Mukul Mudgal, J.:- 1. This writ petition has been filed by the petitioner - Maharana Pratap Bagh Resident's Welfare Association C Block (Regd.) titled as Public Interest Litigation seeking a mandamus restraining the respondents from constructing, excavating etc. under/within 5 feet distance from the base of the protected monument called 'Tripolia Gate'. The writ petition has been filed with the following prayers: - “a. Issue the writ of mandamus commanding the respondents to permanently stop the construction under the protected monuments of Tripolia Gates with immediate effect and restore the monuments. b. Issue any other appropriate writ or direction stopping the construction under the protected monuments of Tripolia Gates with immediate effect and restore the monuments. c. To direct the concerned authorities and order the restoration of the water supply, roads and other amenities meant for the areas nearby. d. Direct the ASI to restore the tunnels found and protect them. e. Pass any other order(s) or direction as this Hon'ble court may deem fit and proper in the given facts and circumstances of the matter.” The Union of India, Municipal Corporation of Delhi, Archaeological Survey of India and Delhi Jal Board are respondents no.1, 2, 3 and 4 respectively. 2. Rule DB. With the consent of the learned counsel for all the parties, the writ petition is taken up for final hearing. 3. Apart from the issues of archeological concern raised in the writ petition during the course of hearing before this Court yesterday and today, the learned counsel for the petitioner also addressed us on the aspect of underlying drainage systems being repaired which is below the road passing through Tripolia Gate and the difference in height of the Colony road contrasted with the drainage system, which is likely to affect the Colony in question. The main plea of the petitioner is based upon the violation of Rule 33 by the respondents by carrying on construction in a 'prohibited area'. 4. On 28th October, 2009, the Bench of the Hon'ble Chief Justice while issuing notice passed the following order: - “CM No. 13385 of 2009 Exemption allowed subject to all just exceptions. The application is disposed of. W.P.(C) No. 12696/2009 & CM No. 13384 of 2009 (stay) 1. Notice. Mr. Avnish Pandey, learned counsel for Respondent No.1 and Mr. M. Saroj, learned counsel for Respondent No.2 accept notice. 2. The application is disposed of. W.P.(C) No. 12696/2009 & CM No. 13384 of 2009 (stay) 1. Notice. Mr. Avnish Pandey, learned counsel for Respondent No.1 and Mr. M. Saroj, learned counsel for Respondent No.2 accept notice. 2. The Petitioner to serve a copy of the petition on the Standing counsel for Respondent No.3 Archeological Survey of India ('ASI') and Standing counsel for Respondent No.4 Delhi Jal Board ('DJB'). The Deputy Commissioner of Municipal Corporation of Delhi and a senior officer of the ASI, nominated by the Director General, will in the next four days visit the site, carry out an inspection and submit a report to this Court indicating whether the construction of the storm water drain is likely to affect the protected monument of Tripolia Gates. In case they find that it is necessary to stop the construction, they may take such action without awaiting any further orders from the Court. 3. The report be submitted by 3rd November 2009. 4. List on 3rd November 2009. 5. Order dasti to learned counsel for the parties under the signature of the Court Master.” This order did not require the filing of the counter affidavit and only directed the filing of a status report. 5. Pursuant to the said order of this Court, the respondent no.3-Archeological Survey of India (for short 'ASI), filed a status report dated 10th November, 2009 stating that a joint inspection of the monument was carried out by the ASI and the Municipal Corporation of Delhi (for short 'MCD') on 4th November, 2009. The aforesaid report provides as follows:- “5. That upon a joint inspection, the following factual position has emerged: - A. Due to passage of time, the level of the road surface has risen, and at present, the height of the gate is not adequate to permit the passing of heavy vehicles. Hence the ASI has been requesting the MCD since 2006 to take necessary action to lower the road by 1.5 metres. It was agreed that upon the digging process, extra space underneath would be required to stop water logging on the road. B. In order to ensure that there is no water logging on the road, as well as to ensure that the foundation of the monument does not get affected, it would be necessary to go 3 metres under the existing road surface to re-lay the road. B. In order to ensure that there is no water logging on the road, as well as to ensure that the foundation of the monument does not get affected, it would be necessary to go 3 metres under the existing road surface to re-lay the road. C. In order to ease traffic congestion, and to provide the underground drainage system, MCD has framed a proposal to construct an underground drainage system under Tripolia Gate. D. In order to provide storm water draininage (sic), the MCD will construct an underground storm water draininage (sic) system. This would be constructed away from the Tripolia Gate, and will not touch the foundation of the monument. 