Bombay High Court
Shahid Aslam Gulam Ahmed vs State Of Maharashtra And Others on 23 October, 2018
Author: T.V. Nalawade
Bench: T.V. Nalawade, Vibha Kankanwadi
PIL No. 29/2015
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION NO. 29 OF 2015
Mr. Shahid Aslam S/o Gulam Ahmed
Age: 47 years, Occ: Business & Social Welfare
R/o : Flat No. B-5, VIP Housing Society,
Sarfaraz Nagar, Near Collector office,
Aurangabad, Pan No. FCNPS60001K
Contact: 8055573232.
email ID: [email protected]. ....Petitioner.
Versus
1. The State of Maharashtra
2. The Director of Archeology
Government of Maharashtra, Mumbai
3. The Assistant Director of State Archaeological
State Archaeological Department,
Office at: Sonari Mahal,
Dr. Babasaheb Ambedakar
Marathwada University Campus,
Aurangabad 431004
4. The Collector,
Aurangabad Division,
Aurangabad
5. The Aurangabad Police Commissioner,
Aurangabad Police Commissiorate,
Milind Corner, Aurangabad
6. The Director of Town
Planning, Maharashtra State,
Pune, Centre Buldg, Ground Floor,
Opp. Sasun Hospital, Pune 411001
Contact, (020) 26122403
7. The Deputy Director
Town Planning,
Office : Mahad Complex,
CBS Road, Aurangabad
8. The Assistant Director,
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PIL No. 29/2015
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Town Planning
Office Jubliee Park,
Aurangabad
9. The Aurangabad Municipal Commissioner,
Aurangabad Municipal Corporation
Aurangabad
10. The Asst. Director Town Planning
Aurangabad Municipal Corporation.
Aurangabad
11. The Dy. Director Town Planning
Aurangabad Municipal Corporation
Aurangabad
12. The Chief Fire Officer, Fire Bridge,
Aurangabd Municipal Corporation
Office at Gandhi Nagar,
Station Road, Aurangabd
13. The Chairman,
Heritage Conversation Committee,
State of Maharashtra
14. The Chairman,
Heritage Conversation Committee
Aurangabd Municipal Corporation
Aurangabad
15. The Union of India
Secretary, Petroleum Ministry
Government of India, New Delhi.
16. Superintendent Archaeologist,
Archaeological Survey of India
Aurangabd Circle, Bibi-Ka-Maqbara,
Aurangabd-431004
17. Director General,
Central Archaeological,
Janapath, New Delhi. 110011
18. The Chief Controller of Explosive,
A Block CGO Complex Fifth Floor,
Seminary Hills, Nagpur, Maharashtra.
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19. The Chief Administrator,
C.I.D. C.O Ltd. New Aurangabad
Office Udyog Bhavan,
CIDCO, Aurangabad
20. The Chief Executive Officer,
Maharashtra State Board of Wakf
Panchakki, Aurangabad
21. The State Head,
Reliance Industries Limited
(Reliance Petroleum)
No. 18, 1st Floor Saptak Plaza
Ambazari Road, Above Das Jewelers
Near Shankarnagar Square, Shivaji Nagar,
Nagpur, Maharashtra - 440010.
22. The Territory Manager
Hindustan Petroleum Corporation Ltd.
Office at Town Centre, G-Sector,
M.G.M. Hospital Road,
CIDCO Aurangabad- 431003
23. The Territory Manager
Bharat Petroleum Corporation Ltd.
Akolner POL depot, At & P.O. - Akolner,
Taluka and Dist. Ahmednagar,
Maharashtra. PIN- 414107,
24. The Senior Divisional Retail Manger
Indian Oil Corporation Ltd.
Aurangabad Divisional Office,
Plot NO. 99, Jyoti Nagar,
Aurangabad _- 431005
25. M/s N.A. Printer
B.P.C.L. Petrol Pump
Thru Mr. Xerxes R Printer
Near Delhi Gate,
Next Divisional Commissioner Office
Aurangabad
26. Aurangabad M/s N.A. Printer
B.P.C.L. Petrol Pump
Thru Mrs. Rumit D Printer
Near Gandhi Status Shahgunj,
Aurangabad
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27. M/s A.P. Patel and Co
H.P.C.L. Petrol Pump
Thru Mr. Hiten Patel
Near Gandhi Statu, Shahgunj
Aurangabad
28. M/s Ashok Bothers
India oil Petrol Pump
Thru Khalid Chaudhari,
Jafar Gate Mondha, Aurangabad
29. M/s N.A. Printer
B.P.C.L. Petrol Pump
Thru Mrs. Rumit D Printer
Near Station Masjid, Station Road,
Aurangabad
30. M/s Shree Ram
Reliance Petrol Pump
Thru Majoj Darak
CBS Road, Next to Office of
Deputy Commissioner of Labour
Aurangabad Division,
CBS Road, Aurangabad.
31. Mr. Dattabhau Pathrikar
Reliance Petrol Pump
Jalgaon Road, N-7, CIDCO
Aurangabad
32. M/s Rajyog
B.P.C.L. Petrol Pump
Thru Rajendra Bhaskar Adani
Jalgaon Road, N-7, CIDCO
Aurangabad ....Respondents.
