RAJEEV MANKOTIAversusTHE SECRETARY TO THE PRESIDENT OF INDIA AND ORS.

 •                       RAJEEV MANKOTIA                                      A
                                     v.
        THE SECRETARY TO THE PRESIDENT OF INDIA
                       AND ORS.

                            MARCH 27, 1997.
                                                                              B
           [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

     Ancient Monuments and Archaeological Sites -and Remains Act,
1958: Sections 2(a), 3, 4 and 11.
                                                                              c
       Ancient Historical Monument of national importance-Duty of _
Govemment of India and State Govemment to protect-Held preservation
and protection of ancient monuments is the duty of the Union of India and
the State Govemment concemed in respect of ancient monuments of national
imp01tance or those of State impo1tance respectively to protect, preserve and D
maintain them by preserving or restoring their oiiginal conditions.

       Viceregal lodge ui Shim/a-Historical background of-Decision of
Union of India to conve1t the building into a tourist hotel while purporting to
maintain the main part of building as historical resort-Wiit petition by way
of public interest · litigation for projection and preservation of viceregal E
lodg~ecision taken by Union of India and counter affidavit filed before
Supreme Court-Stand taken by Union of India that with a view to projecting
the building, the building and the surrounding appurtenant area will be
eamiarked as a "heritage area" wherein no constniction activity would be
pem1itted or undeJtaken-Outside the heritage area a master plan would be F
prepared in consultation with other departments-ft would be ensured that the
envfronment and ecology of the area is preserved and no activity be taken
which may endanger the environmental position-Direction by Supreme Court
to Union of India to notify the entire area of the viceregal lodge as protected
ancient 111onume11t--Notificatio11 issued on 6th May 1997-Held protection
and prese11 ation of viceregal lodge and the appurtenant land has become f aite G
          1


accompli by orders of Supreme Court-Direction issued to Govemment to
provide the necessary budget for effecting repairs-Proper maintenance and
preservation to be undertaken as on-going process-Direction to Govemment
of India to maintain all national monuments-Equally all the State Govem- •
ments should do vis-a-vis monuments of State importance.                        H
                                    421
    422                  SUPREME COURT REPORTS                 (1997] 3 S.C.R.

A        Edward J. Buck, 'Simla Past and Present; Pat Barr and Ray Desmond,
    'A Hill Station-Simla in British India; Larry Collins and Dominique
    Lapierre 'Freedom at Midnight', referred to.

          ORIGINAL JURISDICTION : Writ Petition (C) No. 862 of 1990.

B         Under Article 32 of the Constitution of India.

          Mr. Sudarash Menon for the Petitioner.

          V.R. Reddy, Additional Solicitor General, A. Subba Rao, Ms. Anil
    Katiyar, Y.P. Mahajan, N.K. Sharma and V.K. Verma for the Respondents.
c         The following Order of the Court was delivered :

          Viceregal Lodge at Shimla is a harbinger of Colonial past, with
  architecturally grandeur and beauty of Elizabethian Era and Stands a mute
  witness to the transition of independence to the people of India after
D sustained non-violent struggle by the Father of the Nation, Mahatma
  Gandhiji. Three Historical meetings between Colonial adminiStration and
  the rndia leaders took place to discuss the issue of the India independence
  under the leadership of Mahatma Gandhiji, viz., (i) in June-July 1946 - the
  historical Cabinet Mission of the India leaders; (ii) in May-June 1947; and
E (iii) the final one wherein historical decision was taken by Louis Mountbat-
  ten for transition of the power conveying the proposal to the Indian leaders
  through Pandit Jawaharlal Nehru; that was followed by grant of inde-
  pendence to the nation and the worst holocaust of communal disturbance
  due to partition of the great ancient nation into India, i.e., Bharat, and
  Pakistan.
F
        The journey of Simla, Summer Capital of the Supreme Government,
  started· in 1827 by the first Governor General, Earl of Amherst and
  Viceregal Lodge, the official residence built by the 17th Viceroy, Earl
  Dufferin, was occupied on July 23, 1888. Though Lord Dufferin and Lady
  Dufferin personally supervised its taking finished shape, its completion
G work went on till September 1988 which had the present shape of the
  building given by Earl of Marquis of Lansdowne till 1889 - the only
  Viceroy who exclusively lived therein during his entire tenure, i.e., from
  10th December, 1888 to 26th June, 1894 in Summer Camp. The building
  was built with an exquisite Himalayan gray stones and personified the
H English Renaissance of Elizabethian style of architecture. The beauty and
     RAJEEV MANKOTIA v. SECY. TO THE PRESIDENT OF INDIA                423

grandeur of the building is unique. The Viceroys/Governor Generals used A
this building as Summer Camp from April to October of each calendar
year and the British ruled the entire India from this building. It was also
used as part of Legislative Wing. Ultimately, after independence, it was
renamed as 'Rashtrapati Niwas', dawning with smile the freedom for
Bharat and the Presidents of the Bharat Republic stayed therein as Sum- B
mer Resort until Dr. Sarvepalli Radhakrishnan, the second President had
it handed over to the India Institute of Advanced Studies in the year 1964.
The President himself had inaugurated the Institute when Dr. Jakir Hus-
sain, then as its Chairman, and who later became the President of India,
has chaired the meeting. It thus furnishes the historical evidence of the
Colonial holocaust unleashed on Indians and reflects upon the triumph of C
Indian nationalism; it has laid seed-bed to the end of the British
colonialism. Whether such a building is required to be maintained as
historical monument of national importance, is the question before us.

