Bombay High Court
Smt. Shaila Madhukar Gore And 3 Ors vs Union Of India And 9 Ors on 12 December, 2023
2023:BHC-OS:14488-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2627 OF 2014
1. Smt. Shaila Madhukar Gore
Indian Inhabitant,
Aged 64 years, Housewife,
residing at 176, Vaidya Wadi,
Thakurdwar Road,
Mumbai - 400002
2. Sanjay Anant Mervekar
Indian Inhabitant, Aged 53 years,
68/86M Harkuwarbai Chawl,
Girgaum,
Mumbai -400 002
3. Pravinchandra D. Dhotre,
Indian Inhabitant, Aged 53 years,
Photo Express Studio,
174, Dr. Baba Saheb Jaykar Marg,
Vaidya Wadi, Thakurdwar Road,
Mumbai - 400 002
4. Anand Sitaram Mali,
Indian Inhabitant, Aged - 52 years,
184, Thakurdwar Road,
Mumbai - 400002 ..... Petitioners
Versus
1 Union of India
through Secretary Ministry of
Culture-502-C, Shastri Bhawan,
New Delhi - 110115
2 The State of Maharashtra,
Mantralaya, Mumbai
Basavraj 1/39
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3 The Commissioner, Municipal
Corporation of Greater Mumbai,
BMC Office VT, Mumbai
4 Director Archaeological Survey of
India (ASI), Janpath,
New Delhi - 110011
5 Director, Directorate of
Archaeological & Museums, ST
George Hospital Compound, Fort,
Mumbai - 400001
6 The Commissioner of Police,
Office of the Commissioner of
Police, Crawford Market, Mumbai
7 The Senior Inspector of Police,
V.P.Marg Police Station,
Mumbai
8 The Collector of Mumbai City,
Mumbai
9 M/s. Kushalraj Land Developers Pvt.
Ltd., Builders and Land Developers
having their office at 275, Mapla
Mahal, J.S.S. Road, Girgaum,
Mumbai - 400004
10 Vaidyawadi Rahiwasi Sahakari
Society (Proposed) Through their
Advocate Tushar A. Goradia, having
his office at Chamber 12, 3rd Floor,
Bell Building, Near Bombay Stores,
Sir. P.M. Road, Fort,
Mumbai - 400001
11 Bhairav Kothari Realtors LLP,
Basavraj 2/39
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269/277, Mapla Mahal, JSS Road,
Girgaum, Mumbai ..... Respondents
WITH
NOTICE OF MOTION NO. 43 OF 2017
(For appointment of Court Receiver)
IN
WRIT PETITION NO.2627 OF 2014
WITH
INTERIM APPLICATION NO. 1677 OF 2019
(for expeditious hearing)
IN
WRIT PETITION 2627 OF 2014
WITH
NOTICE OF MOTION NO. 296 OF 2018
(by Respondent No.10 for expeditious hearing)
IN
WRIT PETITION 2627 OF 2014
WITH
INTERIM APPLICATION NO. 16 OF 2020
rd
(by 3 party for his appointment as the next friend and
kin of the deity)
IN
WRIT PETITION 2627 OF 2014
Mr. S. K. Halwasia with Mrs. S. S. Halwasia a/w Ms. Pranati B.
Mehra a/w Mr. KRCV Seshachalam, Mr. M. M. Nasir Ali i/by
M/s. Halwasia & Co. for the Petitioners
Mr. Amol Raut i/by Manoj Mhatre for the Applicant in IA
No.16/2020
Mr. Ramchandra Apte Senior Adv. a/w Mr. Y. R. Mishra and Mr. N.
R. Prajapati, Mr.Saurabh B Mishra for UOI Respondent No.1
Mr. Abhay L Patki Additional Government Pleader for Respondent
Nos. 2 & 6 to 8 (State of Maharashtra)
Mr. Narayan Bubna a/w Ms. R. M. Hajare & Mr. Sagar Patil i/b
Mr. Sunil Sonawane for MCGM
Basavraj 3/39
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Mr. Karl Tamboly a/w Mr. Adil Parsurampuria and Ms. Zalak Mody
i/b A and P Partners for Respondent No.9
Ms. Nishi Doshi a/w Mr. Pranav Nair i/b Parinam Law Associates
for Respondent No.10
Mr. Anil V. Anturkar Senior Advocate i/b Mr. Shubham Misar for
Respondent No.11
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : DECEMBER 5, 2023
PRONOUNCED ON : DECEMBER 12, 2023
JUDGMENT (PER : CHIEF JUSTICE)
(A) Background Facts:
(i) Prayers in the Writ Petition
(ii) Submissions on behalf of the Petitioners
(iii) Contentions of the Respondents
1. Heard the learned Counsel representing the respective
parties and perused the records available before us on this writ
petition.
