Supreme Court rules on Contempt Petition regarding Construction near Jantar Mantar: Shiv Darshan Singh vs. Rakesh Tiwari (2019) INSC 697 (9 July 2019)

Date of the Judgment: 9 July 2019
Citation: 2019 INSC 697
Judges: Uday Umesh Lalit, J. and Indira Banerjee, J.

Can authorities be held in contempt for not demolishing a structure near a protected monument, even if no explicit demolition order was issued? The Supreme Court of India addressed this question in a contempt petition concerning construction near the historic Jantar Mantar in New Delhi. The court examined whether the Archaeological Survey of India (ASI) and other authorities violated its previous orders by allowing further construction, and whether the existing structure should be demolished. The bench comprised Justices Uday Umesh Lalit and Indira Banerjee, with Justice Lalit authoring the judgment.

Case Background

The case originated from a Collaboration Agreement in 1985 between Shiv Darshan Singh (the petitioner) and M/s Rawal Apartments Pvt. Ltd. (Respondent No. 5) for constructing a multi-story building on a plot owned by the petitioner near Jantar Mantar. Narender Anand (Respondent No. 4), director of M/s Rawal Apartments, was given a General Power of Attorney.

In 2000, the New Delhi Municipal Corporation (NDMC) sanctioned building plans, and construction began. However, NDMC issued a stop-work order in 2001, requiring permission from the ASI. This led to a series of legal battles, including suits and writ petitions, concerning the legality of the construction in relation to the protected monument.

Timeline:

Course of Proceedings

The initial legal battle began with a civil suit filed by Respondents 4 and 5 in 2002, seeking an injunction against NDMC, the Lieutenant Governor, and ASI to prevent interference with their construction. A Single Judge of the High Court initially granted an interim order in favor of the respondents, which was later modified and then made absolute.

However, a Division Bench of the High Court set aside the Single Judge’s order in 2004, ruling that the construction was within 100 meters of Jantar Mantar and therefore prohibited. The High Court also directed the Central Government to review the notification that prescribed the 100-meter limit.

Both ASI and Respondent No. 5 appealed to the Supreme Court. The Supreme Court allowed ASI’s appeal and dismissed the appeal of Respondent No. 5, setting aside the High Court’s direction to review the notification.

Legal Framework

The case is governed by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (referred to as ‘the Act’). Section 2(a) of the Act defines an ‘ancient monument’ as any structure of historical, archaeological, or artistic interest that has been in existence for at least 100 years. This includes the remains and sites of such monuments.

Section 38 of the Act empowers the Central Government to make rules for carrying out the purposes of the Act. Sub-section (2) of Section 38 specifies that such rules may provide for the prohibition or regulation of mining, quarrying, excavation, blasting, or any similar operation near a protected monument, as well as the construction of buildings on land adjoining such a monument.

The Ancient Monuments and Archaeological Sites and Remains Rules, 1959, enacted under Section 38 of the Act, further elaborate on these provisions. Rules 31, 32, and 33 outline the process for declaring prohibited and regulated areas near protected monuments. Rule 31 specifies that the Central Government must give one month’s notice before declaring an area as prohibited or regulated. Rule 32 allows the Central Government to declare such areas after considering objections. Rule 33 prohibits any mining or construction in a prohibited area, and in a regulated area, only under the terms of a license granted by the Director-General.

The Central Government issued a Notification dated 15.05.1991, published in the Gazette of India on 25.05.1991, giving notice of intention to declare an area of 100 meters from the protected limits as prohibited and further beyond it up to 200 meters as regulated areas. Subsequently, Notification dated 16.06.1992 was issued declaring these areas as prohibited and regulated.

The Act was amended in 2010, defining “prohibited area” and “regulated area” under Sections 2(ha) and 2(l), respectively. Section 2(m) defines “repair and renovation” as alterations to a pre-existing structure but not including construction or reconstruction. Sections 20A and 20B, which were given retrospective effect from 16.06.1992, further elaborate on these definitions.