6. While lowering the surface of the road, the outfall of the carriageway will need to be constructed first, by providing a suitable drainage system. 7. All construction/excavation work to be carried out in terms of the proposals above, will be carried out by the MCD, under the supervision of the ASI. A distance of at least 3 metres will be maintained between any proposed construction/excavation, so as to avoid any damage/danger to the monument in question.” 6. The learned counsel appearing on behalf of the ASI has assured us that the construction/excavation work will be carried out by the MCD in terms of the proposal above under the supervision of the ASI and at least a distance of 3 metres will be maintained between any proposed construction/excavation and the monument so as to avoid any damage or danger to the monument in question. 7. The learned counsel for the respondent has also relied upon the judgment of the learned Single Judge of this Court in the case of Ronnie Bhasin & Anr. vs. Lt. Governor of Delhi and Ors. in W.P.(C) No. 5904/2004 decided on 4th April, 2005. In particular, emphasis was laid on paragraphs 59 and 63 of the said judgment, which read as under: - “59. The expression “construction” has not been defined either under the Act or under the Rules. One has, therefore, to rely upon the general meaning of the expression. in W.P.(C) No. 5904/2004 decided on 4th April, 2005. In particular, emphasis was laid on paragraphs 59 and 63 of the said judgment, which read as under: - “59. The expression “construction” has not been defined either under the Act or under the Rules. One has, therefore, to rely upon the general meaning of the expression. Black's Law Dictionary defines the term “construction” as follows: “The art of building by combining or arranging parts or elements.” Oxford Dictionary defines the expression “construct” as “to build or erect” It defines “construction” as follows: “The action or process of constructing; the industry of erecting buildings.” The idea conveyed by these definitions, appears to be that construction means building activity of some sort. The question, which is to be examined, in this case is whether road laying is a building at construction activity. The materials on record show that the width of the road is 24 meter. There is nothing to suggest that excavation of the existing surface is necessary for that activity. On the contrary, the stand of ASI is that the level of the embankment has been increased by dumping large quantities of soil. This, it is stated, is necessary to ensure uniformity of surface. The soil is compacted, and the necessary ingredients to lay the road are then put on the surface. Hence, I am of the considered view that road laying, of the kind in question in these proceedings, does not amount to construction. Since I have come to this conclusion, I do not think it is necessary to consider the submission made on behalf of ASI about the impact of Ahmedabad guidelines, which are stated to permit activities of certain kinds, within the prohibited areas. 60. XXX XXX XXX 61. XXX XXX XXX 62. XXX XXX XXX 63. As discussed in the earlier part of the judgment, the ASI itself is imposed certain conditions while permitting laying of the road. These include the requirement of designating the road as a silent zone. I therefore am of opinion that the respondents, particularly the DDA, the MCD (which will eventually manage or takeover the road) and the Commissioner of Police should ensure that after the road is completed, it is maintained as a silent zone. Necessary measures shall be taken in that regard. I therefore am of opinion that the respondents, particularly the DDA, the MCD (which will eventually manage or takeover the road) and the Commissioner of Police should ensure that after the road is completed, it is maintained as a silent zone. Necessary measures shall be taken in that regard. In addition, the respondents had directed to ensure that restrictions about movement of heavy vehicles are also formulated and implemented, in respect of the road. Directions are issued accordingly.” 8. The necessity of reducing the height of the road passing below the Tripolia Gate has also been explained. It is stated that lowering of the road level is necessary as the level of road surface has gone up considerably owing to the repeated re-laying of the road passing through Tripolia Gate and the vehicles passing below the Tripolia Gate were consequently damaging the monument by brushing/colliding with the protected monument. 9. The learned counsel for the petitioner, however, urged that the construction and such other activities were forbidden as per Rule 33(a) of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as 'the Act'). The said Rule reads as under: - “33. Effect of declaration of prohibited or regulated area. - No person other than an archaeological officer shall undertake any mining operation or any construction, - (a) in a prohibited area, or (b) in a regulated area except under and in accordance with the terms and conditions of a licence granted by the Director-General.” 10. Rule 33 prohibits any mining operation or any construction in a 'prohibited area', which admittedly the present site of construction of the road and the drainage work is, as it falls within the prohibited distance of 100 metres. These Rules have been framed under the Rule making power under Section 38 of the Act and the relevant provisions thereof reads as follows: - “38. Power to make rules. - (1) XXX XXX (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: - (a) the prohibition or regulation by licensing or otherwise of mining, quarrying, excavating, blasting or any operation of a like nature near a protected monument or the construction of buildings on land adjoining such monument and the removal of unauthorized buildings; (b) XXX XXX XXX XXX.....” 11. The said provision in the Act provides for making of rules and the Act itself says that the Rules be made for prohibiting or regulating by licensing the carrying out of the above activities. Rule 33 has been made under the powers derived from Section 38 and provides that a mining operation or a construction operation can only be permitted in the regulated area under the guidance and in accordance with the terms and conditions of the license granted by the Director General of the ASI. 12. Thus, a perusal of the above Rule shows that in case an Archaeological Officer undertakes any mining operation or construction, it can be done both in the prohibited and regulated areas but; in case the mining operation or construction takes place in a regulated area, it can be done in accordance with the terms and conditions of the license granted by the Director General and need not be carried out by the Archaeological Officer. 13. The present case, admittedly, falls within the clause (a) of Rule 33 which deals with prohibited areas. Section 2(c) of the Act defines an 'Archaeological Officer' as “an officer of the Department of Archaeology of the Government of India not lower in rank than Assistant Superintendent of Archaeology.” In such a situation, in accordance with the definition contained in Section 2(c) of the Act, only an Archaeological Officer can undertake any mining operation or construction activity. 14. Thus, the permission granted by the ASI to the MCD under paragraph 7 of the Status Report to carry out the impugned work under the supervision of the ASI needs to be modified to bring it in consonance with the mandate of Section 38 and Rule 33 (a) read with Section 2(c) of the Act and therefore, the construction has to be done by the Archaeological Officer not lower in rank than the Assistant Superintendent, Archaeology. Thus, in order to harmonize the above construction, we clarify that while the operation shall be carried on by the Archaeological Officer, it will be open to him to utilize the services and labour of the MCD. 15. We also are in full agreement with the interpretation put on the provisions of the Act by the learned Single Judge in Ronnie Bhasin's case (supra) pertaining to the scope and meaning of the phrase 'construction' and indeed accept and endorse the same. 16. 15. We also are in full agreement with the interpretation put on the provisions of the Act by the learned Single Judge in Ronnie Bhasin's case (supra) pertaining to the scope and meaning of the phrase 'construction' and indeed accept and endorse the same. 16. The action of the lowering of road far from damaging the structure, in fact, preserves it by saving it from damage by collision with passing vehicles. Furthermore, the construction of proper drainage underneath the monument would prevent water-logging, particularly during the rainy season and will help in preserving it. 17. Another issue has been raised by the petitioner and it appears to be a pertinent one. The learned counsel appearing on behalf of the petitioners have pointed out, though it was not the subject matter of the Status Report ordered by this Court, that the drainage overflow is likely to submerge the low lying areas of the Petitioner Colony owing to the difference in height. The learned Senior Counsel appearing on behalf of the MCD, Mr. Phoolka, has assured us that this issue has been looked into by the MCD and the MCD will ensure that the repair/augmentation of the drainage work does not affect the low lying areas of the Petitioner Colony. In any case, since this issue pertaining to the Society's rights qua the MCD may not be agitated through a Public Interest Litigation (PIL), we leave it open to the Petitioner-Association to raise this issue in appropriate writ proceedings, in case any operation, construction or drainage system's repair/reconstruction affects them adversely. 18. Accordingly, the writ petition stands disposed of with the above directions. 19. The interim order dated 3rd November, 2009 stands vacated. 20. Copy of the order be given dasti to the learned counsel for the parties.