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NON – REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 699 OF 2005

S.N. BHARDWAJ …..APPELLANT(S)

VERSUS

ARCHAEOLOGICAL SURVEY OF INDIA & ORS. …..RESPONDENT(S)

W I T H

TRANSFER CASE (CIVIL) NO. 7 OF 2003

J U D G M E N T

A.K. SIKRI, J.

Sultan Giyasuddin Tughlaq founded the Tughlak Dynesty  and  

ruled during the period 1321-1325 A.D.  He constructed the historic  

Tughlakabad Fort  in  Tughlakabad spreading  over  an  area  of  about  

3000 bighas and area-wise it is considered one of the largest among  

all the Forts in Delhi.  Tughlakabad Fort is regarded as the third major  

city after  Kila Rai Pithora,  which was built  by the Rajput Anang Pal  

Tomer, and the Siri Fort, which was built by Allaudin Khilji.  The Fort  

has  its  national  importance.   It  has  been  declared  as  protected  

monument.  Therefore, it is the legal as well as ethical obligation of the  

concerned  authorities  to  protect  this  heritage  site  and  to  properly  

maintain  it.   Notwithstanding,  over  a  period  of  time,  the  place  is  

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encroached upon and rampant illegal construction carried out by many  

people.

2) The appellant herein felt aggrieved by the alleged inaction on the part  

of the Archaeological Survey of India – respondent No.1 (hereinafter  

referred to as 'ASI' for short) as, according to him, the ASI has failed to  

protect,  maintain  and  preserve  the  historic  Tughlakabad  Fort.  

According to him, various illegal occupants have since entered the fort  

premises  and  constructed  their  houses  with  a  view  to  grab  the  

Government  land  for  dwelling  purposes.   This  apathy  of  the  ASI  

compelled the appellant  to file  CWP No.  1475 of  2001 in the High  

Court of Delhi, by way of Public Interest Litigation, in March 2001.  In  

this writ petition, the appellant,  inter alia, stated that the Fort and the  

area measuring 2661 bighas within the fortification wall was transferred  

to the ASI by the Delhi Government with the objective of protection,  

preservation and development of the entire opening area abutting the  

monument within the Fort wall.  He mentioned that it was reported in  

the press that an area of 4435 bighas was transferred to respondent  

No.2 – Delhi Development Authority for care and maintenance.  The  

Government land was allowed to be encroached by all the respondents  

and construction work was carried out with the active collusion of the  

Government officials as per reports in the Press. The appellant also  

mentioned that the matter had been highlighted by the Press to open  

the eyes of  the authorities but  the respondents were doing virtually  

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nothing in this regard and the historic Fort is likely to be completely  

ruined,  which  will  cause  national  loss  to  our  ancient  heritage  and  

composite culture.   The appellant brought to the notice of  the High  

Court a judgment of this Court in Rajeev Mankotia v. Secretary to the  

President of India & Ors.,  (1997) 10 SCC 441, in which case this  

Court  intervened  and  saved  another  historical  Viceregal  Lodge.  

Accordingly, in the said writ petition, the appellant prayed that the ASI  

be  directed  to  discharge  its  legal  duty  by  evicting  those  illegal  

occupants.   He  also  made  a  prayer  to  the  effect  that  direction  be  

issued to the Central Bureau of Investigation to conduct an inquiry as  

to how the Fort had been encroached upon by illegal occupants.

3) On the  very  first  date,  i.e.  on  March  07,  2001,  when the  said  writ  

petition came up for hearing, the High Court disposed of the same with  

the observations that the ASI need to look into the grievances in proper  

perspective and take necessary action as is warranted in law.  This  

brief order reads as under:

“CWP No. 1475/2001 Heard.  This petition is stated to have been filed  

in  Public  interest.   Though  the  petition  is  not  very  specific  as  regards  the  alleged  un-authorised  construction  we  think  it  would  be  appropriate  if  the  concerned authorities  look  into  the  grievances in  the  proper  perspective  and  take  necessary  action  as  is  warranted in law.  We make it clear that we have not  expressed any opinion as regards acceptability of the  petitioner's  stand.   This  direction  is  confined  to  Respondent  No.1 i.e.  Archaeological  Survey of  India.  Petitioner shall hand over a copy of the petition to Mr.  U. Hazarika, appearing for ASI.  Copy of the order be  given Dasti to Mr. Hazarika.

