Amit Vishnupant Khot vs Union Of India (Uoi) Through Secretary, ... on 1 August, 2007

 

Amit Vishnupant Khot vs Union Of India (Uoi) Through Secretary, ... on 1 August, 2007

Equivalent citations: 2007(6)BOMCR530

Author: Swatanter Kumar

Bench: Swatanter Kumar, Ranjana Desai

JUDGMENT
 

Swatanter Kumar, C.J.
 

1. Writ Petition Nos 2953 and 3230 both of 2003 were filed at the Aurangabad Bench of the Bombay High Court. The Division Bench of the Court vide its order dated 22nd September 2003 granted interim reliefs in terms of prayer Clauses (d) and (e). This order of stay has continued for all these years. The Aurangabad District Bar Association filed an application for intervention being Civil Application No. 789 of 2007. This application was ordered to be heard along with the main petitions.

2. When the matter came up before the Bench at Aurangabad on 16th June 2007, it was felt that as the matter related, and is likely to affect the entire over administration of justice in the State of Maharashtra, even in relation to other buildings, it was considered appropriate to transfer the cases to the principal Bench at Bombay. Accordingly both the above petitions were transferred to Bombay, renumbered as Writ Petition Nos. 4813 and 4816 of 2007 respectively and were heard together.

3. The petitioner in Writ Petition No. 4816 of 2007 claims to be convenor of " Indian National Trust of Art and Cultural Heritage" which is a NonGovernmental Organistion (NGO). The Aurangabad Chapter with its team of enthusiastic and dedicated members and workers are enduring to keep historical monuments and heritage intact. In order to preserve and protect the monuments, a list had been prepared. However, due care was not taken by the concerned departments to protect these monuments. Persuasion of the petitioners fell on deaf ears of the respondents and more particularly the Archealogical Survey of India, State Archealogy and Museum Department and the Aurangabad Municipal Corporation, which did not take steps to protect the old monuments. The petitioner, who claims to be an historian of international repute and has written various books on historical and archaelogical subjects in and around Aurangabad, was a Professor in Marathwada University. On 7th July 2003 they noticed that one of the darwajas (khas darwaja) situated at Jinsi, Aurangabad was in a dilapidated condition and some part of it had fallen down. The residents in and around the said gate made complaint to the Aurangabad Municipal Corporation. The Corporation passed an order to raze down the said khas gate. When they were demolishing the said gate, at the intervention of the petitioners and other persons the demolition was stopped.

4. The petitioner has annexed to the writ petition a list of historical monuments in Aurangabad city for protection under the Heritage Regulations. In this list nearly 155 buildings or places have been included. At Srl No. 140 of the said list the Sessions Court, Adalat Road, Aurangabad is also named as a historical monument building, requiring protection as a heritage building or even otherwise. It is also the case of the petitioner before the court that the Revised Draft Development Plans for Aurangabad, including old municipal limits for the period 1995 to 2015 prepared under Section 31 of the Maharashtra Regional and Town Planning Act, 1966 and submitted to the Government impose restrictions on the area declared as monument area so that there is proper protection, conservation and preservation of this area. The authorities are vested with wide powers under various provisions of law to protect such monuments but the authorities have failed to take appropriate action. According to the petitioner, there is total apathy and negligence on the part of the Archealogical Surveyor of India and other authorities, including the Aurangabad Municipal Corporation, to protect historical places and, therefore, it was submitted in the petitions that the Court should appoint a committee comprising of various persons and Divisional Commissioner to implement the Heritage Regulations. On this premise, it was prayed as under:

a) This writ petition be listed as a public interest litigation.

b) That, a writ of mandamus or a writ in the nature of mandamus or order or direction be issued to the Aurangabad Municipal Corporation not to demolish destroy any of the gates mentioned hereinabove and listed as well as 52 gates in the city and the 154 monuments listed by the INTACH mentioned in Exh G

c) That a direction or order be issued to appoint a committee of Heritage Conservation Committee as contemplated by the Regulation 67 dated 24th April, 1995 of the Heritage Regulations to be formed and the certain members of the INTACH may also be included in the same with further appropriate directions from this Court for allocation of funds from the ASI to the said Conservation committee enabling them to maintain preserve, protect and conserve the listed monuments mentioned hereinabove at Exh G which includes the gates.

d) Pending the hearing and final disposal of this writ petition, a monthly report should be called by this Hon`ble High Court from the said Conservation committee of the steps measures and the efforts taken.

e) Pending the hearing and final disposal of this writ petition, the AMC be directed not to demolish destroy any of the gates or listed monuments of Exh G.

f) Pending the hearing and final disposal of this writ petition, the authorities namely the ASI, State, Archealogy, AMC and the Police Commissioner be directed to extend all the help and assistance needed by the said Conservation committee for the purposes of protection, preservation, upkeep and maintenance of all the ancient historical monuments listed in Exh G with immediate effect.

