CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                1

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

CONTEMPT PETITION (CIVIL) NO.697 OF 2017 IN CIVIL APPEAL NO.2431 OF 2006   

SHIV DARSHAN SINGH    …Petitioner

VERSUS

RAKESH TIWARI, DIRECTOR GENERAL,                           …Respondents/ ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS          Contemnors

J U D G M E N T

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 directing Respondent Nos.4 and 5 to demolish the

structure raised by them.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                2

2. While dealing with an ancient monument popularly known as Jantar

Mantar in New Delhi, it was observed by this Court in the Judgment:-

“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 instruments that can graph the path of  the  astronomical  universe.  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  Yantra, Daksinovartti Bhitti Yantra, Karka Rasivalaya, 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.”    

3. In  exercise  of  power  conferred  by  Section  3(1)  of  the  Ancient

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.”   

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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                3

remains  of  national  importance,  for  the  regulation  of  archaeological

excavations  and  for  the  protection  of  sculptures,  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,  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, (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.”

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 Act are as under:

“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 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 following matters, namely:―  

(a)  the  prohibition  or  regulation  by  licensing  or otherwise of mining, quarrying, excavating, blasting

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                4

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.

(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 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  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  infrastructure  (including  electric  poles, water and sewer 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 (3) of section 20E;

(cf) salaries  and  allowances  payable  to,  and  the other terms and conditions of service of, the whole-

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                5

time Chairperson and whole-time members, or fees or allowances payable to the part-time members, of the Authority under sub-section (1) of 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 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) 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 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;

(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 and Remains Rules,

1959 (‘the Rules’, for short).   Rules 31, 32 and 33 of the Rules are to the

following effect:

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                6

“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 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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                7

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:-

"DEPARTMENT OF CULTURE (Archaeological Survey of 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 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.  

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.  

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 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 Kolba (Maharashtra).”

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                8

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” 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 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.

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;

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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                9

metres  to  be  the  prohibited  area  having  regard  to  the classification of any protected 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.  

(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  

(b) 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,

it  or  he  may,  notwithstanding  anything  contained  in  sub- section  (2),  in  exceptional  cases  and  having  regard  to  the public  interest,  by  order  and for  reasons  to  be  recorded  in writing,  permit,  such 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 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 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 material times:

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                10

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 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 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 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.  

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 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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                11

before  the  date  on  which  the  Ancient  Monuments  and Archaeological  Sites  and  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 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 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 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 construction of a multi-storey building.  A General

Power of Attorney was given to Respondent No.4 – Narender Anand, Director

of Respondent No.5.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                12

(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 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  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 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

1New Delhi Municipal Corporation  2Archaeological Survey of India

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                13

the  later  order  dated  31.05.2002  was  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 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 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 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 discussion made in its judgment

dated 23.07.2004.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                14

(f) The afore-mentioned judgment of the Division Bench was challenged

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 Notification, 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 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  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  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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                15

foundation  for  the  new  building.   On  5.5.2001,  the Conservation  Assistant  of  Archaeological  Survey  of  India lodged  a  complaint  about  the  excavation  and  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.   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:-

“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 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 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 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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                16

impression  that  the  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 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  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 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 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:-

“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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                17

instruments have become unworkable/non-functional.  This is largely due to construction of multistoried 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  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 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.  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 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 a registered Cancellation Deed and on his

3 National Monument Authority

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                18

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

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  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 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.  

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                19

(n) Respondent Nos.4 and 5, therefore challenged the Show Cause Notice

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.

(o) The instant  Contempt Petition was filed in this Court in December

2016 submitting 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  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 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 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.”

      It was prayed:-

“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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                20

No.2431/2006  titled  as  “Narender  Anand   Vs. Archaeological Survey of India & Ors.”;

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  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:

“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  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  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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                21

released for finishing work on the basis of approval by NMA) in  comparison  to  the  earlier  status  of  construction  observed during PANCHNAMA held on 07.05.2003:

Sl.No Status of Construction recorded as  per  Panchnama  on 07.05.2003

Status  of Construction  as  on 09.10.2018  (after completion  of finishing  work  as per  approval  by NMA  on 16.12.2013)

i. Party has structurally completed the  ground  floor  +  4  uppers floors  including  two  level basements having height 61’6’’ from the ground level to terrace level of 4th floor.

