Bombay High Court
Parisar Sanrakshan Sanwardhan Sanstha vs Pune Municipal Corporation on 3 September, 2013
Equivalent citations: AIR 2014 (NOC) 12 (BOM.), 2013 (6) ABR 558 (2013) 6 ALLMR 161 (BOM), (2013) 6 ALLMR 161 (BOM)
Author: D. Y. Chandrachud
Bench: D. Y. Chandrachud, M. S. Sonak
SKC PIL-112-13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 112 OF 2013
Parisar Sanrakshan Sanwardhan Sanstha ]
Yamuna, ICS Colony, Ganeshkhind Road, ]
Pune, Maharashtra 411007 ] .. Petitioner
versus
1. Pune Municipal Corporation ]
The Municipal Commissioner, ]
Shivajinagar, Pune, ]
2.
Maharashtra 411005
Competent Authority
]
]
Mumbai Circle, Dept. of Archaeology ]
and Museums, St. George Fort, ]
Hospital Compound, Near C.S.T. ]
Mumbai 400001 ]
3. Superintending Archaeologist, ]
Archaeological Survey of India ]
Mumbai Circle - Maharashtra, ]
Sion Fort, Sion (E), Mumbai 400022 ]
4. Union of India through: ]
a) National Monuments Authority ]
24, Tilak Marg, New Delhi 110001 ]
b) Principal Secretary, ]
Ministry of Culture, ]
Government of India, 'C' Wing, ]
Shastri Bhavan, New Delhi 110115 ] .. Respondents
.......
Ms Gayatri Singh for Petitioner.
Mr. A. A. Kumbhakoni with Mr. Abhijit Kulkarni for Respondent No. 1.
Mr. Kevic Setalwad - Additional Solicitor General with Mr. Ashutosh
Kaushik, Mr. Vinod Joshi and Mr. H. V. Mehta for Respondent Nos. 2 to 4.
.......
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SKC PIL-112-13
CORAM : DR. D. Y. CHANDRACHUD, AND
M. S. SONAK, JJ.
3 September 2013
ORAL JUDGMENT :
The subject matter of the challenge in these proceedings under Article 226 of the Constitution is the work of a grade separator which is being carried out by the Pune Municipal Corporation at the S. G. Barve Chowk on Shivaji Road. The grievance of the Petitioner is that the grade separator is within the prohibited area of 100 meters from a protected monument as defined in Section 20-A of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 and hence the work is prohibited under sub section (4) of that provision. The protected monument is the Pataleshwar Caves, also known as the Bhamburda Cave Temple. A grade separator is essentially an underpass which ensures the free flow of traffic at an intersection.
2] On 21 December 2012 the Technical Director in the J.N.N.U.R.M. Project Management Cell of the Municipal Corporation sought permission of the Department of Archaeology & Museums of the State Government for the permission to carry out excavation and construction of the grade separator. On 5 January 2013 the Competent Authority (For the Monuments of Archaeological Survey of India, Mumbai Circle) intimated the Technical Director that after scrutiny and inspection, the proposal had been forwarded to the National Monuments Authority for final 2/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 decision. During the course of the proceedings before the National Monuments Authority (NMA), Deccan College Pune was called upon to furnish an Archaeological and Heritage related impact assessment report along with mitigating measures. Deccan College submitted its impact assessment by a letter dated 29 April 2013 to the Chairperson of the NMA. On 25 April 2013 a presentation was made to the NMA by the Municipal Corporation following which on 29 April 2013 the observations of the Members of the Authority were communicated to the Municipal Corporation. On 7 May 2013 the Technical Director in the Project Management Cell submitted his clarifications to the Authority. By a letter dated 28 May 2013 the Union Government in the Ministry of Culture (National Monuments Authority) informed the Competent Authority of the State Government that the NMA had in its meeting on 21 May 2013 granted its No Objection Certificate for the proposed construction in the prohibited area of Pataleshwar Caves declared to be a monument of national importance under The Ancient Monuments and Archaeological Sites and Remains Act, 1958. The recommendations of the NMA approving the project proposal are to the following effect:-
"The case was considered for grant of NOC in the 86 th meeting (1st Day) of NMA held on 21st May 2013. The clarifications as asked for were provided by the applicant and these were perused. It was noted that the issues raised by NMA have been properly addressed and keeping that in view and other relevant aspects, it was decided to recommend grant of NOC in this case for construction of Grade Separator and Storm water drain which does not involve construction / 3/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 erection of any structure above the ground level. The applicant would also follow the conditions stipulated hereby:
a) To set up a Monitoring cell that includes members from PMC/ASI.
b) To set up an Interpetaion Centre at / near monument to provide heritage awareness among public.
c) To engage Deccan College for preparation of Heritage Zone Management Plan for Pataleshwar Caves and Shaniwar Wada monuments.
d) To prepare a mitigation plan to address the issues created by vibration, pollution and traffic as a consequence of operation of the grade separator."