Ms. Daxini Roopa, Advocate for Petitioner.
Mr. M.M. Nerlikar, AGP for Respondents/State
Mr. A.P. Bhandari, Advocate for Respondent Nos.2 to 4
Mr. J.R. Shah, Advocate for Respondent Nos.9 to 12
Mr. S.V. Kshirsagar h/f Mr. A.S. Deshpande, Advocate for Respondent
No.19
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Mr. S.S. Kazi, Advocate for Respondent No.20
Mr. U.A. Bhadgaonkar, Advocate for Respondent No.21
Mr. Sanket S. Kulkarni, Advocate for Respondent No.23
Mr. R.M. Joshi, Advocate for Respondent No.28
CORAM :T.V. NALAWADE AND
SMT. VIBHA KANKANWADI, JJ.
RESERVED ON : 18/09/2018.
PRONOUNCED ON : 23/10/2018
JUDGMENT :[PER T.V. NALAWADE, J.]
1) Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.
2) The petition is filed for issuing directions to respondent Nos. 1 to 23 to take steps to shift the petrol pumps of respondent Nos. 24 to 31 from the present sites of petrol pumps for protection and preservation of some historical structures and sites of Aurangabad city. Directions are also sought to see that no petrol pump is allowed to be kept open within distance of 1 k.m. from historic sites mentioned in the petition. It is contended that representations were given to the Collector, Aurangabad to take steps as per the Ancient Monuments and Archaeological Sites and Remains Act, but the steps are not taken. It is contended that these petrol pumps have not obtained necessary certificates like no objection certificate from the concerned authority and as they store and sell explosive substances like petrol and diesel, they have ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 6 become danger to the historical structures and in the past, some incidents had taken place in the vicinity of few of the petrol pumps like starting of fire.
3) For the decision of the matter like present one, one needs to know the history of Aurangabad to ascertain the importance which needs to be given to the structures mentioned in the petition and also the nature of construction in view of the danger to them described in the petition.
4) Aurangabad is a historic city. When the city was developed in the past, it was like the second capital of the emperor, Badshaha, who was ruling most portion of present India. It had surrounding walls with 52 gates. Aurangabad had developed as a cosmopolitan city even prior to Nizam's Rule. It needs to be observed that there is little appreciation of impressive monuments of this historic city and only few of them have survived. These structures were built by successive rulers, Delhi Sultanates, Nizam Shahs, Mughals and Asaf Jahi during 14 th to 18th century. This was Islamic period of northern Deccan and Delhi rulers were controlling almost entire portion of present India.
5) In 17th century Mughal administrative apparatus ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 7 transformed this region from regional strong hold to imperial one. Even prior to that, in the year 1327 Delhi Sultanates had relocated its capital at Devgiri (Daulatabad) situated at the distance of hardly 14 k.m. from Aurangabad. Though after few years, capital was again shifted to Delhi, the fact remains that this region was considered as capital of Delhi Sultanates for some years. After shifting of the capital to Delhi, many of those who had suffered this forced migration chose to stay in Deccan region. In 15 th century this region came under Nizam Shah. After 1600, the region was controlled by regent minister Malik Amber of Nizam Shah. His name is famous in this region as he created many architectural wonders and wonderful underground water ways.
6) During regime of Malik Amber, the population and commerce of Daulatabad town which was controlling this region outgrew Daulatabad and so, Malik Amber founded the city of Khadki. Later Khadki was to become Aurangabad, the Deccan headquarters of Mughals, taking its name from prince Aurangzeb. Aurangzeb was placed in Aurangabad first as Viceroy of emperor and then as emperor, Aalamgir. He spent many of his years of life in this region and ultimately he died in this region in the year 1707. The Mughals contribution to Aurangabad changed the face of this town. Under this rule, Aurangabad was surrounded by high walls with multiple gates. ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 8 Inside the walls imperial Mughal buildings were constructed which include mosques, tombs and other complexes including the places where the emperor lived and worshiped. Wonderful structure Bibi- ka-Maqbara was also constructed by Mughals. After Mughal, kingdom of Asaf Jahi was formed in Aurangabad and rulers of Asaf Jahi were then called as Nizams.
7) In 20th Century Nizam established Archaeological Department in Aurangabad and then study of Budhism and early past of the Deccan was started. Even during Nizam's regime, Aurangabad, Daulatabad, Khultabad found new importance as locations of historic inquiry and tourist activity. Aurangabad also became the base to have access to surrounding historic sites like Ajenta, Ellora and Paithan. In those days, Aurangabad had become important center of learning and scholarship in languages like Urdu, Parsian etc. From 18th century onwards people from all the corners of Hindustan, Afganistan, Arab lands, Parsia came here and settled here. They got mixed with local population and that has created unique cosmopolitan characteristic. Buildings and artistic traditions in Deccan have always been different from those in northern Indian plains and the Gangetic valley. This is because, this part had direct oceanic connection with larger world, particularly West Asia and, East Africa. For that reason also this region had become ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 9 cosmopolitan in nature. Due to these peculiarities, from 17 th century this region showed architectural innovations, improvisation and hybridity. From 17th century, Mughal architecture made impression on structures created by them, but that had also influence of the architecture already developed in this region. New Deccan based Mughal architecture was also born. Thus, in this region in constructions, there is fusion of elements of architecture from West Asia, Persianate lands, Delhi Sultanates and local Indian architectural traditions. In spite of these impressions left, it is possible to trace the pe-degree, several architectural elements and pattern across several centuries.