       When Dr. Radhakrishnan, the President of India felt that that since D
the President spent hardly 120 days in 10, years, i.e., 10 days a year, it was
worthwhile to house the said Institute therein, instead of keeping the
historical monument as idle building which would facilitate maintaining the
grandeur and beauty of the Building. However, the fact is that with the
passage of time, it has faded out and lost its real beauty. While the Institute
was being so run, cruel decision was taken by the Cabinet of the Union of E
India to convert the building, a priceless treasury of our Historical heritage,
into tourist hotel, while purporting to maintain the main part of the
building as historical resort. Feeling the inner voice of its ultimate destruc-
tion, the petitioner has knocked the door of this Court, and in our view
rightly, to protect it as the historical heritage and to preserve or posterity.
                                                                             F
       Before considering whether the Viceregal Lodge should be declared
as historical heritage (monuments), let us have a look at the legal setting
in that behalf. The Ancient Monuments and Archaeological Sites and
Remains Act, 1958 (for short, the 'Ancient Monuments Act') provides for
the preservation of ancient and historical monuments and archaeological G
sites and remains of national importance. The Act was enacted to clarify
the legal position that the Central Government regulates exclusively ancient
monuments etc. of national importance, leaving the field open to the State
Legislatures to enact the law on the subject, i.e., ancient monuments of
State importance. Section 2(a) defines 'ancient monument' to mean DllY H
    424                   SUPREME COURT REPORTS                   [1997) 3 S.C.R.

A Structure, erection or monument, or any Tumulus or place of intemiellt, or
    any cave, rock-sculpture, inscription or monolith, which is of historical,
    archaeologkal or artistic interest and which has been in aistence for not less
    than one hundred years, and includes (emphasis supplied) :

             (i)   the remains or an ancient monument;
B
             (ii) the site of an ancient monument;

             (iii) such portion of land adjoining the site of an ancient monu-
                   ment as may be required for fencing or covering in or other-
                   wise preserving such monument, and
c
             (iv) the means of access to, and convenient inspection of an
                  ancient monument.

          Section 3 of the Act declares that all ancient and historical monu-
D ments and archaeological sites and remains which have been declared by
  the ·Ancient and Historical Monuments and Archaeological Sites and
  Remains (Declaration of National Importance) Act 1951, or by Section 126
  of the States Re-organisation Act, 1956, to be of national importance shall
  be deemed to be ancient and historical monuments or archaeological sites
  and remains declared to be of national importance for the purpose of this
E Act. Section 4 empowers the Central Government to declare any ancient
  monuments or archaeological site and remains not included in Section 3
  to be of national importance by giving two months notice of its so declaring.
  The.Ancient Monuments Preservation Act 1904 provides for the preserva-
  tion of ancient monuments and objects of archaeological, historical or
p artistic interest. Section 2(1) defines 'ancient monument' in the same
  language as Section 2(a) of the Ancient Monuments Act. Section 2(4)
  defines 'maintain' and 'maintenance' to include the fencing, covering in,
  repairing, restoring and cleaning of protected monument and the doing of
  any act which may be necessary for the purpose of maintaining a protected
  monument or of securing convenient access thereto. Section 3 deals with
G 'protected .monuments' and empowers the Central Government, by a
  notification in the official Gazette, to declare an ancient monument to be
  a protected monument under the said Act. Section 11 enjoins that the
  Commissioner shall maintain every monument in respect of which the
  Government has acquired any of the rights mentioned in Section 4 or which
H the Government has acquired under Section 10 etc.
     RAJEEV MANKOTIA v. SECY. TO THE PRESIDENT OF INDIA                   425

       Jt would, therefore, be manifest that all ancient and historical monu-    A
ments and all archaeologicai sites and remains or any structure, erection
or monument or any tumulus or place of interment shall be deemed to be
ancient and historical monument or archaeological sites and remains of
national importance and shall be so declared for the purpose of Ancient
Monuments ~ct it they have existed for a century; and in the case of a           B
State monument, of State importance covered by the appropriate State Act.
The point of reference to these provisions is that an ancient monument is
of historical, cultural or archaeological or sculptural or monolithic or
artistic interest existing for a century is of national importance or of State
importance. In other words, either of them are required as shall be              C
protected, reserved and maintained as national monuments or State monu-
ments for the basis which not only gives pride to the people but also gives
us insight into past glory of our structure, culture, sculptural, artistic or
archaeological significance, artistic skills and the vision and wisdom of our
ancestors, which should be preserved and perpetuated so that our succeed-
ing generations learn the skills of our ancestors and traditions, cultural and   D
civilisation. They would have the advantage to learn our art, architecture,
ascethetic tastes imbibed by the authors of the post and to continue the
same tradition for the posterity. Preservation and protection of ancient
monuments, is thus the duty of the Union of India and the State Govern-
ment concerned in respect of ancient monuments of national importance            E
or those of State importance respectively to protect, preserve and maintain
them by preserving or restoring their original conditions.


