Madhya Pradesh High Court
Smt. Anju Yadav vs Union Of India on 3 June, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
HIGH COURT OF MADHYA PRADESH :
BENCH AT GWALIOR
Writ Petition No.8509/2011 (PIL)
Mata Prasad
...PETITIONER
Versus
State of Madhya Pradesh and others
....RESPONDENTS
Writ Petition No.834/2017
Deshraj Koli
...PETITIONER
Versus
Union of India and others
....RESPONDENTS
Writ Petition No.881/2017
Saeed Ur Rehman
...PETITIONER
Versus
Union of India and others
....RESPONDENTS
Writ Petition No.884/2017
Smt. Anita Richhariya
...PETITIONER
Versus
Union of India and others
....RESPONDENTS
Writ Petition No.889/2017
Smt. Anju Yadav
...PETITIONER
Versus
Union of India and others
....RESPONDENTS
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CORAM :
Hon'ble Shri Justice Sanjay Yadav
Hon'ble Shri Justice Vivek Agarwal
In W.P.No.8509/2011 (PIL) :
Shri Pawan Vijayvargiya, learned counsel for the petitioner.
Shri F.A. Shah, learned Govt. Advocate for respondents no.1 to 4, 7
and 8/State.
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
Shri P.D. Bidua, learned counsel for the respondent no.5.
Shri Vivek Khedkar, learned Assistant Solicitor General for
respondent no.6/Union of India.
Shri D.P.S. Bhadoriya, learned counsel for the respondent no.9-
Archaeological Survey of India.
Shri Vivek Jain and Shri Yogesh Chaturvedi, learned counsel for the
intervenors.
Shri V.K. Bhardwaj, learned Senior Counsel with Shri Rohit Batham,
learned counsel for the intervenors.
In W.P.No.834/2017
Shri N.K. Saxena, learned counsel for the petitioners.
Shri Vivek Khedkar, learned Assistant Solicitor General for
respondent no.1/Union of India.
Shri F.A. Shah, learned Govt. Advocate for respondents/State.
Shri P.D. Bidua, learned counsel for the respondent no.5.
Shri D.P.S. Bhadoriya, learned counsel for the respondent no.6-
Archaeological Survey of India.
In W.P.No.881/2017
Shri J.P. Kushwaha, learned counsel for the petitioners.
Shri Vivek Khedkar, learned Assistant Solicitor General for
respondent no.1/Union of India.
Shri F.A. Shah, learned Govt. Advocate for respondents/State.
Shri P.D. Bidua, learned counsel for the respondent no.6.
In W.P.No.884/2017
Shri Alok Katare, learned counsel for the petitioner.
Shri Vivek Khedkar, learned Assistant Solicitor General for
respondent/Union of India.
Shri F.A. Shah, learned Govt. Advocate for respondents/State.
In W.P.No.889/2017
Shri Devendra Sharma, learned counsel for the petitioner.
Shri Vivek Khedkar, learned Assistant Solicitor General for
respondent/Union of India.
Shri F.A. Shah, learned Govt. Advocate for respondent/State.
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Whether approved for reporting :
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Reserved on : 9.5.2019 28.10.2015
Date of decision : .6.2019
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ORDER
/6/2019 :: 3 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) Per Sanjay Yadav, J.
1. Taking final call of the grievance raised by the petitioner, a social worker, in a Public Interest Litigation against indiscreet encroachment on the hill/foothill of "Gopachal", and in an around the Co-ordinate Bench while going through the annals of history with the aid of "Gwalior Today", a 1940 publication, by the Publicity Department of the Government of Gwalior (the Gwalior has been the Princely State in the pre-independent era), with an object to bring to an end the malady, issued interim direction on 12.12.2012 in the following terms:
"22. In this view of the matter, in our opinion, it would be just and proper to issue following interim directions at this stage :-
(i) That the respondent No.3-Collector shall immediately transfer the land of the protected monument under the control of Archaeological Survey of India to the Archaeological Survey of India and the name of Archaeological Survey of India be recorded in the revenue records.
(ii)That the State Government and Union of India shall provide appropriate funds and budget to protect, preserve and maintain the Gwalior Fort restoring its original condition. The Hon'ble Supreme Court has also observed that adequate annual budjet should be provided in this regard.
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
(iii)The State Government and Union of India shall take effective steps in regard to appointment of security guards or give the security of the Fort, on contract basis for the purpose of security of the monuments.
(iv)That the State Government and the Union of India shall also ensure that the lands, which are under their control be utilised in accordance with the provisions of Act of 1958 and the rules made thereunder and not for any other purposes.
(v) That proper electricity light arrangement shall be made by the State Government and the Archaeological Survey of India and the drinking water facility be also provided in the area and the respondents shall ensure that the tourists shall be given proper protection. Jain idols be also maintained properly and care shall be taken in this regard. Looking to the important of the monuments in Gwalior Fort, appropriate fund shall be provided in this regard by the Union of India because as per Section 14 of the Act of 1958, it is the duty of the Union of India to maintain the monuments.
(vi)That the Archaeological Survey of India -
respondent No.9 shall submit a list of persons alongwith the orders passed by the competent authority, who have encroached over the lands of monuments within a period of four weeks and the District Administration and the Municipal Corporation shall take effective steps for removal of encroachment within a period of six weeks.
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
(vii)That the aforesaid directions shall be complied within a period of three months from the date of receipt of certified copy of this order and the compliance report shall be submitted by the State Government, Union of India as well as the Archaeological Survey of India - respondent No.9 before the registry of this court."
2. Furthermore, in the present Writ Petition following orders were passed on 21.10.2016 and 06.02.2017.
On 21.10.2016, it was directed:
"1. The encroachement found by the State as per the information given to the Archaeological Survey of India and after keeping in mind the provisions of the Ancient Monument and Archaeological Sites and Remains Act, 1958 and the Rules framed thereunder and the amendment carried out in the said Act in 2010, the respondent no. 3 is directed to forthwith remove the encroachement within the prohibited and restricted area and report compliance before the next date of hearing failing which the present incumbent on the post of Collector, Gwalior shall remain personally present to explain the default.
2. Further compliance report be also filed by the State and as well as all other authorities. It is made clear that this order is being passed only in respect of the aspect of encroachement while the other aspects as contained in directions dated 12.12. 2012 shall be dealt with later."
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) On 06.02.2017, taking note of the apathy of the State functionaries in implementing the order dated 21/10/2016 following directions were issued:
"The matter has now come up today where the functionaries of the State have issued notices to various individuals based upon the list prepared by the Archaeological Survey of India (for brevity ASOI) comprising of large number of constructions which were earmarked as having been made in violation of the provisions of the Ancient Monuments and Archaeological Site and Remains Act, 1958 Act and the Rules framed therein and which lay within the prohibited and regulated area of the Ancient Monument namely, Mohammad Gaus Makbara, which Large number of petitions have been filed individually by persons who have either received notices or have been informed by putting the mark of cross on the front wall of their construction identifying the same to be made in violation of the Act and the Rules framed therein and thus, would be demolished.
Certain petitioners before this court are those whose construction is alleged to be made prior to the cut-off date of 16/6/1992. Further there are petitioners who made their constructions subsequent to the said It is not only the exact date of the construction made but also it's exact location qua the prohibited area or regulated area is question which needs consideration. Further question would arise as to whether the 100 meters and the 200 meters of :: 7 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) prohibited and regulated area respectively are earmarked correctly when measured from the periphery of the notified "protected area" of the Monument in question. It will also have to be seen as to whether the construction in question is new, or falls within the category of repair/renovation. The question of prior consent of the competent authority before construction/repair/renovation made is also required to be gone into.
This court is conscious of the fact that section 20-O bars jurisdiction of civil courts in matters which the National Monument Authority in short NMA is empowered to determine. The NMA has been constituted under Section 20-F which as per the submission of the learned counsel for the Union of India is presently functional.
The NMA has been conferred with the functions and powers under Section 20-I which are reproduced below:-
"20-I. Functions and powers of Authority.-- (1) The Authority shall exercise or discharge the following powers or functions, namely:- -
(a) make recommendations to the Central Government for grading and classifying protected monuments and protected areas declared as of national importance under sections 3 and 4, before the commencement of the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010;
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
(b) make recommendations to the Central Government for grading and classifying protected monuments and protected areas which may be declared after the commencement of the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010, as of national importance under section 4;
(c) oversee the working of the competent authorities;.
(d) to suggest measures for implementation of the provisions of this Act;
(e) to consider the impact of large-scale developmental projects, including public projects and projects essential to the public which may be proposed in the regulated areas and make recommendations in respect thereof to the competent authority;
(f) to make recommendations to the competent authority for grant of permission.
(2) The Authority shall, for the purpose of discharging functions under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed."
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) From the above, it is evident that the Authority has adequate powers to enquire into factual dispute in regard to various aspects related to the National Monument and also to suggest measures for proper implementation of the 1958 Act and the Rules framed there under. The Act vests the Authority with the power of the civil court while discharging it's function.
Since large number of disputed questions of fact are involved in the present case and this court in exercise of writ jurisdiction does not wish to go into the same, it is deemed appropriate that the NMA should enquire into all these aspects and submit it's report to this court for proper adjudication in the present matter.
This court merely as a guiding principle illustrates a few of the issues involved herein on which the report of the NMA is being requisitioned:-
(i) Whether the periphery of the "protected area" of the Monument in question i.e. Mohd.
