Madras High Court
Rep. By Its President vs The Government Of India on 30 September, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.19877 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.08.2024
PRONOUNCED ON : 30.09.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.19877 of 2013
and M.P.Nos.1 & 2 of 2013
Sembakkam Region Residents
Welfare Association,
(Registration No.182 of 2013)
Rep. by its President,
No.59, 6th Cross Street,
Chamraja Nagar, Sembakkam,
Chennai – 600 073 ... Petitioner
-Vs-
1. The Government of India,
Rep. by Secretary to Government,
Department of Art, Culture and Language,
Govt. of India,
New Delhi.
2. The Archaeological Survey of India,
Chennai Circle,
Fort St. George, Secretariat,
Chennai – 600 009.
Rep. by its Superintending Archaeologist.
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W.P.No.19877 of 2013
3. The Chennai Metropolitan Development Authority,
(CMDA), Rep. by its Member Secretary,
'Thalamuthu Natarajan Maligai',
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
4. The Member Secretary and Commissioner,
Department of Archaeology and Competent Authority,
TN, Archaeological Survey of India,
Chennai and Trissure Circle,
Tamil Valarchi Kazhagam,
Halls Road, Egmore,
Chennai – 600 008.
5. The Commissioner,
Sembakkam Municipality,
Sembakkam,
Chennai – 600 073.
6. The District Forest Officer,
Kancheepuram District,
Kancheepuram.
7. The Director,
Directorate of Town and Country Planning
Chengalvarayan Building,
IV Floor, 807 Anna Salai,
Chennai – 600 002. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the proceedings of the second respondent in letter
No.33/SUR/2010/2652 dated 09.06.2010 and of the third respondent in
letter No.C1/H/5915/2010 dated 18.06.2010 and quash the same insofar
as it relates to Sl.No.10, relating to Kancheepuram District, of an extent
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W.P.No.19877 of 2013
of 164.47 acres comprised in Survey No.157 of Sembakkam Village and
consequently, forbear the respondents herein, from in any manner,
interfering with the right of the members of the petitioner association
from putting up any constructions and carrying out repairs, renovations
or making necessary modifications to the existing buildings or the
facilities to the buildings in and around the area covered under Survey
No.157 of Sembakkam Village, Tambaram Taluk, Kancheepuram
District.
For Petitioner : Mr.A.L.Ganthimathi, Senior Counsel
For Mr.C.T.Murugappan
For Respondents
For R2 : Mr.G.Karthikeyan,
Standing Counsel
For R3 : Mr.Y.Bhuvanesh Kumar
Standing Counsel
For R5 : Mr.P.Srinivas
For R6, R7 : Mr.V.Manoharan
Additional Government Pleader
ORDER
This writ petition has been filed challenging the proceedings of the second respondent dated 09.06.2010 and the proceedings dated 18.06.2010 of the third respondent insofar as it relates to the land situated in Kancheepuram District to an extent of 164.47 acres, comprised in Survey No.157 of Sembakkam Village, thereby declared by the government of India as protected monument site. https://www.mhc.tn.gov.in/judis Page 3 of 16 W.P.No.19877 of 2013
2. The members of the petitioner are the residents and occupiers within the Sembakkam municipality. The land comprised in Survey No.157 of Sembakkam Village, Tambaram Taluk, Kancheepuram District was declared as protected area under the provisions of the Ancient Monument and Archaeological Site and Remains Act, 1958 (hereinafter referred to as “the Act”) as amended by the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 (hereinafter referred to as “the Amendment Act”). The Government of India has brought an amendment to the Ancient Monument and Archaeological Sites and Remains Act, 1958 vide the Amendment Act.
3. After amendment, the Archaeological Survey of India, Chennai Circle has communicated the letter dated 13.04.2010, indicating the salient features of the said amendment that prescribing a minimum of 100 meters to be prohibited area in all directions from centrally protected monument/site defining regulated area to be a minimum of 200 meters in all directions from the boundary of prohibited area and preparation of heritage byelaws to govern construction, re-construction, repairs and https://www.mhc.tn.gov.in/judis Page 4 of 16 W.P.No.19877 of 2013 renovations therein, freezing of construction within the prohibited area, empower competent authorities to draft byelaws in consultations with Indian National Trust for Art and Cultural Heritage (INTACH) and other expert heritage bodies; setting up of National Monuments Authority; stipulating procedures for grant of permission for construction, re- constructions, repairs or renovations in prohibited or regulated ares and imposition of penalty etc.