On 29 May 2013 the Competent Authority has issued its NOC in terms of the decision of the NMA.
3] The Pataleshwar Caves also known as the Cave Temple of Bhamburda is an 8th Century Rock Cut Cave Temple. By a Notification which was gazetted in the Bombay Government Gazette dated 11 March 1909 the Governor in Council, in exercise of powers conferred by Section 3(1) of the Ancient Monuments Preservation Act, 1904 declared the Cave Temple of Bhamburda to be a protected monument.
4] The Ancient Monuments and Archaeological Sites and Remains Act, 1958 was amended by Act 10 of 2010 which came into force on 29 March 2010. Section 20-A provides as follows:-
"20-A. Declaration of prohibited area and carrying out public work or other works in prohibited area.- Every area, 4/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 beginning at the limit of the protected area or the protected monument, as the case may be, and extending to a distance of one hundred metres in all directions shall be the prohibited area in respect of such protected area or protected monument:
Provided that the Central Government may, on the recommendation of the Authority, by notification in the Official Gazette, specify an area more than one hundred metres to be the prohibited area having regard to the classification of any protected monument or protected area, as the case may be, under section 4-A. (2) Save as otherwise provided in Section 20-C, no person, other than an archaeological officer, shall carry out any construction in any prohibited area.
(3) In a case where the Central Government or the Director- General, as the case may be, is satisfied that-
(a) it is necessary or expedient for carrying out such public work or any project essential to the public; or
(b) such other work or project, in its opinion, shall not have any substantial adverse impact on the preservation, safety, security of, or, access to, the monument or its immediate surrounding, it or he may, notwithstanding anything contained in sub-
section (2), in exceptional cases and having regard to the public interest, by order and for reasons to be recorded in writing, permit, such public work or project essential to the public or other constructions, to be carried out in a prohibited area:
Provided that any area near any protected monument or its adjoining area declared, during the period beginning on or after the 16th day of June, 1992 but ending before the date on 5/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 which the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010, receives the assent of the President, as a prohibited area in respect of such protected monument shall be deemed to be the prohibited area declared in respect of that protected monument in accordance with the provisions of this Act and any permission or licence granted by the Central Government or the Director-General, as the case may be, for the construction within the prohibited area on the basis of the recommendation of the Expert Advisory Committee, shall be deemed to have been validly granted in accordance with the provisions of this Act, as if this section had been in force at all material times:
Provided further that nothing contained in the first proviso shall apply to any permission granted, subsequent to the completion of construction or re-construction of any building or structure in any prohibited area in pursuance of the notification of the Government of India in the Department of Culture (Archaeological Survey of India) number S.O. 1764, dated the 16th June, 1992 issued under rule 34 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, or, without having obtained the recommendations of the Committee constituted in pursuance of the order of the Government of India number 24/22/2006- M, dated the 20th July, 2006 (subsequently referred to as the Expert Advisory Committee in orders dated the 27 th August, 2008 and the 5th May, 2009.] [(4) No permission, referred to in sub-section (3), including carrying out any public work or project essential to the public or other constructions, shall be granted in any prohibited area on and after the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and 6/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 Validation) Bill, 2010 receives the assent of the President.]"
Section 20-C provides as follows:
"[20-C. Application for repair or renovation in prohibited area, or construction or reconstruction or repair or renovation in regulated area.- (1) Any person, who owns any building or structure, which existed in a prohibited area before the 16 th day of June, 1992, or, which had been subsequently constructed with the approval of the Director-General and desires to carry out any repair or renovation of such building or structure, may make an application to the competent authority for carrying out such repair or renovation, as the case may be.
(2) Any person, who owns or possesses any building or structure or land in any regulated area, and desires to carry out any construction or re-construction or repair or renovation of such building or structure on such land, as the case may be, may make an application to the competent authority for carrying out construction or re-construction or repair or renovation, as the case may be."
Section 20-E provides for the framing of Heritage bye-laws by the Competent Authority. Section 20-F provides for the Constitution of National Monuments Authority. Section 38 empowers the Central Government to frame Rules for carrying out the purposes of the Act.
Clauses (c) and (d) of sub section 2 empower the Rule making authority to frame rules for other matters including heritage controls such as elevations, facades, drainage systems, roads and service infrastructure.
7/16 ::: Downloaded on - 27/11/2013 20:14:26 :::SKC PIL-112-13 Accordingly the Union Government has framed the Ancient Monuments and Archaeological Sites and Remains Act (Framing of Heritage Bye-
laws and Other Functions of the Competent Authority) Rules 2011.