Additional  structure work  of  Mumty, Lift Machine Room, Water  tank enclosures  at  two places  at  terrace; and  Under  Ground Water  Tank,  under ground  Fire  Water tank,  STP Tank and Rain  Water Harvesting  Tank  at Ground  Level  are found completed.

ii. Party  has  constructed  the external wall upto sill level on all  the  floors  and  has  almost plastered  the  external  surface towards East and North side.

Finishing  of external  walls including  windows/ glazing  work  has been  completed  on all  the  floors. Complete  finishing/ plastering  of external surfaces on all  sides  of  the building  has  been completed.

iii. The  fire  escape  staircase towards  east  side  has  been finished with kota stone upto 3rd floor but the main stair case and other FES is unfinished.

The  fire  escape staircase  towards east  side  has  been completely  finished with  kota  stone.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                22

The fire escape stair case  towards  west side  and  the  main stair case have been finished  completely i.e.  flooring  work, wall  finishing, railing etc. complete in all respect.

iv. Lower  Basement:- The  lower basement is totally unfinished.

The  Lower Basement is  found finished  with respect  to  flooring, plastering  etc.  with partitions  to  make enclosures  and sprinkler  system, AC ducting etc.

v. Upper Basement: -  The upper basement  is  totally  unfinished (approx.).  Party  has  fixed  the frame  for  ventilators  towards East and North side.  Party has not  constructed  the  ramp from upper basement level to ground level towards West Side.

The  Upper Basement is  found completely finished. Ventilator work has been  found completed  on  all sides of the building Ramps  connecting upper  basement level  to  ground level  have  been constructed  and completely finished. Electric  equipments pertaining  to Electric  sub-station/ AC  plant  were found installed.

vi. Ground  Floor:  -  Party  has finished  the  internal  walls  and roof ceiling with cement plaster and  also  fixed  the  rolling shutter  at  external  façade  at places,  partitions  have  been constructed at places 3 ft. high without  plaster.   Party  has

Ground  Floor: Finishing  work  of all  internal  walls and roof ceiling has been  found completed.   All  the rolling  shutters  at external façade have

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                23

constructed  two  small  toilet blocks  which  are  not  finished. There  is  no  floor  finished  at whole of the Ground Floor.

been  fixed.   Both the toilets have been completely finished. Flooring  work  of the  whole  ground floor  including  Lift Lobby  is  found completed.

vii. First  Floor:  - Party  has  not finished  the  flooring  except  at part  portion  of  the  main corridor and has also plastered the  ceiling  and  internal  walls constructed at site.  Two rolling shutters  have  been  fixed  near lift  lobby  and  also  fixed  door frames and door shutters in part portion.  Two toilet blocks have been  constructed  and  are unfinished.

First  Floor: Flooring  work  has been  found completed  in  the entire  first  floor including  Lift Lobby.  Ceiling and walls  were  found completely finished. All the door frames and  shutters  have been  fixed.   Both the toilets have been completely finished.

viii. Second  Floor:    Party  has completed  the  internal plastering work.  Flooring have not  been  finished  except  in  a part  portion  of  lift  lobby  and corridor.  Two toilet blocks are unfinished.   The  door  frames have  been  provided/fixed  at places.

Second  floor: Flooring  of  entire second  floor including  lift  lobby and  corridor  have been  found completed.   Both the toilets have been completely finished. All the door frames and  door  shutters were found fixed.

ix. Third  Floor:  -  Party  has completed  the  internal plastering work of the walls as constructed at site including the ceiling.   The  toilet  blocks  are totally unfinished.  Flooring has not  been  laid  except  in  a  part portion  of  corridor.   Wooden door frames have been fixed.

Third  Floor:  The entire  third  floor including  toilet blocks  including Lift  Lobby  and corridors  are  found completely finished. All the door frames and  door  shutters were found fixed.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                24

x. Fourth  Floor:  -  This  floor  is totally unfinished and is without partition walls.   Shuttering has not been removed towards outer face of South East Side.