Ghaus Makbara as notified in section 2(i) of the Act is properly demarcated on the ground. This fact be re-checked by carrying out measurement:
The prohibited area and regulated area as per the Act be also demarcated on the ground by carrying out necessary measurement;
The senior most officer of ASI alongwith necessary staff and documents shall be at the disposal of the Authority during it's sitting at Gwalior.
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) The ASI shall furnish the list already prepared alongwith additions/subtraction of unlawful constructions pursuant to the aforesaid exercise of fresh demarcation.
(v) Thereafter, the list prepared by the ASOI of the constructions alleged to be in violation of the provisions of Act and Rules be verified as to whether the same lie within the "prohibited area" or the "regulated area" by preparing a separate lists of the unlawful construction falling within the prohibited and regulated area mentioning description of the property, name of the owner, type and date of the construction alongwith photographs and whether any permission/licence has been issued for the said construction by the competent authority;
(vi) For carrying out the above exercise, the NMA shall hold it's circuit sitting at Gwalior for as much time and with such frequency as the Authority deems fit so as to avoid inconvenience to the large number of persons involved.
(vii) For the said exercise the NMA shall be provided adequate protection, security and arrangement for boarding, lodging and transportation during the period of stay at Gwalior. Adequate ministerial and revenue staff shall be provided. Responsibility to make these arrangements shall rest on the Commissioner, Revenue Division, Gwalior.
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
(viii) The Authority before preparing it's report but after carrying out necessary arrangements as enumerated above, shall issue notices to all concerned whose constructions are found to be violating the Act and Rules and grant them sufficient opportunity to submit reply and seek personal hearing.
(ix) Thereafter report shall be prepared and submitted to this court by filing the same with the Registry.
The aforesaid exercise shall be completed within a period of 6 (Six) months from the date of receipt of copy of this order by the authority with liberty to seek extension of time.
Till further order as a measure of interim relief it is directed that no demolition of any construction within the alleged prohibited and regulated area shall take place.
It is further directed by way of interim relief that no one shall carry out any construction of any kind including repair/renovation within the prohibited area without seeking leave of the competent authority in terms of the provisions of the Act and Rules framed thereunder.
The circulation of this order shall be made through publication in two Hindi daily newspapers having wide circulation within the city of Gwalior by the Commissioner, Revenue Division Gwalior so that the interested persons are informed in advance about the conduction of aforesaid exercise."
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Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
3. Pertinently, one more Public Interest Litigation: WP.1692/2010 came to be registered suo motu on the basis of the news item in the local daily newspaper, in the matter of encroachment over Tomb of Mohammed Ghaus. The petition was disposed of on 20.02.2014 with the following directions:
"(9) In this view of the matter, this Public Interest Litigation is disposed of with the following directions:
(I) That, the Archaeological Survey of India and Municipal Corporation, Gwalior shall identify the encroachment within the territory of protected monuments in accordance with the procedure established by law and if it is found that there is an encroachment, appropriate action shall be taken for removal of encroachment.
(II) That, the State Government and Union of India shall not permit the organizer to hold any urs or other activities without prior permission of Archaeological Survey of India within the territory of protected monuments and if any permission be granted, the provisions of Act of 1958 and Rules of 1959 shall be taken into consideration by the authorities and it shall also be kept in mind that there should not be any damage caused to the monuments.
(III) That, the District Administration shall take necessary steps and provide help to the Archaeological Survey of India to prevent illegal :: 13 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) activities within the territory of protected monuments and the Collector shall ensure that the grievance made by Superintending Archaeologist, Archaeological Survey of India, Bhopal Circle shall be sorted out and proper action shall be taken against the person or persons, who violates the directions issued by Archaeological Survey of India."
4. It was thought that the interim direction when meted will bring to an end the woes which the Gwalior Fort has faced for ages has turned out to be a beginning of more maladies which required to be addressed finally.
5. Much before the issuance of interim direction, the Superintending Archaeologist, Archaeological Survey of India, vide his communication dated 21.01.2011 (some earlier communications are also shown) addressed to the Collector, Gwalior, reminded him of the communication by the State Government through its Cultural Department dated 20.03.2001 and sought restoration of 37.404 hectare over the Gwalior Fort, being the protected archaeological sites. The letter dated 21.01.2011 speaks thus:-
"Øekad& izksVsD'ku@Xok@Xok@QksVZ@2@03&Lek& Hkksiky]fnukad&&01&2011 izfr] dysDVj] ftyk Xokfy;j e/;izns'k fo"k;&Xokfy;j fdyk fLFkr Hkkjrh; iqjkrRo losZ{k.k }kjk lajf{kr Lekjdksa ls lEc) Hkwfe dk gLrkarj.k fo"k;dA :: 14 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) lUnHkZ&¼1½ laLd`fr lfpo] e/;izns'k 'kklu] oYyHk Hkou ea=ky;] Hkksiky dk i= dzekad &565&570@iz-l-@la@rhl&2001] Hkksiky] fnukad 20 ekpZ 2001 o dk;kZy; ftyk eftLVªsV] ftyk Xokfy;j dk i= dza- D;w@LVsuks@,Mh,e@09&1528]fnukad 03&05&2010 ¼2½ bl dk;kZy; i= Øekad&izksVsD'ku@Xok@Xok- QksVZ@2@08&Lek&8063] fnukad 03&09&10 egksn;] mijksDr lanfHkZr i=ksa ds lUnHkZ esa fuosnu gS fd Xokfy;j fdyk fLFkr Hkkjrh; iqjkrRo losZ{k.k }kjk lajf{kr Lekjdksa ls lEc) fjDr Hkwfe;ksa dks fpfUgr dj uohu uD'kk rS;kj dj Hkwfe gLrkarj.k izLrko vkidh vksj Hkstk x;k Fkk] fdUrq okafNr dk;Zokgh vHkh rd visf{kr gSA vr% vkils iqu% fuosnu gS fd laLd`fr lfpo ds vkns'kkuqlkj lEc) Hkwfe ¼Lekjd lfgr½ xzke vkgw[kkuk dyk dk [kljk Øekad &4 jdck 0-013 gsDVs;j] [kljk Øekad&5 jdck 0-021 gsDVs;j] [kljk dzekad&6 jdck 0-073 gsDVs;j] [kljk Øekad&9 dk Hkkx jdck 0-306 gsDVs;j] [kljk dzekad&345 dk Hkkx jdck 17-162 gsDVs;j] [kljk dzekad&346 dk Hkkx jdck 4-835 gsDVs;j] [kljk dzekad&350 dk Hkkx jdck 0-717 gsDVs;j rFkk [kljk Øekad &99 jdck 14-277 gsDVs;j bl rjg dqy 37- 404 gsDVs;j ¼dqy 8 fdrk½ Hkwfe dk LokfeRo Hkkjrh; iqjkrRo losZ{k.k] Hkksiky ds uke jktLo vfHkys[k esa ntZ dj foHkkx dks gLrkarfjr djus dh d`ik djsaA Hkonh;
v/kh{k.k iqjkrRofon~"
6. The letter dated 20.03.2001 which find mention in the communication dated 21.01.2011, reproduced here-below, was in the terms of letter dated 06.01.1959 issued by Government of India, Ministry of Culture. These two letters are reproduced for ready reference:
"Letter No.F.3-201/58-C-1 dated 06th January, 1959 Copy of letter No.F.3-201/58-C.1. Dated 06th January, 1959 from the Ministry of Scientific Research and Cultural Affairs, New Delhi to All State Government Subject:-STATE OWNED MONUMENTS AND LANDS :: 15 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) APPURTENANT TO THEM CHANCE OF OWNERSHIP.
I am directed to say that under section 172 of the Government of India Act, 1935, all lands and buildings which immediately before the commencement of part III of that Act were vested in His Majesty for the purpose of the Government of India became as from that date, in the case of lands and buildings which are situated in a Province, vested in His Majesty for the purpose of the Government of that Province, unless they then were used, otherwise than under a tenancy agreement between the Governor- General in Council and the Government of that province, for purposes which thereafter became the purposes of the Federal Government. The lands on which the ancient monuments stand, were used after 01/04/37 for a purpose which became a purpose of the Federal Government under that Act (Entry No.15 of the List I of that Act.). They must therefore be deemed to have vested in His Majesty for the purposes of the Federation. Consequently they became vested in the Union of India under Article 294 of the Present Constitution. The position would be the same as regards the monuments standing in the former Part B States under Article 295(a) read with Entry No.67 in the Union List, such lands become vested in the Union.
I am accordingly to request that instructions may kindly be issued to the District Authorities to make necessary changed in their revenue records, transferring the ownership of lands appurtenant to all Centrally protected monuments/ Sites from the State Government to the Central Government if this has not already been done. Such transfer of ownership is absolutely necessary as not unofien the double jurisdiction over the monument and the State Government over the land appurtenant to administration of a monument.
It will be appreciated if an intimation is sent to this Government after necessary action has been taken in the matter."
