Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.394 of 2012 (O&M) DATE OF DECISION: 03.04.2014 Archaeological Survey of India …..Appellant versus Khokra Kot Residents Sewa Samiti and others .....Respondents CORAM:- HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON’BLE Mr.JUSTICE ARUN PALLI Present: Mr.S.S.Sandhu, Senior Standing Counsel, UOI for the appellant Mr.P.K.Mutneja, Advocate for respondent No.1 Mr.Ravi Dutt Sharma, DAG, Haryana .SANJAY KISHAN KAUL, CHIEF JUSTICE: (Oral) The appeal is directed against the impugned order dated 12.12.2011 passed by the learned single Judge.
A perusal of the order sheets shows that various provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter to be referred to as “the said Act”.) have been dealt with.
The appellant can have little quibble with the same.
We may add that the learned single Judge has taken into consideration the provisions of both Sections 19 and 20 of the said Act which fall under the heading of “Protected Areas”.The case of the appellant is that this protected area has been encroached and the encroachments are liable to be removed for which Chand Parkash 2014.04.03 17:02 I attest to the accuracy and integrity of this document LPA-394-2012 -2- notices were sent.
The impugned order has protected the site for the future by issuing suitable directions.
However, it has also called upon a plan to be drawn up for future excavations as the matter cannot be left in limbo for years together affecting rights of owneRs.Again, over this aspect, there can be no quibble.
The learned single Judge has, in fact, not quashed the impugned notices, but has only suspended their operation by observing that decision to excavate would in turn involve duty to acquire land under Section 20 of the said Act so that the owners are compensated monetarily.
It is not case of the appellant that they have drawn up a scheme of excavation.
On the other hand, what is sought to be principally contended before us is that there is no question of acquiring the land under Section 20 of the said Act, as it already vests in the Central Government.
On being asked to point out as to where this aspect has been dealt with, i.e., the issue of title whether it vests with Central Government or with private individuals, learned counsel concedes that there is no discussion in the impugned order.
It is trite to say that if an aspect is contended and plea raised (as is sought to be urged before us by learned counsel for the appellant) and has somehow escaped the attention of the learned single Judge at the time of pronouncement of the order, then it is the bounden duty of that party to approach the Court to invite an opinion on that aspect so that the appellate forum can deal with the same either agreeing or disagreeing with the same.
In the present case, however, there is no such discussion whatsoever.
The learned single Judge has not been moved but straightaway an appeal has been filed.
The appeal is really confined to this crucial issue as to in whom the land vests as if Chand Parkash 2014.04.03 17:02 I attest to the accuracy and integrity of this document LPA-394-2012 -3- the land vests already with the Government of India then there is no question of acquiring the land under Section 20 of the said Act but of removal of encroachers from the land while the impugned order seeks to suggest that those are private owners whose land ought to be acquired under Section 20 of the Act.
Learned counsel for the appellant, faced with the aforesaid position, seeks to withdraw the appeal with liberty to approach the learned single Judge seeking to invite an opinion on the aforesaid crucial issue which, as we are informed, was, in fact, urged before the learned single Judge.
Dismissed as withdrawn with the aforesaid liberty as per law.
List before the learned single Judge, who passed the impugned order, for directions on 23.04.2014.
( SANJAY KISHAN KAUL ) CHIEF JUSTICE0304.2014 ( ARUN PALLI) parkash* JUDGE Chand Parkash 2014.04.03 17:02 I attest to the accuracy and integrity of this document