Andhra Pradesh High Court - Amravati
L. Rani Sharma Emani, vs Sri Dinesh Kumar, I.A.S., on 5 September, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION (PIL) Nos. 173 of 2016, 64 of 2019
&
CONTEMPT CASE No.3011 of 2018
COMMON ORDER:(per Hon'ble Sri Justice M.Satyanarayana Murthy)
1) W.P.(PIL) No.173 of 2016 is filed byLP Prof.(Retd) K.Thimma Reddy, L.Rani Sarma Emani and Dr.Sarada Channapragada. The second petitioner in W.P(PIL).173 of 2016 also filed the other Writ Petition (PIL) No.64 of 2019. The respondents 1 to 8 in both the writ petitions are common. Whereas the 9th respondent in W.P(PIL)173 of 2016 is the Film Nagar Cultural Centre (FNCC), Visakhapatnam. During the pendency of the Writ Petition, respondent Nos.10 and 11 are impleaded by suo-motu order dated 04.12.2018. However, the issue involved in both the writ petitions is identical, we are of the view that it is appropriate to dispose of both the writ petitions by a common order.
2) The three petitioners, including the sole petitioner in W.P.No.64 of 2019, filed W.P.PIL.No.173 of 2016 claiming writ of mandamus declaring the action of the respondents/1 to 8 in alienating the land in and around the archaeological site of Buddhist complex at Thotlakonda, Bheemunipatnam Mandal, Visakhapatnam District as illegal, unconstitutional and consequently set-aside the G.O.Ms.No.282 dated 05.07.2016 issued by the first respondent while holding that no activity can be permitted effecting the sensitive ecological zone and hills and the area of archaeology site as notified in G.O.Rt.No.627 dated 02.05.1978 2 while directing the respondent Nos.1 to 8 to take up further scientific excavation, study around Thotlakonda archaeological site for its preservation for posterity.
3) Whereas W.P.No.64 of 2019 is filed by the second petitioner in the other Writ Petition, claiming an identical relief of mandamus declaring the action of the respondent/authorities in permitting construction activity in and round the archaeological site of Buddhist complex at Thotlakonda, Bheemunipatmnam Mandal, Visakhapatnam District notified in G.O.Rt.No.627 dated 02.05.1978 as illegal, unconstitutional and consequently set-aside the Lr.No.H/20/201/18/2018 dated 17.07.2018 issued by the third respondent while holding that no construction activity be permitted effecting the sensitive ecological zone and hills and the area of archaeology site as notified in G.O.Rt.No.627 while directing the respondents to take up further scientific excavation, study around Thotlakonda archaeological site for its preservation for posterity.
4) As the allegations in both the Writ Petitions are almost similar except allotting site to a third party in Writ Petition No.64 of 2019, the W.P.(PIL) No.173 of 2016 is taken as principal petition for deciding the issue involved in both the matters.
5) The alienation of land in favour of 9th respondent originally, and the other respondents 10 and 11 who were impleaded as respondents by order dated 04.12.2018, by issuing G.O.Ms.No.282 dated 05.07.2016 and letter No.H/201/2015/2018 dated 17.07.2018 allotting land to Film Nagar Cultural Centre, Visakhapatnam and A.P.Tourism Department Corporation Limited is violative of G.O.Ms.No.571, which prohibits 3 alienation of land. A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960 (Andhra Pradesh Act VII of 1960) and rules framed thereunder are also violated by allotting the site to the 9th and 10th respondents.
6) The petitioners' main contention is that the Buddhist site of Thotlakonda was notified under statutory notification through G.O.Rt.No.627 dated 02.05.1978 issued under A.P.Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960. The Buddhist site of Thotlakonda is situated in erstwhile Survey No.314 of Mangamaripet village hamlet of Kapuluppada in Bheemunipatnam Taluk of Visakhapatnam District now this falls under Kapulappada Revenue village of Bheemunipatnam Mandal. The site is declared as protected monument by G.O.Rt.No.627 and the description of the property notified is as follows :-
"The ancient site Totlakonda situated in SY.No.314 at Mangamaripet (village) Hamlet of Kapuluppada in Bheemunipatnam Taluk of Visakhapatnam District bounded by East : S.No.295 and 296 West : Hill North : Hill South : Hill
7) Strangely, two survey numbers were carved out of this Survey No.314. The nomenclature is sub-divided into Sy.Nos.395 and 413 in the re-survey and when the revenue records are perused, for the first time it creates an impression that the protected monument in Sy.No.314 and the 4 present land, which is allotted, in different survey numbers and by adopting such policy the officers wanted to escape from the scrutiny by this Court.