The petition stands disposed of.”

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4) Not satisfied with the aforesaid manner of disposal of the writ petition,  

the appellant approached this Court by way of special leave petition.  

According  to  the  appellant,  having  regard  to  the  significant  

observations made and directions issued in Rajeev Mankotia (supra),  

the  High  Court  should  have  taken  up  the  matter  itself  rather  than  

leaving  it  to  the  ASI.   He  specifically  referred  to  the  following  

observations made in Rajeev Mankotia (supra):

“19.   It  is  needless  to  mention  that  as  soon  as  the  Indian  Institute  of  Advanced  Studies  vacates  the  building  and  hands  it  over  to  the  Archaeological  Department,  the  Government  should  provide  the  necessary budget for effecting repairs and restoring to  the building its natural beauty and grandeur. It is also  necessary that its proper maintenance and preservation  is  undertaken  as  an  on-going process  to  protect  the  historical heritage and needed repairs are effected from  time  to  time.  We  avail  this  opportunity  to  direct  the  Government  of  India  to  maintain  all  national  monuments under the respective Acts referred to above  and to ensure that all of them are properly maintained  so that the cultural and historical heritage of India and  the beauty and grandeur of the monuments, sculptures  secured  through  breathless  and  passionate  labour  workmanship, craftsmanship and the skills of the Indian  architects,  artists  and  masons  is  continued  to  be  preserved. They are the pride of Indians and places of  public  visit.  The  tourist  visitors  should  be  properly  regulated  and  collection  of  funds  by  way  of  admission/entrance  fee  should  be  conscientiously  accounted  for  and  utilised  for  their  upkeep  and  maintenance  under  the  respective  regulations/  rules.  Adequate  annual  budgetary  provisions  should  be  provided. In this behalf,  it may not be out of place to  mention  that  if  one  goes  to  Williamsburg  in  United  States of America, the first settlement of the Britishers  therein is preserved as a tourist resort and though it is  one in the row, its originality is maintained and busying  (sic. bustling) business activity goes on in and around  the area attracting daily  hundreds of  tourists  from all  over  the  world.  Similar  places  of  interest,  though  of  recent origin, need to be preserved and maintained as  manifestation  of  our  cultural  heritage  or  historical  evidence. Similar efforts should also be made by the  

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Government  of  India,  in  particular  the  Tourism  Department, to attract foreign tourists and to give them  a good account of our past and glory of the people of  India as message to the other countries and territories.  Equally all the State Governments would do well vis-a- vis  monuments  of  State  importance,  though  given  power under Entry 12, List II of the Seventh Schedule  to the Constitution. From this perspective, the petitioner  has served a great cause of national importance and  we  place  on  record  his  effort  to  have  the  Viceregal  Lodge  preserved  and  maintained;  but  for  his  painstaking efforts, it would have been desecrated into  a five star hotel and in no time "We, the people of India"  would have lost our ancient historical heritage."

5) Notice was issued in this Special Leave Petition and the respondents,  

including  the  ASI,  appeared  in  the  matter.   After  notice,  when  the  

matter came up for hearing on December 09, 2002, this Court  was  

informed that the alleged encroachment could not be removed even  

when the authorities were trying to do the same on account of certain  

interim orders passed by the High Court of Delhi in Writ Petition (Civil)  

No. 2193 of 2001.  This Court directed the production of records of the  

said writ  petition before it.   The said petition was transferred to this  

Court  and  is  registered  as  Transfer  Case  (Civil)  No.  7  of  2003.  

Thereafter,  both the cases were taken up for  hearing together.   On  

March  03,  2003,  this  Court  passed interim orders  directing  that  no  

construction, of any nature whatsoever, is allowed to be undertaken in  

this  area  by  anybody.   It  was  also  directed  that  all  the  agencies,  

including  National  Capital  Territory  of  Delhi,  Delhi  Development  

Authority, Municipal Corporation of Delhi and the Police must assist the  

ASI in ensuring that no construction activity takes place in this area.  

