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Judgment
Vibhu Bakhru, J
CM No. 5325/2018
Exemption is allowed, subject to all just exceptions.
The application stands disposed of.
W.P.(C) 1269/2018
The petitioners are essentially aggrieved by non-grant of permission to construct on their land. The petitioners own a piece of land admeasuring 12
biswas in Khasra No. 541/519/170/2 of Vilage Kharera, now known as “Green Park Extension, New Delhi†(hereafter “the said landâ€). The
said land is in the immediate vicinity of a centrally protected monument known as “Sakri Gumti†(hereafter “the Monumentâ€). The said land
falls within the prohibited zone of 100 meters of the Monument.
The petitioners state that other persons who own land in the vicinity of the Monument had constructed buildings prior to the amendment in the
Ancient Monument and Archaeological Site and Remains Act, 1958 (hereafter “the Actâ€), by virtue of which any further construction in the
prohibited zone, is prohibited . However, the petitioners were unable to do, so since the said land had been illegally occupied by respondent no.1
(hereafter “the ASIâ€). The petitioners claim that the ASI was evicted from the said land on 13.02.2017; however, by that time, the Act had been
amended to prohibit any construction within the prohibited zone.
In the aforesaid context, the petitioners pray that the petitioners be granted permission as an exceptional case to construct a residential building on
the said land. In the alternative, it is prayed that the respondents be directed to acquire the said land by the way of private purchase at fair market
value, or provide compensation in terms of Section 27 of the Act.
Insofar as the petitioners†prayer for granting permission for construction of a residential building is concerned, it would be necessary to refer to
Sub-section (3) and (4) of Section 20A of the Act. The same are set out below:-
“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:
xxxxxxxxx xxxxxxxxxxxx xxxxxxxxx xxxxxxxxx
“(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:
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.â€
A plain reading of Section 20A(3) of the Act indicates that in certain exceptional cases, permission could be granted for carrying out any work or
project. However, such permission is only permissible where the Central Government is satisfied that the permission is for carrying out any public
work or any project essential to the public or any other works, which are in public interest. Clearly, the petitioners†request does not fall under any of
those categories and, therefore, the question of granting permission to the petitioners to carry out any construction within the prohibited zone does not
arise.
The provisions of Section 20A(4) of the Act also make abundantly clear that no permission will be granted under Section 20A(3) of the Act in the
prohibited area after the date on which the of the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010
receives the assent of the President. The said Bill received the assent of the President on 29.03.2010. Thus, thereafter, the ASI /Central Government
do not have any power to grant any permission for construction under the prohibited area.
The contention that the petitioners are entitled to any compensation for loss or damage in terms of Section 27 of the Act is also unpersuasive.
Section 27 of the Act reads as under:-
“27. Compensation for loss or damage.―Any owner or occupier of land who has sustained any loss or damage or any diminution of profits from
the land by reason of any entry on, or excavations in, such land or the exercise of any other power conferred by this Act shall be paid compensation
by the Central Government for such loss, damage or diminution of profits.â€
It is apparent from the above that compensation is only contemplated in cases of any entry or excavation or where a loss is caused by exercise of
any power under the Act. In this case, admittedly, no excavation has been done on the said land. Further, as noticed above, the ASI has not exercised
any power, which has resulted in loss to the petitioners.
Mr Gandhi, the learned counsel appearing for the petitioner contended that failure to exercise power to grant permission to construct on the said
land should also be construed as resulting in loss, which is to be compensated under Section 27 of the Act. This contention is also flawed as the ASI
has no power to grant any permission to construct and thus the question of any damage/loss resulting from non exercise of such power is plainly
illusory.
Mr Gandhi relied upon the decision of the Karnataka High Court in State of Karnataka, rep., by its Chief Secretary and Ors. v. Smt. T. Jayamma
and Anr.: ILR 2014 KAR 5749 and drew the attention of this Court to Paragraph 14 and 15 of the said Judgment, which read as under:-
“14. In view of the aforesaid scheme of the Act and Rules and decisions of the Apex Court, we are unable to endorse the view taken by the
Division Bench of this Court in State of Karnataka v. Srikanthadatta Narasimha Raja Wodeyar (supra). However, the issues arising herein may be
addressed in view of the fair concession made by Learned Advocate General that the provisions of Section 24 of the Act already provide for
compensation by the Government for loss, damage or diminution of profits being sustained by any owner or occupier of land on account of exercise of
any power conferred by the Act. Therefore, it is admittedly open to respondent No.1 to claim compensation in terms of the provisions of Section 24, if
she is so advised. Learned Advocate General also fairly stated that if and when such application for compensation is made, it would be considered in
accordance with law and decided as expeditiously as practicable.
The parties having arrived at the aforesaid understanding, the appeal is allowed by consent and the impugned order is set-aside with the direction
that if and when respondent No.1 makes an appropriate application under Section 24 of the Act or a fresh application for a license under Rule 14 of
the Rules, it may be considered by the State Government in accordance with law and as expeditiously as practicable and preferably within a period of
three months of receipt of such application. There is no order as to cost.â€
This Court has certain reservations as to the said judgment. Notwithstanding the same, it is also clear that the directions issued in Paragraph 15 of
the aforesaid order are pursuant to the concession made by the learned Advocate General appearing in that case. It is also material to note that the
Court had not directed grant for any compensation, but only directed that the representation of the respondent therein be considered in accordance
with law. Thus, if compensation was not payable in law, no such compensation would be paid.
This Court is of the view that there is no ambiguity in the provisions of the Act and as noted above, the petitioners are not entitled to compensation
under Section 27 of the Act.
Mr Gandhi also pled that the Central Government may be directed to acquire the said land under Section 20 of the Act.
Section 20 of the Act reads as under:-
“20. Power to acquire a protected area.―If the Central Government is of opinion that any protected area contains an ancient monument or
antiquities of national interest and value, it may acquire such area under the provisions of the Land Acquisition Act, 1894 (1 of 1894), as if the
acquisition were for a public purpose within the meaning of that Act.â€
It is at once clear that the provisions of Section 20 are of little assistance to the petitioner. The question of acquiring any land would arise only
when the Central Government is of the opinion that the land in question is in “protected area†and “contains an ancient monument or
antiquitiesâ€. The said land does not contain any antiquity and does not have any monument. It is pointed out by the learned counsel for respondent
no.1 that the said land is not in a protected area. Therefore, no direction can be issued to the Central Government to acquire the said land.
In view of the above, no relief can be granted to the petitioner in this  case.
The petition is disposed of.