8) After declaration of Thotlakonda as archaeology site, the final demarcation and incorporation in the revenue records are not done. The notified zone of archaeology site has to be protected as there are many potential archaeological elements/features that exist all around the presently excavated site within erstwhile S.No.314 and further excavations and studies are necessary. A comprehensive study by Dr.Fogelin, a well known scholar and the author of the Book "Archaeology of Early Buddhism" based on his research on Thotlakonda was acknowledged and taken note by the Archaeology Department. In his book at page No.122 he stated that "permits allowed for survey up to five kilometers from Thotlakonda monastery. In the survey results he records that 231 cairns (burial places, where perhaps Buddhist monks were buried), 33 walls, a single stupa, 4 simple undecorated column, 9 cisterns and 2 reservoirs were found spread on the Thotlakonda Hill, other than the main monastic complex."
9) The Ancient Monuments and Archaeological Sites and Remains Act and the Rules, Notifications issued therein required that not only the notified archaeological site should be fully protected but also no construction activity be permitted within a buffer zone of 300 meters around it. The buffer zone is divided into "prohibited" "protected' and "regulated" zones 100 meters each and it was reiterated in the order dated 16.06.2012 by the Apex Court in Appeal Nos.2430 and 2431 of 2006 with regard to Jantar Mantar Monument in Delhi. The Thotlakonda 5 is an important Buddhist Heritage site. The hill had a full-fledged functioning monastery with a large main stupa on a platform, 17 votive stupas, 14 chaitya grihas, 72 monastic cells, a pillared assembly hall, a refectory, a kitchen, two storage rooms, 10 water cisterns, a deepastambha, stone paved pavements and a large water tank, where Buddhist monks lived, meditated, studied, and taught Buddha dharma. The monastic establishment had trade links with Rome on one hand and far eastern countries on the other. The occurrence of Roman coins of the period of Augustus and Tiberius Caesar reveal that the monastery gave shelter to the traders who plied their ware along the Bay of Bengal. Thus, the Thotlakonda Buddhist monastery has great cultural and historical significance.
10) The heritage site is sought to be ravaged by permitting construction for an exclusive activity like the Film Nagar Cultural Centre and A.P. Tourism Development Corporation Limited does not serve a public purpose. As per the reports, the admission fee into the Film Nagar Cultural Centre is Rs.17 Lakhs for membership of the Club whereas the land was given for a lease amount of Rs.1.5 lakhs per year for the entire land of 15 acres. This kind of distribution of largesse has always been deprecated by the courts. The Officers already removed the Fishermen from their traditional abode in the name of preservation of culture and now Film Nagar is given land from a notified archaeological site. In the process of fulfilling their intention to provide site to 9th and 10th respondents, the State Government issued G.O.Ms.No.282 dated 05.07.2016 and letter was for alienation in favour of 9th respondent and letter No.H/201/2016/2018 dated 17.07.2018 for allotment of land to 10th 6 respondent for amusement centre etc., and issue of the G.O., and letter is in undue haste, though establishment of Film Nagar Cultural Centre and Amusement centre would not serve any public purpose.
11) It is further contended that the alienation for the construction activity cannot be permitted within the notified area of the archaeological site and as per the VUDA Master plan, which in itself is a statutory plan formulated under the A.P.Urban Areas Development Act, and this site being hill poramboke land, and a sensitive ecological zone which has to be preserved. In Jagpal Singh and others v. State of Punjab (Civil Appeal No.1132/2011 @ SLP (c) 3109 of 2011), the Apex Court has directed all the states on 28.01.2011 that poramboke lands of ecological significance should not be alienated to private parties. The same VUDA master plan has also identified Thotlakonda as a heritage archaeological site to be conserved. Thus, the alienation and the present construction activity are in violation of not only A.P.Act 7/1960 but also the master plan for the Visakhapatnam Urban Development Authority. While the matter stood thus, the National Trust for Art and Cultural Heritage (INTACH) protested against laying of a road and the petitioners were also associate with the same society.
