Rajasthan High Court - Jodhpur
Girdhar Memorial Charitabale Trust vs Union Of India And Anr on 26 February, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ petition No. 1841/2000
Shri Girdhar Memorial Charitable Trust, Jaisalmer Fort, Jaisalmer-
through its Chief Trustee, Maharawal Brijraj Singh S/o Late
Maharawal Shri Raghunath Singhji, R/o Mandir Palace, Jaisalmer.
....Petitioner
Versus
1. The union of India through the Secretary, Archaeological
Department, Government of India, New Delhi.
2. The Superintending Archaeologist, Jaipur Circle, 70/133-140,
Patel Marg, Mansarovar, Jaipur (Raj.).
.......Respondents
For Petitioner(s) : Mr. J.P. Joshi, Sr. Advocate With
Mr. Siddharth Joshi & Mr. Khet Singh.
For Respondent(s) : Mr. Sanjeet Purohit &
Ms. Aarohi Ojha.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order Reserved on 19/02/2019 Pronounced on 26/02/2019 Reportable.
1. By way of this writ petition, petitioner Girdhar Memorial Charitable Trust has challenged the notice issued by the respondents dated 16/05/2000 whereby the Ex-ruler Brij Raj Singh was asked to remove the construction work of wooden doors and plaster works etc. from Suraj Prole Gate inside the Jaisalmer Fort being violative of Sub-Section 19(i) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for (2 of 10) [CW-1841/2000] short 'Ancient Monument Act, 1958') and Sub-Rule 10(i) & 33 of the Ancient Monuments Rules, 1959.
2. It is submitted that the petitioner-Trust is a registered Trust duly settled by Late Maharawal Shri Raghunath Singhi of Jaisalmer who was the Ex-ruler of the State of Jaisalmer. As per the inventory prepared in terms of Article-XII of the Covenant, various properties in Jaisalmer Fort were given to Ex-ruler of Jaisalmer as personal properties which include the property known as "Suraj Prole". Thus, the said property was settled by Ex-ruler in the Trust formed in the name of Shri Girdhar Memorial Charitable Trust and the income and receipts of this property were to be used for religious and charitable purposes.
3. Learned counsel for the petitioner-Trust assails the notice impugned submitting that as per Section 19 of the Ancient Monuments Act, 1958, the construction of the doors and the repair works made cannot be said to be in violation thereof. It is his submission that the Fort, specially 'Suraj Prole' was in absolutely dilapidated condition and required repairs immediately. The Trust apprehended that if timely repair was not carried on, the building structure may collapse which would have resulted into great damage to the historical ancient monument whereupon immediate steps were taken to get the plaster work done for re- enforcement of the existing structure and prevent from further damage of the historical ancient monument. The Trust also put wooden doors to stop entry of the stray cattle in the open space who would have caused damage to the property. There was no structural change made in the property and therefore, it cannot be said that the petitioners had constructed any building within the protected area as per Section 19(i) of the Ancient Monuments Act, (3 of 10) [CW-1841/2000] 1958. It is submitted that a reply in this regard was sent to the authorities whereafter the authorities of the respondents visited on 02/06/2000 and informed that the reply was not found to be satisfactory and directed for removing the plaster work and wooden doors. Learned counsel submits that aggrieved of the action and the notice dated 16/05/2000 the present writ petition was filed. It is his submission that the action taken by the respondents goes beyond the powers under the Ancient Monuments Act, 1958 as there is no construction made. For the purpose of protection of the ancient monument which forms the personal property of the petitioner Trust, it was essential to conduct repair works. The construction of the door was also for the said purpose and, therefore, the notice impugned dated 16/05/2000 was arbitrary and liable to be quashed.