8) Malik Amber's boundary walls constructed in earthen material were replaced by Mughals by stone walls by imposing clad in black basalt. Mughal's were known for brick architecture, but in this area of Deccan, they made construction by combining stone and timber. Due to need of using these articles, Mughals were required to use local labour expertise. That is why traditional architecture and skill for making construction in basalt can be found in structures made during Mughal period.
9) Most of the monuments of Aurangabad city are contained within the perimeter of Aurangabad old city walls. Thus, the visitors ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 10 note surviving walls and gates first and then they come across other monuments of Aurangabad city.
10) In petition, relief is claimed in respect of 11 structures which are declared as heritage monuments by the State Government and the structures are as under :-
List of State Protected Monuments in Aurangabad city Sr. Notified Name Locality Taluka District Remarks No. of the Monument 1 Perhistoric: Aurangabad Aurangabad Aurangabad (As per Notification Neolithic Site, published in "Antiquarian Remains in Hyderabad State", by the Director, Archaeological Department, Government of Hyderabad, vide notification no.49/1/111/Arch/51, dated 12/1/53), under sub section (I) of section 3 of the Hyderabad Ancient Monuments Preservation Act, 1337 F. (VIII of 13337 F.) 2 Panchakki Aurangabad Aurangabad Aurangabad -do- 3 Shaha Gang Aurangabad Aurangabad Aurangabad -do-
Mosque 4 Kali Masjid Aurangabad Aurangabad Aurangabda -do- 5 Chouk Masjid Aurangabad Aurangabad Aurangabad -do- 6 Lal Masjid Aurangabad Aurangabad Aurangabad -do- 7 Naukhanda Aurangabad Aurangabad Aurangabad -do-
Palace 8 Makai Gate Aurangabad Aurangabad Aurangabad ANM/1070/q/48751/(292) 34 Dt.24.10.71 9 Delhi Gate Aurangabad Aurangabad Aurangabad ANM/1070/q/48751/(292) 34 Dt24.10.71 10 Bhadkal Gate Aurangabad Aurangabad Aurangabad ANM/1070/q/48761/(292) Dt. 13.July 1976 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 11 11 Lala Hardual Aurangabda Aurangabad Aurangabad ANM102001/CR.1/CUL3, Samadhi Dt. 17.5.01
11) Each of 52 gates set in to the walls supposedly represent one week of the year. Out of 52 gates only 13 gates can be seen today. Out of 13 gates only aforesaid gates are declared as heritage monuments by the State Government. Delhi, Makkai, Paithan and Roshan Darvazas face to four cardinal directions of north, west, south and east respectively. From the remains of some walls it can be said that Qil'a-Ark, Aurangzeb's palace was surrounded by a wall and that wall was having five gates including Bhadkal, Rangeen, Delhi and Naubat Darvaja. Except for Bhadkal Darvaja, the other gates are associated with Aurangzeb and they are built in typical Mughal manner. This Court is avoiding to give the description of each gate as the peculiarities of architecture are already mentioned. This Court is giving general description of those gates in brief.
12) Bhadkal Darvaza : - One of the most significant survivors of Malik Ambar's era in Aurangabad is the Bhadkal Darvaza. Among the oldest monuments in the city from this period, dated 1612, it stands a short distance from the Central Bus Stand, along the western side of the old city. It is a large and massively built structure, in area of 14 meters square. Original stucco medallions ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 12 and bosses are still visible on its facade, the designs being modelled on earlier Bahmani architectural decoration. As the principal entrance to the city at the time, the gate is provided with a prominent gallery on the upper story, which may have been used for ceremonial musicians. The interior vaulting employs intersecting arches, a technique that recalls the ribbed vaults used in European Gothic architecture. Together with supporting squinches, these arches create an octagonal base for the interior dome, which rises more than 15 meters above the passageway.
13) Makkai gate is imposing structure having two Minars probably for watching and for guarding city on both sides of the gate. Like other structures impression of Mughal architect can be found in this structure.
14) Other historical structure is Lala Hardual Samadhi. It is a tomb of Lala Hardual, brother of a king of Bundelkhand. There is history that the king had poisoned Hardul out of jealousy and then Lala Hardual was buried there. There are sayings about Lala Hardual that he helped people even after the death.
15) Pre-history or neolithic sites of Aurangabad are the 12 caves which are at the distance of 2 k.m. from Bibi-ka-Maqbara. In ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 13 these caves, there are Buddhist excavations comparable to Ajenta and form part of the great network of Buddhist rock-cut sites of Maharashtra. They were made between 2 nd and 5th centuries and they are ascribed to Satavahana and Kalachuri rulers, the Deccan rulers. One of the caves has Chaitya or Shrine for devotion and has monolithic Stupa at the end. There are images of teaching Buddha and images of kneeling devotees. In some caves there are images of Bodhisattvas and in one cave there is image of Buddhist Goddess Tara.
