Bharat Sanchar Nigam Limited vs The State of Punjab and others

Mehinder Singh Sullar, J.—The crux of the facts, which needs a necessary mention for a limited purpose of deciding the sole controversy, involved in the instant writ petition and emanating from the record, is that Royal Shahi Samadhan situated at Patiala, was declared a protected Monument by the Department of Cultural Affairs, Archeology and Museums, Punjab, vide Notification dated 27.02.2009 (Annexure P/1), in view of the provisions of The Punjab Ancient and Historical Monuments & Archaeological Sites and Remain Act, 1964(hereinafter to be referred as "the Act"). During the course of enquiry, it revealed that the office and tower of the petitioner Company-BSNL (for short "the petitioner-Company"), are existing on the protected monument area, without any sanction/permission of the Competent Authority. Exhibiting the great concern and the entirely unsatisfactorily manner, with which the protected monument and their property are preserved or maintained by the State Government, the First Division Bench of this Court, issued the following directions, by virtue of order dated 04.10.2008 rendered in Civil Writ Petition No. 17704 of 1997:-

(i) the Areheologieal Survey of India, Chandigarh Circle, Chandigarh shall send detailed particulars, including the area of the land underneath an ancient/protected monument to the Deputy Commissioner-cum-Collector of the district concerned where such monument is located in the State of Punjab and Haryana within a period of one month, if not sent already;

(ii) the Deputy Commissioner-cum-Collector of the district concerned shall obtain a report from the revenue authorities regarding the encroachment, if any, made over the property of the ancient/protected monument within a period of one month from the date intimation regarding such ancient/protected monument is received from the Areheologieal Survey of India, Chandigarh Circle, Chandigarh and shall send a copy of the report to the Areheologieal Survey of India, Chandigarh Circle, Chandigarh;

(iii) it shall be the duty of the Areheologieal Survey of India, Chandigarh Circle, Chandigarh and also of the Deputy Commissioner-cum-Collector of the district concerned to get the ancient/protected monument or the property attached thereto retrieved from the encroachers in accordance with law. Wherever such an encroacher has got an injunction order from the civil court, the Areheologieal Survey of India as well as the Collector shall produce a copy of this order before the civil court to enable it to pass an appropriate order which may not be inconsistent with the directions issued hereinabove. The court concerned shall also be requested for early disposal of the pending suit/appeal, as the case may be;

(iv) the Areheologieal Survey of India shall ensure that all the ancient or protected monuments are maintained, preserved, repaired or renovated periodically and the duty, if any, cast upon the Collector of a district in this regard under the 1958 Act shall be performed by him with or without any request from the Areheologieal Survey of India;

(v) after removal of all encroachments from the ancient or protected monuments and/or their repair/renovations, a compliance report along with photographs of each of the said monuments shall be submitted to the Registry of this Court. The entire exercise, however, shall have to be carried out before 30.9.2009, failing which, besides suo moto, any public spirited person shall also be competent to initiate contempt of court proceedings against the erring Collector or the authorities of the Areheologieal Survey of India, Chandigarh Circle, Chandigarh;

(vi) the Areheologieal Survey of India, Chandigarh Circle, Chandigarh, with the assistance of the District Administration concerned, shall further ensure that no part of the ancient or protected monument in possession of the encroachers or otherwise is damaged, defaced, altered or impaired, till such encroachments are removed.

Sequelly, the Punjab Government has empowered the Deputy Commissioners to remove all the encroachments on the declared protected monument vide Notification dated 24.03.2009. In exercise of these powers, the Deputy Commissioner, Patiala, passed the ejectment order and the petitioner- Company challenged the same through the medium of Civil Writ Petition No. 15333 of 2009, which was disposed of along with Civil Writ Petition No. 15164 of 2009. This Court set aside the eviction order and permitted the petitioner- Company to file reply to the show cause notice and the respondents were directed to decide the matter expeditiously, after providing the opportunity to the petitioner- Company, by way of order dated 23.12.2009 (Annexure P-4).

