Shobha Ram Naudiyal And Others vs Union Of Indian And Others

Ramesh Ranganathan, CJ

Heard Mr. Vinay Kumar, learned counsel for the petitioners, Mrs. Monika Pant, learned counsel for respondent Nos. 1, 2 and 3 and Mr. Paresh Tripathi, learned Chief Standing Counsel for respondent Nos. 4 and 5 and, with their consent, the writ petition is disposed of at the stage of admission.

The petitioners, 39 in number, are all residents of Tehsil Purola, District Uttarkashi. They have invoked the jurisdiction of this Court seeking a writ of mandamus directing the respondent Competent Authority/Principal Secretary, Culture, Government of Uttarakhand to take a decision, in a time bound manner, as per the mandate of Section 20D of the Amendment and Validation Act, 2010, on the applications submitted by the petitioners for grant of permission for making construction in the regulated Area of the excavated site at Purola.

The Archaeological Sites and Remains Act, 1958, (for short the "1958 Act") provides for the preservation of ancient and historical monuments and archaeological sites and remains of National importance, for the regulation of archaeological excavation, and for the protection of sculptures, carvings and others like objects. Section 2(l) of the 1958 Act defines a "regulated area" to be as specified or declared under Section 20B. Section 20B provides that every area, beginning at the limits of prohibited area, in respect of every ancient monument and archaeological site and remains, declared as of national importance under Section 3 and 4 and extending to a distance of two hundred meters in all directions, shall be the "regulated area" in respect of every ancient monument and archaeological site and remains. Section 20(C) declares that any person, who owns or possesses any building or structure or land in any regulated area and desires to carry out construction or re-construction or repair or renovation of such building or structure on such land, shall make an application to the Competent Authority for permission to carry out construction or reconstruction as the case may be. Section 20-D deals with grant of permission by the Competent Authority.

The Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 was notified by way of the Notification dated 29.03.2010, whereby provisions were made for the validation of certain action taken by the Government under the said Act. The Central Government had earlier notified the Ancient Monuments and Archaeological Sites and Remains Rules, made in terms of the Section 38 of the 1958 Act (for short the "Rules"). In the exercise of the power, conferred by Section 2(db) of the 1958 Act, the Central Government issued notification dated 25.02.2014 specifying the officers mentioned therein for the purpose of Section 20C and 20D of the Act. In so far as the State of Uttarakhand is concerned, the notification dated 25.02.2014 stipulates the Competent Authority to be the Principal Secretary, Department of Culture, Government of Uttarakhand, Dehradun.

A Division Bench of this Court in its order in Writ Petition (PIL) No. 80 of 2014 dated 05.09.2018, while dealing with the protection of ancient monuments more particularly the sites of Drona Sagar, Chaiti Temple of Mata Bal Sundari Devi, Bhagwan Moteshwar Maharaj Temple, Govishana Mount and the rampants of an old Fort, issued certain directions. Thereafter proceedings dated 06.02.2019 was issued by the Superintending Archaeologist, to the District Magistrate, Uttarkashi, regarding compliance with the directions of the Division Bench. The District Magistrate, in turn, forwarded the said letter to the Secretary, District Development Authority, Uttarkashi for taking necessary action; and, by letter dated 29.03.2019, the District Development Authority, directed the SDM, Purola to take necessary action in terms of the directions of the Division Bench.

The excavated site at Purola was declared, by a notification issued by the Government of India in the year 1996, as an archaeological site of national importance, as the excavation yielded the remains of Painted Grey Ware from the earliest level, along with other associated material; among the finds from the site was a brick altar identified as Syenachiti; and the structure was in the shape of a flying eagle (Garuda), head facing east with outstretched wings.

The petitioners' claim to have submitted an application, seeking permission in terms of the Act and the Rules, to the Superintending Archaeologist. Pursuant to the Notification dated 29.03.2010, whereby the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 was made, the Superintending Archaeologist issued notices to petitioner No.1 on 07.05.2011, and subsequently on 10.08.2011, calling upon them to show cause against the construction raised by them. The petitioners submitted an application to the Principal Secretary, Culture, Government of Uttarakhand (competent authority) on 28.09.2011 seeking permission to make construction in the regulated area. Even though the application was pending consideration, the petitioner raised construction without awaiting approval of the Principal Secretary, Culture, Government of Uttarakhand.

Consequent on the impugned show cause notice being issued, the petitioners have now invoked the jurisdiction of this Court contending that, since their applications to the Principal Secretary, Culture, Government of Uttarakhand made as early as on 28.09.2011, is still pending, the action of the respondents, in taking action to demolish the buildings constructed by them is illegal. As noted hereinabove, prior permission of the Principal Secretary, Culture, Government of Uttarakhand was required to be obtained before the petitioners could have commenced construction. The petitioners, on the other hand, have merely submitted a letter, and have proceeded with construction without awaiting approval of the Principal Secretary, Culture, Government of Uttarakhand.

Mr. Vinay Kumar, learned Counsel for the petitioners, would contend that the delay, in passing an order on the petitioners' application, is on the part of the Principal Secretary, Culture, Government of Uttarakhand; and the petitioners cannot be held responsible for the delay. Even if there was any delay, on part of the Principal Secretary, to decide the petitioners' application, for grant of permission to raise construction, the petitioners could have approached this Court seeking a mandamus to the Principal Secretary, Culture, Government of Uttarakhand to consider the representation within a specified time frame. They have, instead, chosen to proceed with construction, even without obtaining prior approval of the Principal Secretary, Culture, Government of Uttarakhand.

While the construction raised by the petitioners is, no doubt, unauthorized, the fact remains that all these villagers are using the construction, raised by them, for their residential purposes and that of their families. No useful purpose would be served in directing the petitioners to now submit their reply to the show cause notices without approval being granted by the Principal Secretary, Culture, Government of Uttarakhand, since, in the absence of any such approval, the construction raised by the petitioners is, undoubtedly, illegal. While the petitioners have, no doubt, acted contrary to the aforesaid provisions in raising construction without prior approval of the Principal Secretary, Culture, Government of Uttarakhand, we are of view that, since a few of them had made an application to the Principal Secretary, Culture, Government of Uttarakhand by their letter dated 28.09.2011, and later by their letter dated 02.04.2016, (copies of which have been enclosed along with the writ petition), it would be unjust to permit the residential houses raised by them to be demolished, even though their applications, seeking permission for construction, is still pending before the Principal Secretary, Culture.

Suffice it, in such circumstances, to direct the Principal Secretary, Culture, Government of Uttarakhand (fourth respondent) to consider the petitioners' representations as aforementioned, in accordance with law at the earliest, and, in any event, within a period of two months from the date of receipt of a certified copy of this order. Till orders are passed on the petitioners' representation, by the Principal Secretary, Culture, the respondents shall not demolish the structures already raised by them. The petitioners shall, henceforth, not raise any further construction except with the prior written approval of the fourth respondent. Needless to state that, in case the Principal Secretary, Culture, Government of Uttarakhand rejects the petitioners' request for grant of permission, it is open to the respondents, thereafter, to proceed and take necessary action in terms of the show cause notices issued by them, and in accordance with law.

The writ petition is, accordingly, disposed of. No costs.