Letter No.. @iz-l-@la-@rhl@2001 dated 20.03.2001 :: 16 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) e/;izns'k 'kklu] laLd`fr foHkkx] ea=ky;] oYyHk Hkou] Hkksiky dzekad @iz-l-@la-@rhl@2001] Hkksiky] fnukad ekpZ 2001 izfr] leLr dysDVj] e/;izns'k] fo"k;%&dsUnz 'kklu }kjk lajfpr Lekjdksa ds ifj{ks= esa Hkwfe dk laj{k.k ,oa vfHkys[kksa esa vko';d izfo"Vh djus ckor~A &&&&&& Hkkjr ljdkj ds laLd`fr ea=ky; us fn- 6 tuojh 1959 dh ,d ifji= izlkfjr dj mYysf[kr fd;k Fkk fd Hkkjr ljdkj ds vf/kfu;e 1935 dh /kkjk 172 ds vuqlkj ftu Hkwfe;ksa ij izkphu Lekjd fLFkr Fks] os dsUnz ljdkj dh laifRr cu x;s vkSj dsUnz ljdkj esa osf"Br eku fy;s x;sA Hkkjr ds lafo/kku ds vuqPNsn 294 ds vUrxZr Hkh ;s Lekjd dsUnz 'kklu esa osf"Br gks x;s gSaA os Lekjd ftl Hkwfe ij fLFkr gSa] og Hkwfe Hkh lafo/kku ds vuqPNsn 285 rFkk dsUnzh; fo"k;ksa dh lwph esa izfof"V dzekad 67 ds vuqlkj dsUnz 'kklu esa osf"Br gks xbZ gSA Hkkjr ljdkj us ;g pkgk Fkk fd lHkh ftyk izkf/kdkjh vius jktLo vfHky[kksa esa izfof"V;ksa dks la'kksf/kr dj dsfUnz; lajf{kr Lekjdksa ls yxh gqbZ Hkwfe dsUnz ljdkj esa osf"Br djus lacaf/kr izfof"V djsa] rkfd Lekjdksa ij dsUnz 'kklu dk rFkk Hkwfe ij jkT; ljdkj ds nksgjs LokfeRo dh fLFkfr u cuh jghA dsUnz ljdkj ds ifji= fnukad 6 tuojh] 1959 dh izfr layXu gSA 2- jkT; 'kklu ds /;ku esa ;g yk;k x;k gS fd vHkh rd mDr izfdz;k vuqlkj dfri; LFkkuksa ij dsUnzh; lajf{kr LEkkjdksa ls yxh gqbZ Hkwfe dsUnz ljdkj ds i{k esa iqjkrRo vfHky[kksa esa osf"Br djus laca/kh izfof"V;ka ugha dh xbZ gSaA bu izfof"B;ksa ds vHkko esa] dqN LFkkuksa ij 'kkkldh; Hkwfe iV~Vs ij fn;s tkus ;k vU; mn~ns';ksa ls vkoafVr fd;s tkus dh dk;Zokgh dh laHkkouk ls badkj ugha fd;k tk ldrk gSA ;gh dkj.k gS fd dfri; LFkkuksa ij dsanzh;
lajf{kr LEkkjdks ds vklikl dh Hkwfe ij lacaf/kr fu;eksa ,oa vf/kfu;eksa ds izko/kkuksa ds foijhr fuekZ.k dk;Z gksus dh f'kdk;rsa izkIr gksrh jgha gSaA 3- dzsUnzh; lajf{kr Lekjdksa dk laj{k.k djus] lafo/kku ,oa vU; fof/kd izko/kkuksa dk lEeku djrs gq, mudk ikyu djus ,oa dsUnzh; lajf{kr Lekjdksa ds vklikl dh Hkwfe dks izko/kkuksa ds vuq:i dsUnz ljdkj esa osf"Br djus laca/kh dk;Zokgh izkFkfedrk ds vk/kkj ij djuk visf{kr gSA d`I;k bl okcr~ dk;Zokgh dj jktLo vfHkys[kksa dks ;Fkko';d :i ls la'kksf/kr fd;k tk;s vkSj dh xbZ dk;Zokgh ls voxr djk;saA"
7. After passing of interim order on 12.12.2012 the Archaeological Survey of India forwarded a list of area of Gwalior Fort with all Archaeological Structures and Remains within for :: 17 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) transfer from Government of Madhya Pradesh to the Archaeological Survey of India as under:
Øekad&izksV-@Xok@QksVZ-fcYM-@2@03@Lek- Hkksiky fnukad 27&06&2011 izfr] eq[; lfpo e/;izns'k 'kklu] ea=ky;] cYyHk Hkou Hkksiky fo"k;&jk"Vªh; lajf{kr Lekjd Xokfy;j fdyk fLFkr jk"Vªh; lajf{kr Lekjdksa ,oa mlls yxh gqbZ Hkwfe;ksa dks Hkkjrh; iqjkrRo losZ{k.k foHkkx ds uke gLrkarj.k ¼la'kks/ku½ fo"k;dA egksn;] mi;qZDr fo"k; esa fuosnu gS fd Hkkjr ljdkj ds laLd`fr ea=ky; ds ifji= fnukad 6 tuojh 1959 ,oa laLd`fr lfpo] e/;izns'k 'kklu cYyHk Hkou ea=ky; Hkksiky ds vkns'k i= Øekad&565&570@iz-l-@la-rhl&2001 Hkksiky fnukad 20 ekpZ 2001 ¼nksuks izi= dh Nk;kizfr layXu½ ds rgr ;g dk;kZy; foxr nks o"kksZ ls yxkrkj dysDVj] ftyk&Xokfy;j ls xzke vkgw[kkuk dyk dk [kljk Øekad&4 jdok 0-013 gsDVS;j [kljk Øekad&5 jdok 0-021 gsDVs;j [kljk Øekad 6 jdok 0-073 gsDVs;j [kljk Øekad&9 dk Hkkx jdok 0-306 gsDVs;j] [kljk Øekad&345 dk Hkkx jdok 17-162 gsDVs;j [kljk Øekad 346 dk Hkkx jdok 4-835 gsDVs;j] [kljk Øekad 350 dk Hkkx jdok 0-717 gsDVs;j rFkk [kljk Øekad& 99 jdok 14-277 gsDVs;j bl rjg dqy 37-404 gsDVs;j ¼dqy 8 fdrk½ Hkwfe dk LokfeRo ¼la'kks/ku½ Hkkjrh; iqjkrRo losZ{k.k foHkkx ds uke jktLo vfHkys[k esa la'kks/ku djkus gsrq vuqjks/k fd;k tk jgk gSA ftlls jk"Vªh; lajf{kr Lekjdksa ds vkl&ikl dh Hkwfe;ksa dks vfrdze.kdkfj;ksa ls [kqnZ&cqnZ gksus ls cpk;k tk lds D;ksafd mlls igys Xokfy;j fdys ij fLFkr dqN Hkwfe;ksa dks vfrØe.kdkfj;ska }kjk [kqnZ&cqnZ dh tk pqdh gSA Hkfo"; esa bu Hkwfe;ksa dks cpkus ds fy, dysDVj] ftyk Xokfy;j ls foxr nks o"kksZ ls vuqjks/k fd;k tk jgk gS ysfdu vkt fnukad rd jktLo vfHkys[k esa Hkkjrh; iqjkrRo losZ{k.k ds uke izfof"V ugha gqbZ gSA muesa ls dqN Hkwfe ij Hkkjrh; iqjkrRo losZ{k.k }kjk yap iSM tSlh lqfo/kkvksa dks cukus dk izko/kku gSA ftlls i;ZVdksa dks lqfo/kk miyc/k gks ldsxhA vr% Jhekuth ls fuosnu gS fd dysDVj ftyk Xokfy;j dks Xokfy;j fdys ij fLFkr jk"Vªh; lajf{kr Lekjdksa ,oa mlls yxh Hkwfe@Hkwfe;ksa dks Hkkjrh; iqjkrRo losZ{k.k ds uke jktLo vfHkys[kksa es gLrkarj.k gsrq dk;Zokgh dj izfof"V djkus fo"k;d vkns'k iznku djus dh d`ik djsaA Hkonh;
v/kh{k.k iqjkrRofon~ :: 18 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) Propose Area Of Gwalior For with all Archaeological Structure and Remains within for transfer from Govt. of MP. To Archaeological Survey of India, Teh- Gwalior. Distt. Gwalior (M.P.) S. State District Tehsil Locality Name of Khasra Area Owne Remarks N. Monument No in rship Hect.
1 Ahukhana Gwalior Fort 4 0.013 M.P.
Kalan with all Govt.
Archaeologic
2 Ahukhana 5 0.021 M.P.
Madhya Gwalio Gwalior al Structure
Kalan Govt.
Pradesh r and Remains
3 Ahukhana Within. 6 0.073 M.P.
Kalan Govt.
4 Ahukhana Part of 0.306 M.P.
Kalan 9 Govt.
5 Ahukhana 99 14.27 M.P.
Kalan 7 Govt.
6 Ahukhana Part of 13.47 M.P. It include
Kalan 345 4 Govt. area of Jain
collosi (I) =
0.303& Jain
collosi (II) =
0.220,
Ganesh gate
= 0.015.
Laxman
gate =
0.031,
Chturbhuj
Temple =
0.017,
Mansingh =
0.500 and
remaining
part of Kh
No 345.
7 Ahukhana Part of 1.116 M.P. It include
Kalan 346 Govt. area of Sas
Bhau (part)
= 0.513,
Urwahi gate
= 0.147 &
remaining
part of Kh.
No 346
8 Ahukhana Part of 0.960 M.P. Tell ka
Kalan 350 Govt. Mandir =
0.660, Tisla
mata =
0.300
(Previous
Proposal
this was
added in Kh.