2. Invoking our writ jurisdiction under Article 226 of the
Constitution of India this petition in public interest has been filed
by the Petitioners expressing their concern about protection and
preservation of Vithal - Rukumai/Rukhmini Temple, Vaidyawadi,
Thakurdwar, Girgaum, Mumbai claiming that it is an ancient
temple which is over 200 years old and thus, the same needs to
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be protected as a monument of historical importance. The
petition has been filed with further assertion that the temple is
associated with historical events. It has been submitted by the
learned Counsel representing the Petitioners Mr. Halwasia that
between 1888 and 1897 AD, Chaffekar Brothers, the revered
freedom fighters used to visit the temple and even organized
their activities from there. Mr. Halwasia also stated that other
freedom fighters such as Lokmanya Bal Gangadhar Tilak and
Mahadev Govind Ranade and many others used to visit the
temple and in various books of history the temple has been
mentioned as an ancient temple. Mr. Halwasia further stated
that one such book was published in the year 1900 authored by
K. Raghunathji alias late K. R. Navalkar and further that various
British records also make mention of the said temple having
been frequently visited by freedom fighters.
3. Further averment made in the petition is that the temple is
located at cadastral survey number No.313 of Girgaum Division
which according to the Petitioners is reserved for "welfare centre
and parking lot" and that some private person has purchased the
land comprising CTS No.313 and 314 and intends to carry out
redevelopment work.
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4. Various other averments have also been made by the
Petitioners in the Writ Petition in their zeal to establish that the
temple is an ancient temple and hence it should be protected as
a monument of historical importance. In this regard, it has been
stated by the Petitioners that there is some stone carving
(Shilalekh) which shows that in the year 1773 the land over
which the temple exists was purchased by one Jankubai wife of
Vitthal Palaji/Pillaji who renovated the temple and dedicated the
same for religious activities. It has also been stated that the
temple consists of four walls enclosing 600 sq.ft. with roof and a
dome. Further submission is that inside the temple building
there is a small Girbhagraha in the area of 120 sq.ft. and inside
this Girbhagraha deities viz. Vitthal and Rukumai are installed. It
is also submitted that the idol of Vitthal is having a height of 2'2"
which is made of rare black stone, whereas height of the idol of
Rukumai is 1'10" carved in black stone and that both the idols
are ancient. It has also been stated that in the room outside
Girbhagraha, there is a statue of Maruti (Hanuman) which is also
ancient and that the door of Girbhgraha is made of stone
carvings of Ganpati which also is ancient. Describing the temple
further, it has been stated that outside the Girbhgraha there
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exists a hall where devotees can sit and hold satsangs and puja.
Submission further is that outside the temple building there are
two ancient stone pillars measuring 15' each which contain
ancient carvings and that between the two stone pillars and the
temple there is a Chabuttra admeasuring 30' x 20' enclosing an
open area of about 600 sq.ft. where earlier, devotees used to sit
for religious activities. Mr. Halwasia representing the Petitioners
has further submitted that some anti-social elements, however,
have been obstructing the public from conducting puja and other
religious rites and that the Petitioners have been approaching
various authorities of the State of Maharashtra as also the
authorities of the Municipal Corporation of Greater Mumbai
(hereinafter referred to as the MCGM) to take adequate and
appropriate steps for considering the temple to be a monument
of historical importance which according to the Petitioners is 200
years old and is being sought to be demolished unlawfully. It
has also been argued on behalf of the Petitioners that Article 49
of the Constitution of India obligates the State to protect every
monument.
5. In the light of the aforesaid submissions, it has been
prayed that Respondents be directed to appoint an expert
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committee to make an inquiry in relation to the temple so as to
protect the same in accordance with the guidelines and rules laid
down by the Government under the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (hereinafter referred
to as the 1958 Act) as well as the Maharashtra Ancient
Monuments and Archaeological Sites and Remains Act, 1960
(hereinafter referred to as the 1960 Act) and the Rules made
thereunder. Further prayer made in the Writ Petition is that the
temple be declared to be a protected monument and thus it be
protected in accordance with law. The Petitioners have also
prayed that appropriate directions be issued to stop all
construction activities within the radius of 2 kms and such other
area which may cause any damage or degeneration of the
temple.