      Coming to the birth, the improvements and the existence of the
Viceregal Lodge, we have the graphic account in that behalf by Edward J; F
Buck in his 'Simla Past and Present. Before adverting to it, it is of
importance to note that Simla is a beautiful Hill Resort on the small spurs
of the lower Himalayas. At the beginning of the last century, though Simla
did not find place in the world tourist map and remainetl a small village
taken by the British from the Jhind Rana in 1855 and then given to G
Maharaj a of Patiala for the assistance rendered to the British in tl_ie Nepal
War. Maharaja of Patiala maintained Simla as a sanatorium. The British,
thereafter, had stationed their Commander of the North-Eastern States at
Simla. Captain Charles Pratt was the first foreigner sent as Superintendent
of the Hill States. He was stationed at Simla. After survey of the area, the H
    426                   SUPREME COURT REPORTS                     [1997] 3 S.C.R.

A Britishers discovered the beauty and grandeur of Simla and the hills and
  development it as a hill resort and ultimately summer resort by shifting the
  Administration for Culcutta and later from Delhi. The first Governor
  General, the Earl or Amherst, for the first time, visited Simla and stayed
  in the house of Captain Kennedy, namely, Kennedy House. Thereafter
B successive Governor Generals and Viceroys continued to s\ay, apart from
  Viceregal Lodge, for some time, in various houses by name Bentinck
  Castle, Auckland House, Strawberry Hill, Peterhof. Ultimately, as stated
  earlier, Earl of Dufferin had the building plans approved and got con-
  structed the Viceregal Lodge and entered for the first time into the House.
C The structural and magnificent furnishing done to the Viceregal Lodge
  finds expression delineated in Buck's "Simla Past and Present". Lady
  Dufferin mentioned in her diary, seeing the furnished building on Sunday,
   15th July, 1888 as under :

             "I went to the new house this afternoon, and it did look lovely. It
D            was one of Simla's most beautiful moments, between showers,
             when clouds and hills, and light and shade, all combine to produce
             the most glorious effects. One could have spent hours at the
             window of may unfurnished boudoir, looking out on the plains in
             the distance, with a great river flowing through them : at the
             variously shaped hills in the foreground, brilliantly culoured in
E            parts, and softened down in others by the fleecy clauds floating
             over them or nestling in the valleys between them. The approaching
             sunset, too, made the horizon gorgeous with red and golden and
             pale-blue-tints. The result of the whole was to made me feel that
             it is a great pity that we shall have so short a time to live in a house
F            surrounded by such magnificent views."

         On 23rd July, 1888, they returned to the building and mentioned as
    under:
                    .
             "We are sending things up to the house and hope to sleep in it on
G            Monday. We really inhabit the new Viceregal Lodge today (23rd
             July, 1888) so I left the old directly after breakfast, just returning
             therefor an hour at lunch time, and busied myself whole day
             arranging my room and my things, and the furniture in the draw-
             ing-room. Happily the weather was very tolerable, and our beds
H            got _up here dry. D. and the girls did not come near the place till
    RAJEEV MANKOTIA v. SECY. TO THE PRESIDENT OF INDIA                     427

        dinner time, when everything was brilliantly lighted up by the             A
        electric light. It certainly is very good, and the lighting up and
        putting out of the lamps is so simple that it is quite a pleasure to
        go round one's room touching a button here and there, and to
        experiment with various amounts of light. After dinner we went
        down to look at he kitchen, which is a splendid apartment, with            B
        white tiles six feet high all round the walls, looking so clean and
        bright. We sit in the smaller drawing-room, which is still a little
        stiff and company-like, but it will soon get into our ways and be
        more comfortable."