In pursuance thereof, the Deputy Commissioner issued a show cause notice dated 12.08.2009 to the General Manager of the petitioner-Company, for removal of the encroachments of their office and tower, which are being run, without any authority in the declared protected monument area u/s 30(1) of the Act and was directed to remove the encroachments within a period of 15 days, failing which the proceedings u/s 31 of the Act, were proposed to be initiated.

Moreover, in exercise of his indicated powers and in compliance with the order of this Court, the Deputy Commissioner directed the Sub-Divisional Magistrate, Patiala, to report about the existing position of the site in dispute, whereas he submitted his report to the effect that the Tehsildar and the Assistant Conservator, Archaeology and Museum, Patiala, inspected the disputed area and as per their report, the office and tower of the petitioner-Company comes under the protected area declared by the Punjab Government. Therefore, it was recommended that the fresh eviction order be passed in this relevant behalf. The Deputy Commissioner, Patiala, again provided opportunity of personal hearing to the petitioner-Company and perused its record. The map submitted by it was sent for verification and the Sub-Divisional Magistrate again submitted his report that the office and the tower of the petitioner-Company are the parts of protected monument area declared by the Government.

Not only that, the Deputy Commissioner himself visited the Royal Shahi Samadhan, Patiala, on 03.08.2009 and found that the office and tower of the petitioner-Company are the parts of the protected monument area declared by the Government and passed the impugned ejectment order dated 23.08.2010(Annexure P-6), which in substance, inter alia, is, as under:-

Undersigned personally visited the Shahi Samadhan Patiala on 03.08.2009 and found that the BSNL office and tower are the part of the protected area declared by the Government. As per Deputy General Manager, BSNL, they are not in the possession of any rent deed, agreement, any registry etc. BSNL officers and their counsel was also offered the requisite space from the agricultural land under the ownership of Shahi Samadhan. This place is not very far from the present office/tower. So, there will be no difficulty in shifting the tower but till date no such offer has been made by the BSNL. Shahi Samadhan Complex is an identifiable property. Argument of BSNL is that the Shahi Samadhan (where the Samadhis of the ancestors of Maharaja Patiala) should be segregated from the entire compound. This argument has no force. The deodi of this complex upto Shahi Samadhan with every buildings are the part of the Shahi Samadhan. Even the official activities are also creating hurdles in the complete preservation and upkeep of the Royal Monument. So, the encroachments from the protected area as declared by the Government is to be removed. In compliance of the orders dated 04.10.2008 passed by Hon''ble Punjab and Haryana High Court, undersigned empowers Sub Divisional Magistrate to remove the unauthorised encroachments from the protected area of Shahi Samadhan within one week.

This fresh order is issued in the compliance of directions issued by the Hon''ble Punjab and Haryana High Court.

Sequelly, the petitioner-Company again challenged the impugned eviction order dated 23.08.2010(Annexure P-6) in Civil Writ Petition No. 15459 of 2010. The only contention raised on behalf of the petitioner-Company in that writ petition, was that there should be fresh measurements at the spot to prove it that the tower is outside the area, of protected monuments. The writ petition came to be disposed of by a Coordinate Bench of this Court (Surya Kant, J.) by means of order dated 06.09.2010 (Annexure P-7), the operative part of which is, as under:-

The only contention raised on behalf of the petitioner is that there should be fresh measurements at the spot, the petitioner can prove that the Telecom Exchange installed by it is outside the area of "protected Monuments".

Having heard learned counsel for the parties and with a view to afford one more opportunity to the petitioner to prove that the land under occupation of the "Telecom Exchange" does not fall within the "Notified Area" of the "protected Monuments", the writ petition is disposed of with a direction to the Deputy Commissioner-cum-Collector, Patiala to appoint a Revenue Officer not below the rank of Tehsiidar to again carry out the measurements in the presence of the official/officer of the petitioner-Nigam within a period of two weeks. Till then, the interim arrangement made by this Court vide order dated September 1, 2010 shall remain operational. However, if after the re-measurements also, it is found that the Telecom Exchange is installed within the "Notified Area" of the "Protected Monument", the petitioner shall remove its Exchange forthwith failing which the Deputy Commissioner-cum-Collector, Patiala, shall be entitled to take coercive steps in accordance with law.