5. Separate affidavits have been filed on behalf of State of Maharashtra, Municipal Corporation of Aurangabad, Archealogical Department of the Central Government, State Archealogical Department and Public Works Department. As stated above, interim order restraining the authorities from demolishing any of the gates or monuments listed in Exh G. was passed on 22nd September 2003. The list of monuments includes old District Court building at serial No. 140.

7. As stated in the affidavit filed by Vithal Gangaram Bodkhe, Executive Engineer, P.W.D, Aurangbad, the old building of District Court was constructed in1930 AD and the brick work of the walls was in lime and mortar. The roof of the building is jack arch style, made up of same material with iron girders. Such roofs are damaged because of rusting and there is every possibility of the entire old building collapsing at any time. It is also stated that the existing building was totally inadequate to accommodate the requisite number of court rooms and in order to meet the present and future demand, a building of five floors with 49 specious court rooms with all essential amenities was proposed to be constructed after demolition of the old building. He has also stated that the administrative approval to the estimates for construction of new court building was approved on 8th June 2005 at Rs.15,36,41,000. The work had already been started in 2005. On 19th March 2005 the foundation stone of the new building was laid. In fact it is stated that part construction has already been made. In this affidavit it is specifically averred that the court of 3rd Joint Civil Judge, Aurangabad, was functioning in the said building and a portion of the jack arch roof of the said court had collapsed on 6.9.2006, fortunately it was night time and as such no untoward incident took place. The court hall was immediately got vacated and temporary roof has been put up.It was brought to our notice that the court building was in deprecated condition, even roof of one of the court rooms had fallen and there was a great escape for the person in the room. The building roof is stated to have been redone. Because of intervention of the Bar Association, Aurangabad, which seriously contested continuation of the interim orders in regard to court complex at Aurangabad, it was felt that it would be expedient to adjudicate the same on merits.

8. First and foremost question that we are required to decide is whether the old court building is a monument or heritage building at all. In this regard the affidavits of various authorities can usefully be referred to at this stage. In the affidavit of the Executive Engineer, it is specifically stated that the entire building is in a deprecated condition and may collapse at any time on its own. In the affidavit filed by the Municipal Corporation, Aurangabad on 12th June 2007 it is stated that draft Regulations were prepared. A list of 156 monuments in Aurangabad city for the purpose of Heritage Regulations framed in accordance with the provisions of Maharashtra Regional and Town Planning Act 1966 was prepared. Objections were invited, parties were heard and keeping in view various factors, including objections of the Bar Association and the Executive Engineer's report in relation to the old District Court building, it was decided to delete the said building from the list, and the same has already been submitted to the government for approval.

9. The Maharashtra Regional and Town Planning Act, 1966 (Act for short) provides for preparation, submission and sanction of a development plan. Section 22 of the Act which provides for the contents of the plans states that the development plan shall provide for specified matters including `preservation of features, structures or places of historical, natural, architectural and scientific interest and educational value and all heritage buildings and heritage precincts". In exercise of powers under Section 31(1) of the Act, the State Government by Resolution dated 21.4.1995 sanctioned Development Control Regulation No. 67 along with appendix VIIA as specified in the schedule appended to the resolution and fixed 1st June 1995 as the date on which the Regulation 67 would come into force. Regulation 67 broadly deals with the Conservation of listed buildings, areas, structures and precincts of historical and/or aesthetical and/or architectural and/or cultural value (heritage buildings and heritage precincts). Regulation 67 (2) inter alia forbids any addition or alteration of buildings which were either listed as heritage buildings or as heritage precincts except with the prior written permission of the Commissioner. Subregulation (2) of Regulation 67 further provides that `the Commissioner shall act on the advice of/in a consultation with the Heritage Conservation Committee to be appointed by the Government'provided that `in exceptional cases for reasons to be recorded in writing the Commissioner may overrule the recommendations of the Heritage Conservation Committee'.