16) Pan Chakki is wonder showing the skills of the past of using hydrolic method. In keeping with long established patterns of settlement in the northern Deccan, systems of water supply at most of these sites were primarily reliant on ground-water in the form of wells, and small flowing streams that could be harvested seasonally. The hard basaltic formation known as Deccan trap, which is the dominant geological nature of the region, coupled with the semi-arid climate, predicated the selection of sites for large settlements, such as Devagiri. It was only after the introduction of technologies of water conveyance and distribution, such as those introduced by the Delhi sultans after they invaded the Deccan at the very end of the 13th century, that knowledge of hydraulic techniques imported from Persianate lands permitted settlements in areas without easy access ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 14 to groundwater and rivers. The exception to all this are the various types of water works that survived well, because most of them were functional, and supplied water to these settlements through the early 20th century. Siphon water towers, aqueducts, cisterns, wells, channels, large artificial lakes, dams are all to be seen. Not always grand, and often concealed under layers of accretions and modifications, such hydraulic features are nevertheless in place, and in some cases still functional. In almost all the abandoned palace structures of the Deccan, underground conduits that brought water from many kilometres away still survive. It is possible to trace some of these for a short distance, since they punctuated by siphon towers that helped to regulate the pressure and flow of water. Pan Chakki is where hydraulic technologies of this nature can be seen operating to this day.
17) In city, there are many Masjids and historical tombs and the three Masjids like Shah Gunj Masjid, Chowk Masjid and Lal Masjid are separate structures. But, Kali Masjid is a cluster of Masjids and such Masjids created by Malik Amber are found at various places in central portion of Aurangabad. Each Masjid has different peculiarities and they were constructed in and after 17 th century. In Shah Ganj Masjid which was erected in the year 1720, there is clock tower built in curious Indo Europian wall. ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 15
18) Other structure which is notified is Naukhanda Palace and it was built by Malik Amber in 1616. It's entrance gate was erected in 18th century. Entry in pavalian was used by Nizam-ul-Mulk to declare independence from Mughals. The construction of every structure inside of this gate is peculiar and showing art of that time. [The aforesaid history is given on the basis of history given in the book titled as 'Aurangabad with Daulatabad, Khuldabad and Ahmadnagar' by Pushkar Sohoni published in 2015].
19) The aforesaid description of ancient and historical structures of Aurangabad needs to be kept in mind while considering the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as 'Central Act' for short) and the provisions of Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960 (hereinafter referred to as the State Act for short). The statements and objects of the Central Act show that the Act is made to create self content law at the center which will apply exclusively to ancient monuments which are of national importance. They are kept in entry No. 7 of list I of Constitution of India. Some other archaeological sites and remains falling under Entry No. 49 in the concurrent list of Constitution of India also remain within the domain of Central Government. Entry No. 12 of the State list is as follows :-
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"12. Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance"
Thus, attempt is made to demarcate Central and State fields and entry No. 12 shows that at any time, the Central Government can declare the sites or the monuments over which the State is exercising power as of national importance and for that procedure is also provided in the Central Act.
20) The definitions given under section 2 of 'ancient monument', 'antiquity' and 'archaeological site and remains' in Central Act are as under :-
"(a) "ancient monument" means any structure, erection or monument, or any tumulus or 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-
(i) the remains of an ancient monument,
(ii) the site of an ancient monument,
(iii) 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
(iv) the means of access to, and convenient inspection of an ancient monument:::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 17
(b) "antiquity" includes-
(i) any coin, sculpture, manuscript, epigraph, or other work of art or craftsmanship,
(ii) any article, object or thing detached from a building or cave,
(iii) any article, object or thing illustrative or science, art, crafts, literature, religion, customs, morals or politics in bygone ages,
(iv) any article, object or thing of historical interest, and
(v) any article, object or thing declared by the Central Government by notification in the Official Gazette, to be an antiquity for the purposes of this Act.
Which has been in existence for not less than one hundred years;
(d) 'archaeological site and remains' means any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than one hundred years ad includes-
(i) such portion of land adjoining the area as
may be required for fencing or covering in or
otherwise preserving it, and
(ii) the means of access to, and convenient
inspection of the area;"
21) The definitions of 'protected area' and 'protected
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monument' given in section 2 (i) and 2 (j) of Central Act are as under :-
"(i) "protected area" means any archaeological site and remains which is declared to be of national importance by or under this Act;
(j) "protected monument" means any ancient monument which is declared to be of national importance by or under this Act."
22) The provision of section 3 of the Central Act provides that ancient monuments and archaeological sites and remains which are declared as such by the Central Act as of national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains for the purpose of Central Act.
Section 4-A of the Central Act gives classification and categorization and provides as under :-
"4A. Categorisation and classification in respect of ancient monuments or archaeological sites and remains declared as of national importance under sections 3 and 4. (1) The Central Government shall, on the recommendation of the Authority, prescribe categories in respect of ancient monuments or archaeological sites and remains declared as of national importance under sections 3 4, and while prescribing such categories it shall have regard to the historical, archaeological and ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 19 architectural value and such other factors as may be relevant for the purpose of such categorisation.
(2) The Central Government shall, on the recommendation of the Authority, classify all the ancient monuments or archaeological sites and remains declared as of national importance under sections 3 and 4, in accordance with the categories prescribed under sub-section (1) and thereafter make the same available to the public and exhibit the same on its website and also in such other manner as it may deem fit."
