Document Fragment View

Matching Fragments

20. The petitioner filed rejoinder on 21/6/2016, wherein it was stated, that the A.S.I. has been indulging into procrastination on all counts inasmuch as under an R.T.I. query it was found that though preliminary notification under Section 4 (1) of the AMASR Act, 1958 were issued, in respect of several monuments, the final notification, under Section 4 (3) of the AMASR Act, 1958, was not issued in respect of any of them except one for the Archaeological site comprised in Survey plot No.185, Bhokardan. It was submitted that even in respect of monuments such as Bibi-Ka-Maqbara, wp5466_of_2013(1).odt Ghrushneshwar temple (one of the 12 Jyotirlings of India) though there was a preliminary notification under Section 4 (1) of the AMASR Act, 1958, the final notification under Section 4 (3) of the AMASR Act, 1958 had not been issued, though these monuments continued to be protected and taken care of by the A.S.I. It was submitted, that though the site was handed over by the Thatte family in the year 1971 itself to A.S.I., it took more than 37 years, to issue the preliminary notification under Section 4 (1) of the AMASR Act, 1958. It was further contended that the decision to review the intention to declare Thatte Nahar as a protected monument, in the face of consistent recommendation in its favour, was clearly due to political pressure. Insofar as the claims in respect of the objections received it was stated that so far as the Golf course proposed to be constructed by the M.T.D.C., the contractor had already been withdrawn from the project. The entire lands of Survey Nos.235, 236 and 237, which were slated for the Golf course, were within the control of the M.T.D.C. and the revenue department and appropriate modifications to its development could always be made. Insofar as other lands and so also any encroachments made therein it could also be removed under the Government Resolution dated wp5466_of_2013(1).odt 12/7/2011. It was further submitted that 80 % of the Thatte Nahar was constructed underneath Government land and open spaces without any habitation and it was only 20% part of the Nahar that was constructed in the area of Begumpura, which was populated which could be taken care of by grant of adequate compensation or by directing the occupants not to undertake any construction activity.

31. The communications placed on record at Exhibits-C to G, clearly demonstrate that the monument in question, was considered by the respondent nos.2 and 3 to be unique from an archaeological point of view being a medieval period water supply system, which was still extant and did not use any mechanical device or power, to ensure the flow of water through the system. The office notes of the respondent no.2 on record from 15/11/1984 to 22/6/2013, time and again reiterate the antiquity of the monument, its uniqueness, ingenuity of its creator and the need to protect and preserve the same. In fact, accepting this need, the then Minister for Culture had approved the issuance of the preliminary notification under Section 4 (1) of the AMASR Act, 1958 which was so issued on 18/9/2009, which declared the intention of the Central Government to declare the said ancient monument to be of national importance. It is quite another thing that it took the respondent nos.2 and 3 more than 37 years, after as per the office notes, it was handed over in the year 1971, to come to a stage of issuing the declaration under Section 4 (1) of the AMASR Act, 1958. It is, however, an admitted position on record, that the final notification under Section 4 Sub Section 3 of the AMASR Act, 1958 was not wp5466_of_2013(1).odt issued, in view of the impugned communication dated 6/8/2013. In that light of the matter, it cannot be said, that the monument in question, satisfies the requirement, in law, as of date of being a protected monument, as defined in Section 2 (j) of the AMASR Act, 1958, as the same envisages a prior declaration of the same being of national importance which could only be done by a final notification under Section 4 (3) of the AMASR Act, 1958. So also for this reason, the provisions of Sections 5 and 6 of the AMASR Act, 1958 are not applicable as they specifically require a prior declaration of a monument, to be a protected monument, for being attracted.