5] The Rules of 2011 lay down the procedure for the processing of applications. Rule 6 requires the Competent Authority to process applications received under various categories. Category II is public utility projects involving construction by the State Government or the Central Government or by the private - public sector, such as roads and highways. Rule 7 requires applications received interalia under Category II to be forwarded to the Authority. Rule 11 requires the Authority to examine the proposal and convey its recommendations including the impact of such construction on the significance of the protected monument or protected area. Rule 15 allows the Competent Authority in exceptional cases and pending the finalisation of the heritage bye-laws to grant permission for repair, renovation, construction or re-construction to any person, agency, institution or Government department which owns or possesses such building or structure or land, with the approval of the Authority.
6] The draft heritage bye-laws which have been prepared by the Indian National Trust for Arts and Cultural Heritage (INTACH) are still to be finalised.
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7] Now it is in this background that the legality of the permissions
which have been granted to the Municipal Corporation by the NMA would have to be evaluated. Under Sub Section (1) of Section 20-A a distance of 100 metres in all directions, beginning at the limit of the protected area or the protected monument as the case may be, is the prohibited area.
Sub section (2) imposes a prohibition on carrying out construction in any prohibited area, save as otherwise provided in Section 20-C. In other words, the prohibition contained in sub section (2) of Section 20-A is subject to a permission which may be obtained under Section 20-C. Sub section (3) of Section 20-A empowers the Central Government or the Director-General, notwithstanding sub section (2) and in exceptional cases, to grant permission in public interest for carrying out public work or a project essential to the public or other work which is not considered to have a substantial adverse impact on the preservation, safety, security of, or, access to the monument or its immediate surroundings. The provisos to sub section (3) are validating provisions in respect of the period commencing from 16 June 1992 and ending on the date on which the Amended Act received the assent of the President.
8] At this stage, it is necessary to note that on 16 June 1992, a Notification was issued by the Archaeological Survey of India under Rule 32 of the Ancient Monument and Archaeological Sites and Remains Rules 1959 declaring upto 100 metres from the protected limits and further upto 200 metres near or adjoining the protected monuments to be prohibited 9/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 and regulated areas respectively. Under Rule 32 of the the Rules of 1959, the Central Government was empowered to declare prohibited and regulated areas for the purpose of mining operations or construction or both. Rule 33 stipulated that no person other than an Archaeological Officer shall undertake any mining operation or a construction in a prohibited area or in a regulated area except under and in accordance with the conditions of a licence granted by the Director-General.
9] After the amendment of 2010, Section 20-A has now made specific provisions. Sub section (1) of Section 20-A defines the expression prohibited area to cover 100 metres beginning at the limit of the protected area or the protected monument, in all directions. The expression "protected area" is defined in Section (2) (i) to mean any archaeological site and remains which is declared to be of national importance by or under the Act. Sub section (2) of Section 20-A imposes a prohibition on carrying on construction in any prohibited area but that is subject to Section 20-C. Sub section (3) of Section 20-A empowers the Central Government or the Director-General to give permission broadly in matters involving public work or projects essential to the public in the public interest. However sub section (4) has stipulated that no permission under sub section (3) can be granted in any prohibited area on and after the date on which the Amended Act 2010 has received the assent of the President.
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10] In Archaeological Survey of India vs. Narender Anand & Ors.1
while explaining the ambit of Section 20-A and Section 20-B, the
Supreme Court held as follows :-
"45. What has been done by enacting Sections 20-A and 20-B is to give legislative mandate to the concept of prohibited and regulated areas respectively for the purposes of mining operation and construction. Before the 2010 Amendment, the Central Government could issue notification under Rule 31 read with Rule 32 and declare an area near or adjoining a protected monument to be a prohibited area or a regulated area for the purposes of ig mining operation or construction or both. With the insertion of Section 20-A it has been made clear that every area, beginning at the limit of the protected area or the protected monument, as the case may be, and extending to a distance of one hundred metres in all directions shall be prohibited area in respect of such protected area or protected monument."
11] Section 20-C(1) operates in two well defined areas. The first is where any person who owns any building or structure which existed in a prohibited area before 16 June 1992 desires to carry out any repair or renovation. The second is in respect of a structure which has been constructed after 16 June 1992 with the approval of the Director-General, where the owner desires to carry out repair or renovation. The Act has defined the expression "construction" in section 2(dc) as follows:-
"construction" means any erection of a structure or a building , including any addition or extension thereto either vertically or horizontally, but does not include any re-construction, repair 1 (2012) 2 SCC 562 11/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 and renovation of an existing structure or building, or, construction, maintenance and cleansing of drains and drainage works and of public latrines, urinals and similar conveniences, or, the construction and maintenance of works meant for providing supply of water for public, or, the construction or maintenance, extension, management for supply and distribution of electricity to the public or provision for similar facilities for public"; (emphasis supplied).
