Delhi HC clarifies Darya Khan protected area over 1.25 acres and not 14 acres

Before the division bench, the NBCC claimed that it was unaware that the area of Darya Khan Tomb was only 1.25 acres as against 14 acres recorded, and only realised the actual area of the tomb after seeing documents, including copies of a notification issued as far back as in October 1925.

Darya Khan Tomb is an Archaeological Survey of India-protected monument and had been a subject of dispute over a project of redevelopment of Kidwai Nagar (East), which was identified as one of the colonies in the Zonal Development Plan of Zone D in 1993 to address the acute shortage of government housing in the capital city.

A total plot area of 86 acres, including 14 acres of Darya Khan Tomb, was handed over by the New Delhi Municipal Council (NDMC) to NBCC, for the construction of residential and commercial complexes. A majority of the project was to build houses under the General Pool Residential Accommodation (GPRA) for government employees. The proposal for the redevelopment of Kidwai Nagar (East) was passed by the Cabinet on October 12, 2010, and NBCC commenced the redevelopment work in 2013-14.

Residents of South Extension-II, New Delhi, which adjoins Kidwai Nagar (East), including senior advocate Aman Lekhi, had moved Delhi High Court in 2014, opposing the project on the ground that the redevelopment of Kidwai Nagar (East) shall have a devastating impact on the lives of the residents of South Extension-II. The residents had pointed to the illegal felling of trees by NBCC, the absence of environmental impact assessment, traffic issues, and that the project was in violation of the Master Plan for Delhi for 2021, among other issues.

The residents had also sought disclosure as to how ASI had granted permissions for the project next to the heritage monument of Darya Khan Tomb, with the monument being under ASI’s protected area.

A single-judge bench in 2021, while relying on the statutory ban on construction over protected areas under provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, had held that the land of Darya Khan Tomb could not have been taken into account for determination of floor area ratio (FAR) applicable to the project. This meant that the FAR had to be calculated on 72 acres, excluding the Darya Khan Tomb protected area of 14 acres, instead of 86 acres as sanctioned by NDMC.

While the division bench in its order of January 28 clarified that the protected area of the tomb is only 1.25 acres, the court however added that “this would not amount to permitting the appellant to carry out any further construction/commercial activities without seeking appropriate orders from the Competent Statutory Authorities.”

The protected area of the tomb is surrounded by a prohibited area in the nature of a circular belt with a radius of 100 metres and the regulated area being a circular belt with a radius of further 200 metres.

The court refrained from issuing directions, as was being sought for by NBCC, for carrying out additional construction, and instead relegated the PSU to approach the relevant statutory authorities.