JUDGMENT Amitava Lala, J.
1. By this writ petition under Article 226 of the Constitution, the petitioners have prayed for issuance of a writ in the nature of Certiorari quashing the impugned order No. 1/54/04-M-4653 dated 30th September, 2005 passed by the Superintending Archaeologist, Archaeological Survey of India, the respondent No. 3 herein and for other suitable directions which this Court may deem fit and proper in the facts and circumstances of instant case.
2. The facts of this case lie in a narrow compass. A private house known as "Darbhanga Palace" situates on the western bank of river Ganges, is old and dilapidated. The petitioners purchased this property from the original owner (private party or parties) for commercial purpose i.e. to start the hotel business etc. The Varanasi Development Authority, being the authority competent, had sanctioned necessary plan for construction/renovation etc. Appropriate architectural certificate was also obtained by the petitioners for the purpose of necessary work. Petitioners wanted to preserve its old heritage look but for the better preservation, wanted remodeling in various places of the building, particularly inside the premises. The State Government had directed the Varanasi Development Authority by its oder dated 20th August, 2001 for consulting Indian National Trust for Art and Culture Heritage (in short hereinafter referred to as 'INTACH'). Several reports including the report of a professor, Prof. A.G. Krishna Menon of INTACH, are also available in the record in support of better construction of that house keeping its ambience towards river Ganges as it is. According to us, this is not a new dimension of thinking but possibly a new dimension in the State of Uttar Pradesh. We can take judicial notice about various such preservations made available for the commercial purposes keeping ethnic outlook as it is, particularly in the State of Rajasthan. Therefore, creativity is not a discourageable idea at all. The respondent authorities of Archaeological Survey of India, raised objections with regard to the said construction in particular, about one 'Jai Singh Observatory' situates on the western side of river Ganges, but at a distance of about 300 meters from that old and/or dilapidated private building. It is common knowledge that who wants to visualise various bathing Ghats on river Ganges at Varanasi by motor-launch or boat, they will be able to find that several houses are built in between these two places. Location wise, the observatory stands on right hand side, when Darbhanga building situates on the left hand side from river Ganges. So many Ghats including Dashashwamedh Ghat stand in between these two places. Various photographs are also part and parcel of the record, from which it also appears so. However, when the respondent authorities are saying that the distance between 'Jai Singh Observatory' and 'Darbhanga Palace' is 266 meters, the petitioners say it is 282 meters. Therefore, admittedly it is less than 300 meters.
3. Against this background, we would like to clarify the legal position in this regard and for this purpose we have to see the object and reasons of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short 'the Act'). The Act has been enacted to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects. Therefore, in a nutshell, the objective sought to be achieved by the Act is, preservation of ancient and historical monuments and archaeological sites and remains of national importance and not the private houses. Admittedly, the house in question I.e. "Darbhanga Palace" does not come within the purview of preservations for the purpose of the Act. Therefore, the yardstick applicable to historical and ancient monuments does not apply to it at all. Of course, regulatory yardstick, not prohibitory, can be applicable in an appropriate case.
4. According to the respondents, as per S.O. 1447 dated 15.5.1991, which has been published in the official Gazette No. II Section 3 Sub-section (ii) dated 25.5.1991, an area of 100 meters around the monument or monumental building is a prohibited area and beyond that an area of 200 meters around it, is a regulatory area. No doubt, the law makes it clear in what way a monument will be preserved. But law never said anywhere how a private building in or around the regulatory area of any monument or monumental building will be regulated. Unless, of course, it is disturbing in any way the monument, permission for remodeling or construction, if any, of a private house is the domain of concerned development authority or the Municipal Commissioner. Therefore, the authorities hereunder can not be allowed to extend the scope other than the scope in what way such private house is disturbing the monument or monumental building. The observatory has a clock which can be read on the basis of the sun-rays. River Ganges flows from south to north when sun rises on the eastern side i.e. opposite side of river Ganges when both, the building and the observatory, situate on the western side. Therefore, apparently there is no obstruction of sun-rays at all. That apart, several houses almost of the similar height, if not more, situate in between these two premises. The authorities, in the garb of an inspection under an order dated 6th July, 2005 passed by a Division Bench of this Court in Writ Petition No. 31340 of 2005 Apoorva Kumar and Ors. v. State of U.P. and Ors., wanted to intervene in respect of remodelling or reconstruction of the structure of the building in the name of regulatory power within 200 meters over and above 100 meters i.e. prohibitory area. Surprisingly, the report, which has been furnished by such authority to the petitioners as annexed with the writ petition, speaks that on the eastern side and rear side the building is not prohibiting anything. So far as northern side is concerned, the same view has been observed. So far as western side is concerned, the report is silent. Therefore, it can be safely presumed that there is nothing to say with regard to western side of the building since all the buildings of the similar heights, if not higher, stand on the western side of the river Ganges in between these two premises. From the architectural report, it appears that by remodelling or restructure, it has become little lower than the original height. However, we do not want to enter into such factual controversy. What we require hereunder in disposing the writ petition is to declare whether the action on the part of the authority is beyond its jurisdiction. Apart from any disturbance caused in respect of the sun-rays due to construction of the building, no objection can be adhered to by the authority. The authority appears to have committed mistake by proceeding as if 'Jai Singh Observatory' was not the monument but 'Darbhanga Palace1, a private house, is the monument.
5. Therefore, in totality, we are of the view that the order of demolition or for any purpose interfering with the cause of construction by such authority, should be quashed and is accordingly quashed. As a result whereof, the petitioners will be entitled to remodel or restructure the house with the appropriate sanction of Varanasi Development Authority and/or Municipal Corporation whosoever is competent to do so, if not already obtained. Thus, the writ petition is disposed of. However, no order is passed as to costs.