The legality of an Archaeological Survey of India (ASI)-appointed panel, that relaxes construction norms within 100 metres of protected monuments, has been challenged in Delhi High Court.
The six-member experts committee was set up by the ASI in 2006 to consider relaxation of a ban on constructions within 100 metres of protected monuments on a case-by-case basis.
The panel is headed by the ASI director-general and has eminent historians as members.
Though the exact number of sanctions given so far is not known, as per RTI details on its website, it has allowed nearly 100 constructions across India between March 2008 and May 2009.
As per a 1992 notification, areas up to 100 metres from protected limits are treated as “prohibited” areas for construction and further beyond it up to 200 metres, it is a regulated area for purposes of mining operations and construction.
In this case, a construction sanctioned by the panel within 88 metres of Humayun’s Tomb in Nizamuddin East, a world heritage site, has been challenged.
The construction by a private builder is coming up adjacent to the property of petitioner Gaurang Kanth, a Supreme Court lawyer.
“By allowing constructions in the prohibited area, the ASI has violated the very object of its creation that is preservation of ancient monuments,” Kanth said.
The case took an interesting turn when Kanth, after moving the court, realized his property too, 80 metres from the monument, was illegal as no sanction had been taken from the ASI. But he contends he came to know of this fact only after the ASI mentioned it in court.
“The property was bought by my mother in November 2003 while I was abroad without knowing that the previous owner had not obtained the ASI sanction,” he said.
When the builder of the disputed property and the high court questioned Kanth’s right to file a suit with “unclean hands”, the lawyer told the court he was ready to vacate the premises and the ASI could demolish it.
“Let my building go. But I simply want to expose the irregularities within the ASI in allowing an illegally formed panel to sanction constructions within the prohibited area,” he said.
A two-judge bench had on August 28 allowed the builder to continue with construction by vacating the stay ordered earlier by a single bench.
The high court had in July 2004 while dealing with a suit seeking permission to construct within the prohibited limits of Jantar Mantar asked the ASI to consider a mechanism where the 100-m prohibition was relaxed on a case-by-case basis.
But the ASI approached the Supreme Court against the order and obtained a stay.
“In this situation how can the ASI form a committee through an internal notification without the approval of Parliament which passed the original notification in 1992 strictly banning constructions within 100 metres of monuments?” Kanth asked.
When contacted, an ASI official denied the panel was giving illegal sanctions and said it only needed the approval of the Ministry of Culture which it had secured.
He also said construction within 100 metres is allowed only matching with the height of other buildings in that row built before the 1992 notification.
The matter will come up in the court again on Monday.