CENTRAL INFORMATION COMMISSION (Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066) Phone: 011-26181927 Fax: 011-26185088 Prof. M. Sridhar Acharyulu (Madabhushi Sridhar) Central Information Commissioner CIC/SH/A/2016/000795 Bhim Singh Sagar v. PIO, Superintendent, ASI RTI : 24.11.2015 FAO : 18.02.2016 Second Appeal : 14.03.2016 Date of Hearing : 08.03.2017 Decided on : 30.05.2017 Result : Penalty Imposed ORDER FACTS: 1. The appellant sought specific details of houses, roads, the residential colonies etc., within demarcation of 500 meters border from the east to south gate of the Taj Mahal monument in Agra city, as notified. The CPIO denied saying the record was not available with them. This was confirmed by the First Appellate Authority. The appellant approached the Commission. Submissions of the Appellant: 2. During the hearing on 06.02.2017, the appellant Mr. Bhim Singh Sagar stated that the Archaeological Survey of India did not disclose the details of structures in area demarcated within 500 meters of east gate of Taj Mahal in Agra City, the officers are harassing local residents, preventing them from retaining or repairing their compound walls, threatening action even when they are attending to regular maintenance of their houses and not taking action against violators of norms obviously for corrupt reasons. He alleged that big hotels and commercial installations are going scot-free with indiscriminate structures. The appellant stated that the department was persistently denying information that result in corrupt practices by the lower staff. The appellant pointed out that it is obligation of CIC/SH/A/2016/000795 Page 1
Archaeological Survey of India to give details of the areas affected by the restrictions imposed in the name of conservation and restoration of archaeological sites. Submissions of the Respondent Authority: 3. When 500 meters area was demarcated for the purposes of protection of the historic monument, the concerned agency ASI is expected to have the records about colonies and structures within that demarcated area. How can they say that they do not have the records? If they do not have such elementary record, how do they prevent illegal structures and secure the existing structures? The appellant s narration presents the difficulties of the residents in the vicinity of Taj Mahal, and what he sought was the details of the structures within demarcation. This information is essential for the people to know physical limits within which the construction restrictions apply to secure the beauty aesthetics and structure of Taj Mahal. Non-disclosure of this information facilitates the corruption by both ASI and Agra Development Authority, because their staff can threaten every essential repair or maintenance as illegal construction as harmful to Taj Mahal, or encourage illegal structures for any illegal purpose. They should have such information and that should be accessible to the people. The ASI has to coordinate with ADA and list out exact contents of residential colonies within 500 meters, which are essential for the department to perform its statutory duty and also to ensure the compliance of the law by the people to protect the monument. Hence the Commission thought the denial of information sought would be very harmful. 4. In response to show-cause notice the CPIO explained that the information sought by the appellant pertains to land, property and persons under the State of Uttar Pradesh being monitored and controlled by the Agra Development Authority, where as the ASI is primarily looking after the preservation and maintenance, etc. of the protected monuments as per provisions of ASI Act and the Rules including directions of Hon ble courts. 5. The CPIO also explained that the appropriate action against any unauthorized construction in prohibited or regulated area could be initiated by lodging an FIR and informing the Civic authority. The matters CIC/SH/A/2016/000795 Page 2
raised are concerned with the Commissioner, Agra and Agra Development Authority, since the Validation Act, 2010 has come into effect. Ms. Kabui has submitted that she had discharged her responsibility by requesting the ADA to provide the information as that was not available in their office. Analysis: 6. It is a known fact that the Taj Mahal, one of the Seven Wonders of the World is designated as UNESCO World Heritage Site in 1983. It attracts around 3 million visitors a year from all over the world. In the recent past, several alarming cases have come to light threatening the aesthetic beauty of the Taj Mahal. The Hon ble Supreme Court and NGT heard issues such as tree felling in the eco-sensitive zone near the 17th century mausoleum, on a plot which was about 2.4 k.m.s away from monument s boundary, illegal constructions in and around the white marble mausoleum, construction for residential and commercial purposes in the green belt and agricultural land within 100 meters of the boundary of the monument, etc. The courts in such cases have directed State Government of Uttar Pradesh, Uttar Pradesh Pollution Control Board (UPPCB) and Archaeological Survey of India to submit reports on illegal construction Agra in the Taj Trapezium Zone (TTZ) near the boundary of the Taj Mahal. 