Shiv Darshan Singh vs Rakesh Tiwari, Director General, Archaeological Survey of India (Asi) & Ors.

Civil contempt – Contempt petition – Alleging violation of judgment dated 16.1.2012 passed by Supreme Court – Construction of multi-storey building by respondent Nos.4 and 5 (builders) after demolition of old structure on the subject land, pursuant to sanction of plan by New Delhi Municipal Corporation (NDMC) – Subsequently NDMC stopped the on-going construction work directing to obtain requisite permission from Archaeological Survey of India (ASI) as the subject plot being within 100 metres of ancient monument Jantar Mantar, in view of Notification dated 5.5.1991, was a prohibited and regulated area for the purpose of mining and construction – Builders filed suit seeking injunction against NDMC – Suit was decreed – Appeal before Division Bench of High Court – Also a writ petition was filed in public interest for protection of the monument Jantar Mantar – Division Bench of High Court dismissed the suit, but while dealing with the writ petition directed the Central Government to review the Notification dated 15.5.1991 to consider whether the stipulation of 100 meters prescribed by the notification had any scientific, pragmatic or logical basis – Appeal to Supreme Court by ASI as well as the builder – Appeal of ASI was dismissed by judgment/order dated 16.1.2012 – It was made clear in the judgment that in future Central Government or Director General not to take any action or pass any order u/ss.20A(3) and 20C – After the judgment of Supreme Court, on the recommendations of National Monument Authority, ASI gave permission for renovation of the building in question which was later cancelled by ASI – However, subsequently ASI, revived the permission for renovation – This gave rise to suit against the builders seeking permanent injunction and to writ petition by the owner of the property (petitioner) – Suit as well as petition are pending – Contempt petition before Supreme Court alleging non-compliance of its order dated 16.1.2012 – Local inspection of the site conducted on the direction of Supreme Court – Held: On the date when the matter was considered and judgment was delivered, as per the spot panchnama dated 7.5.2003, the builders had completed the ground floor plus four upper floors including two levels of basement and only finishing work was yet to be completed – Supreme Court had passed no specific direction as to the status of structure or that the structure was to be pulled down or not – In the inspection held, after the contempt petition was filed, no vertical or horizontal expansion of the building was found as against what obtained in the year 2003 and only finishing work was completed – The permissions granted for renovation was also revoked even before filing of contempt petition – Therefore, it cannot be said that the authorities were in violation of the orders passed by Supreme Court – Hence the contempt petition is closed.

Closing the Contempt Petition, the Court

HELD: 1. 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 floors 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 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. [Para 17] [178-F-H; 179-A]

2. 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. [Para 17] [179-B-C]

3. 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. [Para 18] [179-E-F]

4. The permissions by ASI and by NDMC 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, this Court is not inclined to go into the matter. 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 by contempt petitioners. The direction in the judgment (violation whereof is alleged) that the authorities must not take any action or pass any order under Section 20A(3) and 20C of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 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. Therefore, there is no reason to entertain this Contempt Petition any longer and the present Contempt Petition is closed. [Para 19] [179-G-H; 180-A-D]