34. In this regard the compilation of the documents regarding proceedings pertaining to the protection/de-protection of Thatte Nahar as placed on record by the respondent nos.1 to 3 can be of some assistance. The preliminary notification under Section 4 (1) of the AMASR Act, 1958 was issued on 18/9/2009, by which objections were to be lodged within two months of the date of its publication as required by Sub Section 2 of Section 4 of the AMASR Act, 1958, by any person interested. As the notification under Section 4 (1) of the AMASR Act, 1958 was published on 18/9/2009, the period of two months would be over on 17/11/2009. The reply of the respondent nos.1 to 3 dated 20/3/2014, lists out five representations/objections received under Section 4 (2) of the wp5466_of_2013(1).odt AMASR Act, 1958, within the time period stipulated under Section 4 (3) of the AMASR Act, 1958 as under :-

38. As against that the email by the Director General A.S.I. Shri Pravin Shrivastava, (Exh.S/Pg.159-A), addressed to Aurangabad Circle of A.S.I. is dated 6/8/2013, i.e. a day earlier , which also states that 'the matter had been reviewed and it had been decided not to proceed with further action for declaration of the monument/ site as protected monument. This indicates that wp5466_of_2013(1).odt something has happened between 22/6/2013 and 7/8/2013, however, what has happened, is inexplicable as there is nothing on record to indicate the same. There are no note sheets after 22/6/2013 and till 6/8/2016, in the compilation of the note sheets placed on record by the respondents 1 to 3. Thus who was the Competent Authority, who took the decision to review and not to proceed ahead in the matter, what was his authority, what was considered, deliberated upon, what were the reasons, all this is totally absent in the matter. Even the reply affidavits filed by the respondents placed on record do not shed any light in this regard. Surely the Director General, A.S.I. cannot be equated with the Central Government, which is the Authority under Section 4(3) of the AMASR Act, 1958 to consider and decide the objections and direct or refuse to direct, issuance of the declaration of the monument being of National Importance. Though Section 29 of the AMASR Act, 1958, provides for delegation of powers, by the Central Government, the same has to be by way of notification in the Official Gazette. No such notification indicating delegation of powers of the Central Government to any officer/authority has been placed on record to indicate that any officer/authority of the A.S.I. was wp5466_of_2013(1).odt delegated the powers under Section 4 (3) of the AMASR Act, 1958. The question is whether the "Central Government" as mentioned in Sub Section 3 of Section 4 of the AMASR Act, 1958 would mean the Director General of A.S.I. or the concerned Ministry/Minister. In this regard, it would be necessary to consider the note by which the preliminary notification under Section 4 (1) of the AMASR Act, 1958 came to be issued. The said note, which starts from page 57 dated 16/6/2009 wherein the noting on page 58 dated 2/7/2009, clearly indicates, that the proposal either under Section 4 (1) or 4 (3) of the AMASR Act, 1958 has to be put up to the concerned Ministry, in this case the Ministry of Culture, who would be the authority to consider and approve or disapprove of the proposal. Thus, any objection, received under Section 4 (2) of the AMASR Act, 1958 has to be considered by the Central Government and not by the Director General, unless he is shown to be so authorized by the Central Government in this regard. The respondent nos.1 to 3 have not placed on record any such authority delegated to the respondent no.2 under the provisions of Section 4 (3) of the AMASR Act, 1958 to consider and decide such objections, or for that matter authority to recall a notification issued under Section 4 (1) of the AMASR Act, wp5466_of_2013(1).odt 1958 by the Central Government. Thus, the action of considering and deciding the objections as reflected from the noting at page 85 under the signature of Shri D.N. Dimri, SA (M) dated 7/8/2013 and the subsequent notings thereunder, as well as the e-mail dated 6/8/2013 (Exh.5/Page 159-A) is clearly without any authority of law, as neither the SA (M) nor the Joint Director or the Director of the Archaeological Survey of India can be considered to be the "Central Government" as contemplated by Section 4 (1) and 4 (3) of the AMASR Act, 1958, specifically so, in absence of any delegation of such power of consideration and decision in that regard as is mandatorily required under Section 29 of the AMASR Act, 1958.