4. Per-contra, learned counsel appearing for the respondents submits that 'Suraj Prole' is not included in the inventory and is the main gate way for the main approach road of Jaisalmer Fort which is the place of public utility and this structure has never been closed by the wooden doors and remained open for the public and the same has never been used for commercial purpose and there is no come to the Trust from this building. It is an important structure from the archaeological point of view and it is denied that the property was in absolutely dilapidated condition. A Committee under the Chairmanship of the District Collector, Jaisalmer has already been set up by the Archaeological Survey of India for giving permission for the repair works in the houses/buildings situated in and around Jaisalmer Fort and the Ex- ruler Brij Raj Singh is also called for Committee's meeting as special invitee. It is his submission that the Trust was well aware (4 of 10) [CW-1841/2000] about the procedure which is required to be undertaken for repair works in the ancient buildings at Jaisalmer Fort. The wooden work and plaster work have been introduced first time in this building and the same was unauthorized work which has spoiled the ancient character of the monument. It is submitted that the works were done for utilizing this building for commercial purposes. The unauthorized construction work amounts to structural changes in the monument and it is submitted in the reply that five new doors have been put up in the monument which are sufficient to change the facad of the monument. The purpose is for opening shops etc. in the future in Jaisalmer Fort. It is submitted that the Archaeological Survey of India is a sole custodian of the Jaisalmer Fort and has re-constitutional obligation to see that the provisions of the Ancient Monuments Act, 1958 and the Rules framed thereunder are strictly followed so that the ancient monuments remain protected from unauthorized construction activities. Learned counsel submits that the Fort is one of the ancient monuments of national importance and it is all the more necessary to have a regular vigil that the Fort remains intact in its original shape.
5. Heard learned counsel for the parties.
6. Before adverting to the arguments raised, this Court notices that Jaisalmer Fort was constructed in 1156 AD as per the documents available on the concerned website and the same was declared as an ancient monument of national importance vide Gazette Notification dated 20/11/1951 as placed on record by the respondents. Once the said monument was declared as an ancient monument vide Gazette Notification No.LXXI of 1951 and it was not necessary for any new declaration to be published for the (5 of 10) [CW-1841/2000] purpose of the Ancient Monuments Act, 1958. It appears that one litigation initiated before this Court relating to Jaisalmer Fort and vide judgment dated 09/08/1999 passed in DB Civil Special Appeal No.1101/1998 (Hari Shanker & Anr. Vs. Union of India & ors.), the Division Bench of this Court held as under:-
"It is now to be seen whether the aforesaid protected area has been declared to be of national importance by or under the Act. Section 3 of the Act provides that all ancient and historical monuments and all archaeological sites and remains referred to in Part I and Part II of the Schedule appended to that Act are declared to be ancient and historical monuments and archaeological sites and remains of national importance. In Part II of the Schedule at Serial No. 59 in the State of Rajasthan, Jaisalmer Fort including ancient temples has been declared to be ancient and historical monuments and archaeological sites and remains of national importance. Thus, the combined effect of clauses (d) & (I) of Section 2 an Section 3 of the Act is that Jaisalmer Fort with its entire precincts is a protected area being an archeological site and remains of national importance for the purposes of the Act and, therefore, the respondents are within their right to proceed against any building constructed by any person within that area in contravention of the provisions of sub-section (1) of Section 19 of the Act. For the aforesaid reason, we find that though the learned Single Judge committed an error in dismissing the petition questions of fact on merits; there is no force in the petition from which this appeal arises. The appeal, therefore, has no force, it is dismissed."
7. It is also to be noticed that in the year 1996, 1998 and in 2000, Jaisalmer Fort has been listed in the world monument watch list and requires special protection. The said watch list published 100 most endangered ancient monuments. Thus, it is to be noted that such monuments are put at a strict vigil by the authorities and no unauthorized and illegal construction is made. The ancient (6 of 10) [CW-1841/2000] monument, which has been constructed by using special method with special material, would be affected by any new material of construction and it is only after a detailed study that the plastering or repairing works should be undertaken.
8. In the aforesaid background, if this case is examined, it would be noticed that while the respondents dispute of the Suraj Prole having been included in the inventory, the fact remains that Suraj Prole and the entire Jaisalmer Fort has been declared to be an ancient monument. In view of the judgment passed by the Division Bench of this Court (supra), the provisions of the Ancient Monuments Act, 1958 would be applicable on Suraj Prole. It would be important to quote Section 19 of the Ancient Monument Act, 1958 which provides as under:-
"19. Restrictions 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 construction 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 of such removal."
9. The argument of learned counsel for the petitioner, if examined in terms of Section 19 of the Ancient Monuments Act, (7 of 10) [CW-1841/2000] 1958, as noted above, it is noticed that while the petitioner may not have been engaged in constructing any building within the protected area, they have engaged themselves in "operation of like nature in such area" "in any other manner" "without permission of the Central Government". Installation of the doors in an ancient monument amounts to change the said monument facade and would not come within the ambit of the repair work.