10. Regulation 67 falls under the schedule and requires conservation of listed buildings etc. In terms of Clause (1) of the said schedule it is to be applied to such places, which shall be listed in the notification to be issued by the Government. The Government in exceptional cases, for reasons to be recorded by the Commissioner, may overrule the recommendations of the Heritage Conservation Committee and this power in the wisdom of the ruleframing authority is not to be delegated. It appears that the heritage buildings and precincts have been classified in three categories viz Grades I, II and III. Grade I consists of buildings and precincts of national or historical importance, embodying excellence in architectural style, design, technology and material usage. These may be associated with a great historical event, personality, movement or institution. They have been and are the prime landmarks of the city. Grade II buildings and precincts are of regional or local importance, possessing special architectural or aesthetical merit, cultural or historical value, though of a lower scale than in Heritage Grade I. These are local landmarks, contributing to the image and identity of the city. Grade III structures are important for the town scape, they evoke architectural aesthetic or sociological interest, though not as much as in Grade II. These contribute to determine the character of the locality, and can be representative of the life style of a particular community or region and may also be distinguished by setting on a street line or special character of the facade and uniformity of height, width and scale. The Government even earlier had passed a Resolution dated 30th September 2000 called Heritage Regulation. It was stated that this Regulation would be made applicable to the cities stated therein including the City of Aurangabad under Section 37 of the Act. Vide letter dated 8th May 2003 Exh F the Divisional Commissioner, Aurangabad had confirmed to the Government to apply Heritage Regulation to Aurangabad city.

In light of the above provisions, we are concerned with the old District Court building at Aurangabad, for which the interveners prayed for the reliefs claimed by them in this petition. The Archealogical Survey of India by their affidavit have stated that only two sites i.e. Aurangabad Caves and Bibi ka Mukbara have been declared as historical monuments under Section 2(d) of the Ancient and Historical Monuments of Archealogical Sites and Remains (Declaration of National Importance) Act, 1951. It is not stated in the affidavit that the old District Court complex is heritage building. In the affidavit filed by the officer concerned on behalf of respondent No. 2 it is stated that the court complex is not heritage building as per their record and Aurangabad Municipal Corporation has to constitute a Heritage committee within 60 days, which then has to consider the mater in accordance with law. It may be noticed that during the pendency of the petitions the Heritage committee had been constituted. The Commissioner, Aurangabad Municipal Corporation filed detailed affidavit and it was stated that the Heritage Committee has not recommended the District court complex to be treated as heritage building. A general body meeting of the Corporation was held on 7th October 2003 and it was decided to constitute the Committee of the Corporators to inspect the monuments and prepare a report to take final decision under the Heritage Regulations. As a result of this proceeding the Corporation had recommended to the State Government to delete item No. 140 from the Draft List prepared for declaration of the heritage buildings or historical monuments. Respondent Nos. 3 and 4 have filed an additional affidavit dated 10th April 2007 stating that Aurangabad was not under the jurisdiction of the Archealogical Survey of India and the same is centrally protected monument as per their stand.

12. The affidavit of the Executive Engineer further stated that there is dire requirement for a new court complex. Various difficulties were being faced in the old court complex including its deprecated condition and possible danger to human lives. In paragraph 6 of the said affidavit it has been categorically stated that " The Directorate of State Archealogical Department informed that the old district Court building is not a historical monument". Vide Government Resolution dated 8th June 2005 the administrative approval to the tune of Rs.15,36,41,000/was given by the Government for construction of a new court building, work for which has already commenced. It has been stated in the affidavit that in order to keep the historical memories of the old buildings the Chief Architect Mumbai has proposed five gracious domes on the front and rear sides of the building. It is specifically averred that it is neither safe nor administratively viable to treat this building as a heritage or historical monument.

13. A public interest litigation essentially must be in larger public interest and it should not be permitted to defeat the said purpose under the pretext of listed buildings, particularly when it is admitted that neither they are protected monuments nor heritage buildings. In the case of Bombay Dyeing and Manufacturing Co Ltd v. Bombay Environmental Action Group and Ors. , the Supreme Court clearly stated that while entertaining a public interest litigation several aspects of public interest being involved, the court should find out as to how the greater interest should be subserved and for that purpose a balance should be struck and harmony should be maintained between several interests.

14. Judicial intervention or judicial activism is a concept relatable to the facts appearing on record before a court in a given case, but the golden principle is that the court will exercise such power with caution and ensure that greater public interest, progress, essential amenities and public importance are not made to suffer. It is a known fact that in Government projects, progress is done with the public funds. Merely on certain assumption or presumption objection to the commencement and progress of such projects for years together would serve no public purpose or interest and in fact of ends of justice. It will be unfair for the court to presume that the building is a heritage or monument when in fact it is not and all the concerned authorities have taken a categorical stand that they do not even propose to declare the said property as a heritage or monument property. On the contrary they have recommended deletion of the said building from the draft list. It will be of some importance to notice that there is categorical stand taken by the authorities that the building can collapse of its own any time and this is duly supported by the incident of 6th September 2003, when the roof of one of the court room collapsed. This is a place visited by hundreds of people every day and any untoward incident in future could prove fatal. There is no justification before the court to continue the same particularly when it is not covered under the Heritage Regulations.