No. 348
Total 30.24
0
:: 19 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) Propose Area Of Gwalior For with all Archaeological Structure and Remains within for transfer from Govt. of MP. To Archaeological Survey of India, Tehsil - Gwalior. Distt. Gwalior (M.P.) S. State Distric Tehs Localit Name of Khasra Total Area Area Rema Own Remarks N t il y Monumen No Area Requi Trans ining ershi Entered in . t in red fferd Area p Coloum No Hect. for to to be 12 opp.-
transf ASI Trans (Kila gate)
er to (Ha.) fer
asi (Ha.)
(Ha)
1 Ahukha 4 0.013 0.013 0.010 0.003 MP. HINDOLA
na GOV GATE
Kalan T. 0.010 Ha
Gwali Gwa
2 Ahukha 5 0.021 0.021 - 0.021 MP.
or lior
na GOV
Kalan T.
3 Ahukha 6 0.073 0.073 0.031 0.042 MP. ALAMGIR
na GOV GATE
Kalan T. 0.031 Ha
4 Ahukha 9 13.50 0.306 - 0.306 MP.
na 6 GOV
Kalan T.
5 Ahukha 99 14.27 14.27 - 14.27 MP.
na 7 7 7 GOV
Madh Kalan Gwalior T.
ya Fort with
6 Prade all 345/2 0.700 13.47 1.586 1.888 MP. GANESH
sh Ahukha Archaeolo 345/3 34.54 4 GOV GATE
na gical 345/4 3 T. 0.015,
Kalan Structure 345/5 10.24 LAXMAN
and 1 GATE
Remains 9.405 0.031,
Within. 54.88 CHATURB
9 HUJ
TEMPLE
0.017,
MANSING
H PALACE
1.000 Ha
( MESUE
M&
ASSIKHA
MBA
BAODI
AREA)
JAIN
COLOSSI
NO 1 0.303
JAIN
COLLOSI
NO 2-
0.230 Ha.
7 Ahukha 346/1 3.365 1.116 0.660 0.456 MP. SAS BAH
na 346/2 0.300 GOV TEMPLE -
Kalan 346/3d 17.08 T. 0.523 Ha
346@3[ 0 URBAI
k 0.700 GATE
350/2 3.480 0.147 Ha
24.62
5 =0.660Ha
8 Ahukha 350/1 3.971 0.960 0.650 0.300 MP. TELLI KA
na 350/2 18.75 GOV TEMPLE -
Kalan 350/3 3 T. 0.660 Ha.
:: 20 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) 350/4d 0.69 350/3[k 0.826 9.206 33.44 6 Total 30.24 2.947 27.29 0 3
8. With these communications in vogue, the core issue which arises at this stage as to whether the State Government is within its right to claim the ownership of the land within and foothill of Gwalior Fort.
9. Reverting back to the letter dated 06.01.1959 by the Ministry of Scientific Research and Cultural Affairs, all State Governments including the State of Madhya Pradesh were reminded that under Section 172 of the Government of India Act,1935, all lands and buildings which immediately before the commencement of Part III of that Act were vested in His Majesty for the purpose of the Government of India became as from that date, in the case of lands and buildings which are situated in a Province, vested in His Majesty for the purpose of the Government of that Province, unless they then were used, otherwise than under a tenancy agreement between the Governor -General in Council and the Government of that Province, for purposes which thereafter became the purposes of the Federal Government. The lands on which the ancient monuments stand, were used after 01/04/1937 for a purpose which became purpose of the Federal Government under the Act of 1935 (Entry No.15 of the List I). The communication further stated that such land must therefore be :: 21 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) deemed to have vested in His Majesty for the purposes of the federation. Consequently, such land became vested in the Union of India under Article 294 of the Constitution.
10. As regard to monuments standing in the former Part B states the communication clearly mentioned that: "The position would be the same as regards the monuments standing in the former Part B State under Article 295(a) read with Entry No.67 in the Union List, such lands became vested in the Union".
11. Article 294 of the Constitution envisages:
"294. Succession to property, assets, rights, liabilities and obligations in certain cases from the commencement of this Constitution
(a) all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of the Dominion of India and all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of each Governors Province shall vest respectively in the Union and the corresponding State, and
(b) all rights, liabilities and obligations of the Government of the Dominion of India and of the Government of each Governors Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the Government of India and the Government of each corresponding State, subject to any adjustment made or :: 22 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) to be made by reason of the creation before the commencement of this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, West Punjab and East Punjab."
12. It is not disputed by the State of Madhya Pradesh that the Gwalior is a former Part B State under Article 295(a) of the Constitution. If that be so, then the riddle as to how the State of Madhya Pradesh could claim the ownership over the land which vested in the Union stand answered that the entries of entire land of the Gwalior Fort including the Gopachal Parwat in the name of State Government of Madhya Pradesh in revenue records is a non-entity. It is also strange that it took years (almost 42 years from 1959 to 2001) for the State of Madhya Pradesh to respond to the letter dated 06.01.1959 in the year 2001. Even then, there has been no move by the State of Madhya Pradesh to restore the entry in favour of the Union of India over the land which lay in the Gwalior Fort, which the State Government is obliged to.
13. The journey, however, does not end here. There is land on the foothill. As also the carvings on the rock of hill, within and outside (as claimed by the intervenors) the Gwalior Fort, who owe them is the million dollar question posed.
14. The Parliament has enacted the Ancient Monuments and Archaeological Sites and Remains Act, 1958 which came into force :: 23 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) with effect from 15/10/1959. As per Section 39 of 1958 Act, the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act 1951 and Section 126 of the States Reorganization Act, 1956. Furthermore, sub-section (2) of Section 39 of 1958 Act further stipulates that the Ancient Monuments Preservation Act, 1904 shall cease to have effect in relation to ancient and historical monuments and archaeological sites and remains declared by or under the Act of 1958 to be of national importance, except as respects things done or omitted to be done before the commencement of the Act of 1958. The Act of 1958 has been enacted to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects. Under Section 2 of the Act of 1958 the expressions "ancient monuments", "prohibited area", "protected area", "protected monument", "re-
construction", "regulated area" carry following meaning:
(a) "ancient monument" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes―
(i) the remains of an ancient monument, :: 24 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
(ii) the site of an ancient monument,
(iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of, an ancient monument;
(ha) "prohibited area" means any area specified or declared to be a prohibited area under section 20A;]
(i) "protected area" means any archaeological site and remains which is declared to be of national importance by or under this Act;
(j) "protected monument" means an ancient monument which is declared to be of national importance by or under this Act;
(k) "re-construction" means any erection of a structure or building to its pre-existing structure, having the same horizontal and vertical limits;
(l) "regulated area" means any area specified or declared under section 20B;
Section 3 of 1958 Act stipulates that:
3. Certain ancient monuments, etc., deemed to be of national importance.―All ancient and historical monuments and all archaeological sites and remains which have been declared by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (71 of 1951), or by section 126 of the States Reorganisation Act, 1956 (37 of 1956), to be of :: 25 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purposes of this Act.
Section 4 of 1958 Act stipulates that:
"4. Power of Central Government to declare ancient monuments, etc., to be of national importance.―(1) Where the Central Government is of opinion that any ancient monument or archaeological site and remains not included in section 3 is of national importance, it may, by notification in the Official Gazette, give two months' notice of its intention to declare such ancient monument or archaeological site and remains to be of national importance; and a copy of every such notification shall be affixed in a conspicuous place near the monument or site and remains, as the case may be.
(2) Any person interested in any such ancient monument or archaeological site and remains may, within two months after the issue of the notification, object to the declaration of the monument, or the archaeological site and remains, to be of national importance.
(3) On the expiry of the said period of two months, the Central Government may, after considering the objections, if any, received by it, declare by notification in the Official Gazette, the ancient monument or the archaeological site and remains, as :: 26 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) the case may be, to be of national importance. (4) A notification published under sub-section (3) shall, unless and until it is withdrawn, be conclusive evidence of the fact that the ancient monument or the archaeological site and remains to which it relates is of national importance for the purposes of this Act."
Section 19 of 1958 Act envisages restrictions on enjoyment of property rights in protected areas. It stipulates:
"19. Restictions on enjoyment of property rights in protected areas.―(1) No person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining, quarrying, excavating, blasting or any operation of a like nature in such area, or utilise such area or any part thereof in any other manner without the permission of the Central Government:
Provided that nothing in this sub-section shall be deemed to prohibit the use of any such area or part thereof for purposes of cultivation if such cultivation does not involve the digging of not more than one foot of soil from the surface.
(2) The Central Government may, by order, direct that any building constructed by any person within a protected area in contravention of the provisions of sub-section (1) shall be removed within a specified period and, if the person refuses or fails to comply with the order, the Collector may cause the building to be removed and the person shall be liable to pay the cost :: 27 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) of such removal."
15. Section 20A, 20B, 20C, 20D, 20E, 20F, 20G, 20H, 20I, 20J, 20K, 20L, 20M, 20N to 22Q which is brought into force restrospectively with effect from 16.06.1992, vide the Ancient Monuments And Archaeological Sites And Remains (Amendment and Validation) Act, 2010. That Sections 20A, 20B, 20C and 20D whereof provide for:
"PROHIBITED AND REGULATED AREAS"
20A. Declaration of prohibited area and carrying out public work or other works in prohibited area.-- 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 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 4A. (2) Save as otherwise provided in section 20C, 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 :: 28 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) 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 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 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 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 :: 29 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) 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 27th August, 2008 and the 5th May, 2009).".
Section 5 - Amendment of section 20A In section 20A of the principal Act (as so inserted by section 4 of this Act), after sub-section (3), the following sub-section shall be inserted, namely:--
"(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 Validation) Bill, 2010 receives the assent of the President".