4. Accordingly, the second respondent by its communication dated 09.06.2010 to the third respondent furnishing the details of survey numbers, extent, locality, taluk and district with site plan to protected monuments/sites in Chennai, Kancheepuram and Tiruvallur districts. In the said proceedings, the second respondent has included the land ad measuring 164.47 acres comprised in survey No.157 of Sembakkam village as protected sites citing that megalithic cairns and cists are said to be available in the said area.
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5. On receipt of the same, the third respondent by the communication dated 18.06.2010, informed the fifth respondent by enclosing the government of India gazette dated 30.03.2010 that, after Amendment Act, no construction activity including construction, reconstructions, repairs or renovations to the existing building is permissible in the prohibited area and no objection certificate is required for National Monument Authority, thereby freezing of all construction, reconstruction, repairs and renovations activities over an extent of about 300 meters of the area comprised in Survey No.157, Sembakkam Village, Tambaram Taluk, Kancheepuram District from January, 2010. Therefore, there is no construction activity or repair, renovation activity is allowed. Whenever any application is being made, the applicants were directed to approach the Government of India or competent authorities under the provisions of the Act for permission or no objection certificate. Aggrieved by the same, the petitioner association filed the present writ petition.
6. The learned Senior Counsel appearing for the petitioner submitted that in view of the impugned proceedings, the residents of the entire Sembakkam village viz., the petitioner's members are seriously affected and it amounts to violation of Article 14, 21 and 300A of the https://www.mhc.tn.gov.in/judis Page 6 of 16 W.P.No.19877 of 2013 Constitution of India. Under the provisions of the Act, the power to declare an ancient monument or archaeological site and remain to be one of the national importance, is available only with the Central government. Section 4(1) of the Act provides that where the Central government is of the opinion that any ancient monument or archaeological site and remains not included in Section 3 of the Act 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.
6.1. She further submitted that Section 4(2) of the Act provides that any person interested in any such ancient monument or archaeological site and remains may, within two months after the issue of notification, object to the declaration of the monument or the archaeological site and remains, to be of national importance. Section 4(3) of the Act provides that 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 https://www.mhc.tn.gov.in/judis Page 7 of 16 W.P.No.19877 of 2013 ancient monument or the archaeological site and remains, as the case may be, to be of national importance.
6.2. She also submitted that Section 2(i) of the Act, defines protected area as any archaeological site and remains which is declared to be of national importance by or under this Act. Section 2(j) of the Act defines protected monument as an ancient monument which is declared to be of national importance by or under this Act. Section 19 of the Act, provides that 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: Section 20 of the Act provides that power to the Central government to acquire any protected area if it is of opinion that any protected area contains an ancient monument or antiquities of national interest and value, it may acquire such area under the provisions of the Land Acquisition Act, 1894, as if the acquisition was for a public purpose within the meaning of the said Act.
https://www.mhc.tn.gov.in/judis Page 8 of 16 W.P.No.19877 of 2013 6.3. By virtue of the Amendment Act, prohibited area and regulated area near or adjoining protected monuments and sites have been introduced into the parent enactment and for the said purpose, Section 20A to 20D have been introduced. As per Section 20A of the Amendment Act, 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 respect of such protected area or protected monument. As per section 20B of the Amendment Act, every area, beginning at the limit of prohibited area in respect of every ancient monument and archaeological sites and remains, declared as of national importance under Sections 3 and 4 and extending to a distance of two hundred meters in all directions shall be the regulated area in respect of every ancient monument and archaeological sites and remains.
6.4. She further submitted that the above provisions would show that protected area and regulated area as introduced by the Amendment Act would arise in respect of a protected monument and site. The protected monument has been defined under Section 2(j) of the Act and https://www.mhc.tn.gov.in/judis Page 9 of 16 W.P.No.19877 of 2013 protected are is defined under Section 2(i) of the Act. Accordingly it has to be of national importance by or under this Act. Section 4(1) of the Act, empowers the Central government to issue notification in respect of ancient monument or archaeological site and remain if it considers the same to be of national importance after following the mandatory procedure contained in the said Section.
7. Therefore, if and when the Central government issues a notification in the official gazettee declaring any ancient monument or an archaeological site and remain as one of national importance under Section 4 of the Act, it would be be a protected monument or a protected area. Then only the question of protected area and regulated area adjoining or near the protected monument would arise. Therefore, the declaration and notification by the Central government in the official gazette is mandatory. In the absence of such notification, the protected area or regulated area would not arise. So far, the Central government does not issue any notification as contemplated under Section 4 of the Act declaring megalithic cists and cairns showing clear structural postures as a protected site and the area comprised in Survey No.157 of Sembakkam village as protected area of archaeological site and remain. Without such https://www.mhc.tn.gov.in/judis Page 10 of 16 W.P.No.19877 of 2013 notification, the second and third respondents now declared the said land comprised in Survey No.157 of Sembakkam village as protected area and treating the areas around the said survey numbers as prohibited area and regulated area and also preventing any construction, reconstruction, repair, renovation or development activities.