      On August 8, 1888, they had first entertainment in the new house and         C
the book contains its account as under :

        "We had our first entertainment in our new house tonight. It looked
        perfectly lovely, and one could see that. everyone was quite
        astonished at _it and at the softness of the light. First we had a large   D
        dinner for sixty-six people at one long table. The electric light is
        enough, but as candelabra ornament the table we had some on it.
        At one end of the room there was a side-board covered with gold
        plate, etc., and at the other end double doors were open, and
        across the ball-room one saw the band which played during dinner.
        We had all the Council and 'personages' of Simla, and the Minister,        E
        Asman Jha, from Hyderabad, who brought his suite. After dinner
        people began to arrive for the dance. When not dancing, everyone
        was amused roaming about the new rooms, and going up to the
        first floor, whence they could look down upon the party."
                                                                                   F
        "Viceregal Lodge possess, as it rightly should, one of the most
        commanding position in Simla. It lies to the extreme west of the
        station, and is one of the first objects to strike the eye as the
        traveler approaches from Kalka. Described briefly it consists of a
        main block of three stories, and another called the kitchen wing,          G
        of five storeys, but the latter is built on the side of a precipice, and
        commences three storeys below the ground level of the main block
        and east wings; so that viewed from the north-east the house has
        a very lofty, somewhat forbidding appearance, and might at a
        distance be mistaken for a medieval castle.                                H
    428                 SUPREME COURT REPORTS                     [1997) 3 S.C.R.

A             The style of architecture throughout is English Renaissance
          (Elizabethan), the masonry of the walling is light blue limestone,
          and the wrought stone work is all of sand stone of a very fine grain
          and beautiful light gray tint. This stone is uniform in texture, and
          is capable of being worked to very short arises; the moulding are
          all true, and where carving has been carried out it is bold and
B         sharp. Vcry little stone carving has been used, but what there is of
          it relieves the plain parts, and is very effective. The walling stone
          was quarried about five miles away and was transported to Simla
          on mules, but much of this was found to be porous and was
          replaced with hard stone from Kalka and Sanjm1li al a cost of
c         nearly a lakh and a quarter. The cut stone was brought in for 50
          miles from the foot of the hills near Kalka. Carrying on the labour
          in the winter was a matter of much difficulty as the masons refused
          to work except for extremely high wages, while carpenters were
          not obtainable at any price. A small tower surmounts the house
          from which flies the flag which denotes the presence of the Viceroy
D
          in Simla. In this tower are the water tanks into which is pumped
          the supply from the municipal mains, and the view from its summit
          on a clear day is magnificent. To the north, and north-east par-
          ticularly, the ranges of perpetual snows are seen to great advantage
          over the peaks of the nearer ranges, while on the west, especially
E         in the rains, there is a grand view of the plains, with the Sutlej
          winding away in the distance. The house, grounds, and approaches
          are now lighted by electricity. There are about 1,000 lamps, the
          majority of 16 candle-power, and the engines which used to supply
          the power situated near the main entrance gate and close to the
          stable range. This shed has since been dismantled and is converted
F
          into a transformer room on the ground flour, with the offices of
          the Superintendent of Viceregal Lodge on the first floor. The
          engines were sold and replaced by a transformer. Inside, the house
          is beautifully built and finished, the fine entrance hall, with its
          gallery leading to the ball-room, being perhaps the main feature.
G         This gallery is fifty feet in height, ninety feet long, but only eighteen
          feet broad, which is really much too narrow.

             The woodwork however, is beautiful. For instance, the treads,
          newels, and handrails of the main staircase are of teak, the blusters
H         are solid walnut, the carriages and concealed portions of the
    RAJEEV MANKOTIA v. SECY. TO THE PRESIDENT OF INDIA                429

        framing of the stairs are of deodar, some of the carving being very A
        bold and effective. Heavy velvet curtains divide the galler from the
        ball-room, an apartment seventy feet by thirty feet with a side
        annexee seventy feet by ten feet on the west, and a vestibule
        seventeen feet by thirty feet on the east. These really are a portion
        of the room as they communicate with it by large openings twenty B
        feet wide. Another velvet curtain hangs over the opening to the
        state drawing-room, sixty feet by thirty feet, a charming room, with
        the wall panels hung in silk tapestry and the woodwork painted
        white. The upper part of the gallery is hung with Japaness paper
        in white and gold heavily embossed. Perhaps the state dining-room
        appeals most to the ordinary visitor. This is paneled all round ten C
        feet high with teak, the upper two feet being in pierced strap work,
        and supporting the shields charged with the armorial bearings of
        the ·several Governors-General and Viceroys of India, all il-
        luminated in the proper heraldic colours. These now make a
        splendid decoration. The walls are divided by means of pilasters D
        supporting the ceiling beams, and their upper portion is hung with
        crimson silk and woolen tapestry, while there is a good deal of
        bold carving in the room. On the occasion of a state dinner the
        scene is a particularly brilliant one. The furnishing of the house
        was ·originally done partly by Messrs. Maple & Co. who sent out
        their assistant for the purpose; many of the simpler articles, how- E
        ever, were made by Punjab carpenters whose work was excellent."

      Lord Lansdowne, during his term of office made improvements and
the grounds surrounding the house were planted out with trees and shrubs.
Many improvement which were designed mainly for the purpose of garden       F
parties were carried out under the supervision of Mr. A. Parsons, the
English Authority on gardening in Simla. The Viceregal entertainments
were conducted in large scale.