In section 4, the power of Central Government to declare any monument etc. to be of national importance is mentioned. This provision also shows that ancient monument from State list can be declared by the Central Government as of national importance.
23) Section 13 of the Central Act is also relevant. It shows the power of the Central Government to acquire the private monuments and declare them as of national importance. It runs as under :-
"13. Acquisition of protected monuments.- If the Central Government apprehends that a protected monument is in danger of being destroyed, injured, misused, or allowed to fall into decay, it may acquire the protected monument ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 20 under the provisions of the Land Acquisition Act, 1894 (1 of 1894), as if the maintenance of the protected monument were a public purpose within the meaning of that Act."
24) Section 18 of the Central Act shows that subject to rules which Central Government may make, public shall have right to access to any protected monument. Due to availability of this provision, the tourists get opportunitiy to have access and see such monuments.
25) Section 20 of the Central Act shows the power of Central Government to acquire protected area containing ancient monuments or antiquities of national importance. Section 25 of the Central Act shows the power of the Central Government in respect of antiquities and it can prohibit the moving of antiquities from the place where they are kept without the sanction of the Central Government, Director General. There is power with the Central Government to purchase the antiquities also. It needs to be mentioned here that the exploration of the antiquities and things of historical importance in this region is not done seriously and whatever work was done, it was done during British period and much more needs to be done in this area.
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26) The definitions of 'prohibited area' or 'regulated area' is given in Rule 2 (f) of the Rules framed under the Central Act. This rule is as under :-
"(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, from as the case may be, a regulated area, for purposes of mining operation or construction or both;"
Rule 8 relates to protection of monuments and it is as under :-
"8. Prohibition of certain acts within monuments.- No person shall within a protected monument,-
(a) do any act which causes or is likely to cause damage or injury to any part of the monument; or
(b) discharge any fire-arms; or
(c) cook or consume food except in areas, if any, permitted to be used for that purpose; or
(d) hawk or sell any goods or wares or canvass any custom for such goods or wares or display any advertisement in any form or show a visitor round or take his photograph for monetary consideration, except under, the authority of, or under and in accordance with the conditions of, a licence granted by an archaeological officer;]
(e) beg for alms; or
(f) violate any practice, usage or custom ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 22 applicable to or observed in the monument; or
(g) bring, for any purpose other than the maintenance of the monument,-
(i) any animal or,
(ii) any vehicle except in areas reserved for the parking therefore."
27) If we compare the provisions of the Central Act with the provisions of State Act, we can say that there is not much difference in definitions of protected monuments, ancient monuments, antiquities etc. except the difference in respect of the period of their existence. The period of existence in the State Act is 'not less than 50 years' when in the Central Act, the period of existence is 'not less than 100 years'. The other provisions with regard to the powers of the State Government to declare ancient monuments as protected monuments etc. are similar to the power of Central Government mentioned in Central Act. Even when there are the provisions of Constitution of India already quoted and also the provisions of Central Act only, some monuments from Aurangabad are covered under State Act. The priority to be given to the provisions of Central Act is mentioned in the State Act in section 44 and it runs as under :-
"44. (1) Nothing in this Act shall apply to ancient and historical monuments, or archaeological sites or remains, declared by or under any law made by ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 23 Parliament to be of national importance, or to any antiquities to which the Ancient Monuments and Archaeological Sites and Remains Act, 1958, applies.
(2) Where any ancient and historical monument or any archaeological site and remains which is a protected monument, or protected area, by or under the provisions of this Act is declared at any time by or under any law made by Parliament to be of national importance, the provisions of this Act shall cease to apply to such monument or area; and accordingly, it shall cease to be a protected monument or area for the purposes of this Act."
28) Hyderabad Act of 1337 Fasli (1947 AD) was already in existence and it had also similar provisions regarding ancient monuments, antiquities, but the period of existence was not mentioned in that Act. The record shows that monuments which are covered by the State Act at Sr. No. 1 to 7 were already notified under the old Act as ancient monuments, prior to coming in to force of the State Act.
29) In reply, the State Government has contended in the present proceeding that the activity like running petrol pumps in the vicinity of the ancient monuments under State Act need to be ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 24 stopped and the petrol pumps in respect of which the State authority forms opinion that petrol pumps are dangerous to the ancient monuments need to be shifted. The State Government has contended that it has power to take steps and action under section 17 (1)(a), section 21 (1) and section 41 (1) of the State Act and also under the Rules of development framed by it under Maharashtra Regional Town Planning Act. The provisions are as under :-
"Sec. 17.(1) If the State Government is of opinion that for the purpose of preserving the reasonable amenities of any protected monument, it is necessary so to do, the State Government may, subject to the provisions of this section, by notification in the Official Gazette, in respect of any area comprising or adjacent to the site of such monument specified in such notification (hereinafter referred to as "the controlled area")-
(a) prohibit or restrict the construction, erection or execution of buildings, structures and other works above ground within the controlled area, or the alteration or extension, of any such buildings, structures, or works in such manner as materially to affect their eternal appearance;
21.(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 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 25 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 State Government:
41.(1) The State Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying out the purposes of this Act."