12) In 2012 a proposal was made by Maha Bodhi Society and it was considered by VUDA in 2012 on the ground that the site in question within erstwhile S.No.314 was classified as a heritage archaeological site to be conserved and an appropriate recommendation was given to the Government. But the Government till date has not allotted the land to the society and therefore, the issuance of G.O.282 and alienating the heritage site of Thotlakonda which is notified by the Act 7/1960 and 7 similarly issuance letter No. H/201/2016/2018 dated 17.07.2018 for alienation of land to the 10th respondent is contrary to the law laid down by the Apex Court and provisions of A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960 and requested to set-aside the G.O. and letter in both the writ petitions and other reliefs as stated above.
13) Notices were served and a counter on behalf of 3rd and 4th respondents was filed by the Commissioner (Director) of the Department of Archaeology and Museums, Goollapudi, Vijayawada, denying the material allegations inter-alia contending that the notification under Section 4(1) of the A.P. Act 7/1960 proposing for declaration of the ancient monument Totlakonda, Mangamaripeta, Buddhist site Visakhapatnam situated on S.No.314 was issued on 01.09.1976. A copy of the letter No.D1/3088/46 dated 01.09.1976 is placed on record for perusal. The Registering Officer, Visakhapatnam submitted boundary particulars of Buddhist complex situated as a hillock at Managemaripeta H/o.Kapaluppada covering 120 Acres in Sy.No.314 and the letter No.2/76 dated 21.09.1976 is placed on record along with counter. According to Section 4(1) notification, G.O.Rt.No.1700 Edn dated 05.10.1976 was issued without mentioning the extent of area. The Registering Officer, Visakhapatnam submitted a letter to the Director dated 27.11.1976 pointing out certain printing mistakes in the said G.O. The first point was that the village of Mangamaripeta was wrongly notified as lying in Visakhapatnam taluk instead of Bhimunipatnam taluk and secondly the area where the monument situated was not given in its extent i.e., 120 acres of land within the boundaries as mentioned in his letter and 8 requested to rectify the mistake by issuing an amendment to the G.O. Further, the Government issued G.O.Rt.No.2069 dated 17.12.1976, 4(1) notification supersession of the order issued in G.O.Rt.No.1700 Edn dated 05.10.1976. According to the G.O., Totlakonda situated in S.No.314, but not mentioned the extent of the area. Subsequently, the Government issued 4(3) notification by G.O.Rt.No.627 dated 02.05.1978, the ancient site, Totlakonda situated in Sy.No.314 at Mangamaripeta village, Hamlet of Kapuluppada in Bheemilipatnam Taluk of Visakhapatnam District bounded by "East - S.No.295 & 296; West, North, South - Hill. In the year 1976, the Tahasildar and Surveyor of Bheemili had surveyed the Buddhist monuments and its surrounding places and prepared a sketch. They found that the site consists of Buddhist monuments in Sy.No.314 at Thotlakonda, Mangamaripet village, Bheemunipatnam Taluk, Visakhapatnam District is admeasuring Ac.7.68 cents and archaeological remains has been extending about Ac.120.00 cents in total including Ac.7.68 cents in Sy.No.314. Except in the Buddhist monument site, no Buddhist monuments/Archaeological remains have been existing in the remaining hills/land in Sy.No.314. The Registering Officer, Archaeology and Museums Department, Visakhapatnam submitted letter Lr.No.2/1976 dated 16.11.1976 along with the sketch to the District Collector Visakhapatnam about the requirement of land for Buddhist Monuments site. Government of Andhra Pradesh notified the Buddhist monuments site as protected monuments vide G.O.Rt.No.627 dated 02.05.1978 and issued notification under Section 4(3) of the Act. The total extent of the Buddhist Monuments site was not mentioned in the said notification. A sketch 9 prepared by Tahasildar and Surveyor and a letter dated 16.11.1976 are placed for perusal of the court.
