Allahabad High Court Stays Demolition Of Residential Complex Built Near Ancient Buddhist Monuments

The concerned Sub-Divisional Magistrate had issued directions for demolition of the Petitioners' property on Friday, February 12.

On being apprised of the same, the Petitioners urgently moved the High Court seeking quashing of the impugned order.

Since the Court was to re-open only on Tuesday, a Division Bench comprising of Justices Naheed Ara Moonis and Dinesh Pathak held a special, urgent hearing on Monday based on the orders passed by Chief Justice Govind Mathur on administrative side.

The Division Bench heard both the parties and thereafter directed the Petitioner to make a representation before the competent authority.

In the meanwhile, it said, the Respondent-authorities are restrained from taking any coercive against the Petitioner. The order stated,

"The writ petition is disposed of with the direction to the petitioners to approach the competent authority within two weeks from today by making a fresh representation/objection, which shall be considered and decided by the authority concerned in accordance with law within a month, thereafter, after giving due opportunity of hearing to the petitioners and after conducting survey of the concerned area.

For a period of six weeks or till the date of decision taken by the authority concerned, no coercive action shall be taken against the petitioners by the respondents authorities."

The order was passed on an urgent basis, without calling for the counter and rejoinder affidavits of the concerned parties.

The Bench however made it clear that the Respondents shall be at liberty to move a recall application, in case it is found that any facts or details given by the Petitioner are incorrect.

Background

The Petitioner's property was said to have been built in violation of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act).

Section 20B of the Act declares the area within 200 meters of every protected monument and archaeological site as Regulated Area and any construction thereof is regulated by the competent authority under the Act.

It was alleged in the case at hand that the Petitioner's property was constructed within 200 meters of the ancient monuments situated in Kushi Nagar district (legendary place where Lord Budha attained Nirvana) and thus, the impugned demolition order was passed.

Petitioner's Arguments

The Petitioner raised the following contentions before the Court:

• The impugned order was passed without giving any opportunity of hearing;
• A reply/objection to the notice dated January 30, 2021 was submitted on February 12, 2021 but on the same day, the impugned order was passed, without considering the reply/objection;
• The map of the construction was passed by the competent authority on June 16, 2010 for which no objection was ever raised by the Respondents;
• Petitioners' houses/buildings are more than 200 mts. away from the prohibited area of the ancient monuments;
• Petitioners are residing since more than ten years and the said area has never been declared as prohibited area;
• The impugned order does not indicate that prior to issuing notice, any enquiry or survey was conducted to find out the exact location of buildings lying in the prohibited area.

State's Arguments

The State Government opposed the writ petition, while stating that show cause notice had already been given to the Petitioners in 2010 as well as in 2012, and yet they constructed their buildings/houses in the prohibited area.

It was submitted that by way of a notice dated January 30, 2021, an opportunity of hearing was given to the petitioners to file reply/objection within 15 days but they failed to reply the same.

It was further argued that the power exercised by the Sub-Divisional Magistrate directing the Tehsildar for the demolition of the construction has been delegated by the Archaeological Survey of India.

Findings

The Division Bench noted that there is no reason to show that the houses of the Petitioners have been constructed within the prohibited area. It noted, "even the residence of all the persons in the notice have not been shown. In a casual manner, the impugned order dated 12.2.2021 has been passed in haste directing the Tehsildar to get remove the construction of the buildings/houses without giving any opportunity of hearing to the petitioners which is against the principles of natural justice."

Related News

The Allahabad High Court recently issued notice on a petition alleging encroachments at an Archaeological site at Kushi Nagar where Lord Buddha attained Nirvāṇa. The Court had also sought a working report along with necessary photographs of the site.

The matter is listed for hearing on February 22, 2021.

Case Title: Noorjahan & Anr. v. Union of India & Ors.

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