The petitioner-Company still did not feel satisfied and filed LPA No. 1157 of 2010, challenging the order (Annexure P-7) of the Learned Single Judge. The LPA was disposed of by the LPA (1st D.B.) Bench of this Court by means of order dated 22.03.2011, which reads as under:-

The challenge in the writ petition filed by the appellant was against an eviction order dated 23.08.2010 (Annexure P-6). Apart from the aforesaid challenge no other relief was sought in the writ petition. According to the appellant-writ petitioner the telephone exchange in Shahi Samadhan, District Patiala did not fall in the area declared under the Archeological Act, 1964 as protected monument. Learned Single Judge hearing the writ petition took the view that one more opportunity should be given to the appellant-writ petitioner to prove that the land under occupation of the telephone exchange does not fall within the notified area. Accordingly the writ petition was disposed of with a direction to the Deputy Commissioner-cum-Collector, Patiala to ensure that a fresh measurement is carried out in the presence of an official of the appellant.

Pursuant to the said order of the learned Single Judge it appears that fresh demarcation/measurement was carried out on 10.9.2010 and 11.11.2010 and as per the said demarcation the office and Tower of the appellant falls within the notified area. This is evident from the reply filed on behalf of the Deputy Commissioner-cum-Collector. From the said reply it also appears that the possession of the disputed premises has already been taken over and the building is in possession of the Department of Cultural Affairs Archaeology & Museums, Patiala.

Learned counsel for the appellant has urged that there are errors in the fresh demarcation/measurement undertaken pursuant to the order of the learned Single Judge and further than even if it is found that the telephone exchange or a part thereof falls within the notified area the appellant would be entitled to compensation under the Archaeological Act, 1964. We are afraid that we cannot go into the said questions in the present appeal which is directed against the validity of the order of the learned Single Judge ordering a fresh demarcation/measurement. As the said order of the learned Single Judge has been implemented and possession has also been taken over, the questions now agitated would lie beyond the purview of the appeal. Hence we decline to entertain this appeal any further, however, with liberty to the appellant to avail of such remedies as may be open to it in law to ventilate its grievances as stated in the appeal. LPA is disposed of in the above terms.

The petitioner-Company did not disclose the result (dismissal) of the LPA and preferred the instant writ petition, again challenging the same impugned eviction order dated 23.08.2010 (Annexure P-6) in this regard.

After hearing the learned counsel for the petitioner-Company, going through the record with his valuable help and after deep consideration of the entire matter, to my mind, there is no merit in the present writ petition in this respect.

As is evident from the record that although the LPA was dismissed by virtue of order dated 22.03.2011, much prior to the filing of the instant writ petition, but the petitioner-Company did not disclose the fact of implementation of order (Annexure P-7), taking over possession of the disputed property in pursuance thereof and dismissal of the LPA and still instituted the present writ petition, again challenging the same impugned eviction order dated 23.08.2010 (Annexure P-6), which was also challenged In Civil Writ Petition No. 15459 of 2010 and the same was disposed of by this Court vide'' order (Annexure P-7). That means, the petitioner-Company is guilty of concealment of facts, is not entitled to any relief and this writ petition deserves to be dismissed with heavy costs in this context.

There is another aspect of the matter, which can be viewed from a different angle. What is not disputed here is that the same impugned eviction order (Annexure P-6) (now sought to be challenged in the present writ petition) has already been merged in the earlier order (Annexure P-7) of this Court. As indicated earlier, the fact of implementation of order (Annexure P-7), taking over the possession of the disputed property by the respondents and dismissal of the LPA were concealed by the petitioner-Company, for the reasons best known to it. Once, the eviction order having been challenged in this Court in earlier Civil Writ Petition No. 15459 of 2010 by the petitioner-Company, which was disposed of vide order (Annexure P-7), then, to my mind, the filing of second writ petition, challenging the same eviction order (Annexure P-6) is a sheer misuse of process of law, is not maintainable and deserves to be dismissed with heavy costs. In the light of aforesaid reasons, as the writ petition is not maintainable, therefore, the same is hereby dismissed with costs, which is quantified to be Rs. 25,000/-, in this behalf, to be paid to the Department of Cultural Affairs Archeology & Museums (respondent No. 1), in the obtaining circumstances of the case.