30) In view of the aforesaid provisions and also the standardized provisions for development which are being mentioned hereinafter, it can be said that the Local Body, Corporation, Commissioner has the power to take decision in this regard. In one case bearing Writ Petition No. 4734/2004 (St. Philomena Cnvent High School Nashik Vs. Union of India) decided on 31.3.2009 Division Bench of this Court at Principal seat considered relevant provisions and also the power of Commissioner of Corporation and this Court set aside the permission granted by the Corporation as the permission was not granted by following the proper procedure. In that case, public safety was involved. In the present matter, the public safety, and also the protection of ancient monuments is involved. There are affidavits of the concerned in that regard which are being quoted at proper place.
31) The learned counsel for petitioner has placed reliance on ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 26 the notification of Urban Development Department of State Government dated 21.11.2013 and she submitted that the conditions given in the notification need to be considered as there are specific provisions, restrictions with regard to starting of activity like running petrol pumps in thickly populated, residential area. She submitted that in the present matter at no time permission of the Local Body as provided in Development Rules was obtained and it cannot be said that in the past, there was no necessity of such permission and so, now the permission need not be taken. There is force in this proposition made by the learned counsel for petitioner. When there are such provisions and they involve public safety and also the necessity of preservation and protection of ancient monuments, it cannot be said that those provisions cannot be used against the activity which was already started. This Court has no hesitation to observe that after coming into force of such regulation, it was necessary for the Commissioner to consider this activity from angle of regulations made and it was necessary for the Commissioner to take proper steps. There are many provisions with regard to such activity, i.e. the requirement of minimum plot area, the requirement of minimum plot width, the requirement of specific areas if they are to be treated as independent premises/building. Even in agricultural zone (no development zone) there is necessity of taking permission of Central Government, Petroleum Ministry and ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 27 Chief Controller of Explosives. In the present matter, it was submitted for the petrol pump owners that they have the permission of Controller of Explosive, but that is past now. As per the regulation No. 23.2.2 and the table No. 14, minimum width of road required to be in existence adjacent to the petrol pump (12 Meters), minimum distance which need to be kept from the structures like school premises, hospitals etc. is given. Clause 1.4 (iii) is specific about heritage regulation and they also need to be considered at the time of granting permission. It can be said that separate rules with regard to distance are not framed by the State. When there are the provisions and Rules already made by the Central Government, prescribing minimum distance to be kept for such activities from ancient monuments, those rules can be safely used. Now there are regulations under the Town Planning Act and so, the authority needs to use the regulations made with regard to ancient monuments by the Central Government and different consideration for the ancient monuments declared under the State Act are not possible in view of the provisions which are already quoted above. The period of existence of ancient monuments of Aurangabad is already mentioned by this Court. Thus, the distance which is fixed in the Central Legislation, 100 meters from the monument's site needs to be followed in the present case also.
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32) Development Control Rule 2.6 (d) gives minimum distance which needs to be kept between petrol pump and school, hospital etc. and it is 91.5 meters. It is already observed that in Central Regulations, distance which is to be kept from national monument is 100 meters. There are other stipulations like the necessity of existence of road of minimum width by the side of petrol pump, minimum distance which needs to be kept from junction of road etc. These stipulations need to be considered and used by the Commissioner of Corporation in the present case also. The circumstance that there are regulations in existence now and there is no permission of Commissioner of this Corporation needs to be used by the Commissioner for taking decision.
33) Another notification of the State Government of Urban Development Department dated 20.9.2016 (Clause 22.10) shows that there are restrictions for development in the vicinity of declared monument under Ancient Monuments Act, the Central Act and also the Maharashtra Act, 1960. So, it has become necessary to see that the restrictions placed in both Central Act and State Act are strictly observed. The contention that the State Government has not given specific distance like given by the Central Government in State Act cannot be accepted in view of the aforesaid provisions, if they are read together. There is table No. 99 also in the State Rules of ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 29 Development which is about the minimum road width, minimum marginal distance surrounding the petrol pump and minimum distance which needs to be kept from the junctions of two roads.
34) In the present matter, it is the case of petitioner that he had approached authorities like Collector, Aurangabad, Commissioner Aurangabad, CIDCO, Petrol Pump Companies and he had informed them about the danger posed by the petrol pumps involved in the present matter. No steps are taken by any of these authorities. He had approached Waqf Board as some properties are situated on the sites belonging to Waqf Board. Copies of this correspondence are produced on record and the correspondence was made in the early part of year 2015. There is copy of letter of Collector addressed to Police Commissioner dated 3.2.2015. Collector requested police to do the needful. This correspondence shows that everybody is passing bug and nobody is taking proper action in the proceeding.
35) The reply affidavit of petroleum companies shows that they have indifferent approach. It is their contention that oil companies have right to chose sites for petrol pumps and they have commercial freedom in that regard.
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36) The Corporation, Town Planning Authority has denied that the aforesaid standardized Development Control and Permission Regulations are applicable to Aurangabad Municipal Corporation area. In this behalf, it can be said that the State Government notification dated 21.11.2013 and Schedule A attached to it show that those standardized regulations are applicable to Schedule A areas which include Aurangabad and Jalna region. We are considering old city of Aurangabad.
