedi has also relied upon the judgment of the Apex Court in the case of State of Orissa and Ors. v. Bhupendra Kumar Bose and Ors., 1962 Supp2 SCR 380, in support of the submission that even if the Ordinance had lapsed, the action taken or the validation done under the Ordinance would not stand nullified because of such lapse. However, the instant Ordinance has been converted into an 'Act'. 17. Dr. Ashok Nigam, for the Respondents, in response, submitted that the judgment of the Delhi High Court is very clear, which did not acknowledge and approve the constitution of the expert advisory committee and that the Court having issued a direction for issuing notice to all such persons who have raised constructions in violation of the notification dated 16.6.1992, notice cannot be challenged straightaway in writ jurisdiction. As the Petitioner has been afforded opportunity in terms of the aforesaid judicial order, therefore, he is under an obligation to submit a reply and allow the A.S.I. to consider its case. 18. In respect to the Ordinance No. 1 of 2010 and the provisions thereof, learned Counsel submitted that the said Ordinance has been converted into an Act, which is known as the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 and, therefore, the matter would be governed by the aforesaid Act. His further submission is that whether the Ordinance protects the Petitioner's construction or not, is a question which is yet to be considered by the A.S.I., but the notice on the aforesaid pleas of the Petitioner cannot be said to be without jurisdiction or authority so as to warrant any interference at this stage by the High Court. 19. Dr. Ashok Nigam greatly laid emphasis on his plea that ex post facto permission granted by the expert advisory committee having been found to be invalid by the Delhi High Court and such a permission not also being protected either under the Ordinance or under the Act, the Petitioner cannot claim any benefit of the same. Elaborating the aforesaid plea, he has submitted that the second proviso to Section 20A(3) and also the first proviso do not protect the already constructed buildings. 20. It is pertinent to take into account that the permission for raising construction would be required only in case the construction is to be made within the prohibited distance or within the prohibited area from the centrally protected monument. In case the constructions are to be raised beyond the prohibited distance, obviously no such permission would be needed. The permission for raising construction within the prohibited area is thus essential and for which purpose. the provision for permission/special permission has been provided under the Act. Therefore, to say that for constructions already made, no ex post facto permission can be granted, requires consideration while dealing with the notice, even assuming and accepting the plea of the Respondents that the ex post facto permission earlier granted does not stand protected either under the provisions of the Ordinance or under the Act for want of any provision under the unamended Act, constituting the expert advisory committee. 21. On giving our anxious consideration to the arguments raised by both the sides, we are of the view that the issuance of impugned notice by the A.S.I. was a necessary consequence of the directives issued by the Delhi High Court in the case of E.M.C.A. Construction Company (supra) and, therefore, it cannot be said that the notice is without jurisdiction or without authority. 22. For entertaining a petition against a notice to show-cause, it is essential that the notice so issued has either not been issued by the competent authority or it has been issued without authority or is without Jurisdiction or may have become redundant and of no consequence, by operation of some law. In case the notice has to be discharged on appreciation of the reply submitted by the noticee either on facts or on legal grounds, normally, it would be the authority issuing notice who should consider the pleas so raised and give its verdict at the first instance. There cannot be a presumption that if an authority has issued a notice to show cause or explain any action taken or work done, that would necessarily mean that the reply or explanation submitted by the noticee is not to be accepted or is necessarily to be rejected. 23. The pleas of the Petitioner against the show cause notice, as raised before us, may be categorised broadly as follows: 1. The judgment of the Delhi High Court is based on fact situation that till that date, there was no relaxation provided under the statute and the notification dated 16.6.1992 did not permit any relaxation, therefore, the setting up of expert advisory committee for relaxing the norm was not legal or within the Jurisdiction of the A.S.I.
(2.) Apart from the dispute of distance of the present constructions from the protected monument, the Ordinance No. 1 of 2010 supersedes the judgment of the Delhi High Court and protects the ex post facto permission granted to the Petitioner by the A.S.I.
(3.) In view of the fact situation on the spot, as emerges from the minutes of the meeting held by the expert advisory committee, though the permission granted on the said basis may not be in force any more, but the description of the area within 100 metres from the protected monument with respect to the already existing constructions and commercialisaton of the area cannot be ignored while considering the Petitioner's case and which was a relevant consideration for granting permission and relaxing the norm. 4. Fresh ex post facto permission can be granted to the already raised constructions under the provisions of the Act. 24. From the arguments raised from both the sides,, the questions that emerge are: whether the Delhi High Court's judgment would absolutely debar the A.S.I. from consideration of relaxation of the norms on case to case basis; what is the effect of Ordinance No. 1 of 2010 upon the existing constructions and ex post facto permission already granted and also the effect of Validation Act on conversion of the Ordinance into the Act; and whether in the fact situation on the spot, where undisputedly a large number of buildings, commercial and non-commercial, exist within the prohibited distance, a fact which also finds mention in the minutes of the meeting of expert advisory committee dated 11.11.2008, permission so granted was illegal, or a fresh ex post facto permission can still be granted. These are all such questions which need be considered by the A.S.I. 25. To allay the apprehension of the Petitioner, Dr. Ashok Nigam has submitted that whatever pleas would be taken by the Petitioner before the A.S.I., they obviously will be considered while passing an order and, therefore, in view of the fact that the notice cannot be said to be without jurisdiction or authority, this Court may relegate the Petitioner to the competent authority. 26. We also do not find any ground for entertaining the petition at this stage when the matter is still to be considered by the A.S.I. itself on reply/objection being filed by the Petitioner. 27. We, therefore, provide that in case the Petitioner has not filed its reply as yet, the same may be filed within two weeks from today or within such extra time as the A.S.I. may permit and from the date of submission of such reply, appropriate decision may be taken by the A.S.I. after affording an opportunity of hearing to the Petitioner expeditiously, say within a maximum period of two months. 28. We may clarify that we have not addressed ourselves or given any finding on the issues raised by the parties, and have considered the matter only for reaching the conclusion as to whether the petition should be entertained straightaway against the impugned notice or not. We also do not have any reason to believe that whatever pleas would be taken by the Petitioner including the pleas which have been raised before us, would not be considered by the concerned authority and a reasoned and speaking order would not be passed. Obviously, the pleas so raised would require a decision which can only be done by a reasoned and speaking order. Subject to the aforesaid observations, the writ petition is dismissed.;