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Thereafter, leave was granted on January 25, 2005; interim order was  

directed to continue; hearing of the matter was expedited and original  

records requisitioned.  We may also point out that many persons, who  

are  residents  in  the  said  area  and  are  dubbed  as  unauthorised  

encroachers  by  the  appellant  herein,  had  moved  applications  for  

intervention from time to time, which were allowed.

6) Effective hearing in the matters took place on September 08, 2011,  

when the following order was passed:

“T.C. (C) No. 7/2003:

We  have  heard  the  learned  counsel  for  the  parties and perused the relevant documents on record.  In the facts and circumstances of this case, the orders  dated 9.4.2001 and 24.4.2001 ought not to have been  passed by the High Court.  Learned counsel appearing  for  the  Delhi  Development  Authority  and  learned  counsel  appearing  for  the  Archaeological  Survey  of  India submit that because of this stay order, huge chunk  of land at Village Tughlakabad has been unauthorisedly  encroached  upon.   These  orders  are,  therefore,  vacated.  Consequently, the order passed by this Court  on  3.3.2003  in  S.L.P.  (C)  No.  4821  of  2002,  on  the  basis of the Delhi High Court order, is also vacated.

In  view of  the  fact  that  now there  is  no  stay  order  of  this  Court,  the  concerned  authorities  are  directed to take appropriate steps in accordance with  law and inform this Court within eight weeks from today.

List the matter on 29th November, 2011.”

7) As is clear from the aforesaid order, the stay granted by the High Court  

in Writ Petition (Civil) No. 2193 of 2001, which was transferred to this  

Court  and registered as Transfer  Case (Civil)  No.  7 of  2003,  stood  

vacated  thereby  making  it  clear  that  there  was  no  stay  order  and  

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direction  was  given  to  the  authorities  to  take  appropriate  steps,  in  

accordance with law.  This was followed by the order dated October  

14, 2011 when the Court directed the ASI to file an affidavit indicating  

that on the basis of the aerial survey conducted in the year 1993, how  

many people were living in the protected monument of Tughlakabad  

Fort.  We would like to reproduce this order as well in its entirety.  The  

same is as under:

“We  have  heard  the  learned  counsel  for  the  parties.   

We would like to reiterate that  protection and  preservation of the monument of Tughlakabad Fort is  imperative.

Learned  counsel  appearing  for  the  Archaeological  Survey  of  India  is  directed  to  file  an  affidavit indicating that on the basis of the aerial survey  conducted in 1993, how many people were living in the  protected  monument  of  Tughlakabad  Fort.   Let  the  affidavit be filed within three weeks from today with an  advance  copy  to  the  appellant-in-person  and  the  counsel for other parties.

The respondent Archaeological Survey of India  and other public authorities would be at liberty to visit  the  protected  monument  and,  if  necessary,  police  protection may be provided to them by the concerned  authorities.

Meanwhile,  there  shall  be  no  further  construction in the protected monument of Tughlakabad  Fort.

List this application along with the civil appeal  on the date fixed.”

8) As the ASI failed to file this affidavit within the aforesaid time granted  

by this  Court,  vide order  dated May 03,  2012,  last  opportunity  was  

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date,  failing  which  the  Director  General  of  ASI  was  directed  to  be  

personally  present  in  the Court.  Notwithstanding this  order,  the ASI  

failed to do the needful and the explanation furnished by it was that the  

task involved had very wide dimensions and in spite of best efforts, the  

ASI  was not  able  to  file  the affidavit  within  the time granted.   This  

argument was rejected in the order passed by this Court, after hearing  

the matter on July 11, 2012, recording its displeasure.  Cost of 10,000₹   

was  imposed  on  the  ASI  while  granting  two  weeks  further  time  to  

comply with the directions given earlier.   This strongly worded order  

resulted in the compliance by the ASI to the limited extent, viz. it filed  

the affidavit at least.  However, in the said affidavit, the ASI expressed  

its inability to carry out the direction stating that unrest was prevailing  

at the site, which prevented it from carrying out a joint survey to identify  

the area by physical  verification.   Taking note of  this  plea made in  

paragraphs 46 and 47 of the affidavit of the ASI, vide order dated April  

10, 2013, Chief Secretary of the National Capital Territory of Delhi and  

Commissioner of Police, Delhi were directed to provide all assistance  

sought by the ASI for carrying out the directions of this Court.