14) It is specifically contended that the land was allotted to the Film Nagar Cultural Centre vide G.O.Ms.No.282 dated 05.07.2016 is not a part of Buddhist Monuments site. As such there is no violation of the provisions of the Act. The Collector, Visakhapatnam had addressed a letter No.REV-ESECOLND(ATGL)101/2017 TYP(E)-VSKPCO dated 16.04.2017 to the Special Chief Secretary, Revenue Department wherein he submitted that G.O.Ms.No.627 dated 02.05.1978 the ancient site, Totlakoinda situated in S.No.314 at Mangamaripatnam village, hamlet of Kapuluppada in Bheeminipatnam Taluk of Visakhapatnam is proposed to be declared as a protected monument. They noticed that the area covered by the said Buddhist complex in Sy.No.314 and the sub-division details, which is proposed to be declared as a protected monument, are not specified properly. They received report and sketch from the Registering Officer, Archaeology & Museums, Visakhapatnam and noticed that the approximate area covered by the monument and old ruins which has got Archaeological importance is shown as Acs.120.00 cts. Only. Thus, the Revenue Divisional Officer, Visakhapatnam and Tahasildar Bheeminipatnam has stated in their letters as per the FMB sketch of Kapuluppada village, the total extent of the land in Sy.No.314 is Acs.3143.40 cts. The survey work in respect of the proposed land admeasuring Acs.120.88 cts was completed in the presence of Registering Officer, Archaeology and Museums, Visakhapatnam and Sub Division records were prepared and denoted as Sy.No.416/2 (carved out from Sy.No.314 of Kapuluppada village). The sub-division records were 10 also scrutinized by the Dy.Inspector of Survey, Visakhapatnam, and requested to take necessary steps to revise the notification issued earlier duly citing the extent as Acs.120.88 cts. and also Division No.416/2 as the area which proposed to be declared as a protected monument.
15) The Special Chief Secretary and the Chief Commissioner of Land Administration, A.P., Vijayawada has addressed a letter to Spl. Chief Secretary & Principal Secretary to the Government, Revenue (Lands) Department informing that the Collector Visakhapantam District has stated that as per the FMB sketch of Kapuluppada village, the total extent of the land in Sy.No.314 is 3143.40 Acres and the survey work in respect of the proposed land admeasuring 120.88 acres was completed in the presence of Registering Officer, Archaeology & Museums, Visakhapatnam. Finally, it is specifically informed that a letter was received from the Collector, Visakhapatnam on the Archaeology site Buddhist complex at Mangamaripeta in Bheemunipatnam taluk, Visakhapatnam District and the Government declared the ancient site situated in Sy.No.314 in Mangamaripeta village as a protected monument vide G.O.Rt.No.627, Education (L) Department, dated 02.05.1978 under Section 4(3) of the Andhra Pradesh Act 7 of 1960 and requested the Commissioner to furnish necessary proposals for taking further action and after receipt of proposal by letter No.38/2017 dated 20.02.2018 along with sketch map from the Tahsildar, Bheemunipatnam it is pleaded that the notified area is only an extent of Acs.120.88 cts and the same was subdivided and denoted as new S.No.416 in Sy.No.314 part of Kapuluppada village. It is also specifically contended that the Department of Archaeology and Museums has conducted excavations 11 from the year 1987 to 1992 in the site admeasuring Ac.7.68 cents in the Buddhist Monument site. The respondent admitted that the protected area is the archaeological site where the ancient monuments and remains are in existence, prohibited area is an extent of 100 meters in all directions starting from the protected area limits and regulated area is an extent from 101 to 300 meters in all directions starting from the protected area limits. Both mining operations and construction activities are prohibited in the protected area and prohibited area. In the regulated area new construction/re-construction/modification to the existing building/structure activities can be carried out with the prior permission from the competent authority. Therefore, the present dispute is with regard to Buddhist monuments site is a protected area and Archaeology & Museums Department has been protecting and following the importance of the Buddhist Monument site and no mining/construction activities have been carrying out in the protected area/prohibited area. Therefore, the issuance of G.O.Ms.No.282 dated 05.07.2016 allotting site to 9th respondent and proposing to allot site to 10th respondent by Lr.No.H/20/201/18/2018 dated 17.07.2018 is true but the site proposal to be allotted is beyond Acs.120.88 sub-divided from the original Sy.No.314. A letter was addressed by the Archaeology & Museums Department dated 01.03.2018 to the Secretary, Youth Advance Tourism and Culture Department, Government of A.P., requesting to issue a revised notification under Section 4(3) of the Act duly incorporating the sub-divided survey number 416/2 and the extent of the Buddhist Monument site of Ac.120.88 cents. Thus, the monument is only in an extent of Acs.120.88 cents and the proposal is still pending 12 for issuance of amended or revised notification under Section 4(3) of the Act as on the date of filing counter by the respondents 3 and 4.