Section 6 - Insertion of new section 20B On and from the 16th day of June, 1992, after section 20A of the principal Act, the following section shall be inserted and shall be deemed to have been inserted, namely:--
"20B. Declaration of regulated area in respect of every protected monument.--
:: 30 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) Every area, beginning at the limit of prohibited area in respect of every ancient monument and archaeological site and remains, declared as of national importance under sections 3 and 4 and extending to a distance of two hundred metres in all directions shall be the regulated area in respect of every ancient monument and archaeological site and remains:
Provided that the Central Government may, by notification in the Official Gazette, specify an area more than two hundred metres to be the regulated area having regard to the classification of any protected monument or protected area, as the case may be, under section 4A:
Provided further 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 which the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010, receives the assent of the President, as a regulated area in respect of such protected monument, shall be deemed to be the regulated area declared in respect of that protected monument in accordance with the provisions of this Act and any permission or licence granted for construction in such regulated area 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.".
Section 7 - Insertion of new sections 20C, 20D, 20E, 20F, 20G, 20H, 20-I, 20J, 20K, 20L, 20M, 20N, 20-O, :: 31 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) 20P and 20Q After section 20B of the principal Act (as so inserted by section 6 of this Act) the following sections shall be inserted, namely:--
'20C. Application for repair or renovation in prohibited area, or construction or re-construction or repair or renovation in regulated area.--
(1) Any person, who owns any building or structure, which existed in a prohibited area before the 16th 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.
GRANT OF PERMISSION BY COMPETENT
AUTHORITY
20D. Grant of permission by competent authority within regulated area.--
(1) Every application for grant of permission under section 20C of this Act shall be made to the competent authority in such manner as may be prescribed.
:: 32 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) (2) The competent authority shall, within fifteen days of the receipt of the application, forward the same to the Authority to consider and intimate impact of such construction (including the impact of large-scale development project, public project and project essential to the public) having regard to the heritage bye-laws relating to the concerned protected monument or protected area, as the case may be:
Provided that the Central Government may prescribe the category of applications in respect of which the permission may be granted under this sub-section and the application which shall be referred to the Authority for its recommendations.
(3) The Authority shall, within two months from the date of receipt of application under sub-section (2), intimate to the competent authority impact of such construction (including the impact of large-scale development project, public project and project essential to the public).
(4) The competent authority shall, within one month of the receipt of intimation from the Authority under sub-
section (3), either grant permission or refuse the same as so recommended by the Authority.
(5) The recommendations of the Authority shall be final.
(6) In case the competent authority refuses to grant permission under this section, it shall, by order in writing, after giving an opportunity to the concerned person, intimate such refusal within three months from the date of receipt of the application to the applicant, :: 33 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) the Central Government and the Authority. If the competent authority, after grant of the permission under sub-section (4) and during the carrying out of the repair or renovation work or re-construction of building or construction referred to in that sub-section, is of the opinion (on the basis of material in his possession or otherwise) that such repair or renovation work or re-construction of building or construction is likely to have an adverse impact on the preservation, safety, security or access to the monument considerably, it may refer the same to the Authority for its recommendations and if so recommended, withdraw the permission granted under sub-section (4) if so required:
Provided that the competent authority may, in exceptional cases, with the approval of the Authority grant permission to the applicant referred to in sub- section (2) of section 20C until the heritage bye-laws have been prepared under sub-section (1) of section 20E and published under sub-section (7) of that section.
(8) The Central Government, or the Director-General, as the case may be, shall exhibit, on their website, all the permissions granted or refused under this Act.
16. Pertinent it is to note that before the amendment of 2010, the Department of Culture (Archaeological Survey of India) in exercise of its powers under Section 4(1) of 1958 Act issued notification No.SO1139(E) dated 29/10/2012 of its intention to declare the ancient :: 34 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) monuments specifed in the Schedule annexed with the notification.
The area proposed to be declared protected area was :
"DEPARTMENT OF CULTURE (Archaeological Survey of India) NOTIFICATION New Delhi, the 29 October, 2002 S.O.1139(E).--Whereas the Central Government is of the opinion that the ancient monument specified in the Schedule annexed hereto is of national importance:
Now, therefore, in exercise of powers conferred by Sub-section (1) of section 4 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), the Central Government hereby gives notice of its intention to declare the said ancient monument to be of national importance.
Any objection to the declaration of the said monument to be national importance, may be made within a period of two months from the date of issue of this notification in the Official Gazette by any persons interested in the said monument, which will be taken into consideration by the Director General, Archaeological Survey of India, New Delhi-110011.
State District Tahsil Locality Name of the monument Revenue Khasra Number Area Ownership Boundaries Remar
to include under protection Hecta k
Govt. Land Private
Land
1 2 3 4 5 6 7 8 9 10 11
:: 35 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) Madhya Gwalior Gwalior Ahukhana Gwalior Fort with all Part of 1 0.776 M.P. Govt. Pradesh Kalan archaeological structure Part of 2 0.188 Govt. of M.P. and remains within and the 3 0.031 Road Govt. of M.P. fortification wall 4 0.013 Govt. of M.P. 5 0.021 Govt. of M.P. 6 0.073 Govt. of M.P. 7 0.010 Govt. Abadi Quila 8 0.052 Govt. Abadi Quila 9\1 5.958 Govt. Abadi Quila 9\2 5.046 Govt. Abadi Quila 9\3 2.592 Govt.
10 0.029 Govt. M.P.
11 (MIN) 0.160 Govt. M.P.
11 Min 0.059 Raja Bai
11\3 0.011 Nathu Ram
12 0.021 Govt. M.P.
13 0.021 Govt. M.P.
14 0.042 Govt. M.P.
15 0.835 Govt. M.P.
16 0.052 Govt. M.P.
17 0.021 Govt. M.P.
18 0.011 Govt. M.P.
37 0.167 Dattatreya etc.
38 Min 0.021 Gyasi Ram
38 Min 0.031 Gyasi Ram
1 39 0.115 Gyasi Ram
40 0.073 Hukum Singh etc.
41 0.094 Hukum Singh etc.
42 0.084 Hukum Singh etc.
43 0.146 Hukum Singh etc.
1 2 3 4 5 6 7 8 9 10 11
44 0.094 Govt. M.P.
45 0.146 Mus. Raja Bai
46 0.073 Govt. M.P.
47 0.094 Kishan Swarup etc.
48 0.084 Kishan Swarup etc.
49 0.125 Dattatreya etc.
50 0.031 Dattatreya etc.
51 0.073 Dattatreya etc.
52 0.042 Dattatreya etc.
53 0.167 Dattatreya etc.
54 0.146 Dattatreya etc.
76 0.460 Deena Nath etc.
77 0.094 Govt. M.P.
78 0.042 Govt. M.P.
79 0.125 Deena Nath etc.
80 0.209 Deena Nath etc.
242 0.052 Kali Charan
243 0.084 Kali Charan
244 0.052 Kali Charan
245 0.084 Kali Charan
246 0.084 Kali Charan
247 0.094 Kali Charan
250 Min 0.033 Jiban Lal
250 Min 0.033 Govt. M.P.
251 Min 0.033 Govt. M.P.
251 Min 0.033 Jiban Lal
252 Min 0.180 Jiban Lal
252 Min 0.187 Govt. M.P.
253 Min 0.026 Govt. M.P.
253 Min 0.026 Jiban Lal
254 0.014 Govt. M.P.
255 0.042 Govt. M.P.
256 0.209 Jagannath etc.
257 0.240 Bhagwati Bai
258 0.052 Rafiq Ahmed
259 0.031 Rafiq Ahmed
260Min 0.009 Santosh Kumar
260Min 0.009 Jagdish Singh
260Min 0.012 Mahendra Pratap
Singh
1 2 3 4 5 6 7 8 9 10 11
:: 36 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) 260 Min 0.335 Md. Safi etc. 260 Min 0.345 Rafiq Ahmed Part of 265 0.011 Rafiq Ahmed Part of 276 0.272 Dattatreya etc. 277 0.199 Dattatreya etc. 278 Min 0.013 Prashant Sharma 278 Min 0.013 Ghanshyam Sharma 278 Min 0.272 Dattatreya etc. 280 Min 0.020 Anand Rao 280 Min 0.018 Smt. Pushpa Bhargav 280 Min 0.314 Dattatreya etc. Part of 284 0.055 Govt. Road 282 0.136 Dattatreya etc. 292 0.084 Govt. M.P. 296 0.010 Ram Dayal etc. 297 Min 0.125 Ram Dayal etc. 297 Min 0.011 Shyam Babu 298 Min 0.011 Smt. Rekha Sharma 298 Min 0.135 Ram Dayal etc. 299 Min 0.058 Smt. Madhu Sharma 299 Min 0.058 Smt. Vimla 299 Min 0.091 Sarvodaya Textile 300 Min 0.042 etc. 301 Min 0.020 Niranjan Ray 301 Min 0.096 Smt. Asha 301 Min 0.030 Sarvodaya Textile 302 0.105 etc. 303 0.167 Govt.
304 0.125 Govt.
344 0.042 Govt.
345\1 2.121 Govt.
345\2 0.700 Govt. Road side
345\3 34.543 under Leiutenant
345\4 10.241 Col.
345\5 9.405 Govt. Quila
346\1 Min 0.533 Govt. Quila
346\1 Min 2.832 Govt. Quila
346/2 17.080 Govt. Quila
346\3 A 0.700 Govt.