7. In a PIL filed by reputed environmental Advocate M C Mehta, the Supreme Court on November 17, 2015 sent a clear warning to Uttar Pradesh government not to allow destruction of the aesthetic beauty of the Taj Mahal by poor quality of constructions around. The bench of Justice T.S. Thakur and Justice C. Nagappan issued notice to the ASI in petition where Indian Tourism Development Corporation was seeking no-traffic zone around Taj and better tourist management steps. The bench asked the Archaeological Survey of India (ASI) to respond whether UP government project was in consonance with the aesthetic beauty of Taj. A bench of Justices T S Thakur and C Nagappan questioned the state government for not giving due attention to the finesse of the work and "messing up" the beauty of the Taj Mahal, while perusing pictures of construction of a road on its back side. The Bench commented: "With chisel and hammer people CIC/SH/A/2016/000795 Page 3
created this wonder but today with all facilities and scientific knowledge you are not able to match the beauty of medieval time". 8. The Archaeological Survey of India (ASI), under the Ministry of Culture, is the premier organization responsible for maintenance and protection of ancient monuments and archaeological sites and remains of national importance. The ASI Act 2010 imposes a blanket ban on all construction within specified restricted areas (or prohibited zone) of any monument protected by the Archaeological Survey of India and allows limited construction in the next 200 meters (regulated zone). Regulated area means an area near or adjoining a protected monument which the Central Government has, by notification in the official gazette, declared to be a regulated area, for purposed of mining operation or construction of both. No person other than an archaeological officer shall undertake any construction in a regulated area. No person including the owner or occupier of a protected area, shall utilize protected area or any part thereof in any other manner without the permission of the Central Government, and whoever contravene it shall be punishable with imprisonment which may extend to three months or with fine which may extend to five thousand rupees or with both, as per Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 read with by section 126 of the States Reorganization Act, 1956. 9. A news channel reported quoting a release by the Archaeological Survey of India, in response to an RTI application that a total of 533 illegal constructions have taken place in the entire Agra circle, out of which 46 have come up in Taj Ganj area. Many of these unauthorized constructions have taken place at a mere 100 meter distances from the Taj Mahal despite the directive issued by Supreme Court that prohibits any construction within 500 meters of the monument. Assistant Secretary Jamat-e-Islami Hind, Mr. Intizar Naeem, said: "ASI has only given the information about illegal construction in Agra circle but no information has been given on what steps were taken against the people responsible or to remove the construction". Mr. Rajkumar Singh, chief of 'Paryatak Ghat Samiti', an organization working for preservation of Taj Mahal said that many agitations have taken place in the past regarding illegal CIC/SH/A/2016/000795 Page 4
constructions around Taj Mahal but no concrete steps were taken by the ASI and the administration to curb this," said.(http://www.ndtv.com/agranews/illegal-constructions-mar-taj-mahals-beauty-507674) 10. There is another risk to Taj Mahar within 500 meters. According to a report of St John s College, the polluted Yamuna River has been reduced to a swamp with heavy algal growth and deposit of phosphorus (from ash), which form the primary source of food for this species of insect. The rising pollution level of the Yamuna is now a major threat to the Taj Mahal. Swarms of bugs called Goeldichironomus, which are breeding on its stagnant water, are infesting the marble walls of the monument. The result is greenish black patches on several places on the intricate floral inlay works and ledges of this 17th century marvel. The Archaeological Survey of India (ASI) is concerned about the bug threat, but its officials said that their purview is limited within the walls of the monument. The insect attack is largely concentrated within a radius of 500 meters, including the back of the Taj (which is the worst affected), and partially on the sides facing the Mosque and that of Mehmaankhaana (royal guest house). A series of marble panels depicting plant motifs on the walls or reflective tiles used in this part of the monument are getting disfigured by such bug related depositions. 