Gujarat High Court
Gaekwad Real Estate Traders vs Vadodara Municipal Corporation & on 12 November, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/7486/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7486 of 2014
===========================================================
GAEKWAD REAL ESTATE TRADERS....Petitioner(s)
Versus
VADODARA MUNICIPAL CORPORATION & 1....Respondent(s)
================================================================
Appearance:
MR DHAVAL D VYAS, ADVOCATE for the Petitioner(s) No. 1
MR MAULIK G NANAVATI, ADVOCATE for the Respondent(s) No. 1 - 2
================================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 12/11/2014
ORAL ORDER
1. Heard Mr.Dhaval Vyas, learned counsel for the petitioner and Mr.Maulik G. Nanavati, learned counsel for the respondentsCorporation.
2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the communications dated 02.12.2013, 21.02.2014 and 19.03.2014 issued by the respondentsCorporation.
3. Learned counsel for the parties pointed out that the similar issue was subject matter to writ petition being Writ Petition (PIL) No.181 of 2014, wherein the Division Bench of this Court has observed thus: "The petitioners, residents of the Vadodara city have filed this public interest litigation, seeking a writ of prohibition, preventing demolition of a building known by the name 'Nazarbaug' Palace situated in the city of Vadodara.
Page 1 of 5 C/SCA/7486/2014 ORDERAs per the Time of India publication book called 'Baroda, the Heritage', 'Nazarbaug' was the first European-style Palace, the only one of its kind in the walled city of Baroda. It was built in 1871 by Malharrao Gaekwad. The Palace has 40 rooms in 64,000 sq.feet area. The Palace was renovated in the 19th Century by a British Architect Robert Fellowes Chisholm. The Palace also had the historical relevance as the wedding of Pratapsinhrao, the grandson and successor of Sayajirao Gaekwad III took place in the said Palace, as per the said book.
The petitioners contend that the respondent nos.5 and 6 , despite the notices issued by the Vadodara Municipal Corporation, carried on the demolition of the said building under the guise of a protective order dated 27th May 2014 passed by this Court in Special Civil Application No.7486 of 2014, though the order only prevented the Corporation from taking any coercive action under Section 267(2) of the Bombay Provincial Municipal Corporations Act. The counsel for the petitioners would, in fact, contend that despite notices from the Corporation, the said respondents had commenced demolition, for which the Corporation had to issue fresh notice on 19th May 2014. According to the counsel, this notice was never stayed by this Court in the above noted order. Quite apart from these aspects, the case of the petitioners is that the Palace was a heritage building and the same was required to be protected as per the General Development Control Regulations ('GDCR', for short) which envisage notifying the listed heritage properties and further provide for serious restrictions and limitations on changing the structures which are so listed as heritage properties.
On the other hand, the counsel for the respondent nos.5 and 6 submitted that the property in question is not listed as a heritage property. No restrictions and development of the property would, therefore, apply. The building was in a highly dilapidated condition posing a serious threat to human lives. It was, therefore, imperative that the building be pulled down. An application to the Corporation for such purpose was also made. It was pointed out to us that the Page 2 of 5 C/SCA/7486/2014 ORDER demolition work has been nearly completed. It is submitted that before this Court in the present petition ordered status quo, virtually the entire building was pulled down. A set of photographs are produced to show that barring few outer walls, virtually the entire building stands demolished.
While hearing the learned advocates for the parties, a few important issues came up for consideration. We notice that the Ancient Monuments and Archaeological Sites and Remains Act, 1958 contain various provisions for the protection and preservation of the protected monuments. Before a monument, however, can be so declared, the same has to be an ancient monument and be so notified as a protected monument. Admittedly, the present case does not fall in any of those categories. The protection under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, would, therefore, not be available. However, the GDCR framed by the Vadodara Urban Development Authority contained certain provisions for protection of the heritage properties. One full Chapter 28 is dedicated to the heritage buildings under the title of 'Heritage Regulations'. Such regulations would apply to those buildings, artifacts, structures, etc. which will be listed in the notification to be issued by the Government. The Regulations lay down detailed procedure for identifying such heritage properties, inviting objections from the members of the public, setting up Heritage Conservation Committee and finalizing the list of heritage properties to be notified upon the advise of the Heritage Conservation Committee. The Regulations also envisage dividing such heritage properties into three different categories. It would appear that once a property has been so notified as a heritage property, depending on the category to which it is assigned, the restrictions and limitations on renovation, repair and further construction would apply.