6. After filing of the Writ Petition, by way of an amendment
certain other prayers have been added, whereby the Petitioners
have prayed that preservation and conservation of the temple
and related structures may be directed to be done deeming it to
be a historical monument by the authorities concerned and
further that the temple may be listed as a heritage structure
under the provisions of the Heritage Regulations of Greater
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Mumbai, 1995 (hereinafter referred to as the Heritage
Regulations of 1995) under the Development Control
Regulations (hereinafter referred to as the DCR). These prayers
have been added subsequent to filing of the Writ Petition on the
basis of some recommendations of a committee appointed by
this court and accordingly another prayer made in the Writ
Petition is that the Respondents may be directed to search the
temple plaque and also that necessary directions may be issued
so that provisions of Places of Worship (Special Provisions) Act,
1991 are not violated. It has also been prayed that the Court
may declare that the beneficiaries of religious endowments are
the worshipers and that in case the Court comes to a conclusion
that the temple does not belong to Respondent No.9 and that it
is a temple, a suitable agency be appointed to protect the
temple and maintain its entity as a public temple.
7. By making the aforesaid assertions and prayers, the
Petitioners, thus, primarily seek a declaration that the temple
site in question, which is known as Vitthal Rukumai temple, is a
monument of historical importance which does not belong to any
private entity and hence directions may be issued not only for its
protection and preservation but also for appointment of an
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agency for running the affairs of the temple and declaring that
Respondent No.9 is not the owner either of the temple properties
or the land over which it is situated.
8. Mr. Anil V. Anturkar, learned Senior Advocate representing
Respondent No.11 has, however submitted that that till date
there is no declaration of the temple site either as "ancient
monument" under the provisions of 1958 Act nor has it been
declared as "ancient and historical monument" under the
provisions of 1960 Act. He has further stated that under the
relevant DCR the temple site in question has never been
declared either as "heritage site" or "natural heritage site".
Submission, thus, is that the Petitioners, by filing this Petition is
attempting to call upon the Court to enter into an arena which,
otherwise, is the preserve of the authorities under the statutory
provisions contained in the 1958 Act and 1960 Act and the
relevant DCR. Mr. Anturkar, learned Senior Advocate has
further argued that the Writ Petition has been filed with mala
fide intention and only with a view to stall the redevelopment
project on account of vested interest. He has further argued
that unless and until the 1958 Act, 1960 Act or relevant DCR
recognizes the temple in question as an "ancient monument" or
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as an "ancient historical monument" or as a "heritage site", it will
not be permissible for the Court to issue any such direction as
has been prayed for. His submission is that the land over which
the temple site exists, which is the subject matter of this Writ
Petition, in fact, is a part of a development agreement and the
only attempt by the Petitioners by instituting this Petition,
seemingly in public interest, is to stall the project for extraneous
reasons.
9. Supporting the submissions advanced by Mr. Anturkar,
learned Senior Advocate, Mr. Karl Tamboly, learned Counsel
representing Respondent No.9 has also submitted that the
Petitioners lack bona fide to institute this Petition. He has relied
upon the law as laid down by the Hon'ble Supreme Court in the
case of State of Jharkhand Vs. Shiv Shankar Sharma &
Ors.1 wherein it has been clearly observed that what is of crucial
significance in a PIL is the bona fide of the Petitioner who files
the PIL and that it is an extremely relevant consideration which
should be examined by the Court at the very threshold and also
that this has to be done irrespective of the apparently high
1 (SLP(C) 10622-10623 of 2022 and
SLP (C) 11364-11365 of 2022)
decided on 7th November 2022
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public cause being sought to be espoused in the PIL.
10. Mr. Tamboly, relying upon the judgment of the High Court
of Delhi in the case of Rajeev Suri Vs. Archaeological Survey
of India & Ors.2 has submitted that it is for the authorities
under various enactments who are legally entrusted to take a
decision and declare as to whether a particular site is an ancient
monument or heritage site and that it is not for the Court to go
into such questions and prayers for such declaration.
11. Mr. Tamboly has also stated that Petitioner No.1 Smt.
Shaila Madhukar Gore, along with others, has instituted a suit
bearing L.C. Suit No.1593 of 2015 in the Bombay City Civil
Court, Mumbai in respect of the property which is the subject
matter of this Writ Petition wherein it has been prayed by
Petitioner No.1 that a declaration be made that the Plaintiff's
possession in respect of the 1st and 2nd floor, numbered as Room
No.3 and 3-A Building No.176 situate at one corner of land
bearing C.S.No.313, Vaidya Wadi, B.J. Marg, Thakurdwar,
Mumbai - 400 002 are protected under the M.R.C. Act 1999 and
that the orders dated 28th April 2011 and 26th June 2015 passed
u/s. 95-A of MHADA Act to vacate are illegal and mala fide.
