Medieval Tomb Illegally Occupied By Defence Colony Welfare Assn, Reports CBI; Supreme Court Appoints Expert To Inspect Damages
The Defence Colony Welfare Association (DCWA) of Delhi has illegally occupied Lodhi-era Shaikh Ali 'Gumti', a 500 years old tomb of archaeological importance, and made unauthorised alterations to it, stated the Central Bureau of Investigation (CBI) in a preliminary enquiry report submitted to the Supreme Court.
Taking note of the report, the Court appointed an expert, Ms Swapna Liddle, ex-convener of (INTACH) (Delhi Chapter of Indian National Trust for Art and Cultural Heritage) and author of several books on the history of Delhi, to survey and inspect the building and ascertain the damage which has been caused and to what extent the building can be restored, and in what manner it can be done. The Court has sought the report within 6 weeks.
A bench comprising Justices Sudhanshu Dhulia and Ahsanuddin Amanullah passed the order in a petition filed by one Rajeev Suri seeking protection of the Gumti.
In August, the Court had directed the CBI to conduct an enquiry into the illegal occupation of the Gumti by the DCWA and the inaction of the Archaeological Survey of India (ASI).
What was stated in the CBI report?
The ASI changed its stance on the Gumti following the objections raised by the DCWA. According to the ASI, if there are alterations and additions to a monument, then it is not regarded as a protected one as the purpose of the statute is to preserve a structure in its original form. However, the CBI pointed out that there is no specific provision under the AMASR Act, 1958 which states that if there is any addition/alteration in any monument, the same will not be considered for protection as a Centrally Protected monument by ASI.
Alterations made to the Gumti
The CBI enquiry disclosed that the Defence Colony Welfare Association has been using the Gumti as its Office for approximately the last sixty years. It listed the various alterations made to the structure, such as conversion of openings, installation of electricity and water meters, MTNL cables, wooden cabinets, false ceiling, construction of a washroom and parking shed etc.
The Land &Development Office, Ministry of Housing and Urban Affairs, Govt. of India informed the CBI that they have never allotted this Gumti of Shaikh Ali to any persons/any organisation and that the Gumti of Shaikh Ali is under the unauthorized occupation of Defence Colony Welfare Association, New Delhi.
The enquiry revealed that the ownership is with the L&DO but the DCWA has been illegally occupying it since 1963. The names of the officers of L&DO responsible for the same have been sought from the Department and a reply is awaited.
The Court lauded the efforts taken by the CBI, saying "have done a excellent work in bringing before this Court the sequence of events, which have led to the neglect of the monument and, the total unauthorized occupation of a building of archeological importance."
The Court expressed dismay at the role played by ASI for not protecting the 500 years old tomb from illegal encroachment.
The Court told ASG Aishwarya Bhati (appearing for ASI): "Your role [ASI] has been very inactive..."
Senior Advocate Shikhil Shiv Suri represented the petitioner.
Previous hearing
“How and under what circumstances, when the Central Government and ASI had initially recommended that the Gumti be declared a protected monument, only on the purported basis of alterations/additions having been made by the DCWA and the sole objection submitted by it, both ASI and the Central Government changed their stands?”, the Court questioned.
A bench of Justices Ahsanuddin Amanullah and Ujjal Bhuyan questioned the ASI's and the Central Government's bonafides, noting a change in their stance regarding declaring the Gumti as a monument of national importance.
Initially, the ASI had recommended declaring the Gumti a protected monument, but this recommendation was later retracted, citing the modifications made by the DCWA, which has been using the structure as its office.
“We are surprised at the turn of events. In the year 2004, the competent body to recommend declaration of a structure as a monument of national importance viz. ASI favoured so doing, based on the Superintending Archaeologist's comments supra, but later the ASI reports that as alterations had been made by the DCWA while occupying the structure, the Gumti had lost its originality…This creates doubt on the bona fides of the ASI as also the Central Government, insofar as proper processing of the original proposal is concerned”, the Court observed.
1. The circumstances under which the Gumti came to be occupied by the DCWA.
2. The reasons for the change in the ASI and Central Government's stance based on sole objection by DCWA, given their initial recommendation to protect the monument.
3. The authority under which the alterations and additions were made to the Gumti.
4. The failure of relevant authorities to prevent modifications to the Gumti.
The Court has impleaded the CBI as a respondent and ordered the Registry to amend the memo of parties accordingly. The CBI is required to consider the petitioner's views during the preliminary enquiry and submit a report on the progress of the investigation within two months.
The Court also reiterated its earlier order dated March 12, 2024, which prohibits any alterations to the Gumti until further orders, warning that any deviation would result in serious consequences.
“Needless to state, if in the interregnum, the official respondents concerned so desire, they will be at liberty to take steps to protect the Gumti, in accordance with law. However, in terms of Order dated 12.03.2024, no change in any manner whatsoever in the Gumti shall be made by any person/body till further orders. Any deviation in this regard shall entail serious consequences”, the Court stated.
Background
On February 9, 2004, the Central Government, through a Gazette Notification, expressed its intention to declare the Gumti a monument of national importance. Objections were invited from the public within two months. The DCWA filed its objections on April 7, 2004, which were forwarded to the Director General of the ASI.
On June 29, 2004, the Superintending Archaeologist of the ASI's Delhi Circle acknowledged the objections and noted that the Gumti had undergone alterations that affected its original structure. A series of communications within the ASI ensued, and by 2008, the Central Government decided against declaring the Gumti a monument of national importance due to these alterations.
The petitioner originally approached the Delhi High Court seeking the protection of the Gumti. The petitioner sought a direction from the HC to declare the Gumti a monument of national importance under the AMASR Act.
The HC on February 20, 2019 dismissed the petition, stating that the monument had lost its originality due to unauthorized alterations and additions made by the DCWA, which had been using the structure as its office since 1963-64. Thus, the petitioner filed the present SLP before the Supreme Court.
Case Details: Rajeev Suri v. Archaeological Survey of India & Ors., Special Leave to Appeal (C) No.12213/2019