Fourth  Floor:  The entire  fourth  floor including  Lift Lobby  was  found completely finished. Partition walls were also  found  finished in  all  aspect.   All the door frames and door  shutters  were found fixed.

xi. Terrace:  -  Party  has constructed  3’-3”  high  parapet towards north side only.   Two RCC  columns  2.6m.  high  and two  RCC  columns  of  1.25  m high  have  been  constructed behind  the  main  stair  case. Steel bars of various heights of all  the  structural  columns  are seen  erected  above  the  terrace level.

Terrace:  Parapet wall  has  been completed  on  all sides of the building at  terrace.   Lift machine  room  and Mumty  has  been constructed  with complete  finishing work  over  lift  well and main stair case. Lift  machines  are found  installed  in the  machine  room. Still  Frame  with louvers  enclosures were  found  erected around the overhead water  tanks  at  two locations.  

xii. The open to sky surface are at ground  level  has  not  been finished.

Open area at ground level  surrounding the  building  was found  completely finished.   One generator was found installed  in  open area on eastern side. The  south  side boundary  wall  & railing  has  been shifted  towards inside plot  for  road

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                25

widening,  as required/shown  in the  Sanction  Plan. (Generator  was  not shown  in  the  plans approved by NMA/ NDMC)

xiii. The  building  material  and shuttering material are scattered in the open area as well  as on various  floors  of  the  building. One  lift  crane  and  concrete mixture  are  lying  at  the  site. Scaffolding is existing at some places around the building.

Almost  all  the floors  inside  the building  and  open area at ground floor were found clear of building  material, scaffolding  and shuttering  material or  any  machinery used in construction work,  except  some unused  building material  was  found stacked  in  small portions  in  second floor,  upper basement and lower basement.

xiv. Coloured  photographs  taken at the  time  of  Panchnama  on 07.05.2003  are  enclosed  at Annexure ‘R-14’.

Coloured photographs  taken during  the inspection  on 09.10.2018  are enclosed  at Annexure ‘R-15’.

Coloured photographs  of  the building  prior  to building  plan sanction  on 05.03.2001,  as available  in the file records of Architect Department,  are enclosed  at Annexure ‘R-16.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                26

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  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 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 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.

9.  That the construction of the building itself having been held to be illegal by this Hon’ble Court vide its order dated 16.01.2012,  the  same  being  within  100  metres  of  the prohibited  area  of  a  protected  monument,  no  construction activity  was  permissible  in  the  said  parcel  of  the  land  in question and the entire  building is  liable  to be demolished and accordingly NDMC had revoked/cancelled the sanction plans on 27.01.2017.  Further NDMC has already issued a Show Cause Notice u/s 247 of NDMC Act on 07.09.2017 and passed a sealing order u/s 250(I) on 09.09.2017. The SCN and order issued by NDMC has been challenged by Narender Anand (Respondent Nos.4 & 5) by filing an application in W.P.(C) 7018/2016 before the Hon’ble High Court of Delhi. The  Hon’ble  High  Court  of  Delhi  vide  order  dated 11.09.2017 has restrained the NDMC from taking any action

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                27

on the said property 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  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 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  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

Court on 19.02.2019.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                28

15. We  heard  Mr.  Nidhesh  Gupta,  learned  Senior  Advocate  for  the

contempt  petitioner,  Mr.  Yogender  Handoo,  learned  Advocate  for  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.

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 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 permit any construction

by a private person de hors public interest.  …… ”.

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                29

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 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.

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 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 5 was negatived in the Judgment, no specific direction was

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                30

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.

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  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 are subject matter of challenge

in Writ Petition (Civil) No. 7018 of 2016.

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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                31

existence has to be demolished and since no action in that behalf has been

taken or initiated, the concerned authorities are guilty of contempt.   

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 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  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 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

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                32

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 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 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 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 clear that we

have considered the matter only from the perspective whether contempt has

CONTEMPT PETITION (CIVIL)NO. 697 OF 2017 IN CA NO.2431 OF 2006 SHIV DARSHAN SINGH VS. RAKESH TIWARI, DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA (ASI) & ORS.                                33

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.  

.………..…..……..……J.                                                                                (Uday Umesh Lalit)

..………….……………J.                            (Indira  Banerjee)

New Delhi; July 9, 2019.