Section 20A(1) states that every area within 100 meters of a protected monument is a prohibited area. Section 20A(2) prohibits any construction in a prohibited area by anyone other than an archaeological officer, subject to the exception in Section 20C. Section 20A(3) allows the Central Government or the Director-General to permit public works or projects essential to the public in a prohibited area under exceptional circumstances, provided such work does not adversely affect the monument. Section 20B defines a regulated area as the area extending to 200 meters from the prohibited area.

Arguments

The petitioner argued that the construction by Respondents 4 and 5 was illegal and in violation of the Supreme Court’s judgment, which upheld the prohibition of construction within 100 meters of Jantar Mantar. The petitioner contended that the respondents had willfully disobeyed the court’s orders and that the structure should be demolished.

The petitioner further submitted that the orders of the High Court and the Supreme Court, read together, prohibit any building activity at the site. They argued that any construction done by the respondents should be demolished up to the DPC level.

The petitioner also argued that the authorities, specifically Respondents 1 to 3, had failed to implement the court’s orders and were liable for contempt.

Respondents 4 and 5, on the other hand, contended that they had obtained necessary permissions for renovation and repairs. They argued that the construction was not a new one but rather the completion of an existing structure.

The NDMC, in its report, acknowledged that the building was completed after the permissions granted by the NMA and ASI. However, it also stated that the entire building was illegal and liable to be demolished, having been built within the prohibited area.

The ASI and NMA, while initially granting permissions, later revoked them, recognizing that the construction was not in compliance with the law.

The Supreme Court also considered the arguments made by various noticees, including the then Chairperson and Member Secretary of NMA, and the competent authority of ASI, regarding the circumstances under which the permissions for renovation/repair were granted.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not frame specific issues in this contempt petition. However, the core issue before the court was:

1. Whether the respondents violated the Supreme Court’s earlier judgment by carrying out construction activities near Jantar Mantar.
2. Whether the authorities were in contempt for not demolishing the structure.

The court also considered the implications of the permissions granted by ASI and NDMC, and their subsequent revocation.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following legal provisions:

• Section 2(a) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, defining “ancient monument.”
• Section 3 of the Act, stating that all protected monuments declared under the erstwhile statutory regime, were deemed to be ancient monuments under the Act.
• Section 38 of the Act, empowering the Central Government to make rules.
• Sections 2(ha), 2(l), and 2(m) of the Act, defining “prohibited area,” “regulated area,” and “repair and renovation,” respectively.
• Sections 20A and 20B of the Act, specifying the prohibited and regulated areas.
• Rule 31 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, regarding notice of intention to declare a prohibited or regulated area.
• Rule 32 of the Rules, regarding the declaration of prohibited or regulated areas.
• Rule 33 of the Rules, regarding the effect of such declarations.

The Supreme Court also referred to the following notifications:

• Notification dated 04.10.1956, declaring Jantar Mantar, New Delhi to be a “protected monument.”
• Notification dated 15.05.1991, giving notice of intention to declare areas near protected monuments as prohibited and regulated.
• Notification dated 16.06.1992, declaring areas near protected monuments as prohibited and regulated.

Authorities Table

Judgment

The Supreme Court, in its judgment, addressed the core issue of whether there was a violation of its previous orders that would warrant contempt proceedings. The Court analyzed the facts and the legal framework to determine if the actions of the respondents and the authorities constituted contempt.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Court relied on the statutory provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and the rules framed thereunder, to interpret the scope of prohibited and regulated areas. The Court emphasized that the authorities were bound to act in accordance with the observations made in the previous judgment and the provisions of the Act. However, the Court did not find any violation of specific directions that would amount to contempt.

The Court considered the definition of “ancient monument” under Section 2(a) and the power of the Central Government to make rules under Section 38. It also considered the definitions of prohibited and regulated areas under Sections 2(ha) and 2(l), and the restrictions on construction under Sections 20A and 20B of the Act. The Court also took into account Rules 31, 32, and 33 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959.