346\3 B 3.480 Govt. Quila
Govt. Quila
Dargah Baba (Nazul)
Govt. Quila
:: 37 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) 1 2 3 4 5 6 7 8 9 10 11 347 0.011 Govt. Quila 350\1 3.971 Govt. Quila 350\2 18.753 Govt. Quila 350\3 0.090 Govt.
350\4 A 0.826 Dargah Baba
350\5 B 9.206 Govt. Quila
351 0.031 Govt. Road to Quila
352 0.010 Govt. Road to Quila
353 0.146 Govt. M.P.
354 0.063 Govt.
Part of 355 0.150 Ram avatar etc.
356 0.021 Ram avatar etc.
357 0.031 Ram avatar etc.
359 0.105 Ram avatar etc.
360 0.460 Ram avatar etc.
362 (part) 0.200 Ram avatar etc.
478 0.029 Brijesh Singh
776 Min 3.554 Govt. Quila
776 Min 0.439 Govt. Quila
777\1 3.343 Govt. Quila
777\2 17.577 Govt. Quila
777\3 8.987 Govt. Quila
Lashkar Part of 489 0.451 Govt.
City Part of 490 5.702 Govt.
Ahukhana 1\1 0.743 Govt. M.P.
1\2 1.777 Govt. M.P.
20\1 0.188 Govt.
20\2 0.031 Govt.
20\3 0.105 Govt.
21\1 0.136 Govt.
21\2 Min 3.447 Govt. M.P.
21\2 Min 0.630 Govt. M.P.
99 14.277 Govt. M.P. (forest
deptt.)
:: 38 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) 1 2 3 4 5 6 7 8 9 10 11 Ramtapura 1\1 Min 1.484 Santosh Kumar S/o Sobaran Singh 1\1 Min 0.021 Gopal Das S/o Kailash Narayan 1\1 Min 0.018 Gajendra Singh S/o Narendra Singh 1/1 Min 0.010 Gappu singh S/o Kanhai Sikngh 1\1 Min 0.010 Sikharchand S/o Babulal Jain 1\1 Min 0.010 Om Prakash S/o Bansidhar Jain 1\2 0.021 Moolchand S/o Chokhelal Sumar 2 Min 0.003 Smt. Govindi W/o Sukhu Koli 2 Min 0.021 Total Ram S/o Gangota Koli 2 Min 1.819 Santosh Singh S/o Sobran 3\1 Min 1.735 Santosh Singh S/o Sobran 3\1 Min 0.042 Khema S/o Suri Kori 3\1 min 0.021 Mukundi S/o Dhan Singh Koli 3\2 Min 0.167 Ram Prasad S/o Mansa Ram 3\2 Min 0.007 Chironji Lal S/o Dabu Jatav 3\2 Min 0.005 Gobardhan S/o Shivlal Nai 3\3 Min 0.115 Tula ram S/o Pahalvan Deena nath Ranipur Part of 6 0.268 Govt. P.W.D. Road Part of 11 1.400 Abadi Part of 165 0.100 Govt.
Part of 166 2.205 Govt.
:: 39 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
17. No objection seems to have been taken to the Notification dated 29.10.2012.
18. It is further borne out from the material brought on record that the Archaeological Survey of India has already exercised its power under the Act of 1958 and the Amendment Act of 2010 and the Rules made thereunder and has issued notices to all such persons who are found to have raised construction within the Protected Area. Since the action is already initiated by the Archaeological Survey of India under the Statute, we leave it to the Authorities to dwell upon the reply to show-cause notices and take action as per law.
19. Now, we come to IA.5783/2018, an application filed by Respondent No.9, Archaeological Survey of India for recalling order dated 20.08.2014; whereby, while dwelling on IA.3644/2014, an application for intervention by Shri Digambar Jain Atishay Kshetra Gopachal Parwat Sanrakshak Nyas claiming title over 11.970 hectare of Survey No.99 of the protected monument situated at Marimata on the basis of the Communication No.F-No-8-196/-90-FC dated 25.01.2000 by the Assistant Inspector General (Forests), Ministry of Environment and Forests and order passed by Collector, Gwalior in Case No. Q/jhMj&1/dys fofo/k/14-15/07-05 dated 23.01.2008, taking note of the undertaking given by the then counsel for the Archeological Survey of India, it was observed:
"that the Central Government has allotted the land to :: 40 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) the Digambar Jain Atishay Kshetra (Gopachal Parvat), Gwalior, hence, it is not the land of Government. Shri Sangam Jain, learned counsel appearing on behalf of respondent-Archeological Survey of India has submitted that the department has no objection about the land which is allotted to the Digambar Jain Atishay Kshetra (Gopachal Parvat), Gwalior."
20. It is this order, the Archeological Survey of India seeks recalling of vide IA.5783/2018, on the contentions:
"4. That, the above said statement is a wrong statement made by counsel for the intervenor as well as the staetment made by the counsel for Archeological Survey of India is also a wrong statement. Because firstly the land has not been allotted by the Govt. Of India to Digambar Jain Atishay Kshetra (Gopachal Parvat) and secondly the department i.e. Archaeological Survey of India has also never authorized his counsel at that time to made such statement or support the version as has been made by the intervenor. Therefore this application is being filed for rcalling the statement.
5. That, the department has never authorized his counsel to make such Statement as has been made by the counsel appearing for Archaeological Survey of India. Because the department is in litigation with the Digambar Jain Atishay Kshetra (Gopachal Parvat) Gwalior for removing the unauthorized construction and requesting the authorities of the State Govt. to transfer the land and the name of Archeological Survey :: 41 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) of India be recorded in the Revenue record.
6. That, the respondent No.9 at no point of time authorized the earlier counsel to make such statement before the Hon'ble Court. Therefore this application is being filed in the interest of justice for realling of that statement in the order dated 20.08.2014 so that the respondent No.9 i.e. Archeological Survey of India may protect the land and may proceed for recording its name in the revenue record.
21. The intervenor has filed reply to IA.5783/2018, and also relies on the contentions made in IA.3644/2014 and the counter to reply to said IA.
22. The qua IA.3644/2014 seeks two-fold protection. Firstly, qua Jain idols led by idol of Bhagwan Parshwanath situated at Gopachal Parwat (Ek Patthar Ki Baodi) stating that it is not protected monument under the Act of 1958. Secondly, non-interference qua possession over 11.970 hectare of Khasra 99 said to be allotted by the Central Government. Pertinently, the second issue emanates from order dated 15.04.2014 passed by the Director General, Archaeological Survey Of India in exercise of his power under Sections 20A, 20C, 30 of 1958 Act (as amended in 2010) read with Rule 38(1) of the Rules 1959), the order is reproduced below for ready reference:
"F.No.25/5-29/2012-M Government of India Archaelogical Survey of India :: 42 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) Janpath, New Delhi Dated: 15 APR 2014 ORDER WHEREAS, it has been brought to the notice this office that, Shri Ajit Baraiya S/o Shri Biharial Baraiya, owner/occupier of the property situated at Secretary, Shri Digambar Jain Atishay area, Gopalchal Parvat Sanrakshak Nyas Mahalgaw Gwalior (Madhya Pradesh) is carrying out unauthorized construction within the prohibited area of RockcutJaincolossi (Ek Pathar Ki Baili) Gwalior a Centrally protected monuments.
AND WHEREAS, sub-section (1) of Section 20A of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (as amended), provides 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 meters in all directions shall be the prohibited area in repsect of such protected area or protected monument.
AND WHEREAS, sub-section (1) of Section 20(C) of the Ancient Monuments and Archeological Sites and Remains Act, 1958 (as amended), provides that, 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 such building or structure, may make any application to the Competent Authority for carrying out such repair or renovation as the case may be;
AND WHEREAS, Section 30A further provides that, whoever raises, on or after the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment And Validation) Act, 2010, receives the assent of the President, any construction in the prohibited area, shall be punishable with imprisonment not exceeding two years or with fine which may extend to one lakh rupees or with both;
AND WHEREAS, by carrying out the aforesaid unauthorized construction, Shri Ajit Baraiya, owner/occupier of the aforesaid premises appears to have contravened the provisions of sub-section (1) of section 20C and therefore liable for action under Section 30A the Act.
NOW THEREFORE, the Central Government in exercise of its :: 43 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) powers under sub-section (1) of Rule 38 of the Ancient Monuments and Archaeological Sites and Remains Act, 1959, hereby directs Shri Ajit Baraiya, owner/occupier of the aforesaid presmises which is situated witin the prohibited area of centrally protected monument namely, RockcutJaincolossi (Ek Pathar ki Baili) Gwalior to remove such unauthorized building/construction within seven days of the receipt of this notice, failing whicih, the Central Government shall in exercise of its powers under sub-rule (2) of Rule 38 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, cause the authorized building/construction removed at his/her/their cost and expenses.
(Pravin Srivastava) Director General."
23. Taking up the second issue first. It is contended on behalf of the intervenor that the land in question has been allotted to the Trust by the Government of India. The contention finds mention in paragraph 18 of IA.3644/2014; wherein , it is stated:
"18. That, the Jain Community had to take the permission of authorities at the time of functions, fairs, etc and was facing difficulties to carry out the worship activities and provide security to the community members in the valley beneath. Thus, the land surrounding Gopachal Parwat was transferred by the Govt. Of India, Ministry of Environment and Forest, vide order dated 23.3.2000. This land is having area 11.970 hectare at these stones are being used to check the erosion of soil from the water runing off from the hill. This landscaping has completely transformed the area in a tourist place. No other community is being stopped from enterting the place and its is open to all citizens. Thus, what should have been done by the Central of the State Government has been done by the :: 44 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) intervenor. Photographs of the spot showing the massive afforestation and planation work done by the intervenor are annexed herewith and marked as Annexure IA-17."