10. So far as making repair works are concerned, it cannot be denied that if an ancient monument is on the verge of getting dilapidated or collapsed, repair works are required to be done immediately and timely. The Archeological Survey of India authorities are required to take action immediately in this regard but if the repair work has been done without their authorization but for bonafide reasons i.e. to protect the monument, the repair work would not come within the ambit of construction of any new building and in similar circumstances, even post-factor sanction can be granted for the said purpose. However, in the garb of repair work, if it is found by the authorities that any new construction has been done, it would be authorized to remove such structural changes. Installation of doors amounts to making structural changes. In view thereof, the notice sent by the authorities to the petitioner or to the Ex-ruler, cannot be said in any manner to be illegal or contrary to the provisions of the Ancient Monuments Act, 1958 or the Rules framed thereunder.
11. This Court notices that the petitioner is a Trust dealing with the properties of the Ex-ruler. It is his forefathers who had constructed the Fort and therefore, it is all the more binding upon such Trust and its Managing Trustees to maintain the ancient (8 of 10) [CW-1841/2000] monument in its original form and not make any structural change which may dilapidate further the basic ancient monument itself.
12. The respondents in their reply have stated that the purpose of making the structural changes is to start commercial activities. Any commercial activity which may cause harm to the monument is wholly impermissible. As per the Ancient Monuments Act, 1958, there is a restriction on enjoyment of the property rights in protected area and the maintenance of protected monuments is provided under Section 14 thereto. Under Section 20-C of the Ancient Monuments Act, 1958, application for repairing is to be filed and regulated accordingly. The Central Government has to form a National Monument Authority which is required to perform its functions in terms of the provisions thereto.
13. As per the reports in the media, it is noticed that Jaisalmer Fort is included in the UNESCO World Heritage Site list during the World Heritage Committee in its 37 th meeting in June, 2013. The Jaisalmer Fort today faces manifold threats that are a result of the increasing population pressure on it. Water seepage, inadequate civic amenities, derelict houses and seismic activity around the Trikuta Hill are some of the major concerns impacting the Fort. Unlike most other forts, the Jaisalmer Fort has been built over a weak sedimentary rock foothill which makes its foundations especially vulnerable to seepage. Over the years this has led to the collapse of significant portions of the Fort such as Queen's Palace or Rani Ka mahal and parts of the outer boundary wall and the lower pitching walls. A threat is posed to the Fort also on account of the increase in the resident population and the increase in number of tourists who visit every year. It is emerged with commercial activity, vehicular traffic as well as human traffic.
(9 of 10) [CW-1841/2000]
14. The respondents are therefore, directed to form a local level committee consisting under the Chairmanship of the District Collector, Jaisalmer alongwith the officials of the Archeological Survey of Indian and the Chief Executive Officer of the Local Municipality who will coordinate with the various Government Departments including the Water Works Department, Public Works Department, Police Department, Transport Department and the Tourism Department and set up a plan for regulating the traffic in the Fort.
15. All the encroachments which have been made made in and around the Jaisalmer Fort, also known as Sonar Fort, and around the walled city, shall be removed. The district administration is directed not to allow any water or power connection to any illegal construction made in an around the Sonar Fort. The respondents shall be free to initiate proceedings under Section 30-A of the Ancient Monument Act, 1958. The Committee shall also be authorized to initiate action for imposing penalties under Section 30-A, 30-B and 30-C of the Ancient Monuments Act, 1958 which read as under:-
"30A. Punishment for construction, etc., in prohibited area.- Whoever raises, 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, 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.
30B. Punishment for construction etc., in
regulated area.- Whoever raise, 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
(10 of 10) [CW-1841/2000]
president, any construction in the regulated area without the previous permission of the competent authority or in contravention of the permission granted by the competent authority, shall be punishable with imprisonment not exceeding two years or with fine which may extend to one lakh rupees or with both.
30C. Offences by officers of Government.- If any officer of the Central Government enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any construction or re-construction takes place in a prohibited area or regulated area, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."
16. The Committee, as noted above, shall submit its compliance report relating to the steps as directed by this Court herein above within two months and this writ petition shall be listed for the said purpose before the Court.
17. Accordingly, this writ petition is dismissed to the extent as prayed by the petitioner. The petitioner would be required to remove the doors which they have installed in the ancient monument "Suraj Prole" at their own risk and costs within one month henceforth.
(SANJEEV PRAKASH SHARMA),J Raghu/ Powered by TCPDF (www.tcpdf.org)