37) The respondent, Corporation has contended that it has taken steps for preservation of ancient monuments and for that heritage regulations are already approved by the State Government (in the year 2007). It is contended that a per the Regulation No. 29.12.6 (11) the decisions are taken when proposed development is to be in the vicinity of ancient monuments. This regulation shows that there is the power to the Committee created under the regulations to suggest modification in Development Regulations and Building By laws. Those regulations are not squarely involved on the point involved in the present matter. The regulations show that classification and categorization of ancient monuments and structures is done and they are classified in Grade I for ancient monuments of national importance, Grade II for the ancient monuments declared by the State Government and Grade III are ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 31 monuments which are of the local importance. It can be said that many more structures of Aurangabad are not listed in Grade II. Further, in the regulation itself and the proposals, it is admitted that even the structures which are covered by the State Act are in a very bad shape and they are not properly preserved and maintained.
38) The petroleum companies and retailers have contended that the heritage monuments mentioned in petition are not of national importance and so, the restriction of keeping minimum 100 meters distance from these sites is not applicable in the present matter. It is also contended that the restriction of keeping minimum distance of 1000 meters between the two petrol pumps is also not applicable in the present matter. They have contended that only the Central Government is the authority to implement the regulations made by it under the Central Act and as in that capacity, the Central Government is not made party respondent, no directions can be given by this Court. It is also the contention of the petroleum companies and retailers that when the petrol pumps were started, no objection certificate under Explosive Substance Act was obtained by them and at that time, the Local Body had no authority to take objections. It is contended that if there are some regulations now, they can be applied if there are new proposals for starting of new outlets.
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39) Fire Brigade Department has contended that proper precautionary measures are not taken by the petrol pumps mentioned in the petition. It is contended that such directions were given in Writ Petition No. 5872/2010 which was decided by this Court, but safety measures are not taken. It is contended that notices were issued to all the petrol pumps to take measures. The copies of the notices starting from year 2006 are produced. But, it appears that only paper work was done and no concrete action was taken. It appears that only after filing of the present proceeding, direction was given to few petrol pumps on 26.11.2016 to shift the petrol pumps and they were against N.A. Printer at Delhi Gate Aurangabad, N.A. Printer near Gandhi Status Shahgunj, P.A. Patel Petrol Pump, Ashok brothers Petrol Pump, Dattabhau Pathrikar Petrol Pump and Rajendra Adani Petrol Pump. This reply also shows need to have proper access, roads leading to the monuments. In view of provisions of the State Act, it is responsibility of State to create and maintain such roads.
40) Police Department has filed reply affidavit and it is contended that except two petrol pumps viz. Rajendra Adani Petrol Pump and Dattabhau Pathrikar Petrol Pump, other petrol pumps have created danger to public. It is contended that they are situated ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 33 in thickly populated area and roads are having heavy traffic and so, they need to be shifted from the present sites.
41) There is reply affidavit of State Archaeological Department. It is contended that no objection certificate from it was not obtained while starting of the petrol pumps mentioned in the petition. It is contended that in notification dated 21.11.2013 of the State Government issued under Maharashtra Regional Town Planning Act is applicable and in view of provisions of sections 17, 21 and 41 of the State Act in the present regard the petrol pumps need to be shifted.
42) Article 49 of the Constitution of India shows obligation of the State Government to protect national monuments. Section 63(1) of Maharashtra Corporation Act, 1949 show that there is obligation of Corporation to regulate and abate offensive and dangerous trades or practices. Section 62 (16) of Corporation Act is about the obligation to abate to all the nuisance. In this area there were communal riots in this city and incidents of burning of vehicles had taken place at close distance from some petrol pump. Photographs of those incidents are produced on record. The submissions made and the record show that the premises of all the petrol pumps of this proceeding are open towards the public road and there is always ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 34 heavy traffic on this road. Further, all these petrol pumps are situated in thickly populated area and they are also situated in the vicinity of aforesaid ancient monuments. There is clear possibility that the petrol pumps have become danger to human life and these structures. Enquiry into the aspect as to whether they have created danger to the life of people also needs to be made. Article 21 of Constitution, right to life includes safety of life and there is obligation on the State and the local body to see that no danger is posed to the people due to the offensive and dangerous trades or practices. Thus, from that angle also, the Corporation needs to discharge it's duty and if these outlets have created danger to the life of people, they need to be removed. The provision of section 133 of Criminal Procedure Code giving power to remove dangerous activities can also be used. Thus, there are ample provisions, even from the other angle imposing obligation on the State and the Local Body to take proper steps in this regard.
43) The description of monuments involved in the present petition with their age show that they could have been declared as monuments of national importance by the Central Government. It is the history that emperor of Hindustan, Aurangzeb ruled most portion of the India, Pakistan and Bangla Desh when he had stationed at Aurangabad. This period was not short one and he was stationed ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 35 here for more than 10 years as emperor and for similar period as Viceroy of the emperor. During his regime the city was developed and so, the city is named after him. This historical importance of Aurangabad cannot be ignored.