9) Certain Status Reports were filed by the ASI thereafter, but in all these  

reports it has reflected that the ASI had not been able to carry out the  

survey for the reasons beyond its control.  This prompted the appellant  

even to file Contempt Petition (Civil) No. 382 of 2014, in which Notice  

was issued and reply filed by the respondents/  alleged contemnors.  

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The said contempt petition was disposed of on March 19, 2015 in the  

following terms:

“1.  This Contempt Petition is filed under Section 14 of  the Contempt of Court Act, 1971 with a prayer to initiate  appropriate  contempt  proceedings  against  the  respondent  no.1  for  willfully  disobeying  the  order(s)  passed by this Court in Civil Appeal No. 699 of 2005,  dated 03.05.2012, 11.07.2012 and 10.04.2013.

2.   We  have  carefully  perused  the  counter  affidavit/  reply  filed  by  the  respondent(s).   In  its  counter  affidavit/reply the respondents have specifically stated  that  they  are  taking  active  steps  to  implement  the  order(s) and direction(s) issued by this Court.

3.  In a matter of this nature, we do not think that the  respondents  have  committed  any  contempt  of  the  order(s)  and  direction(s)  issued  by  this  Court.  Therefore, we drop the contempt proceedings against  the respondents.

4.  However, we direct the respondents to file the latest  Status  Report(s)  within  four  weeks'  time  from  today  indicating  therein  the  efforts  being  taken  by  the  respondents to implement the order(s) and direction(s)  issued by this Court.

5.  The Contempt Petition is disposed of accordingly.

Ordered accordingly.”

10) The state of affairs reflected above continues even now.  The stock  

reply of the ASI is that it has not been able to complete the survey as it  

is not getting police protection.  In this backdrop, we have heard the  

matter.

11) On the basis of events narrated above, the position that emerges is the  

following:

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(a)  Tughlakabad Fort is a protected monument and this Court has held in  

these  proceedings  that  protection  and  preservation  of  the  said  

monument is imperative.

(b)  Though stay order was granted by the High Court in the writ petition,  

which is now registered as Transfer Case (Civil) No. 7 of 2003, the said  

stay order was vacated by this Court long ago.

(c)   On October  14,  2011,  order  was passed directing the ASI to  file  an  

affidavit indicating that on the basis of the aerial survey conducted in  

the  year  1993,  how  many  people  were  living  in  the  protected  

monument of Tughlakabad Fort.  This direction is yet to be complied  

with.

(d)  Repeated orders are passed to the effect that there would not be any  

further construction in the protected monument, i.e. Tughlakabad Fort.  

The effect of the said orders is that ASI is to take an action for removal  

of unauthorised construction as also the encroachers from the public  

land.  There are even orders passed by this Court that for carrying out  

this direction, the ASI is to be provided with necessary police protection  

as  well  as  any  other  cooperation  that  is  needed from the  National  

Capital Territory of Delhi or any other authority.

12) Since effective orders have already been passed to this effect and the  

matter now only needs to be monitored to ensure that these orders are  

implemented in letter and spirit by taking effective steps and action in  

the matter, we are of the opinion that further monitoring of the cases  

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can be done by the High Court of Delhi from where these proceedings  

originated.

13) We, accordingly, remit these cases to the High Court, which may pass  

appropriate orders and ensure that the orders passed by this Court, as  

referred to above, are duly implemented by the respondent authorities.  

The Registry is directed to transmit  the records of  the cases to the  

High Court.  

14) With  the  aforesaid  observations,  the  Civil  Appeal  and  the  Transfer  

Case stand disposed of.

..........................................CJI. (T.S. THAKUR)

.............................................J. (A.K. SIKRI)

.............................................J. (R. BANUMATI)

NEW DELHI; FEBRUARY 04, 2016.

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