Andhra HC (Pre-Telangana)
Municipal Corporation Of Hyderabad And ... vs Gopi Bai And Ors. on 10 February, 2004
Equivalent citations: 2004(2)ALD445, 2004(2)ALT773, AIR 2004 (NOC) 334 (AP), 2004 A I H C 1435 (2004) 2 ANDH LT 773, (2004) 2 ANDH LT 773
Bench: B. Sudershan Reddy, K.C. Bhanu
ORDER
1. The Respondents 1 to 3 in the writ petition have come up in this appeal against the order of a learned Single Judge of this Court dated 7.11.2001 made in W.P. No. 18053 of 2001 where under a direction was given by this Court to consider the building plan submitted by the petitioner without reference to the Notification dated 4.7.1992 issued by the Government of India.
2. The brief facts that are necessary for the present appeal may be delineated as follows:
3. The 1st respondent herein claims to be the absolute owner and possessor of the premises bearing No. 22-5-926 to 931 situated at Charminar, Hyderabad, having obtained the title to the said premises by succession. In the said premises there was an old dilapidated construction in an extent of 167 Sq. yards. The old construction was collapsed due to age factor of the building and the remaining building was demolished by her after receipt of notice from the Municipal Corporation on the ground of danger to Public Health and Sanitation. To protect the open land in question, the petitioner submitted a building application dated 18.4.2000 and 23.1.2001 seeking permission for construction of Ground plus Two Upper Floors, duly complying with the requirements. The 1st respondent, vide the impugned letter dated 8.2.2001, has rejected the permission for building construction on the ground that the construction around Charminar up to 100 metres was prohibited and therefore the proposed building plans were returned. It is pleaded that one shopping complex consisting of Cellar, Ground, First and Second Floors and Anr. complex by name Mohd. Ali Baigh Cloth Stores are located at a distance of less than 70 feet from Charminar. Therefore, it is pleaded that there is absolutely no justification in not granting building permission. It is also pleaded that under the provisions of Ancient Monuments and Historical City Act there should be a declaration and notification of each Monument and the exception of prohibited area within which no construction will be allowed. In respect of Charminar, though it is declared as Historical Monument, there is no notification prescribing an area to be prohibited or protected area where the construction can be validly refused. The rejection of construction permission has virtually amounted to deprivation of the petitioner's legitimate enjoyment of the property. Therefore, she approached this Court under Article 226 of the Constitution of India to issue a writ of mandamus declaring the action of the 1st respondent contained in Letter No. 926-931/5/22/2001 dated 8.2.2001 rejecting construction permission as illegal and arbitrary.
4. The 3rd respondent filed counter-affidavit admitting the ownership of the petitioner in respect of the premises in question and not disputing the fact that the petitioner herself demolished the old structure, but it is stated in the counter-affidavit that the Department of Culture (Archaeological Survey of India) issued a Notification in S.O.No. 1764 dated 15.5.1991, published in the Gazette of India dated 16.6.1992, declaring that the 100 metres from the protected monuments which are specified in the said notification will be prohibited area for the purpose of construction of mining operation, etc. and Charminar is one such monuments to be protected under Section 32 of the Ancient Monuments and Archaeological Sites and Remains Rules. Further, apart from the said notification, Charminar was already declared by Hyderabad Urban Development Authority (HUDA) as monumental building and the Charminar area is declared as Charminar Precinct. The HUDA has the power to prohibit, regulate and preserve the listed buildings, areas etc. Therefore, as per Regulation 13 of the Zoning Regulations, no development or redevelopment, alterations, repairs, renovations etc. shall be done on the whole area or any part of the Heritage building or Heritage Precinct without prior approval of the Vice-Chairman, HUDA, and therefore the Corporation will not be in a position to consider the application for construction of any building within the Heritage Precinct, unless the applicant submits no objection from the HUDA as well as the Archaeological Department. Hence, it is contended, no grounds are made out by the petitioner warranting interference of this Court.
5. The learned Single Judge after consideration of the material on record came to the conclusion that the Notification dated 4.7.1992 relied upon by the respondents has no application to Charminar Area as there was no specific notice of intention to declare a prohibited or regulated area in respect of Charminar as required under Rule 31 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (for short 'the 1959 Rules') and, therefore, directed the respondent-Municipality to consider the plan submitted by the petitioner without reference to the notification dated 4.7.1992. Aggrieved by the same, the present appeal is filed questioning the legality and correctness thereof.
6. It is contended by the learned Counsel for the appellants that in order to protect and preserve the ancient monuments, the Central Government by its Notification dated 4.7.1992 declared that an area up to 100 metres around certain monuments is prohibited and the area up to 200 metres from the monuments is regulated for the purpose of both mining operations and construction. He also contended that admittedly the construction of building sought to be made by the writ petitioner falls within the distance of 100 metres from Charminar and therefore the Corporation rightly rejected the building plan along with the application by the impugned order and the writ petitioner is not entitled for any relief.