24. Though order dated 23.03.2000 finds mention in this paragraph. However, the record reveals that the order dated 25.01.2000 preceded said order which is in the following terms:
"F.No.8-196/90-FC Government of India Ministry of Environment & Forests F.C. Division Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi-110003 Date: 25.1.2000 To, The Secretary (Forests), Government of M.P. Bhopal.
Sub: Diversion of 11.970 ha. Forest land in Gwalior district Madhya Pradesh for Shri Digambar Jain Atishay Ksetra Gopachal Parvat Sanrakshak Nyas.
Sir, I am directed to refer to your letter No.F-5/54/90/10/3 dated 30.10.90 and CCF (LS), Madhya Pradesh letter No.10/99/Misc./177 dated 13.1.2000 on the above mentioned subject seeking prior approval of the Central Govt. In accordance with Section-2 of Forest (Conservation) Act, 1980.
2. After careful consideration of the proposal of the State Govt., the Central Govt., hereby, conveys its approval under Section-2 of the Forest (Conservation) Act, 1980, for diversion of 11.970 ha. forest land in Gwalior district of Madhya Pradesh for Shri Digambar Jain Atishay Ksetra Gopachal Parvat Sanrakshak Nyas subject to following conditions:-
(i) Legal status of forest land shall remain unchanged.
:: 45 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others)
(ii) Compensatory afforestation shall be raised over equivalent non-forst land at the proejct cost which shall be declared Protected forest/Reserve forest under Indian Forest Act, 1927.
(iii) Penal compensatory afforestation will be carried out over 0.03 hectare non-forest land at the cost of user agency.
(iv) The area shall be protected by fencing/boundary wall/watch & ward at the cost of user agency.
(v) Construction of permanent structures in the premises shall not be permitted.
(vi) Any other condition that the State Govt. Or the Chief Conservator of Forests (Central), Regional Office, Bhopal may impose from time to in the interest of conservation, protection or development of forests.
Yours faithfully, (R.K. Gupta) Assistant Inspector General of Forests"
25. Close reading of the sanction by the Ministry of Environment and Forests reveals that the same is in furtherance to State of Madhya Pradesh's letter No.F-5/54/90/90/3 dated 30.10.1990 and CCF (LS) Madhya Pradesh letter No.10/99/Misc./177 dated 13.1.2000. When enquired about from the contesting parties, we are informed that the State of Madhya Pradesh claimed the land (11.970 hect.) to be their's (i.e. State of Madhya Pradesh) transferred it to in favour of the intervenor Trust.
26. The question is whether when the State Government has no title over the land in question will such transfer creates right in favour of the intervenor. Evidently the State Government was oblivous of the letter dated 6.1.1959 issued by the Government of India qua the :: 46 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) vesting of land belonging to Part B State in the Union Government.
As adverted supra we are not commended to any cogent material documentary evidence to establish vesting of land of Part B State in the State of Madhya Pradesh. An entry in the Revenue Record (such as Khasra entry) does not ipso facto a proof of vesting of land of Part B State in the State of Madhya Pradesh. Thus the State of Madhya Pradesh was acting without any authority under law by assuming title over the land belonging to Union Government. In that event the transfer of land in question (i.e. 11.970 hectare of Khasra
99) in favour of the intervenor Trust is without any legal sanction and therefore void ab initio.
27. As there exist no legal title in the intervenor over 11.970 hectares of Khasra 99, the initiation of action under section 22C read with section 30A of 1958 Act (as amended in 2010) by the Archaeological Survey of India read with Rule 38 (1) of the Rules 1959 cannot be faulted with.
28. Coming to first issue qua Jain idols led by idol of Bhagwan Parshwanath situated at Gopachal Parwat (Ek Pathar Ki Baodi), it is contended on behalf of the intervenor that Jain religious place of worship, commonly known as Gopachal Parwat (Ek Pathar Ki Baodi) is situated outside the Fort on the rock near Marimata (Phoolbagh) and are not protected monument under the Act of 1958. It is urged that rock-cut idols are scattered all over Gwalior Fort, within the Fort :: 47 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) as well as outside the Fort on the rock beneath outer walls. Idols at Gopachal Parwat are situated outside the wall of the Fort at North direction and are prominently situated at three places, viz, near Koteshwar at Gopachal Parwat and inside Girwai Gate of the Gwalior Fort. It is urged that only the idols situated on the wall of Fort inside Urwai Gate which lies to south-west direction are protected monuments. The intervenor has relied on the Schedule appended with the Ancient Monument Preservation Act, 1904 and the Ancient and Historical Monuments and Archaeological Sites and Remains Ac, 1951. Adverting to notification dated 2.1.1954 where entry 97A was inserted by deleting entry 105 (Entry 97 A stipulates "Rock-cut Colossi: Gwalior as historical monuments in the Gwalior Fort) it is urged that entry 97A is confined only to such Rock-cut Colossi in Gwalior Fort and not outside. The intervenor has also relied on the publication of Archaeological Department of Government of Madhya Bharat dated 28.12.1952 titled as "The Cultural Heritage of Madhya Bharat", it is urged that it is only the Colossi at Urwai Gate and not at Gopachal Parwat which are ancient monument. Further placing reliance on the order passed in Writ Petition No.1664/2004, it is urged that the Authorities of Union of India and of State of Madhya Pradesh were directed to sit together and decide the issue as regard to whether the carvings at Gopachal Parwat are the protected monuments. It is further contended that the :: 48 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) idols at Gopachal Parwat are being worshiped from ages with prior permission from Authorities concerned whether it was erstwhile Princely State or the present time. As regard to constructions in the area, it is urged that the same is after prior permission and thus does not violate any law.
29. The Archaeological Survey of India has filed the counter to I.A.No.3644/2014, wherein it is stated that:
"5. That, prior to the act of 1958 there were two Acts i.e. Ancient Monuments Preservation Act 1904 and the Ancient and Historical Monuments and Archaeological Sites and Remains Act 1951. Both these acts were repealed by virtue of section 39. However by virtue of section 3 all the monuments and the sites already declared under these two repealed Acts are deemed to be ancients monuments or archaeological sites and remains declared has national importance for the purpose of Act 1958.
6. That, as per the list published under the act of 1951 declaring the monuments of national importance is annexed here with and marked as Annexure R-9/1. By perusal of list at serial No.105 the monuments were declared of national importance in which the rock cut jain colossi is mentioned.
7. That, so far as the averments of the intervenor relating to the rock cut jain colossi is concerned are denied. The intervenor is trying to establish that the jain sculptures are in three groups and separate declaration was to be made. Fact remains that the jain sculptures :: 49 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) are not divided in parts they are named as rock cut jain colossi situated on the outer periphery of the fort. The proximity surrounding the fort having rock cut jain colossi has been declared as a protected monuments. The intervenor is misleading by saying it Ek Patthar Ki Bawadi.
8. That, so far as the contention of the intervenor in relation to the fact that he was allowed to hold some Utsav at the disputed place it is humbly submitted that by bare perusal of the documents annexure I-A-8 to I-A-
14. It will be the crystal clear that he was only allowed to hold Utsav for a particular time, at no point of time he was declared as a title holder of the land. Therefore the intervenor cannot say that because he was allowed to hold Utsav he has any right over the land.
9. That, so far as the averments of the intervenor in his application regarding Tansen Makbra and Mohammad Ghaus Dargah is concerned it is most humbly submitted that this Hon'ble Court in the writ petition No.1692/2010 (PIL) have issued directions vide order dated 20.2.2014 to identify the encroachment and to remove the encroachment. Copy of the order dated 20.2.2014 is annexed here with and marked as Annexure R-9/2. The respondent No.9 have also informed about the encroachment made by the encroachers to the state authorities even prior to issuance of directions by this Hon'ble Court in the PIL No.1692/2010 and after words also the letters were written and the state authorities were informed that encroachment may kindly be removed so that the :: 50 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) centrally protected monuments be saved. Copy of some letters are annexed here with and marked as Annexure R- 9/3.
10. That, so far as the locus of the intervenor is concerned it is here by most humbly submitted that the intervenor has no right or locus to intervene in the matter by way of claiming any right over the land which has already been directed to be mutated in the name of Archaeological Survey of India.
11. That, the intervenor in the year 2005 filed an application before Collector Gwalior in which the Collector Gwalior allowed to intervenor to hold the meetings and Pooja vide order dated 28.1.2008 which is already on record as IA-6. Against the order dated 28.1.2008 the respondent No.9 preferred an appeal before the Commissioner Gwalior. The Commissioner Gwalior decided the the appeal on 28.1.2014 and observed that appeal is not maintainable because it is not clear that under which the provisions of MPLRC the order of lower court has been passed therefore appeal is not maintainable. Thereafter the respondent No.9 filed a W.P.No.3090/2014 before this Hon'ble Court notices have been issued by the Hon'ble Court but no reply till date has been filed.
12. That, it is most humbly submitted that the intervenor has no locus to intervene in the matter under the provisions of Act 1958. Therefore the application may kindly be dismissed in the interest of justice.
