VIJAYA LAXMI Vs. ARCHAEOLOGICAL

JUDGEMENT

(1.) The present appeal impugns a judgment of the learned Single Judge dated 10.10.2011 in W.P. (C) 4357/2011 by which the writ petitioner (who is the appellant here), had questioned the permission granted by the respondent Archaeological Survey of India (ASI) to the second respondent to construct within 100 metres of the Humayun Tomb a protected monument under the Ancient Monuments Act, 1958.

(2.) The facts necessary for the purpose of this judgment are that the second respondent apparently purchased the property A-10, Nizamuddin East, New Delhi-16 and sought for permission to construct upon it. The local authorities, such as the Municipal Corporation of Delhi (MCD) etc. were to proceed with the application for sanction of the plans, after the ASI accorded its approval. By virtue of a Notification dated 16.06.1992 of the ASI, all constructions within 100 metres of protected monuments were prohibited. Apparently, over a period of time, the ASI used to consider applications for permissions within this area on case-to-case basis and had constituted an Expert Committee for this purpose. This Court, in a Division Bench judgment had occasion to deal with that practice. In L.P.A. No. 417/2009, by its judgment dated 30.10.2009, the Court held that the Notification constituting the Expert Committee and the consequent permissions accorded by it were beyond the authority conferred upon the ASI by the Act. This had a snow-balling effect since ongoing constructions at various stages throughout the country were jeopardized. In order to obviate situation, the executive stepped in and issued an Ordinance, setting-up an authority to oversee implementation of the enactment and at the same time, validating, subject to certain conditions, the permissions granted by the Expert Committees from time to time. Later, the Ordinance was replaced by an Act, which amended the Ancient Monuments Act, 1958.

(3.) The appellant had complained that the permission granted to the second respondent by the ASI's Expert Committee dated 26.06.2008 was illegal and could not be implemented. Several contentions were made in the course of the writ proceeding; the ASI had, during the submissions before the learned Single Judge urged that in view of the amended provisions of the Act, the petition had been rendered meritless. The learned Single Judge, by the impugned judgment noticed the concerned law - the two provisos to Section 20(A)(3) of the amended Act. The relevant discussion, rejecting the appellant's contention is found in the following extract: