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THE INDIAN JUDICIARY ON THE PROTECTION OF THE ANCIENT MONUMENTS (By-Smita S.Angadi)
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THE INDIAN
JUDICIARY ON THE PROTECTION OF THE ANCIENT MONUMENTS
Authored By-Smita
S.Angadi[1]
Abstract
Heritage
Sites are a symbol of history. Preservation of Heritage is an inevitable
responsibility of state as well as of the Citizens. The Judiciary has also
played a vital role in protection of cultural heritage. Stringent punishment is
awarded to the offenders. The recovered antiquities are protected by placing
them in state established Museums. The judiciary has also ordered to permit the
use of antiquities for research purposes. Sometimes, there is misuse of the
permission granted to the researchers The Archeological survey of India has a
vital role in excavating, protecting, preserving the cultural heritage. Its
contributions towards helping the Judiciary to render judgments properly is
also highly appreciable.
The Cultural Heritage has to be
preserved and protected as even the Future generation has the right over them.
In order to follow the Intergenerational Equity principle, the State,
Judiciary, NGOs and the Civil society at large play an important role in
protection of the Cultural heritage.
This Papers deals with the 5
important Judgements related to Ancient Monuments decided by the Supreme Court
and High Courts.
Introduction
Heritage
Sites are a symbol of history. Preservation of Heritage is an inevitable
responsibility of state as well as of the Citizens. To value and preserve the
rich heritage of our composite culture is the Fundamental duty imposed on
citizens under Art. 51 A (f) of Indian Constitution. Article 49 of Directive Principles of State
Policy deals with protection of Monuments, Places and Objects of National
importance, from spoliation, disfigurement, destruction, removal, disposal or
export, as the case may be. It is an obligation of state to protect them by
declaring or under law made by Parliament under Entry 67 of List I in VII
schedule. Accordingly, Parliament has enacted many such laws for the protection
of cultural heritage and ancient monuments. The important enactments
promulgated to protect and preserve Ancient Monuments, Archeological Sites,
Antiquities and Art Treasure are 1) The Indian Treasure Trove Act, 1878, 2) The Antiquities (Export Control) Act,
1947 3) The Ancient Monuments
Preservation Act, 1904, (Repealed) 4)
The Ancient Monuments and Archeological Sites and Remains Act, 1958, 5) The
Antiquities and Art Treasures Act, 1972,
6) The Ancient Monuments and Archeological Sites and Remains Amendment
Act, 2010, 7) The Antiquities and Art
Treasures Bill, 2017.
The Judiciary has also played a
vital role in protection of cultural heritage. Stringent punishment is awarded
to the offenders. The recovered antiquities are protected by placing them in
state established Museums. The judiciary has also ordered to permit the use of
antiquities for research purposes. Sometimes, there is misuse of the permission
granted to the researchers The Archeological survey of India has a vital role
in excavating, protecting, preserving the cultural heritage. Its contributions
towards helping the Judiciary to render judgments properly is also highly
appreciable.
The Cultural Heritage has to be
preserved and protected as even the Future generation has the right over them.
In order to follow the Intergenerational Equity principle, the State,
Judiciary, NGOs and the Civil society at large play an important role in protection
of the Cultural heritage.
This Papers
deals with the 5 important Judgements related to Ancient Monuments decided by
the Supreme Court and High Courts.
JUDGE: B. Kemal Pasha, J.
In this case, Petitioners are members
of the Temple Protection Committee of Irunilamkode Mahadeva Temple. It was
alleged that they have violated the Provisions of the Cochin Ancient Monuments
Preservation Act (Act IX of 1110 M.E) and modified the Temple, which was
declared as Ancient Monument by the Government of Kerala. It was also alleged
that tiles were paved on the portions of the Temple and the artistic works on
stones of the Temple were destroyed. According to the petitioners, in the Final
Report, the offence under Section 30 of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958, has been incorporated. The learned
counsel for the petitioners had pointed out that no notification within the
meaning of Section 3 and 4 of the Central Act is there in respect of the Temple
in question. Matters being so, the offence under Section 30 of the said Act is
not legally sustainable as against the petitioners. In the result, this Crl.M.C
was allowed in part and the offence under Section 30[3] of
the Ancient Monuments and Archaeological Sites and Remains Act, 1958, in
Annexure-3 Final Report was quashed. It is a matter of evidence as to whether
the other offence under IPC Section 427[4]
will lie? Of course, it was made clear that the petitioners cannot be roped in
with the aid of IPC Section 149[5],
when there is no allegation that there was any unlawful assembly.
2. K.H. ABDUL GAFOOR V. PATTAMBI GRAMA
PANCHAYATH[6]
Judge: P.N Ravindran, J.
The Petitioner was the owner of a
parcel of land situated within the local limits of Pattambi Grama Panchayat.
With a view to put up a building therein, he applied to the Secretary of
Pattambi Grama Panchayat for a
building permit and building permit was granted on 9.12.2009. When the
petitioner commenced the construction of the building, the second respondent
issued notice informing the petitioner that in view of the provisions contained
in the Ancient Monuments and Archaeological Sites and Remains Act, the
petitioner cannot put up a building as the site of the building is within the
regulated area, i.e., within a distance of 200 meters from an Ancient Monument,
viz., the Kaithali Mahadeva Temple was under challenge in this writ petition.
Respondent had filed a counter affidavit
contending that the site where the Petitioner had proposed to put up a building
is within a distance of 200 meters from an Ancient temple and therefore, under
the provisions of Section 20A of the Ancient Monuments and Archaeological Sites
and Remains Act, as amended, the petitioner cannot put up a building in that
site without first obtaining the permission of the Competent Authority. The
competent authority at that point of time was not notified by the Central
Government. However, after the counter affidavit was filed, the Government of
India had issued a notification dated 29.10.2010 designating the Director of
Archaeology, Government of Kerala, Trivandrum as the competent authority for
the purpose of Section 20C and 20D of the Ancient Monuments and Archaeological
Sites and Remains Act. The Petitioner in view of the said developments,
submitted the original representation of the building before the said officer
requesting for permission to proceed with and complete the construction. When
the writ petition came up for hearing, the learned counsel appeared for the
petitioner submitted that without going into the rival contentions, the writ
petition had to be disposed of with a direction to the additional fourth
respondent to consider the representation of the building and take an
appropriate decision thereon, within a time limit to be fixed by this Court.
In
such circumstances, as the petitioner had chosen to move the competent
authority by filing representation, the Writ Petition was disposed of with a
direction to the Director of Archaeology, Government of Kerala, Trivandrum, to
consider the representation submitted by the petitioner and take an appropriate
decision thereon, after affording the petitioner and respondents 1 to 3 herein
an opportunity of being heard. The additional fourth respondent shall pass
final orders in the matter expeditiously and in any event within one month from
the date on which the petitioner produces a certified copy of this judgment
before him.
JUDGES Subhro Kamal Mukherjee, C.J Budihal R.B, J.
A notice was issued to the writ
petitioner restraining him from carrying on the quarrying operations in the
said area, on the ground that he could 3 not indulge in quarrying operations
within the prohibited area. It is settled position that while computing the
area, the outer limits of the monument are to be taken into consideration and
there cannot be any quarrying operations within the area of one hundred metres
from the outer boundary of the protected monument. The quarrying operation of
the writ petitioner is beyond 1.3 km from Sannarachammana Gudda, which is an
ancient monument. A notice was issued to the writ petitioner restraining him
from carrying on the quarrying operations in the said area, on the ground that
he could not indulge in quarrying operations within the prohibited area.
Section 20A of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 for short, the Central Act provides
that a protected area or a protected monument, as the case may be, is an area
of one hundred metres in all directions in respect of the protected area or
protected monument. Mr. R.G Kolle,
learned advocate for the writ petitioner, submitted that there cannot be any prohibition
of any quarrying operations beyond one hundred metres from the protected
monument. It was settled position that
while computing the area, the outer limits of the monument are to be taken into
consideration and, therefore, there cannot be any quarrying operations within
the area of one hundred metres from the outer boundary of the protected
monument.
Mr. I. Tharanath Poojary, learned additional
government advocate, appeared for the respondents, argued that the respondents
were within their rights under the Karnataka Ancient and Historical Monuments
and Archaeological Sites and Remains Act, 1961 for short, the Karnataka Act read
with sub-rule (3) of Rule 8 of the Karnataka Minor Mineral Concession Rules,
1994 for short, the Rules, which prohibits quarrying operations carried on by
the writ petitioner. Section 4 of the Karnataka Act empowers the government to
declare an ancient monument as a protected monument. Section 20 of the
Karnataka Act provides for imposition of restrictions from utilizing such areas
or any part thereof, without the permission of the Government. Sub-rule (3) of
Rule 8 of the Rules provides that no quarrying lease shall be granted in
respect of any land notified by the State Government as reserved for use by the
State or Central Government, any body or
corporation owned or controlled by
the State or Central Government or for any other public or special purposes.