11. Dr. Girish Maheshwari, Head of the Department of Entomology at St John s College in Agra, said the feasible solution lies in the prevention of eutrophication of the water and the sediments of the river Yamuna near the Taj Mahal. Eutrophication refers to slow aging process of a river/water body, resulting in its deterioration to bog or marsh. Highly eutrophic water of the river impacts on the population of small fishes, which are considered predators of the larvae of this insect. There is hardly any fish/aquatic life in the Yamuna today, his report said. This concerned stretch of the river, lies at a stone s throw distance from the back side of Taj. (http://www.dailypioneer.com/todays-newspaper/putrid-yamunasbugs-eating-up-taj-mahal.html) 12. Therefore safeguarding the cultural heritage would include prohibiting such actions that would adversely affect aesthetic value of such monuments. As the courts have held ASI apart from other civic bodies CIC/SH/A/2016/000795 Page 5
responsible for maintenance of the Taj Trapezium Zone (TTZ), they cannot escape such accountability in this particular case. 13. A media report dated March 17, 2017 stated that an association working for protection of Taj Mahal had written a one-page letter to the NGT alleging that illegal construction activity of a hotel and resort in Agra was being undertaken in the Taj Trapezium Zone (TTZ) near the eastern gate of Taj Mahal. It said that one person had allegedly cut 20-25 trees in an area of 12,000 sq feet for building a hotel and when the matter was brought to the notice of the Agra Development Authority, it turned a deaf year to the whole issue. Uttar Pradesh Pollution Control Board (UPPCB) has told the NGT that construction activity in the Taj Trapezium Zone (TTZ) near the eastern gate of Taj Mahal has been sealed by Agra Development Authority as the representative could not show any permission or licence from any department for construction of the restaurant. This shows that there are illegal constructions around the Taj Mahal and the authorities need to act. 14. The public authority thus cannot deny their responsibility to report the illegal construction and the officer handling Right to Information (RTI) application cannot 'escape' responsibility of answering queries by simply forwarding the application to other local civic authority. The ASI Agra is not a post office and the officers there are not dispatch clerks, they are authorities with responsibilities prescribed by ASI Act and also RTI Act. They have to answer the questions of great public interest and their statutory duty without simply passing on the buck to Agra Development Authority. If need be they have to pursue with local civic bodies to initiate all measures to protect the monument. 15. Considering the denial of information, the Commission issued a showcause notice to Ms. K. A. Kabui, CPIO and Mr. M.C. Sharma, former CPIO on 06.02.2017 and extended time for their representations. The Commission reminded her when she attended a case on 19.04.2017 and further time was given to her. There was no response from Mr M C Sharma also. Ms. K. A. Kabui s explanation dated 06.03.2017 was received after two months, wherein she pleaded: 2. That the applicant had sought the information regarding the 500 metres area from Taj Mahal towards East and South Gates all houses with CIC/SH/A/2016/000795 Page 6
complete addresses and the localities, etc. being the land and property and the persons under the State of Uttar Pradesh to monitor and control, where as the ASI basically and primarily has to look after the preservation and maintenance of the protected monuments and to that extent it has to comply to the provisions of ASI Acts and the Rules including the directions of the Hon ble courts and as such on information of any unauthorised construction in the said prohibited or regulated area the actions are taken like FIR and orders and informing the Civil authority actions, since after Validation Act 2010 such applications and the actions area empowered with the Commissioner Agra and the ADA Agra maintaining and controlling the same. 3. That the information therefore could not be given as desired. However on the direction of the Hon ble RTI Commission the ADA has been requested to provide the details vide F. No. 31/01/2017-RTI dated 13.02.2017. 