16) Respondent No.6 i.e., Tahasildar, Bheemunipatnam, Visakhapatnam filed counter denying the material allegations and contended that Kapuluppada village of the erstwhile Bheemunipatnam Taluk and presently in Bheemunipatnam Mandal was an Estate village, taken over by the Government under the provisions of A.P.Estates (Abolition & Conversion into Ryotwari) Act, 1948 and after completion of survey and settlement operation, the settlement rates were introduced in the village. During the settlement operation, the land measuring to an extent of Ac.3,148.43 cents situated in S.No.314 vested on Government under the provisions of Section 3(b) of the A.P. Estates (Aboliton and Conversion into Ryotwari) Act, 1948 being classified as "Hill Poramboke". It is further contended that the area of Ac.3,148.43 cents in Sy.No.314 of Kapuluppada village is not a single hill but consists of range of hills with slopes spreading right from the boundary of Nagarapalem village, Bheemunipatnam Mandal at North of the village of Madhurawada of Visakhapatnam Rural Mandal and one among such hills is Thotlakonda situated in Mangamaripeta hamlet of Kapuluppada a top of which there exist Buddhist Monuments spreading in an extent of about Ac.8.00 cts. It is further contended that on a requisition filed in Appendix XXIX as required under B.S.O., by Film Nagar Cultural Centre for alienation of Government land measuring an extent of Ac.15.00 cents in S.No.395 and Sy.No.413 of Kapuluppada village, Bheemunipatnam Mandal the District Administration by following the terms and conditions as laid down under G.O.Ms.No.571 dated 14.09.2012 has submitted proposals to the 13 Government through the Chief Commissioner of Land Administration, A.P., for alienation of the said requisitioned land on payment of market value in favour of Film Nagar Cultural Centre. However, on examining the proposals submitted by the District Administration the Government issued order vide G.O.Ms.No.411 Revenue (Assn-II) Department dated 06.11.2016 according permission to the District Collector, Visakhapatnam to handover advance possession of the land measuring Ac.15.00 cts., in S.No.395 and Sy.No.413 of Kapuluppada village to the President, Film Nagar Cultural Centre pending finalization of lease proposals. Accordingly, advance possession of the said land was handedover to the President, Film Cultural Centre on 24.11.2016. Subsequently, the lease proposals were finalized and submitted by the District Administration to the Government and the Government issued orders vide G.O.Ms.No.282 Revenue (Assn-II) Department dated 05.07.2016 allotting the said land of Ac.15.00 cts in Sy.No.395 and Sy.No.413(Carved out from Sy.No.314) of Kapuluppada village, in favour of Film Nagar Culture Centre on lease basis at Rs.1,50,000/- per annum for a period of 33 years, with a direction to revise the lease amount with an increase of 10% for every five years. Pursuant to the said orders, the present Writ Petition is filed. Further, it is contended that the land allotted on lease vide G.O.Ms.No.282 dated 05.07.2016 in favour of Film Nagar Cultural Centre is not a part of Archeological site, Buddhist complex popularly known as "Thotlakonda" through the original Sy.No.314 of both the areas happened to be one and the same i.e., Sy.No.314 of Kapuluppada village. The land allotted on lease in favour of Film Nagar Culture Centre is situated away from the Buddhist Monuments over and above 340 to 540 meters. Though the proposals were initially submitted to the 14 Government in terms of G.O.Ms.No.571 by the District Administration, the land was allotted on lease basis by the Government, as such there is no violation of the provisions of G.O.Ms.No.571 and much less the provisions of A.P. Ancient and Historical Monuments and Archeological Sites and Remains Act, 1960 as alleged.
17) Further, it is contended that both the protected monuments and the land allotted on lease basis to Film Nagar Culture Centre are situated in the Sy.No.314 of Kapuluppada village which consists of a range of hills but not single hill and it is submitted that it is mandatory to create new survey number in case of allotment/alienation/assignment of as part of Government land consisting of vast extent in one survey number which is called "Minus Circuit field". In obedience to such mandatory provisions only the Sy.No.395 and Sy.No.413 were created from the Sy.No.314 for making allotment of the land in the instant case. But it cannot be contended to be a ploy on the part of the respondents to throw an impression that the protected Monuments and the land allotted in instant case or in to different survey numbers as contended by the petitioners. It is also contended that the archeological excavation would be taken up under the aegis of the Archaeological survey of India, but the same was not added as a party to the present Writ Petition, as such the present Writ Petition is bad for non-joinder of necessary party. It is submitted that the land allotted to Film Nagar Culture Centre is away from the protected monuments over and above 340 meters so and as such the protected monuments are fully protected and also the land allotted to the Film Nagar Culture Centre is not from a notified archaeological site. It is further contended that the petitioners are seems to be under an 15 impression that the entire area in Sy.No.314 of Kapuluppada village is covered by Thotlakonda which was notified under G.O.Rt.No.627 but in fact it was not so, since Thotlakonda is one among such many hills situated in Sy.No.314 of Kapuluppada village which was alone notified under G.O.Rt.No.627.