When
there is a Central Act in the field prohibiting quarrying operations within an
area of one hundred metres from the boundary of a protected monument, and as
there is no provision in the Karnataka Act or the Rules, indicating the extent
of prohibited area, there cannot be any order restricting a miner from
operating his/her mining operations beyond one hundred metres from the outer
limit of the protected ancient monument.
Therefore, the order impugned was set aside. The Bench directed the writ
petitioner-miner not to carry on his quarrying operations causing any damage to
the protected ancient monument, including blasting in such area causing damage
to the protected ancient monument. With the aforesaid directions, the writ
petition is allowed. There will be no order as to costs.
4. SHAIKH SHAHID v. STATE OF M.P.[8]
JUDGE: A.M Khanwilkar, C.J Sanjay Yadav, J.
This petition essentially takes
exception to the decision of the Commissioner dated 21.4.2014. The Commissioner
had allowed the appeal preferred by the Respondent No. 18 and, in turn, has set
aside the orders passed by the subordinate Authorities refusing permission to
Respondent No. 18 on the ground that allowing Respondent No. 18 to put up any
structure would violate the provisions of law. The Commissioner, no doubt, had
relied on the Najri Naksha and has found that the distance between the two
spots is around 233.35 meters and then proceeded to decide the matter keeping
in mind the provisions of the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 and Rules framed thereunder. However, the grievance of the
petitioner was that, the issue ought to be answered on the basis of provisions
of Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Rules,
1976, which have been framed under the provisions of Madhya Pradesh Ancient
Monuments and Archaeological Sites and Remains Act, 1964. The Commissioner had
not considered those provisions though applicable to the case on hand, which
prohibits any construction in the areas upto 100 meters and further beyond it
upto 200 meters from the protected limits near or adjoining to any protected
monument of the State for the purposes of mining and construction. The argument
of Respondent No. 18, however, is that the prohibition of construction is only
within 100 meters from the protected monument of the
State and the activity proposed to be carried
out by the said respondent was permissible in the regulated area. As aforesaid,
the Commissioner has not examined these aspects of the matter at all. The
issues raised in the present petition are both about the correct location and
distance of the land from the protected monument of the State as also about the
applicability of provisions of the State Act of 1964 and the Rules of 1976
framed thereunder. Therefore, the Commissioner is obliged to keep in mind all
the relevant records that may be relied upon by the parties or to be produced
by the Revenue Authorities. After determining the factual position about the
actual distance from the monument, the Commissioner may then examine the legal
question about the applicability of the State enactment and the prohibition
specified as per those Rules and then opine whether the said prohibition is
attracted in the fact situation of the present case. All these aspects will
have to be considered by the Commissioner in the first place, which, as
aforesaid, has been glossed over in the impugned decision. Accordingly, the
impugned decision is quashed and set aside and instead the parties are
relegated before the Commissioner for re-examination of the appeal on its own
merits, in accordance with law. As the proposal submitted by the Respondent No.
18 relates back to 13.12.2012. The Bench directed the Commissioner to decide
the said appeal proceedings expeditiously and preferably not later than six
weeks from the date of receipt of copy of this order. The Bench once again
reiterate that all questions of fact and law will have to be considered by the
Commissioner on its own merits afresh in accordance with law. The petition is
disposed of accordingly.
JUDGE: G.NARENDAR
The learned AGA submits that under
the Karnataka Ancient and Historical Monuments and Archaeological Sites and
Remains Act 1961, the Deputy Commissioner is the competent Authority to
initiate action for removal of the any building for enforcing restrictions and
for protection of the core area. Hence, it is submitted that the Authority be
permitted to withdraw the present notification with liberty to initiate
proceedings in accordance with law after notice to the petitioner. The said submission of learned AGA is placed
on record. In the light of submissions
placed on record, the 3rd respondent is permitted to withdraw the notice as per
Annexure-E to the writ petition. However, withdrawal of notification /
communication by the 3rd respondent would
not restrain the competent Authority
from initiating appropriate proceedings, in accordance with the provisions of
law under the Act, if they find that the act of the petitioner or any other
similarly situated persons is violating of the provisions of the Act. It is
made clear that while initiating such proceedings i.e., issuing of show cause
notice or initiating action against the erring persons, shall be made after
affording a hearing to them. With the above observations the writ petition
stands dismissed.
To
conclude, The Supreme Court and various High Courts of the Country have
significantly contributed to the Preservation, Conservation and Protection of the Cultural Heritage of the
Country.
Article Information
THE INDIAN JUDICIARY ON THE PROTECTION OF THE ANCIENT MONUMENTS (By-Smita S.Angadi)
Authors: Smita S.Angadi
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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