      When Lord Curzon took over the charge in 1889, Lady Curzon took
interest in renovating the building. She got hung damask, sky- blue and pale G
green in the two drawing rooms yellow in the ball room, and crimson in
the dining room. Most pleasant part of the house was, in their view, its
grounds and Lord Curzon added to them an avenue of limes; the rose
'pergola' which was such a typical feature of many large Victorian gardens
and parks, was designed by Lord Curzon. Lady Curzon felt that "a look H
    430                  SUPREME COURT REPORTS                  (1997] 3 S.C.R.

A out of the windows makes up for it all, and I can live on views for five
  years" (as mentioned in 'A Hill Station - Simla in British India' by Pat Barr
  and Ray Desmond.) In this behalf, it is of interest to note that the British
  authors have not lost their gratitude to mention the native people, their
  glamour and simplicity. One of the greatest Telugu poets, Sri Sri in his
  'Mahaprastavan' had said that the beauty of Taj Mahal cannot be measured
B
  by the Emperor Shahjahan's point of view who got it constructed in
  memory of his beloved queen Mumtaj Mahal; but from its delicate
  craftsmanship and carvings of the workers, architects and the masons who
  built the mantion, the world renowned national heritage of our nation.
  Similarly, reflections can be found from the masons, the men and women
C who built the Viceregal Lodge under the supervision and guidance of Mr.
  Henry Irvin, the architect and the Chief Superintendent of the work
  assisted by Mr. F.B. Harbert and L.M. Seth Clay as Executive Engineer
  and M/s. A. Scott T. Macpheryn and T. English Assistant Engineers as
  mentioned by Mr. Edward.J. Buck in his Second Edition recorded from
D the diary of Lady Duffcrin on July 16th 1887 as under :

             "D. took Hermie and me all over the house in the afternoon. We
             climbed up the most terrible places, and stood on single planks
             over yawning chasms. The workpeople are amusing to look at
             especially the young ladies in neckless, bracelets, earrings, tight
E            cotto'n trousers, turbans with long veils hanging down their backs,
             and a large earthen-ware basin of mortar on their heads. They walk
             about with the carriage of empresses, and seem as much at ease
             on the top of the roof as on the. ground-floor; most picturesque
             masons they are. The house will really be beautiful, and the views
F            all round are magnificent. I saw the plains distinctly from my
             boudoir window, and I am glad to have that open view, as I shall
             not then feel so buried in the hills."


         Thus, the great Indian masons, men and women had.built the mag-
G nificent ancient monument with their heart, sweat and labour to be enjoyed
  by the Viceroys/Governor Generals who conquered the country because
  of disunity among the Indian rules and because some rulers connived with
  the British forces. Disintegration of the society was on account of regional
  and religious difference, caste structures and mostly personal feuds and
H rivalries. among the Rajas and Maharajas themselves.
         RAJEEV MANKOTIA v. SECY. TO THE PRESIDENT OF INDIA                   431

           As stated hereinbefore, the freedom movement was launched in a A
     non-violent manner, the Father of the Nation, Gandhiji called by the
     people with love "Bapuji" and sustained as people's movements was carried
     on over years at the sacrifice of life of numberless patriot men and women.
     The Viceregal Lodge witnessed two historical Conferences held by the
     Indian leaders with the Viceroy/Governor General and in particular Lord B
     Mountbatten who was instrumental in handing .over the Bharat to us. The
     ancient India got dissected into two parts, viz., Bharat and Pakistan, due
     to two-nation theory successfully campaigned by Sri Jinnah on behalf of
     the Muslims, who later regretted for the damage done by him to the great
     nation. The emergence of two nations ultimately resulted in the halocaust
     of communal disturbances and loss of lives of innocent British Indians who C
     included both Hindus and Muslims. In this behalf, in 'Freedom at
     Midnight' by Larry Collins and Dominique Lapierre it is mentioned in
     Chapter VI titled "A Precious Little Place, Simla, May 1947" precluding
     the events leading to the division of India. It is mentioned therein that
,.   during May 1947, Lord Mountbatten had stationed himself in Simla in this D
     very Viceregal Lodge. The authors have narrated their research in the
     following words :

             "Each year m mid-April when the warm weather arrived, the
             Viceroy's departure for Simla in his white and gold vicen:gal train
             singaled that the mountain capital's season had begun."                 E

            It is mentioned at page 123 that "Much of that old Simla was already
     gone by the time Louis Mountbatten arrived in early May 1947. Now an
     India could even walk down the Mall - provided he was not wearing the
     national dress of his country". Earlier, Indians were prohibited from going     F
     there. "Simla changed with an easily foreseen rapidity after independence.
     The Indians, because of its connotations, abandoned it as their summer
     capital.The only thing which remains of the old Simla, 'M.S. Oberoi, owner
     of the Cecil's Hotel and Chairman of Oberoi's Hotels Ltd., lamenated in
     1973, 'is the claimate'. The Viceregal Lodge also was used as a part of the
     Legislative Wing for the summer session of Parliament and it, therefore,        G
     has the taste of transacting legislative business with the Indian legislators
     partly composed \vith the British Administrators. Lord Mountbatten had
     finalised the plan in Simla to divide India into three countries, namely,
     Bengal, composed of East and West Bengal, Pakistan and India, apart from
     retention of the respective areas had by named rules. A graphic account         H
    432                   SUPREME COURT REPORTS                   [1997] 3 S.C.R.