18) Now coming to applicability of the provisions of VUDA Master plan to the land allotted to Film Nagar Culture Centre on lease basis it is contended that the allottee while taking up any activity in the land it has to abide by the provisions of VUDA master plan by obtaining requisite permissions, approval of plans etc., from VUDA which would be done by VUDA in accordance with the regulations of Municipal Administration and Urban Development and VUDA Master plan would not be the subject matter for allotting the land.
19) During hearing, the learned counsel for the petitioners reiterating contentions specifically demonstrated that the land in Sy.No.314 is an extent of Ac.3148.45 cts, and no construction activity within the buffer zone be permitted as admitted by the respondents 2 and 3 and the proposed site within the survey No.314 in an extent of 3148.45 acres of Thotlakonda, Mangamaripeta and allotment of site within the protected area is violation of the provisions of A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960 and as well the law declared by the Apex Court and requested to cancel the proposed allotment of the land to both 9th and 10th respondents as the construction activities would cause serious prejudice to the Buddhist and protection of ancient monument declared by the Government vide G.O.Rt.No.627 and requested to pass appropriate order as claimed in the writ petition. 16
20) Whereas the Government Pleader for Archaeology contended that the monument is only in an extent of Ac.120.88 cents though the land in S.No.314 is an extent of Acs.3143.88. As there was a mistake in the G.O.Rt.No.627 dated 02.05.1978 steps have been taken to extend the protection only to the extent of Ac.120.88 of Thotlakonda village and the same is sub-divided into 416/2 and addressed a letter to the Principal Secretary to Youth and Tourism services and it is pending. Even otherwise, the respondent is not carrying on any construction activity within Ac.120.88 cents of the said survey number that is the protection area, but beyond that, not within prohibited or regulated area, that is buffer zone. Therefore, the proposed allotment in favour of the 9th respondent is not in violation of G.O.Rt.No.627 dated 02.05.1978 and the provisions of A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960 or in violation of principle laid down by the Apex Court in the judgment referred to supra and requested to dismiss the petitions.
21) The learned Standing Counsel for A.P. Tourism reiterated the contentions stated supra and requested to dismiss the petition.
22) Considering the rival contentions and material available on record, the point that arises for consideration is:-
"Whether the protection monument is covered by 3143.40 Acres of Sy.No.314 of Thotlakonda and Mangamaripeta, Bhimunipatnam taluk, and if so, the allotment of site to 9th and 10th respondents in Sy.No.314 of Thotlakonda village is violative of G.O.Rt.No.627 and provisions of the A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960, if so, whether the G.O. and Letter 17 No.H/20/201/18/2018 dated 17.07.2018 are liable to be set- aside?"
In Re -point:
23) The core issue involved in these writ petitions is whether the total land in Sy.No.314 is a protected monument by issuing declaration under Section 4(1) and 4(3) of the A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960. As seen from the G.O.Rt.No.627 the entire area of Sy.No.314 of Thotlakonda is declared as protected monument. By its G.O.Rt.No.627 dated 02.05.1978 declared Thotlakonda situated in Sy.No.314 of Mangamaripeta village hamlet of Kapuluppada in Bheemunipatnam Taluk of Visakhapatnam District as ancient site by exercising power under Section 4 of the 1958 Act.
24) Section 2(i) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 defined the word "protected area" to mean any archaeological site and remains which is declared to be of national importance by or under the Act. Similarly, Section 2(j) defined the word "protected monument" to mean any ancient monument which is declared to be of national importance by or under the Act. Section 2(l) defined the word "regulated area" to mean any area specified or declared under Section 20-B of the1958 Act. Section 4 of the 1958 Act conferred power on the Central Government to declare ancient monument, etc., to be of national importance and accordingly, G.O.Rt.No.627 dated 02.05.1978 was issued notifying Thotlakonda situated in Sy.No.314 at Mangamarripet village, hamlet of Kapulauppada in Bheemunipatnam Taluk, Visakhapatnam District, as ancient site by exercising power under Section 18 4 of the 1958 Act. Thus, Thotlakonda situated in Sy.No.314 at Mangamaripet village is declared as an ancient site.