44) There are pre-historic ancient structures like Buddhist caves and caves containing sculptures of Jainism and Hinduism in area surrounding the city and also in the vicinity of this city. They can become part of Buddhist circuit and the Central Government must have included Buddhist caves in 'Buddhist circuit'. Aurangabad has developed as industrial city and due to that, there are facilities for stay etc. for foreign tourists. From all the corners of India, people visit Aurangabad to see both the pre-historic sites and historic sites. Most of the tourists develope interest only due to the history about the structures and it can be said that authentic history is available of Aurangabad city. So, the historical structures which are also ancient under both Central Act and State Act need to be properly preserved and maintained.
45) It is noticed that due to bad conditions of road, narrow roads and other aspects like uncleanliness the tourists face lots of inconvenience. There is downward trend in the number of visitors visiting city. It can be said that this his happening only due to apathy ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 36 of the concerned authority. Nobody is taking care of convenience of tourists, even of foreign tourists. It is dry and drought prone region. Recently new industries have not come to this city and some industries have started shifting their places from this region. The reasons may be many. But, one reason is the apathy of the concerned authorities which is mentioned above. Due to that the employment opportunities are going down. Tourism will prove to be boon for the people of this region and for that also, the ancient and historical structures need to be repaired and need to be kept in good shape.
46) It has always been complained by the Local Body that it has no sufficient resources and funds. This Court has no hesitation to observe that the State Government has not paid proper attention to aforesaid structures even when those structures are declared under State Act and those structures can be declared as monuments of national importance at any time. For all these reasons, it is desirable for the State Government to propose to Central Government to declare the aforesaid structures as monuments of national importance. Such declaration will solve most of the problems including problem of funds, the resources. When the funds are available, some part of old fortification can be rebuilt to give old look of the second capital of the emperor to this city and that will ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 37 increase the beauty of the gates described above. If ancient and historical structures of this city are properly maintained, that will help in maintaining and preserving the world famous Buddhist circuit and other sculptures created by Satvahana dynasty, Chalukya dynasty, Rashtrakuta dynasty and other dynasties which ruled here prior to 500 A.D. The peculiarities of the structures in caves is that there is fusion of three cultures like Hinduism, Buddhism and Jainism.
47) It is true that it is for the Legislature to decide as to when and in which respect and on what subject matters laws need to be made. But, when the State fails to discharge it's duty, the Court can intervene and exercise the writ jurisdiction. The submissions made and the record show that the State Government has not made regulations under the State Act. In view of these circumstances and the importance of matter, this Court holds that till the State regulations are made under State Act, on the present subject regulations made under Central Act need to be followed by the State Government.
48) The defence of the petroleum companies and retail outlet owners of commercial freedom, right under Article 19 of Constitution of India and the defence of starting of the business prior to coming ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 38 in to force of regulations and of promissory estoppal cannot be considered in the cases like present one. The action which 'State' or the Corporation will take will be in public interest and it will be for the discharge of 'duty' of the State. Thus, the steps need to be taken by the State to protect the ancient monuments involved in the present petition and safety measures need to be taken in respect of the present offensive and dangerous trades or practices.
49) In view of the discussion made above, this Court holds that the petition needs to be allowed partly and some directions needs to be given to the State Government, Local Body and others. In the result, following order.
O R D E R (I) The petition is partly allowed with no order as to costs. (II) Municipal Corporation Aurangabad, Commissioner of Aurangabad Corporation to take steps as provided under Maharashtra Municipal Corporation Act, 1949 to consider the claim of the petitioner that petrol pumps have created danger to ancient monuments and also the danger, if any, they have created to the safety of life of people of that region. The authority is to decide the claim in view of the aforesaid observations made in this petition by this Court and after hearing the concerned parties like retail outlet owners of petrol pumps, petroleum companies, Police Department, ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 39 Fire Brigade Department, Archaeological Department of the State and also the Central Government. If the safety measures are taken in any manner including the construction of wall surrounding the outlet of petrol pumps, then such step also can be considered and in that case, the person running the business will have to bear expenses for the same.
(III) The State Government is hereby directed to use Regulations made by the Central Government under Central Act for protection and preservation of ancient monuments involved in the present matter till separate regulations are prepared by the State Government in that regard.
(IV) The State Government is hereby directed to consider as to whether in the interest of people of this region and for protection and proper maintenance of the ancient monuments, structures, they are declared as monuments of national importance and for that the State Government may make proposal to the Central Government. (V) The State Government is to make available funds for protection and preservation of ancient monuments declared under the State Act. The State Government needs to create proper access, roads leading to the monuments. This is to be done within four months from date of the order.
(VI) The other steps are to be taken by the State Government and the Local Body within six months from the date of this order. ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 ::: PIL No. 29/2015 40 The funds are to be made available by the State Government within four months from the date of this order and the amount is to be calculated by the Archaeological Department and Public Works Department of State Government.
(VII) No litigation is to be entertained in respect of the subject matter of the present petition by subordinate Courts and for clarification etc. the party interested, affected may come to this Court in the present proceeding itself.
(VIII) The amount of Rs.50,000/- (Rupees fifty thousand) already deposited by the petitioner is to be returned to the petitioner.
(IX) Copies of this judgment are to be sent to the State Government and Aurangabad Municipal Corporation for compliance.
Rule is made absolute in aforesaid terms.
[SMT. VIBHA KANKANWADI, J.] [T.V. NALAWADE, J.] ssc/ ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:03:17 :::