A was given as to how Lord Mountbatten had his plan secretly disclosed, by
    inviting Pandit Jawaharlal Nehru, the first Prime Minister, who was a very
    close friend of Lord Mountbatten and an important spokesman on behalf
    of the Congress Party, to Simla. Lord Mountbatten had shown his plan of
    division of India. The violent reaction of Panditji was noted as mentioned
    at page 126 as under :
B
             "The British had run India for three centuries with the byword
             'Divide and Rule'. They proposed to leave it on a new one;
             'Fragment and Quit'. White-faced, shaking with rage, Nehru
             stalked into the bedroom of the confidant Krishna Menon who'd
c            accompanied him to Simla. With a furious gesture, he hurled the
             plan on to his bed."

             'It's all over!' he shouted."

D        Because of the reaction of the Panditji to such a division of India,
  Mountbatten realised that he cannot succeed in his effort to hand over the
  power to the people in fragmentation. Therefore, he redrafted the plan
  and at the call of the then Prime Minister, Mr. Ailee, he went to London,
  had discussions and ultimately succeeded to divide the country as India,
  i.e., Bharat and Pakistan; and Independence Act was enacted by British
E Parliament in conclusion. It would, thus, be seen that Viceregal Lodge, a:s
  stated earlier, is a mute witness to the destruction of Indians, their sub-
  jugation as subject of British empire who ruled the country for over three
  centuries by 'divide and rule'. The agony of the Indians and the glory of
  the British empire and the Simla as its summer Seat for the Asian British
F empire was witnessed by this Viceregal Lodge. Equally, it is also a witness
  to heralding of new era of independence though the ancient India was
  fragmented into two nations, namely, india, i.e., Bharat and Pakistan. India,
  thus, became a sovereign, socialist, secular democratic republic under a
  written Constitution. Democracy is its basic feature; constitutionalism, rule
  of law and democratic governance as basic means to establish an
G egalitarian social order in which every citizen of Bharat is entitled to enjoy
  justice - social, economic and political - liberties, and equality of status and
   of opportunity, with dignity of person and fraternity among all the sections
   of the society as an integrated Bharat. Such being the historic evidence
   furnished by a Viceregal Lodge, is it not the duty of the Indians and of the
H Government of India to preserve Viceregal Lodge an a monument of
         RAJEEV MANKOTIA v. SECY. TO THE PRESIDENT OF INDIA                   433

    national importance for the posterity of the historic evidence so that every A
    Indian citizen while visiting Shimla would have the glimpses of it to recall
    the folly of disunity, teaching us the lesson of being united so as not to
    destroy ourselves once over and loss democracy and liberties on account
    of disunity, disharmony on grounds of religion, region, caste, language;
    and. denial of all opportunities and facilities to our own weaker segments B
    of the society; of equality of opportunities and of status to improve excel-
    lence in chosen facets of the respective lives. Answer is obviously 'YES'. If
    we forget the past and repeat the same mistake, we would stand to lose
    our nation's unity and integrity; stand to lose the opr.ortunity to integrate
    into the world our great democratic Bharat Republic. Viceregal Lodge
    teaches us these lessons and it is for all of us, individually and collectively, C
    to learn, awake arise and work for integration, unity and fraternity, which
    are our fundamental duties.

           In this backdrop, when the writ petition was filed by way of Public
    Interest Litigation, this Court issued rule nisi on November 19, 1990 to all    D
    the respondents. Initially, a stand was taken in the counter-affidavit filed
    by the Union of India that they had decided to use a part of the area for
    commercial purpose and the rest of the main building to maintain and
    restore the glory of the Viceregal Lodge. Thus the decision to convert the
    historical building into a tourist hotel was sought to be justified on the
    ground that the Ministry of Tourism has encouraged a scheme of heritage         E
    resorts which essentially means preservation of the old properties and their
    use in such a limited commercial manner so as to generate enough sources
    to ensure that the properties will not crumble. As regards the construction
    of Five Star Hotel in the area, it is stated thus :
                                                                                    F
            "The premises may not necessarily be converted· into a five star
            hotel as commonly known but the concept plan will be more of a

-           heritage resort, which would enhance and project the cultural
            identity of the area instead of destroying it."

           This Court was not satisfied with the counter-affidavit filed on behalf · G
    of the Government of India. Therefore, it gave directions on November 24,
    1995 to have the matter reconsidered by the Cabinet Sub-Committee.
    Accordingly, a counter-affidavit was again failed on January 22, 1996
    stating that "in August 1982, the Union Cabinet took a decision that the
    Indian Institute of Advanced Studies which is housed in the Rashtrapati H
     434                   SUPREME COURT REPORTS                    (1997) 3 S.C.R.