25) According to Section 19 of the 1958 Act 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 utilize such area or any part thereof in any other manner without the permission of the Central Government. Similarly, the power is conferred on the Central Government to acquire a protected area under Section 20 of the 1958 Act. But Section 20-A stipulates 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 100 meters in all directions shall be 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 meters 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. Sub-Section (3) permits the Central Government or the Director General as the case may be, if 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, t 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 19 public work or project essential to the public or other constructions, to be carried out in a prohibited area.
26) Therefore, by exercising power under sub-section (3) of Section 20A of the 1958 Act, permission was granted to the APTDC Ltd to undertake development activities referred above, and since the proposed development activities will not have any adverse impact on the historical monument and as per the report of the Chief Urban Planner, Visakhapatnam Metropolitan Region Development Authority, Visakhapatnam, it is beyond the protected area. When a permission is granted under sub-section (3) of Section 20A of the 1958 Act, there is no restriction on the APTDC Ltd to undertake development activities, more over, the proposed development activities enhances the importance of Thotlakonda site, an ancient site declared under Section 4 of the 1958 Act, and on account of installation of CCTV provision etc. attract more public to visit the monument and the development activities undertaken by the APTDC Ltd. will not reduce its importance, and on the other hand it will enhance its importance, esteem and glory.
27) Sri K.S.Murthy, the learned counsel for the petitioner would contend that within buffer zone no construction activity be permitted and the required area is extended upto 300 meters from the outer limit of peripheral area of the monument notified under Section 4 of 1959 Act, but not from the monument and he placed reliance on the judgment of the Apex Court in Archaeological Survey of India v. Narender Anand1.
1 (2012)2 SCC 562 20
28) In Archaeological Survey of India's case the Supreme Court made it clear in para 53 that the 100 meters has to be counted from the outer boundary wall of Jantar Mantar, which has protected area of 5.39 acres and not the physical structures of the observatory. If this principle is applied to the present facts of the case, 100 meters distance has to be counted from the outer area of the notified monument under Section 4 of the 1958 Act i.e., Thotlakonda situated in Sy.No.314 at Mangamaripet village, Hamlet of Kapulauppada in Bheemunipatnam Taluk, Visakhapatnam District, and at the same time, the permission granted by the Director, Department of Archaeology & Museums, Government of A.P.-4th respondent is directed to identify the area where the development activities have to be taken up by the APTDC Ltd.,-10th respondent herein and also the 9 respondent in view of the law laid down by the Apex Court in Archaeological Survey of India v. Narender Anand (supra) and in the identified place alone, the APTDC Ltd., shall undertake the development activities.
29) The main grievance of the petitioners before this Court is that when an extent of Acs.3143.88 is situated in R.S.No.314 of Thotlakonda village of Mangamarripet is declared as monumental site or historic monument by exercising power under Section 4 of the Act, the peripheral area starts from the outer limit of Ac.3143.88 cents. The village is on the hillock, and if the entire area of survey number 314, due to mistake committed by the registering authority, is taken as historical monument or ancient monument, the limits starts from beyond S.No.314 and a huge extent of Ac.3143.88 cents will be kept idle. But, as per the material produced before the Court only Ac.120.88 is to be notified as 21 historical and ancient monument under Section 4 of the A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1958 and a letter was addressed to the Principal Secretary to Youth Services and Tourism Department for issuing such notification as the Buddhist regins are available in an extent of Ac.7.40 cents, and it is pending as on the date of filing counter by the respondent. They also placed on record the correspondence between the authorities concerned to prove their bonafides before this Court that a revised notification is to be issued to take necessary steps. The Registering Officer committed as many mistakes as possible in the notification G.O.Rt.No.1700 dated 05.10.1976 and again on the basis of letter another notification G.O.Rt.No.2069 dated 17.12.1976 was issued without specifying the extent of land in Thotlakonda village declaring as ancient monument or historical monument except stating the land in Sy.No.314 within the boundaries specified therein. But it came to light that the Buddhist reigns were spread in an extent of Ac.7.40 cents and not over the entire extent of Acs.3143.88 cents of Totlakonda village and thereby a letter was addressed to the Secretary to notify the sub-divided land of S.No.416/2 of an extent of Ac.120.88 as ancient and historical monument. Thus, the protection can be only to the extent of Ac.120.88 subject to issue of notification by Principal Secretary of Youth Services and Tourism Department. Till then any allotment in favour of the respondent No.9 is clear violation of the G.O.Rt.No.627 dated 02.05.1978 under the provisions of Sections 4, 19, 20 and 20A of the A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960. 22
30) The main grievance of the respondent Nos.2, 3 and 10 is that the respondent No.10 was given permission recording reasons by the authorities concerned in exercising power under Section 20 since the proposed construction of amusement centre etc., will not cause any damage to the historical monument and on the other hand, it enhances its value due to visit of the place by public and it will enhance the historical importance of this monument.