2 2019 SCC OnLine Del 7227
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12. On the basis of these submissions, it has thus, been argued
by Mr. Tamboly that the instant Writ Petition cannot be said to
have been filed with bona fide intentions and hence, it is liable to
be dismissed on this ground alone.
13. The affidavit filed by the Director, Directorate of
Archaeological and Museum, State of Maharashtra, clearly states
that the Writ Petition is misconceived and it does not disclose
any cause of action so far as the Ministry of Cultural Affairs and
Tourism and the Directorate of Archeology and Museums, State
of Maharashtra are concerned. In the said affidavit it has been
observed that the temple was built in the year 1851 AD by the
family of one Vithal Palaji and that the temple is built in a
traditional style of architecture prevalent in Konkan region in late
medieval and modern period and further that the temple stands
on privately owned land. The affidavit further states that the
temple had become dilapidated by the year 2006-2007 and
therefore, work of renovation was undertaken by the local
residents. The Director of Archeology and Museum, State of
Maharashtra in his affidavit has further stated that a new temple
has been constructed by a developer where idols of Vithal and
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Rukhmini/Rukumai could be shifted for worship.
14. It is to be noted that a categorical submission has been
made by the Director of Archaeological and Museum, State of
Maharashtra in the aforesaid affidavit that as per the provisions
of the 1960 Act the temple has not been declared as State
protected monument and also that the temple has lost its
historical and architectural context on account of renovation
done in the year 2007 by the local residents. It has also been
stated in this affidavit that the temple is not an ancient
monument declared as a protected structure by the Government
of India under the 1958 Act and therefore, the temple is neither
Central protected monument nor a State protected monument.
The Director has also stated that the ancient stone carving
(Shilalekh) as asserted by the Petitioners recording that the
temple was constructed in the year 1773 Shaka by Vithal
Palaji/Pillaji and Late and Jankubai is not to be seen in the
temple at present.
15. An Affidavit in Reply has been filed by the Assistant
Superintending Archaeologist, Archaeological Survey of India,
wherein it has been stated that the temple has not been
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declared to be of national importance by the Central Government
and therefore the provisions of the 1958 Act shall have no
application. It has also been stated in the said Affidavit that the
temple has undergone a lot of modernization, renovations and
alterations and therefore, it is not possible for the Archaeological
Survey of India (ASI) to recommend to declare the said temple
as monument of national importance. The ASI in its affidavit has
however stated that it supports safeguarding the temple and the
idols kept in the temple premises.
(B) Developments during pendency of the Writ Petition:
16. Having examined the submissions made by the learned
Counsel for the respective parties and the stand taken by the
parties, we will now narrate certain developments which took
place during pendency of the Writ Petition.
17. This Court passed an order on 21st January 2015 noticing
the Affidavit in Reply filed by the State wherein it has been
stated that the temple does not have any ancient antiquities, as
claimed by the Petitioners and that the temple is not a State
protected monument. It also took note of a report dated 1 st
December 2014 prepared by the Technical Assistant and
Coordinator of Archaeological Department of the State of
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Maharashtra wherein it was stated that the temple is not worth
protection due to loss of its historical and archaeological value.
The Court further made an observation that the report of the
Archaeological Department of the State of Maharashtra is biased
and found it necessary to constitute a committee to consider
whether the temple is a historical or archaeological monument
which needs to be protected. After seeking willingness from the
proposed members of the Committee, the Court, vide its order
dated 4th March 2015 appointed a committee comprising of the
following members:
i. Dr. A. P. Jamsandekar, Former Director, Archaeological
Department.
ii. Mr. Rajan Jayakar, Advocate.
iii. Prof. Gurunath Dalvi, President, The Indian Institute
of Architects.
iv. Mr. Sadashiv Gorakshkar, Director (Retd.) Prince of
Wales Museum, Mumbai.
v. Mr. Mahendra I. Sethna, Senior Advocate.
vi. Dr. G. B. Deglurkar, Pune.
vii. Ms. Abha Narain Labha, Conservation Architect.
18. The Court referred the following questions for consideration
of the Committee:
(1) Whether Vithal Rakhumai temple is required to be
preserved and protected as a place of historical,
archaeological and heritage interest ?
(2) If 'yes' in what manner and by what measures the
Vitthal Rakhumai temple could be preserved and
conserved?
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19. A report dated 27th January 2016 was, thus, submitted by
Mr. Rajan Jayakar, one of the members of the committee
constituted by the Court, who in his report recorded that the
temple appears to be more than 100 years old and that the
temple is required to be preserved, protected and restored since
it would fall within the definition of "ancient and historical
monument" under Section 2(1) of the 1960 Act as a structure of
historical interest existing for more than 100 years. The said
member of the committee also suggested some measures for
repair, restoration, preservation and conservation of the temple
as well.