13. That, the main objective of the Archaeological Survey of India is to preserve the monuments by doing :: 51 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) its conservation, restoration and also by controlling the illegal activities. The rock cut jain colossi is a centrally protected monuments. Status of the monuments cannot be ascertained from the size of the images.
14. That, under section 14 and 16 of the Act 1958 the protection of the protected monuments is to be maintained by the answering respondent.
15. That, there are rules which have been framed named as monuments and Archaeological Sites and Remains Rules 1959. The Rule 7 restricts the holding the of meetings and Utsav etc. in the premises.
16. That, from the above said submissions it is hereby most humbly submitted that an application filed by the intervenor may kindly be dismissed as he has no locus to intervene in the matter by virtue of claiming any right."
30. Though we have elaborately noted down the submission made on behalf of the intervenor in I.A.No.3644/2014 and the Archaeological Survey of India. However, the fact remains that a decision is already taken by the Director General, A.S.I. on 15.4.2014 and the intervenor has chosen not to challenge the said order and has allowed the same to attain finality, we therefore, refrain from getting into the alleged controversy as to whether a particular carving situated at a particular place in or on the rocks over which the Gwalior Fort is situated are protected monuments. The intervention application I.A.No.3644/2014 stands disposed of finally. That during course of hearing learned counsel for the intervenor had :: 52 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) relied upon the decision in W.P.No.1220/2006 (Archaeological Survey of India Vs. State of M.P. and others) and Writ Petition No.4159/2006 (Mohd.Ajam Khan Vs. Archaeological Survey of India and others) decided on 17.9.2012 and the decision by Hon'ble Supreme Court in Civil Appeal No.5529/2014 (Archaeological Survey of India Vs. State of M.P. and others) (arising out of SLP (C) No.9923/2013) claiming parity. However, having gone through the decisions in Archaeological Survey of India Vs. State of M.P. and others, Mohd.Ajam Khan Vs. Archaeological Survey of India and others and Archaeological Survey of India Vs. State of M.P. and others (supra), we are of considered opinion that the decisions therein turns on its own facts and is of no assistance to the intervenors in present fact situation.
31. We further take note of the facts that there are other interlocutory applications; viz, I.A.No.1648/2017 and I.A.No.1564/2017 and Writ Petitions No.834/2017, 881/2017, 884/2017 and 889/2017. Evidently, these applications and writ petitions are at the instance of the persons who are found having raised construction within the periphery of the protected area and are subjected to show cause notice. Since their matter and of similarly situated other persons are at the stage of show cause notice; therefore, we refrain from making any observation on their respective rights. The Competent Authority of the Archaeological Survey of India is :: 53 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) set at liberty to dwell on the same in accordance with law and after affording opportunity of hearing to all the concerns. The interim order dated 6.2.2017 passed in W.P.No.834/2017, W.P.No.881/2017, W.P.No.884/2017 and W.P.No.889/2017 stand vacated.
32. In view whereof, the petition is disposed of with the direction to the State of Madhya Pradesh and its functionaries to correct its revenue record by recording the name of Central Govt. Archaeological Survey of India over the land admeasuring 37.404 hectare as find mention in the communication dated 20.3.2001 within thirty days from the date of communication of this order. Thereafter, the Authorities of Archaeological Survey of India would be at liberty to take all such steps permissible in law to protect/restore its property.
33. The petitions are finally disposed of in above terms. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
Pawar/-
Per Vivek Agarwal, J:
While concurring with the judgment by Brother Justice Shri Sanjay Yadav I take an opportunity to add few lines in the context of the reference made by the learned counsel for the intervenor Shri Vivek Jain, appearing for Shri Digambar Jain Atishay Kehstra Gopachal Parwat Sanrakshak Nyas, seeking parity with the decision in Civil Appeal No.5529/2014 (arising out of SLP (Civil) :: 54 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) No.9923/2013). It is his contention that under similar facts and circumstances in W.P.No.1220/2006 - Archaeological Survey of India Vs. State of M.P. and others and in W.P.No.4159/2006 - Mohd. Ajam Khan Vs. Archaeological Survey of India and others decided by the Principal Seat at Jabalpur on 17.9.2012, similar controversy was involved in regard to Jain Temples which were constructed sometime in 6th-7th Century A.D. and scattered over an area of 199.45 acres in village Kundalpur, Fatepur and Teergarh in Tahsil Hata, District Damoh inclulding the temple of 'Bade Baba' at village Kundalpur. It is submitted that Archaeological Survey of India and another person had claimed that such monuments in District Damoh were protected monuments as declared by the Chief Commissioner, Central Provinces under Section 3 (1) of the Archaeological Monuments Preservation Act, 1904 by notification dt.16.7.1913 and the Chief Commissioner had vide notification dt.30.11.2014 confirmed the notification dt.16.7.1913 and in that case another issue was in regard to construction being carried by followers of Jain faith in the reserved forest. It is submitted that these contentions of the petitioners were not accepted and petitions were rejected.
2. It is urged that the matter travelled to Supreme Court in Civil Appeal No.5529/2014 arising out of SLP (Civil) No.9923 of 2013 Archaeological Survey of India Vs. State of M.P. and others and Hon'ble Supreme Court has confirmed the Division Bench judgment :: 55 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) of M.P. High Court holding that Archaeological Survey of India has no jurisdiction in the matter.
3. Placing reliance on these judgments, it is submitted that case of the intervenors is fully covered by the said judgments of Principal Seat at Jabalpur and of the Hon'ble Supreme Court.
4. In the context of submissions made on behalf of the intervenor, it will be appropriate to refer to the facts and reasoning supplied by the High Court and affirmed by the Hon'ble Supreme Court while rejecting the contention of Archaeological Survey of India in case of temple belonging to Jain faith at village Kundalpur, namely; there was no declaration under the 1951 Act as well as 1958 Act and the State Government in exercise of powers under Entry No.12 of List II of Schedule 7 to the Constitution of India enacted the Madhya Pradesh Archaeological Monuments and Sites and Remains Act 1964 and the monuments in question in those cases are covered by the provisions of the 1964 Act. Secondly, the Government of India Act, 1935 brought about the concept of federal government with distribution of powers.
In the Act of 1935, the subject "ancient historical monuments and archaeological sites and remains" was put in the Federal List. By the Government of India (Adoption of Indian Laws) Order, 1937, the provisions of 1904 Act were adopted and it was provided that the expression 'local Government' shall be read as Central Government. After commencement of the Constitution of India, the Parliament :: 56 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) enacted the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 to declare certain ancient and historical monuments and remains in Part A States and Part B States to be of 'national importance' and to provide for certain matters connected therewith. It has been observed that all protected monuments under the 1904 Act did not automatically become monuments of national importance. Part I of the Schedule of 1951 Act states that all ancient and historical monuments which before the 1st day of April, 1956 have either been declared by the Central Government to be protected monuments within the meaning of 1904 Act or possession of which has been taken by the Central Government as protected monuments shall be monuments of national importance. It has come on record that after issuance of the notification dt.16.7.1913 and 20.11.1914, there is no evidence to show that the Commissioner/Collector ever assumed the guardianship of the temple in question in district Damoh. It has been held in that case that the monuments in question has since not been declared to be of national importance and since the same is an ancient monument, therefore, it would be governed by the provisions of 1964 Act.
Similarly, it has come on record that in that case initially, land admeasuring 221.87 acres was proposed to be notified under Section 4 of the Indian Forest Act, 1927 as reserved forest but notification dt.4.3.1974 issued under Section 20 of the Indian Forest Act, notified :: 57 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) only 63.25 acres of land as reserved forest and therefore contentions of the Archaeological Survey of India before the Principal Seat that construction was being made on the reserved forest land was not accepted.
5. Hon'ble Supreme Court after taking note of Jain Philosophy, religion and culture held that for the reasons assigned by the Division Bench of this High Court, Archaeological Survey of India has no jurisdiction in the matter and the archaeological site in question is covered by the 1964 Act over which it is the State Government authorities who are competent to play their statutory role in accordance with the provisions of the 1964 Act.
6. However, facts of the present case are different. It is to be seen and appreciated that monuments namely Rock-cut-jain-colossi is part of Schedule under 1951 Act as well as 1958 Act and by no stretch of imagination the provisions of 1964 Act are applicable. In fact, this fact has been accepted by the State Government when its Principal Secretary in the Department of Culture issued order dt.20.3.2001 reproduced above in the main judgment. Therefore, contention of the learned counsel for the intervenor that the present case is similar to that wherein temples in District Dahoh have been declared to be not within the control of Archaeological Survey of India is clearly not made out and this contention deserves to be rejected and is rejected.
7. Therefore, for the reasons assigned in the main judgment, I :: 58 ::
Writ Petition No.8509/2011 (PIL)( Mata Prasad Vs. State of Madhya Pradesh and others) respectfully concur that the intevener namely; Shri Digambar Jain Atishay Kehstra Gopachal Parwat Sanrakshak Nyas or anybody else except Archaeological Survey of India has no authority to keep control over the Rock-cut-jain-colossi, Ek Patthar Ki Bawdi is part of which and therefore Gopachal Parvat has to be handed over to the Archaeological Survey of India and the land including that of Gopachal Parwat measuring 11.970 hectares of Khasra No.99 is to be recorded in the name of Archaeological Survey of India as it is very much part of the protected monument so notified under the 1958 Act.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
Pawar/
ASHISH
PAWAR
2019.06.04
15:31:57
+05'30'