31) Therefore, granting permission to 10th respondent by the Department for raising constructions within the regulatory area, subject to issue of notification limiting the area of historical or Archaeological monument or site to Ac.120.88 is not violative of any laws. Even according to the Chief Urban Planner's report the proposed site allotted for construction to 10th respondent/A.P.Tourism Development Corporation Limited is also historical monument declared under Section 4 of the Act VII of 1960.
32) Coming to the proposed allotment in favour of 9th respondent, it is not known whether it is part of land in Sy.No.314 of Thotlakonda village. But it appears from the G.O., it is part of land in Sy.No.314 which was declared as historic or Archeological protected monument. Therefore, allotment if any made in favour of 9th respondent within the notified area, it may amount to violation of Sections 4, 19, 20, 20A of A.P. Ancient and Historical Monument and Archaeological Sites and Remains Act, 1960 and contrary to the principles laid down by the Apex Court in Archaeological Survey of India(referred supra).
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33) It is the constitutional duty of the State to protect the historical and archeological monuments. According to Article 48-A of Constitution of India, the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. The area covered by Sy.No.314 is a hill poramboke according to the contentions of the petitioners having its ecological importance. Article 51 A(f) obligates every citizen of India to value and preserve the rich heritage of our composite culture and (i) obligates the citizens to safeguard the public property and to abjure violence. Thus, Article 48-A and 51-A obligates the State to make every endeavour to protect the heritage of our composite culture and ecology. If, for any reason, the allotment is allowed to 9th respondent, certainly it would amount to violation of its duty under Article 48-A and 51-A of Constitution of India. Though these two provisions deals with fundamental duties and they cannot be enforced by writs, but they can be promoted only by constitutional methods. They can be used for interpreting ambiguous statues as held by Apex Court in Mumbai Kamgar Sabha, Bombay vs M/S Abdulbhai Faizullabhai & Others2. In the present facts of the case, the petitioners approached the Court to enforce the fundamental duty of the State under Article 51-A, but the judgment referred supra such duties cannot be enforced but the State has to promote such activities by constitutional methods only. In any view of the matter, it is clear from the material available, more particularly the allegations in the counter filed by 2nd and 3rd respondent, the entire land in Sy.No.314 of Thotlakonda is notified as archeological or historical monument by G.O.Rt.No.627 dated 02.05.1978 and steps have been taken to denotify 2 AIR 1976 SC page 1455 24 the entire extent limiting the notifications to the extent of Ac.120.88 cents of Thotlakonda village as protected or historical monument by exercising power under Section 4(3) of the Act. Till issue of said G.O., proposed allotment in favour of 9th respondent cannot be made and after de-notifying the remaining area in Sy.No.314 of Thotlakonda village restricting the extent of historical or archeological monument to Ac.120.88 by exercising power under Section 4(3) of the Act and the State is at liberty to deal with the property subject to legal fetters under different enactments.
34) In view of our foregoing discussion, we hold that the allotment of land in favour of 10th respondent which is beyond the protected area as per the report of Chief Urban Planner of Visakhapatnam is beyond the area protected and it is not prohibited, on the other hand, it would enhance the historical importance of the monument. We further hold that the allotment of land to 9th respondent can be completed only after denotifying the land by exercising power under Section 4(3) by the Principal Secretary of Youth Advance Tourism and Culture Department, Government of A.P., as per the letter dated 01.03.2018. Till then the respondents are directed not to handover possession of the property to 9th respondent, if already handedover, 9th respondent shall not undertake any activity including construction. It is needless to mention that 9th respondent may proceed with actively after denotifying the area in Sy.No.314 of Totlakonda village, limiting the protected area to an extent of Ac.120.88 cts.
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35) With the above directions, both the Writ Petitions are disposed of. In view of the observations made in the Writ Petitions, the Contempt Case is closed. There shall be no order as to costs. Consequently, the Miscellaneous Petitions pending if any, in the two writ petitions, shall stand closed.
___________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _______________________________ JUSTICE M. SATYANARAYANA MURTHY Dated:05.09.2019 GM