15. Common stand taken by all the authorities leaves no manner of doubt in our mind that the old District Court complex at Aurangabad is neither a heritage nor historical monument entitling any protection under the law. Furthermore, there is no proposal by the authorities to declare the same as such. During the course of hearing the learned Counsel for the petitioners had even argued that if the construction has to go on it may but old building should remain as 1/6th area has to be constructed. This argument is without any merit. The construction is obviously to be raised on a part of the plot but the remaining part has to be used for public facilities. According to the Bar Association itself, it is necessary to demolish the entire structure. In face of the affidavit filed by the Executive Engineer that they are proposing to keep spacious domes at the back and front of the building indicating historical monument, the purpose in the case is achieved and it is not necessary for us to deliberate on this issue any further. Let us consider the adverse consequence of continuing the stay or keeping this petition pending in relation to that building. Huge amount has already been sanctioned, part of the construction has started, entire project is timebound for a period of 33 months, out of which more than 15 months are already over and not even 5% construction has been completed. The stand taken by the authorities for the delay is the grant of interim stay by the court. We are of the considered view that public interest is bound to suffer and common litigants may face threat to their lives if the interim order is not vacated. Furthermore these are matters to be examined by specialised bodies and thereafter they fall within the domain of the policy framers of the State. With exception apart, in matters of policy, unless and until patently violative of fundamental protection or exfacie arbitrary or discriminatory, the court should be slow in interfering therewith. In the case of Consumer Guidance Society of India and Ors. v. Union of India and Ors. (PIL No 124 of 2006 decided on 19.7.2007) the Division Bench of this Court commenting upon the scope of such matters held as under:

The present case hardly falls in the exception to the Rule. Framing of policy necessitating financial burden on the State exchequer is something which should be done by the State and competent authority. We have already indicated that there are no justifying circumstances in this case which would persuade us to issue the direction prayed and very limited is the the scope of judicial review inconsistent with the Constitution and the law or so arbitrary or irrational or tantamounting to abuse of power, judicial intervention would normally be not necessitated. It will be useful at this stage to refer to the judgments in Balco Employees'Union (Regd) v. Union of India and Ors and Federation of Railway Officers Association and Ors. v. Union of India . In the case of Federation of Railway Officers Association (supra) the Supreme Court observed as under:

In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or he purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy land requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters The Appellate Tribunal to be known as the "Telecoms Disputes Settlement and Appellate Tribunal" was established under Section 134 of that Act. In terms of Section 14, the Central Government by notification established the Tribunal to adjudicate any or all of the disputes specified under that provision. Upon consideration of the Appellate Tribunal in terms of Section 14B(c) the Appellate Tribunal may exercise jurisdiction by Benches. The Benches shall ordinarily sit at New Delhi and such other places as the Central Government may in consultation with the Chairperson of the Appellate Tribunal, notify. In the event such Benches are constituted then Section 14B(d) requires the Central Government to define areas of jurisdiction which each Bench may exercise. In other words, the constitution of the Appellate Tribunal, its Benches and their respective jurisdictions shall be controlled by the Central Government which has to issue notification, of course such notification or decision is to be taken in consultation with the Chairperson of the Appellate Authority. It is clear from the bare reading of this provision and the scheme of the Act that consultation has to be an effective and meaningful one as the Chairperson of the Appellate Authority would be in a better position to give objective consultation which would be based upon hard reality of the constitution of the Tribunal....

16. A reference can also be made to the judgment of the Supreme Court in the case of Gurpal Singh v. State of Punjab wherein it was held as under:

The scope of entertaining a petition styled as a public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this Court in various cases., The court has to be satisfied about (a) the credentials of the applicant, (b) the prima facie correctness or nature of information given by him, (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interest;(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others, and (ii) avoidance of public mischief and to avoid mischivious petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with impostors and busybodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect.

Keeping in view the above facts and the settled position of law, we find no merit in these petitions in so far they relate to old court building at Aurangabad (Serial No. 140 in the draft list). Resultantly petitions in that regard are dismissed. Interim order dated 22nd September 2003 stands vacated. We do express a pious hope that the authorities concerned would take all possible steps to ensure that the court complex is constructed within the stipulated time and without further additional burden on the State exchequer.

18. In regard to other buildings/sites stated in the draft list, we direct the Heritage committee, Municipal Corporation, Aurangabad and the State Government to take effective steps expeditiously and to prepare final list of buildings/ monuments/sites etc which are entitled to protection of being heritage buildings or historical monuments in accordance with the provisions of the MRTP Act and Maharashtra Ancient Monuments, Archaeological Sites and Remains Act, 1960. We also do hope that such exercise will be completed by the authorities within a period of six months from the date of pronouncement of this judgment.