4. That the acts has neither been intentionally nor deliberately but inadvertently and is highly regretted and adhere to the order of the Hon ble Commission ad further also request to kindly drop and decide the show cause with sympathy and favour under the facts, circumstances and the law herein above. Decision: 16. The explanation of Ms. K.A. Kabui, CPIO is a clear admission that CIC orders were not complied with and that the information was not provided to the appellant. This explanation is not satisfactory. It established that CPIO was not only denied information within 30 days, but also failed to comply with the directions of this Commission to furnish the information thereafter. Non-furnishing of information in this case deprived the appellant of his right to scrutinize the record to know about prohibited constructions around the Taj Mahal and complain against illegal constructions if any, or resist those activities prohibited by the ASI Act. 17. Mr. M.C. Sharma, CPIO as on 24.11.2015 is equally responsible for denying information. The Commission waited in vain for a long time from 06.02.2017 till this date, for his explanation. It appears that he does not have anything to explain to justify the denial. The Commission, thus, finds both CPIOs liable under RTI Act for denial of information. Accordingly, Ms. K. A. Kabui, CPIO and Mr. M.C. Sharma are directed to pay a sum of CIC/SH/A/2016/000795 Page 7
Rs. 25,000/- each in 5 equal monthly installments. The Appellate Authority is directed to recover the amount of Rs.25,000/- each from the salary payable to, Ms. K. A. Kabui and Mr. M.C. Sharma by way of Demand Draft drawn in favour of PAO CAT New Delhi in 5 equal monthly installments. The first installment should reach the Commission by 15.07.2017 and the last installment should reach by 15.11.2017. The Demand Draft should be sent to Shri S. P. Beck, Joint Secretary & Addl. Registrar, Room No. 302, Central Information Commission, B-Wing, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066. Directions to publish information 18. The information sought by the appellant has to be published by the public authority on its own, under Section 4(1)(b) of RTI Act, to secure the objective and purpose of ASI Act, or to perform duties prescribed by that Act to protect the historic monument. Besides placing in website the details of structures, colonies and roads within 500 meters, specifying the borders wherein illegal constructions will be checked, public authority is also expected to keep certain printed copies for easy reference and verification by common people who do not have access to internet. The information to be disclosed under this category also shall include periodical updates of action taken on illegal structures, fines imposed or buildings demolished if any out of 533 illegal structures mentioned by ASI in response to another RTI request, how many structures were removed, action taken in these cases and also illegal structures with Taj Trapezium Zone. 19. The Commission directs the CPIO of Agra Development Authority, ADA to prepare a note on details sought by the appellant, in coordination with the ASI, provide the same to the appellant and publish on the websites of ADA and ASI Agra. 20. The Commission directs the CPIO of Uttar Pradesh Pollution Control Board to disclose what steps it has taken to prevent eutrophication in Yamuna River affecting the marble beauty of Taj Mahal, and to avoid the threat of Goeldichironomus swarm of bug emanating from Yamuna River. CIC/SH/A/2016/000795 Page 8
21. The ASI is expected to coordinate with ADA and UPPCB to prepare above referred information for disclosure under RTI Act. 22. All the information including the details of structures within 500 meters shall be provided before 1 July 2017. Authenticated true copy SD/- (M. Sridhar Acharyulu) Central Information Commissioner (Dinesh Kumar) Deputy Registrar Copy of decision given to the parties free of cost. Addresses of the parties: 1. The CPIO under RTI, Superintendent, Archaeologist Office, ASI, Agra Circle, 22, Mall Road, Agra, UP. 2. The CPIO under RTI, Agra Development Authority, Near Sales Tax Office, Ratan Muni Rd, Jaipur House Colony, Agra, UP-282010. 3. The CPIO, Uttar Pradesh State Pollution Control Board, Building.No. TC-12V, Vibhuti Khand, Gomti Nagar, Lucknow, Uttar Pradesh 226010 4. Shri Bhim Singh Sagar, S/o Late Sh. Rajender Singh Sagar, R/o 47/289, Gari Bhagauriya, Agra, UP. CIC/SH/A/2016/000795 Page 9
5. Shri S. P. Beck, Joint Secretary (Admn), Central Information Commission, New Delhi-110066. CIC/SH/A/2016/000795 Page 10