The expression "repair and renovation" is defined in Section 2(m) as follows:-
"repair and renovation" means alterations to a pre-existing structure or building, but shall not include construction or re-
construction"
The definition of the expression construction specifically excludes among other things, construction or maintenance, extension, management for supply and distribution of electricity to the public or a provision for similar facilities for the public. Moreover, where the construction is for the provision of conveniences for the public, that would not fall within the meaning of the expression 'construction' for the purposes of sub section 2(dc). Section 2(m) defines 'repair and renovation' to mean alterations to a pre-existing structure or a building but so as not to include construction or a reconstruction.
12] In Narendra Anand (supra) the Supreme Court also held that the expression "renovation" in Section 20-C will take its colour from the word 12/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 "repair" appearing in that section and this would mean that in the garb of renovation, the owner of a building cannot demolish the existing structure and raise a new one and the competent authority cannot grant permission for such reconstruction. Moreover it was held that the expression "such other work or project" in clause (b) of Section 20-A(3) must be in the larger public interest in contrast to private interest. This is again emphasised by holding that in exercise of the power under Section 20- A(3) the Central Government or the Director-General cannot pass an order for permitting construction de hors the public interest and public interest "must be core factor to be considered" before allowing any construction. In that case, the Notification dated 4 October 1956 had defined the protected area of Jantar Mantar in New Delhi to be 5.39 acres. The Supreme Court held that the distance of 100 metres would have to be counted from the outer boundary wall of Jantar Mantar which has a protected area of 5.39 acres.
13] The Notification of the Governor in Council published on 11 March 1909 does not cover or define the area surrounding the Cave Temple of Bhamburda as a prohibited area. In the present case, the element of public interest cannot be ignored. There is an already existing public road. This is but a structure within the meaning of Section 20-C. The Municipal Corporation is setting up an underpass at the intersection to obviate traffic congestion. This constitutes a facility for the public or a convenience for the public at large and is not a construction within the 13/16 ::: Downloaded on - 27/11/2013 20:14:26 ::: SKC PIL-112-13 meaning of Section 2(dc). The scheme of the Act, as interpreted by the Supreme Court, would indicate that the grant of any permission has to comply with the twin requirements of first and foremost protecting an ancient monument and secondly of being in the public interest. The Supreme Court has emphasised that any private interest must yield to the public interest in protecting an ancient monument. This is not a case where the handiwork of a private developer motivated by commercial gain is under scrutiny. The Municipal Corporation has sought to add a grade separator to an already existing public road. The work which is sought to be carried out by the Municipal Corporation cannot be regarded as being a work of construction as defined in Section 2(dc) since the definition specifically excludes the provision of a facility of this nature for the public. The Municipal Corporation is carrying out the work of a grade separator which is an underpass at a busy traffic junction to obviate traffic congestion and air pollution. The element of public interest must therefore weigh in accepting the decision of the NMA particularly having due regard to the fact that this decision was arrived at after considering the impact assessment which was submitted before the Authority. The Authority has made provisions for sufficient mitigative steps to protect the cave temple. During the course of hearing the learned counsel appearing on behalf of the Municipal Corporation has in fact indicated to the court on the basis of the impact assessment carried out by the Deccan College that the distance between the protected monument and the grade separator is 100.3 metres. The distance between the edge of the 14/16 ::: Downloaded on - 27/11/2013 20:14:27 ::: SKC PIL-112-13 boundary wall and one portion of the grade separator is 92.5 metres. In our considered view, having regard to the ambit of the Notification declaring the cave temple as a protected monument, the work which is proposed to be carried out by the Municipal Corporation does not suffer from any illegality.
14] The only point which has been canvassed during the course of the hearing is the legality of the work of the grade separator which is being carried out by the Pune Municipal Corporation. Hence, we clarify that this Court has had no occasion to consider the merits of any other issues raised in the Petition. By way of abundant caution, we clarify that the Petitioner would if it is so advised be at liberty to file a fresh petition in respect of the any other reliefs, including in regard to the finalisation of the Heritage bye-laws.
15] For these reasons, no interference in the exercise of the jurisdiction under Article 226 of the Constitution is warranted. The Petition shall accordingly stand dismissed. In the circumstances there shall be no order as to costs.
16] On the conclusion of the judgment, learned Counsel for the Petitioner applies for stay of operation of the judgment. Learned Counsel for the Municipal Corporation has stated that the work of the grade separator is substantially completed but as a result of the incomplete 15/16 ::: Downloaded on - 27/11/2013 20:14:27 ::: SKC PIL-112-13 work, the traffic conditions have become chaotic. Having regard to these facts and circumstances no case for extension of the ad interim order is made out. Stay is refused.
(Dr. D. Y. Chandrachud, J.) ( M. S. Sonak, J.) Chandka 16/16 ::: Downloaded on - 27/11/2013 20:14:27 :::