We are informed that so far the State Government has not set up Heritage Conservation Committees. However, the Vadodara Municipal Corporation has casually identified various properties as heritage properties. Such a Committee has already prepared a list which, according to the Corporation, should receive consideration for being notified as heritage properties.
Page 3 of 5 C/SCA/7486/2014 ORDERThe issue is of considerable importance, one which should receive attention from the authorities, members of the public as well as this Court. In the case of Rajeev Mankotia v. Secretary to the President of India, reported in AIR 1997 SC 2766, the Supreme Court observed as under :
"It would, therefore, be manifest that all ancient and historical monuments and all archaeological sites and remains or any structure, erection or monument of any tumulus or place of interment shall be deemed to be ancient and historical monument of archaeological sites and remains of national importance and shall be so declared for the purpose of Ancient Monuments Act if they have existed for a century; and in the case of a State monument, of State importance covered by the appropriate State importance covered by the appropriate State Act. The point of reference th these provisions is that an ancient monument is of historical, cultural of archaeological or sculptural or monolithic of artistic interest existing for a century is of national importance of State importance. In other words, either of them are required and shall be protected, reserved and maintained as national monuments or State monuments for the basis which not only gives pride to the people but also gives us insight into past glory of our structure, culture, sculptural, artistic or archaeological significance, artistic skills and the vision and wisdom of our ancestors, which should be preserved and perpetuated so that out succeeding generations learn the Skills of our ancestors and traditions, cultural and civilisation. They would have the advantage to learn our art, architecture, aesthetic tastes imbibed by the authors of the past and to continue the same tradition for the posterity. Preservation and protection of ancient monuments, is thus the duty of the Union of India and the State Government concerned in respect of ancient monuments of national importance or those of State importance respectively to protect, preserve and maintain them by preserving of restoring their original conditions."
In our opinion, this petition should not be confined only to one isolated building or even to the buildings of considerable archaeological importance of the city of Vadodara, but should be taken as a pointer to save large number of other buildings across the State. We would, therefore, direct the Vadodara Municipal Corporation as well as the State Government to file further affidavits, clarifying the following aspects :
(1) What are the steps taken for identification of heritage properties in the city as well as elsewhere in the State.
(2) Why so far no Heritage Conservation Committees have been set up.Page 4 of 5 C/SCA/7486/2014 ORDER
(3) Until such Committees are setup and the task of identification and the task of notifying the heritage properties is complete, what steps would be taken to prevent demolition of such structures which would qualify as heritage properties, with or without notification. Such replies shall be filed by the next date of hearing. Stand over to 16th October 2014.
Insofar as the order of status quo is concerned, rather we regretfully vacate the same on the short ground that a fraction of the old building which now survives may pose a real threat to human safety. To permit such a structure which is completely dilapidated not only by passage of time but onslaught of human agencies, would be unsafe to live in such condition.
We make it absolutely clear that we have not expressed any opinion on the legality of the actions of the respondent nos.5 and 6 and their conduct. If any further action in terms of law is permissible and necessary for any alleged breach of any statutory provision or the order of the Court is established, the avenues are kept open.
We expect the State to file a reply before the next date of hearing, so that proper mechanism is setup before more such buildings are condemned to demolition."
4. Learned counsel for the parties state that the issue has become academic in view of the above cited judgment rendered by the Division Bench of this Court.
In view of the above, learned counsel for the petitioner does not press this petition. Accordingly, the present petition stands disposed of as not pressed. Notice is discharged. Interim relief, if any, stands vacated.
(R.M.CHHAYA, J.) Suchit Page 5 of 5