8. The first and second respondents filed counter and the learned Standing Counsel appearing for the second respondent submitted that the megalithic cists and cairns comprised in survey No.157 located within the forest at Sembakkam village, Tambaram taluk, Chingelpet district to an area of 164.47 acres is a centrally protected site of national importance as per the Ancient Monuments Preservation Act, 1904, vide notification No.F.39-6/45-G dated 24.08.1946. The Ancient Monuments Preservation Act, 1904 has been later replaced as Ancient Monuments and Archaeological Sites Remains Act, 1958. Thereafter, the government of India has brought in with certain amended provisions in the Amendment Act and it was issued for validating the orders of the government of India issued in the month of June, 1992.
9. Section 39 of the Act, says about the Repeals and Savings https://www.mhc.tn.gov.in/judis Page 11 of 16 W.P.No.19877 of 2013 which reads as follows :-
“93. Repeals and Savings - (1)The Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (71 of 1951) and Section 126 of the States Reorganisation Act, 1956 (37 of 1956) are hereby repealed.
(2) The Ancient Monuments Preservation Act, 1904 (7 of 1904) shall cease to have effect in relation to ancient and historical monuments and archaeological sites and remains declared by or under this Act to be of national importance, except as respects things done or omitted to be done before the commencement of this Act.” Accordingly, the Ancient Monuments Preservation Act, shall cease to have effect in relation to ancient and historical monuments and archaeological sites and remains declared by or under this Act to be of national importance, except as respects things done or omitted to be done before the commencement of this Act. Therefore, the notification dated 24.08.1946 shall cease to have effect in respect of ancient and historical monuments and archaeological sites and remains.
10. That apart, admittedly there was no notification issued by https://www.mhc.tn.gov.in/judis Page 12 of 16 W.P.No.19877 of 2013 the Government of India. Therefore, the impugned proceedings of the second and third respondents dated 09.06.2010 and 18.06.2010 cannot be sustained and liable to be quashed. Accordingly, the impugned proceedings of the second respondent in letter No.33/SUR/2010/2652 dated 09.06.2010 and of the third respondent in letter No.C1/H/5915/2010 dated 18.06.2010 are hereby quashed. The respondents are hereby restrained from in any manner, interfering with the right of the members of the petitioner association from putting up any constructions and carrying out repairs, renovations or making necessary modifications to the existing buildings or the facilities to the buildings in and around the area covered under Survey No.157 of Sembakkam Village, Tambaram Taluk, Kancheepuram District.
11. With the above directions, the Writ Petition stands allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.
30.09.2024 Index : Yes/No Speaking/Non Speaking order Neutral Citation : Yes/No rts https://www.mhc.tn.gov.in/judis Page 13 of 16 W.P.No.19877 of 2013 To
1. The Secretary to Government, Government of India, Department of Art, Culture and Language, Govt. of India, New Delhi.
2. The Superintending Archaeologist.
Archaeological Survey of India, Chennai Circle, Fort St. George, Secretariat, Chennai – 600 009.
3. The Member Secretary, Chennai Metropolitan Development Authority, (CMDA), Thalamuthu Natarajan Maligai, No.1, Gandhi Irwin Road, Egmore, Chennai – 600 008.
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4. The Member Secretary and Commissioner, Department of Archaeology and Competent Authority, TN, Archaeological Survey of India, Chennai and Trissure Circle, Tamil Valarchi Kazhagam, Halls Road, Egmore, Chennai – 600 008.
5. The Commissioner, Sembakkam Municipality, Sembakkam, Chennai – 600 073.
6. The District Forest Officer, Kancheepuram District, Kancheepuram.
7. The Director, Directorate of Town and Country Planning Chengalvarayan Building, IV Floor, 807 Anna Salai, Chennai – 600 002.
https://www.mhc.tn.gov.in/judis Page 15 of 16 W.P.No.19877 of 2013 G.K.ILANTHIRAIYAN. J, rts ORDER IN W.P.No.19877 of 2013 and M.P.Nos.1 & 2 of 2013 30.09.2024 https://www.mhc.tn.gov.in/judis Page 16 of 16