M.M.Kumar, Acg.C.J.@mdashThe instant petition filed under Article 226 of the Constitution prays for issuance of direction to the respondents
restraining them shifting of Government Girls High School Payal which had been running in Qila Payal from the last about 35 years. A further
direction for quashing order dated 21.12.2009 (P.2) has also been made. According to the aforesaid order,passed by the Director Archeology
and Museum Department Punjab the Qila is a protected monument and any encroachment was required to be removed as per the directions
issued by a Division Bench of this Court in CWP No. 17704 of 1997 decided on 4.10.2008 (Munshi Ram v. State of Punjab) (R.1). In the
aforesaid judgement, the Division Bench has issued the following comprehensive directions:
(i) the Archeological Survey of India, Chandigarh Circle, Chandigarh shall send detailed particulars, including the area of the land underneath an
ancient/protected monument to the Deputy Commissioner-cum-Collector of the district concerned where such monument is located in the State of
Punjab and Haryana within a period of one month, if not sent already;
(ii) the Deputy Commissioner-cum-Collector of the district shall obtain a report from the revenue authorities regarding the encroachment, if any,
made over the property of the ancient/protected monument within a period of one month from the date intimation regarding such ancient/protected
monument is received from the Archeological Survey of India, Chandigarh Circle, Chandigarh and shall send a copy of the report to the
Archeological Survey of India, Chandigarh Circle, Chandigarh;
(iii) it shall be the duty of the Archeological Survey of India, Chandigarh Circle, Chandigarh and also of the Deputy Commissioner-cum-Collector
of the district concerned to get the ancient/protected monument or the property attached thereto retrieved from the encroachers in accordance with
law. Wherever such an encroacher has got an injunction order from the civil court, the Archeological Survey of India as well as the Collector shall
produce a copy of this order before the civil court to enable it to pass an appropriate order which may not be inconsistent with the directions
issued hereinabove. The court concerned shall also be requested for early disposal of the pending suit/appeal, as the case may be;
(iv) the Archeological Survey of India shall ensure that all the ancient or protected monuments are maintained, preserved, repaired or renovated
periodically and the duty, if any, cast upon the Collector of a district in this regard under the 1958 Act shall be performed by him with or without
any request from the Archeological Survey of India;
(v) after removal of all encroachments from the ancient or protected monuments and/or their repair/renovations, a compliance report along with
photographs of each of the said monuments shall be submitted to the Registry of this Court. The entire exercise, however, shall have to be carried
out before 30.9.2009, failing which, besides suo moto, any public spirited person shall also be competent to initiate contempt of court proceedings
against the erring Collector or the authorities of the Archeological Survey of India, Chandigarh Circle, Chandigarh;
(vi) the Archeological Survey of India, Chandigarh Circle, Chandigarh, with the assistance of the District Administration concerned, shall further
ensure that no part of the ancient or protected monument in possession of the encroachers or otherwise is damaged, defaced, altered or impaired,
till such encroachments are removed.
2. It has not been disputed that Qila is declared as a protected monument by the Government of Punjab Department of Cultural Affairs, Ancient
and Historical Monument and Archaeology vide notification dated 16.3.2009 ( R/3). The aforesaid declaration has been made u/s 4(1) of the
Punjab Ancient and Historical Monuments and Archaeology Site and Remains Act, 1964 (for short the ''1964 Act'') read with the Ancient and
Historical Monuments and Archaeology Site and Remains Act, 1958 of the Central Government. It has also remained undisputed that the
Government Senior Secondary School was housed in the Qila and being run from there. It was virtually encroachment of a protected monument
which was declared as such under the 1964 Act. The directions issued by the Division Bench were also binding. Accordingly the respondents in
compliance with the directions issued by this Court have shifted the school in question to Government Senior Secondary School, Payal on
19.4.2010 (R.4).
3. We have heard learned counsel for the parties at a considerable length and are of the view that once the Qila at Payal has been declared as
protected monument under the 1964 Act then the mandamus issued by a Division Bench of this Court for removing any encroachment from the
monument has to be complied with. It is well settled that a mandamus issued by a writ cannot be nullified by another direction as is well settled by
an authoritative pronouncement of Hon''ble the Supreme Court rendered in the case of Naresh Shridhar Mirajkar and Others Vs. State of
Maharashtra and Another, . Moreover, encroachment in a historical monument like Qila at Payal would not be justified. Therefore, the instant
petition does not merit admission and is thus liable to be dismissed.
4. For the reasons aforesaid, this petition fails and the same is dismissed.
