Asha and Others vs Archaeological Survey of India and Another

Sanjiv Khanna, J.

CM NO. 5049-50/2011 (for exemption)

Allowed, subject to all just exceptions.

LPA 226/2011 & CM No. 5048/2011 (stay)

The five Appellants have claimed and prayed for direction that the Archaeological Survey of India (ASI, for short) should be directed to issue photo identity cards as per the order dated 30th September, 2005 in LPA No. 706/2004 and the order dated 21st November, 2008 in LPA No. 323/2008.

We have examined these two orders, which have been enclosed as Annexures A-7 and A-8 to the present appeal.

The order dated 21st November, 2008 passed in LPA No. 323/2008, titled Archaeological Survey of India v. Nathoo Lal and Ors., is detailed and sets out the relevant facts. The ASI had issued/ granted photographic licences for still photography within the protected monuments at Agra. These licences were issued for the first time in 1959. In August, 1997, the ASI issued an office order constituting a committee for screening of applications and inspections of studios/shops for grant of photographic licences. On the recommendations of the committee, licences were issued/granted for the period of two years i.e. till 2000. Identity cards were issued to the licensees and to the nominated photo workers in the case of a licensed firm.

On 24th August, 2000, the Superintending Archaeologist, ASI, Agra Circle, invited fresh applications, but it was stated that no photo workers would be allowed to work for and on behalf of the license holder. Applications were examined by the committee and a final list was prepared. However, a list of 120 photographic firms was cancelled on the ground that the guidelines for issue of licences had been revised. Thereafter, licences were issued in 2003 to individual photographers and not in the name of firms. Individual identity cards were issued to the license holders and they were not permitted to employ photo workers for their assistance.

Writ Petition (Civil) No. 8144-52/2004, Noor Jahan and Ors. v. Archaeological Survey of India, was filed in this Court to permit the licensed photo firms to engage/employ one photo worker who would be issued an identity card. The said writ petition was dismissed by the learned Single Judge vide order dated 26th May, 2004. This order was challenged in LPA No. 706/2004 before the appellate court. In the said appeal, ASI filed an additional affidavit dated 11th November, 2004 stating that Clause III in guidelines dated 17th December, 2002, effective from 1st January, 2003, does not exclude a proprietorship concern from its ambit.

The Division Bench disposed of LPA No. 706/2004 vide order dated 23rd November, 2004 directing that when an application for photographic license for taking still photograph was made by a firm/ company/registered/society or any proprietorship concern, a person nominated by them should be issued a requisite license as the authorized representative of the said establishment. It was directed that the Appellants therein were free to approach authorities concerned for issue of licences in favour of their representatives. Thereafter a CM No. 3283/2005 was filed in the disposed of LPA No. 706/2004 and another order dated 30th September, 2005 was passed stating that the nominated person of the firm/company/registered society or the proprietorship concern would be issued identity card to take photographs. If the nominated person was dis-associated or left or was removed, the licensee would inform the ASI about the aforesaid change and a fresh identity card would be issued in favour of the new authorized representative. It was further directed that this order was in respect of policy which was in operation and would apply to those who have been issued license under the existing policy.

Another writ petition was filed in 2006, which was disposed of on 10th October, 2007, by the Single Judge holding that there was nothing wrong in the ASI insisting that the identity card would be issued to licensee and no one else, but it was open to the license holders to approach the ASI to seek appropriate change in the policy guidelines. A review petition was filed and vide order dated 19th November, 2007, it was directed that for the remaining period, the license holders were entitled to nominate a person who would be issued a license if he would fulfill the terms and conditions of the guidelines. This review order was made subject matter in LPA No. 323/2008 by the ASI. The contention raised by the ASI was that the sole proprietorship should not be permitted to nominate their person as this would amount to transfer of a license whereas the license was not transferable. The Division Bench did not agree and the said LPA was disposed of vide order dated 21st November, 2008, holding that in terms of the policy even in case of a sole proprietorship, identity card could be issued in favour of the nominee. It was further recorded that there should not be any apprehension that this would amount to transfer, as identity card was issued to the nominee of the proprietorship license. Thus there was no transfer.

The aforesaid decisions do not help the Appellants herein. It is an admitted case that the sole proprietors, license holders have expired. In fact they have expired more than six years back (see order dated 26th August, 2010 passed in WP(C) No. 13931-74/2006). The license is not inheritable. On the death of the licensee/holder, the license came to an end. The license was not inherited by the Appellants by way of transmission or as a legacy. Learned Single Judge has, therefore, rightly rejected the review/clarification application CM No. 20610/10 by the impugned order dated 11th February, 2011. There is no contradiction between the said order and the two orders dated 30th September, 2005 and 21st November, 2008 passed in LPA Nos. 706/2004 & 323/2008.

Learned Counsel for the Appellant had submitted that they would like to apply for fresh license for photography in terms of the guidelines. It is open to the Appellants to apply and if any application is filed, the same shall be disposed of expeditiously and latest within a period of eight weeks from the date of filing of applications. However, the applicants shall ensure that the applications are complete in all aspects.

The appeal is disposed of with the aforesaid observations with no orders as to costs.