A Nivas building should be shifted to some other building in Shimla". It was
     further stated that "At a subsequent Cabinet Committee meeting held on
     8th May, 1990, it was decided that the entire campus earlier known as
     Viceregal Lodge may be transferred to the Ministry of Toruism for being
     developed as a major tourist resort by the ITDC with the stipulation that
     the main building will not be used for tourist purposes. It was also decided
B    that the Institute of Advanced Studies which is housed in the campus of·
     the Rashtrapati Nivas Estate may be shifted to an alternative site offered
     by the Government of Himachal Pradesh." "In February, 1992 the matter
     was further discussed by the Committee of Secretaries and the earlier
      decision was amplified to the effect that the main Viceregal Lodge with a
C     part of the appurtenant land should be preserved and mantained as a
      national museum and the surrounding land may be handed over the
      Ministry of Tourism for development of a tourist resort." Therefore, it was
      stated that "it would be unnecessary for the matter to be taken to the
      Cabinet once again for a decision about the preservation of the main .
D     building and the appurtenant land as heritage property". It was also stated
      that there were "no plans for the development of any part of the
      Rashtrapati Nivas estate into a five-star hotel complex. No plan for any
      such purpose has been discussed or finalised nor has any budgetary alloca-
      tion been made for the said purpose in the Eighth Five Year Plan". The
      last para itself is a manifest of the intention of the Government that its use
E     in future as a tourist resort had not been ruled not. As a consequence, by
      Order dated February 27, 1996, this Court stated thus :

              ".... the Chief Engineer of the CPWD, In-charge of the maintenance
              of Vice Regal Lodge has brought to the Court echology album of
              the entire area. It was stated that around the building, as at present,
F
              there is not proposal for construction of tourism hotels, as original-
              ly proposed, but there is a direction of the Division Bench of the
              Shimla High Court directing the Secretary, Human Resources
              Development and Urban Development should decide as to what
              is the extent of appurtenant land around the building beyond which
 G            the CPWD intends to construct quarters and office building for
              the employees transferred and stationed there or which is part of
              the property leased out to the Institute of Advance Studies."



 H
            Tills Court observed that since the Government of India had ad-
      mitted in the counter-affidavit that the building part of the appurtenant
                                                                                        --
        RAJEEV MANKOTIA ~. SECY. TO THE PRESIDENT OF INDIA                 435

-   land would be preserved as National Monuments by the Archaeological A
    Department, the question that had arisen was what would be the appur-
    tenant land. The Court was informed the around 65 acres was the land near
    the main building at the observatory hill and 25 acres. of the land was
    situated elsewhere at prospect hill. This Court indicated to the learned
    senior counsel for the respondents that the appur-tenant land which was B
    kept vacant, as was admitted in their counter-affidavit, should be 25 acres
    surrounding the entire building. The Court directed that if t.he said land is
    used for any other public purpose, like establishment of tourist hotels or
    office buildings, which was originally proposed and resolved by the Cabinet
    Resolution, the same should be beyond that area and that too without
    contravention of the Forest Act and other relevant laws. The counsel C
    sought and was granted time for producing tentative plan proposed by
    them without touching the appurtenant land. When the matter had come
    up for next hearing on April 3, 1996 counsel was not present and, therefore,
    the matter was adjourned indicating that in case of non-appearance, ap-
    propriate orders would be passed.
                                                                                  D
          A counter-affidavit dated April 26, 1996 was filed on behalf of the
    Government of India stating therein that a meeting of the Secretary,
    Department of Urban Development, Secretary, Ministry of Urban Affairs
    and Employment, Secretary, Department of Education, Ministry of Human
    Resources Development, Joint Secretary, Department of Tourims, Ministry       E
    of Civil Aviation and Tourims and other officials concerned with the matter
    had met on 22nd March, 1996 and decided as under :

            "(a) The Appurtenant Jami around Rashtrapati Niwas (on the
                 Observatory Hill) was agreed to be 24.27 acres. This was F
                 determined both form the engineering angle and with a view
                 to protecting the natural surroundings of the Rashtrapati
                 Niwas. It was also agreed that the building of Rashtrapati
                 Niwas and the surrounding appurtenant area. will be ear-
                 marked as a. "heritage area" wherein no construction activity
                 should be permitted or undertaken.                            G


-           (b) In regard to the area outside the heritage area, a master plan
                would be prepared by the Ministry of Urban Affairs and
                Employment (Department of Urban Development) in con-
                sultation with Ministry of Human Resources Development H
    436                   SUPREME COURT REPQRTS                  [1997] 3 S.C.R.