7. On the other hand, the learned Counsel appearing for the writ petitioner-1st respondent contended that the Notification dated 4.7.1992 cannot be made applicable to Charminar monument for which no protected limits have been prescribed in any earlier notifications; that the Central Act, namely: Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short 'the 1958 Act') does not define the prohibited area or regulated area and as per Rules of 1959 a separate notification by the Central Government is necessary for each monument and further that the Central Government has got power to issue a notification prescribing certain areas near or adjoining the monument sought to be declared as prohibited area or regulated area for the purpose of mining operations or construction or both, but there is no such notification issued in respect of Charminar. Therefore, he contended, the order under appeal need not be interfered with by this Court and that the writ appeal is liable to be dismissed.
8. The short point that falls for consideration is whether a Notification by the Central Government is necessary for a particular area near or adjoining each monument to be a prohibited or regulated area? And whether the notification dated 4.7.1992 applies to Charminar, a protected monument, or not?
9. The first Act to be passed to preserve and protect the ancient and historical monuments is the Ancient Monuments Preservation Act, 1904, which provides inter alia for the preservation of the ancient monuments and objects of archaeological, historical of artistic interest. Thereafter, the ancient and historical Sites and Remains (Declaration of National Importance) Act, 1951 was passed. By virtue of this Act, Charminar in the State of Andhra Pradesh was declared to be an ancient monument of national importance, which is not in dispute. Thereafter, the Ancient Monuments and Archaeological Sites and Remains Act, 1958 came into effect with the object of providing preservation of ancient and historical monuments and archaeological sites and remains of national importance. This Act was to be enacted to clarify the legal position that the Central Government regulates exclusively the Ancient Monuments etc. of national importance, leaving the field open to the State Legislatures to enact the law on the subject i.e. Ancient Monuments of State, 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 (1) the remains of an ancient monument, (2) the site of an ancient monument, (3) 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 (4) the means of access to, and consentient inspection of an ancient monument.
10. Section 3 of the 1958 Act declares that all ancient and historical monuments and 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 or by Section 126 of the States Reorganisation Act, 1956 to be of national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purpose of this Act. Section 4 of the said Act empowers the Central Government to declare any ancient monument or archaeological sites and remains not included in Section 3 to be of national importance by giving two months' notice of its so declaring.
11. Section 3 of 1904 Act deals with protected monuments and empowers the Central Government by a notification in the Official Gazette to declare an ancient monument to be a protected monument under the said Act. It would therefore be manifest that all ancient and historical monuments and 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. The very object of passing 1958 Act is 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. Therefore the legislative intent is very clear that the historical monuments shall have to be protected, preserved and maintained as national monuments. Perhaps, with an object that it will give not only pride to the people but also gives insight into the 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 our succeeding generations learn the skills of our ancestors and traditions, cultural and civilization.
12. By virtue of Section 38 of the 1958 Act, the Central Government is enabled to make rules for carrying on the purposes of 1958 Act. In exercise of the said power, the Central Government framed the Ancient Monuments and Archaeological Sites and Remains Rules, 1959. Rule 2(f) of the said Rules defines prohibited area or a regulated area, which reads as follows:
"(f) "prohibited area" or "regulated area" means an area near or adjoining a protected monument which the Central Government has, by notification in the Official Gazette, declared to be a prohibited area, or as the case may be, a regulated area, for purposes of mining operation or construction or both".
Rule 31 of the said Rules reads as follows:
"31. Notice of intention to declare a prohibited or regulated area :--(1) Before declaring an area near or adjoining a protected monument to be a prohibited area or regulated area for purposes of mining operation or construction or both, the Central Government shall, by notification in the Official Gazette, give one month's notice of its intention to do so, and a copy of such notification shall be affixed in a conspicuous place near the area.
(2) Every such notification shall specify the limits of the area which is to be so declared and shall also call for objection, if any, from interested persons".
13. A perusal of Rule 31 would clearly indicate that the Central Government by notification to protect a monument can call for objections, if any, by giving one month's notice by affixing the notification in a conspicuous place near an area. Such notification shall also specify the limits of the area which is to be declared as a prohibited or regulated area.
14. Under Rule 32 of the 1959 Rules, after considering the objections, if any, received within the said period, the Central Government may specify in the notification any part of the area of monument to be a prohibited area or a regulated area. It is not in dispute that by virtue of the 1951 Act, Charminar in Andhra Pradesh is declared as ancient and historical monument of national importance. Though the said Act under which Charminar is declared as protected monument is repealed, but by virtue of Section 3 of 1958 Act Charminar continued to be ancient and historical monument of national importance.