The Court noted that the Notification dated 16.06.1992 declared areas near protected monuments as prohibited and regulated. The Court also considered the effect of the amendment to the Act in 2010, which defined “prohibited area” and “regulated area” and gave retrospective effect to Sections 20A and 20B from 16.06.1992.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that its previous judgment did not contain a specific order for the demolition of the existing structure. The Court noted that while the construction was illegal, the absence of a demolition order meant that the authorities could not be held in contempt for not demolishing the structure. The Court also considered that the permissions granted for finishing work were later revoked and the matter was pending before the High Court.

The Court also emphasized the importance of adhering to the directions given in its previous judgment, which stated that authorities should not take any action under Section 20A(3) and 20C of the Act except in accordance with the observations made in the judgment. The Court found that the authorities had not violated this direction. The Court also noted that the permissions for renovation were later revoked, indicating that the authorities were taking steps to rectify the situation.

The Court was also mindful of the fact that the matter was pending before the High Court and that the issues regarding the status of the structure and its demolition should be decided in those proceedings. The Court refrained from making any specific directions regarding the demolition of the structure, leaving it to the High Court to decide.

Sentiment Analysis of Reasons

Fact:Law Ratio

Logical Reasoning

The Court considered whether the authorities had violated any specific directions issued in its previous judgment. It noted that while the judgment had held the construction to be illegal, it had not specifically directed the demolition of the structure. The Court emphasized that the authorities were directed not to take any action or pass any order under Sections 20A(3) and 20C of the Act except in accordance with the observations made in the judgment. The Court found that the authorities had not violated this direction.

The Court also considered the fact that the permissions granted by ASI and NDMC for renovation/repairs were later revoked. The Court noted that a writ petition challenging the revocation order was pending before the High Court. The Court, therefore, refrained from making any specific directions regarding the demolition of the structure, leaving it to the High Court to decide.

The Court stated that it had considered the matter only from the perspective of whether contempt had been made out, and left all the issues, including the status of the structure and whether it needed to be demolished, to be decided in the pending matters before the High Court.

The Court, in its judgment, quoted from its earlier judgment:

“This would mean that in the garb of renovation, the owner of a building cannot demolish the existing structure and raise a new one and the competent authority cannot grant permission for such reconstruction. …… In other words, in exercise of power under Section 20A(3), the Central Government or the Director General cannot pass an order by employing the stock of words and phrases used in that section and permit any construction by a private person de hors public interest. …… ”

The Court also quoted from its operative part of the earlier judgment, which stated:
“… … in future the Central Government or the Director General shall not take action or pass any order under Sections 20A(3) and 20C except in accordance with the observations made in this judgment.”

The Court concluded that since no specific direction regarding demolition of the structure was passed in the earlier judgment, it would not be possible in these proceedings to direct demolition of the existing structure. The Court also stated that the authorities were not in violation of the orders passed by the Court.

Key Takeaways

• The Supreme Court clarified that contempt proceedings require a clear violation of specific court orders.
• Authorities cannot be held in contempt for not taking action that was not specifically ordered by the court.
• The judgment emphasized the importance of adherence to the law and the directions of the court.
• The Court reiterated that any construction in a prohibited area must be strictly in accordance with the law and in the public interest.
• The Court directed the High Court to expedite the pending matters and decide on the status of the structure.

Directions

The Supreme Court requested the High Court to dispose of all pending matters as expeditiously as possible, preferably within six months from the date of the judgment. The Court also stated that the contempt petition was closed.

Conclusion

The Supreme Court’s judgment in this contempt petition underscores the importance of adhering to specific court orders and the limitations of contempt proceedings. While the Court acknowledged the illegality of the construction near Jantar Mantar, it refrained from issuing a demolition order due to the absence of such a direction in its previous judgment. The Court’s decision highlights the need for clear and specific orders in judicial proceedings to ensure effective implementation. The Court also emphasized the need for authorities to act in accordance with the law and the directions of the court, and reiterated that any construction in a prohibited area must be strictly in accordance with the law and in the public interest. The matter was left to be decided by the High Court in the pending proceedings.