A                 (Department of Education), Ministry of Civil Aviation and
                  Tourism (Development of Tourism), Ministry of Environment
                  and Forest and concerned local agencies like t.he Shim.Ia
                  Municipal Corporation, The Town Planning Department and
                  the State Forest Department, so as to ensure that the environ-
                  ment and ecology of the area is preserved and no activity be
B                 taken which may endanger the environmental position.

             (c) In regard to the remaining part 9f Rashtrapati Nivas Estate
                 (on Prospect Hill) the land could be put to such use as the
                 Government may determine from time to time, subject to the
c                due compliance with the applicable law including the Forest
                 Act, Town Planning Act, Local Municipal Law and others."

        It was further stated therein that the as per the detailed plan of the
  Rashtrapati Niwas Estate placed before this Court, the designated bound-
D ary of the Rashtrapati Nivas Building with the appurtenant land agreed
  upon as "heritage area" was show by a broken line in brown colour. The
  area therein suggested was 24.27 acres in place of 25 acres, to be preserved
  within the natural boundaries formed by the roads encircling Rashtrapati
  Nivas. On May 6, 1997, learned counsel for the petitioner was directed to
  verify and make a report with regard to the plan submitted and whether
E any further modification was required. Counter-affidavit accompanied by
  the reports was filed on behalf of the petitioner stating that the Viceregal
  Lodge consists of an area of 90 acres which included ancillary buildings
  that constituted the whole estate of the Viceregal Lodge. The said buildings
  namely, Corzon House, Del Ville, Clair Villa, Bilaspur House, Bilaspur
F Cottage and Squires Halla have not been included in the plan submitted
  by the Government and they were not included within the heritage area. It
  was also stated that the Viceregal Lodge, as suggested by Intact requires
  repairs for . the upkeep for the said monument and the said building
  requires to be notified as a protected monument an.d the memorabilia
  within the Lodge should be notified as protected antiquities. A report in
G support was also accordingly filled. As. a large part of the building requires
  repairs, preservation and restoration to their original form. for effectua.ting
  the grandeur and beauty of the building, direction was given to look into
  the objections raised in the enclosed report and the matter was adjourned.
  After compliance thereof, a report has been submitted demarcating the
H area and identifying the contiguous land in the plan appended to the report
     RAJEEV MANKOTIAv. SECY. TO THE PRESIDENT OF INDIA                  437

but notification in that behalf had not been issued. Therefore, by proceed- A
ings dated August 19, 1996, the Government of India was directed to notify
the entire are of the Viceregal Lodge as a protected ancient monument.
After several adjournments, ultimately the notification came to be issued
on 6th May, 1997 with the boundaries as directed in the orders and
mandamus in that behalf stands complied with. Thus, the protection and B
preservation of Viceregal Lodge and the appurtenant land as historical
heritage has become faite accompli by orders of this Court.

       It is needless to mention that as soon as the Indian Institute of
Advance Studies vacates the building and hands it over to the Archaeologi-
cal Department, the Government should provide the necessary budget for C
effecting repairs and restoring to the building its natural beauty and
grandeur. It is also necessary that it proper maintenance and preservation
is undertaken as an on-going process to protect the historical heritage and
needed repairs are effected from time to time. We avail this opportunity
to direct the Government of India to maintain all national monuments D
under the respective Acts referred to above and to ensure that all of them
are properly maintained so that the cultural and historical heritage of
India and the beauty and grandeur of the monuments, sculptures secured
through breathless and passionate labour workmenship, craftsmanship and
the skills of the Indian architects, artists and masons is continued to be
preserved. They are pride of Indians and places of public visit. The tourist E
visitors should be properly regulated Collection of funds by way of admis-
sion/entrance free should be conscientiously accounted for and utilised for
their upkeep and maintenance under respect regulations/rules. Adequate
annual budgetary provisions should be provided. In this behalf, it may not
be out of place to mention that if one goes to Williamsburg in United States p
of America, the first settlement of the Britishers therein is preserved as a
tourist resort and though it is one in the row, its originality is maintained
and busying business activity goes on in and around the area attracting daily
hundreds of tourists from all over the world. Similar places of interest,
though of recent origin, need to be preserved and maintained as manifes-
tation of our cultural heritage or historical evidence. Similar efforts should G
also be made by the Government of India, in particular the Tourims
Department, to attract foreign tourists and to give them good account of
our past and glory of the people of India as message to other countries and
territories. Equally all the State Governments would do well vis-a-vis
monuments of State important, thought given power under Entry 12, List H
    438                  SUPREME COURT REPORTS                 [1997] 3 S.C.R.

A   II of the Seventh Schedule to the Constitution. From this perspective, the
    petitioner has served a great cause of national importance and we place
    on record his effort to have the Viceregal Lodge preserved and maintained;
    but for his painstaking efforts, it would have been desecrated into a five
    Star Hotel and in no time, "We, the people of India" would have Jost our
    ancient historical heritage.
B
          The writ petition is accordingly disposed of.

    T.N.A.                                                Petition disposed of.