15. The learned Counsel for the respondents herein contended that the expressions in Rule 31 "an area" and "a protected monument" indicate that a notification shall have to be issued in the Official Gazette in respect of each monument. He also relied upon the expressions used in Section 2(f) "an area" and "a protected monument" which indicate that a notification has to be issued in respect of each monument.
16. It is well settled that the primary principle of interpretation of expressions is that a statutory provision should be construed according to object and purpose for which an Act was made. Such intention can be gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. Here, the object of the legislation is to protect and preserve the ancient and historical monuments of national importance. Therefore, the expressions used in Section 2(f) and Rule 31-"an area" and "a protected monument" in the context cannot be read singularly in relation to a particular monument. Section 13 of the General Clauses Act, 1887 reads,--
"in all Central Acts and Regulations, unless there is anything repugnant in the subject or context (1) .... ...
(2) words in a singular shall include the plural and vice versa".
17. Therefore, the expressions "an area" and "a protected monument" in Rule 31 of 1959 Rules can be taken to apply in plurality to all ancient and historical monuments of national importance which were declared as such. In our considered opinion, there is no need for the Central Government to give separate notification for specifying an area near a monument as prohibited area. In respect of all the monuments of national importance the Central Government can by single notification declare certain area near or adjoining the monument as prohibited or protected areas. Accordingly a notification was published in Gazette dated 15.5.1991 calling for the objections within one month inter alia specifying that an area up to 100 meters from the protected limits and further an area up to 200 meters near or adjoining the protected monuments to be declared as prohibited area and regulated area respectively for the purpose of both mining operations and construction. This notification is in addition and shall not in any way prejudice the similar declarations made in respect of certain monuments mentioned in the notification. By virtue of the notification dated 4.7.1992 the area up to 100 metres near or adjoining the protected monument is declared as a prohibited area and the area up to 200 meters as a regulated area. It is not in dispute that the disputed site of the writ petitioner squarely falls within 100 meters from Charminar. By virtue of the said notification, any construction within 100 meters from Charminar area is prohibited.
18. The learned Single Judge of this Court adverting to Rules 31 and 32 of 1959 Rules came to the conclusion that a declaration of prohibited and regulated area is required to be given in respect of each individual monument and that there cannot be any general declaration in respect of the monuments for the obvious reason that all the monuments are not identical in size, design, area etc. We are unable to subscribe to the view or reasoning given by the learned Single Judge. It is not the question of size, design, area etc., of a monument but it is the glory of the structure, culture, sculptural, artistic or Archaeological significance, artistic skills and the vision and wisdom of the ancestors that has to be looked into. The preservation and protection of ancient monuments is thus the duty of Union of India in respect of ancient monuments of national importance to protect, preserve and maintain them. Such an intention of the legislation cannot be whittled down by narrow interpretation of Rule 31 so as to arrive at a conclusion that a specific notification is required to be given by the Central Government in respect of each monument specifying certain areas as prohibited and regulated areas. Therefore, in our considered opinion, the notification dated 4.7.1992 issued by the Government of India squarely applies to Charminar, which is an ancient and protected monument as declared by the Central Government in the Schedule of 1951 Act.
19. It is also contended by the learned Counsel for the respondents that in respect of Golconda Fort at Hyderabad a separate notification was given by the Government of India under Rule 31 of 1959 Rules. Basing on the said notification, the learned Counsel contended that in respect of each ancient monument a separate notification is required to be given by the Central Government. We have perused the copy of the said notification. The said notification prohibits all private land within Golconda Fort, but not near or adjoining area of the protected monument. In our considered opinion, in respect of the near or adjoining area of the protected monument there is no need to give any specific notification in respect of each monument.
20. A feeble attempt has been made by the learned Counsel for the respondents that the Hyderabad Municipal Corporation Act and the rules and regulations made there under would not provide that the permission can be refused in case an area falls within 100 meters of Charminar. The Act of 1959 purports to be a self-contained law at the centre which will apply exclusively to ancient monuments etc., of national importance. The Building Rules and Regulations have to be read along with the provisions in the 1958 Act and the Rules made there under. The Municipal Corporation by its impugned order refused to give permission for construction of building on the ground that the construction around Charminar up to 100 meters is prohibited. The said rejection is in accordance with the notification dated 4.7.1992 and the Municipal Corporation is perfectly justified in rejecting the building plan.
21. For the aforesaid reasons, a mandamus cannot be issued to declare the action of the 1st respondent in rejecting construction permission, which is not illegal or discriminatory. The appeal is accordingly allowed and the writ petition filed by the writ petitioner is dismissed setting aside the judgment under appeal, in the circumstances, without costs.