20. A second report by another member of the said Committee,
Mr. Sadashiv Gorakshkar, dated 1st February 2016 has also been
submitted, wherein he has stated that temple is required to be
preserved and protected and that for preservation of the temple,
appropriate steps need to be worked out in detail with the help
of experts.
21. Mr. M. I. Sethna, Senior Advocate, one of the members of
the committee constituted by the Court also submitted a report
on 11th February 2016 stating therein that the temple should be
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protected as a place of historical, archaeological and heritage
interest and also suggested that a technical team of architects
should be requested to work out a detail solution for
preservation and conservation of the temple.
22. The Court, vide order dated 14th June 2017 constituted
another committee comprising of Mr. Rajan Jayakar, Ms.Abha
Narain Lamba and Mr. Atul Bhargava, which was directed to visit
the site and suggest measures required for protecting and
preserving the temple during monsoon. It appears that joint
inspection by the three committee members could not take place
however Mr. Rajan Jayakar, one of the members of the
committee visited the site and submitted his report dated 10 th
July 2017 suggesting certain measures which are required to be
taken to protect the temple during monsoon. In view of these
reports the Writ Petition was amended and certain prayers were
added in the Writ Petition seeking direction to the Respondents
that the temple site may be preserved and conserved and also
that the temple be declared as historical and ancient monument
and further that accepting the recommendations of the
committee the Respondents be directed to list the temple as a
heritage structure under the provisions of the Heritage
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Regulations 1995 and the DCR.
(C) Issue for consideration of the Court:
23. From the pleadings of the respective parties available on
record and the arguments made by the learned Counsel
representing respective parties, in our opinion, the question
which falls for our consideration is, as to whether in absence of
the declaration of the temple site in question either as (i)
"ancient monument" under 1958 Act, or (ii) as "ancient and
historical monument" under 1960 Act, or (iii) as a "heritage site"
under the DCR, the prayer for issuing direction for protection of
the site as a monument of historical important can be granted?
(D) Analysis:
24. It is true that Article 49 of the Constitution of India which
falls in Part IV (Directive Principles of State Policy) of the
Constitution of India obligates the State to protect every
monument or place or object of historical or artistic interests.
However, the said provision in the same breath also provides
that the State has the obligation to protect those monuments or
places or objects of artistic or historical interest which are
declared as such by or under law made by the Parliament, to be
of national importance. Thus, the obligation cast on the State to
protect such monuments or places or objects to be of national
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importance from disfigurement, destruction or spoliation etc. is
only in relation to those which are declared as such by or under
the law made by the Parliament.
25. The Parliament has enacted the Ancient Monuments and
Archaeological Sites and Remains Act 1958 (Act No.24 of 1958)
with an object of providing for preservation of ancient and
historical monuments and archaeological sites and remains of
national importance and also for regulation of archaeological
excavations and for protection of sculptures, carvings and other
like objects. Prior to enactment of Act No.24 of 1958, the field
was covered by the Ancient and Historical Monuments and
Archaeological Sites and Remains (Declaration of National
Importance) Act, 1951 and the Ancient Monuments Preservation
Act, 1904, both of which, however, stand repealed by virtue of
operation of Section 39 of the 1958 Act.
26. The phrase "ancient monument" has been defined under
Section 2(a) of the 1958 Act to mean any structure or
monument, or any place, or cave, or rock sculpture, inscription
or monolith, which is of historical, archaeological or artistic
interest and which has been in existence for not less than one
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hundred years and includes remains of certain ancient
monuments and various other sites. Section 2(a) of the 1958
Act is extracted hereunder:
2(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;
(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 of 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;
27. What is noticeable here is that any structure or erection or
monument or sculpture or inscription etc., as given in Section
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2(a) of 1958 Act, will qualify to be an ancient monument if it has
been in existence for not less than hundred years but only when
such a monument or structure or inscription etc. are of (i)
historical, (ii) archaeological and (iii) artistic interest.
28. Section 3 of the 1958 Act also defines certain ancient
monuments to be deemed to be of national importance. Section
3 of the 1958 Act is quoted hereunder:
3. Certain ancient monuments, etc., deemed to be
of national importance.
"All ancient and historical monuments and all
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
Reorganization 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 purposes of this Act."
29. It is to be seen, from a perusal of the afore quoted
provision of Section 3 of 1958 Act, that for any ancient
monument to be deemed to be of national importance, there has
to be a declaration either under the 1951 Act or under the States
Reorganization Act, 1956.
30. Section 4 of the 1958 Act empowers the Central
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Government to declare ancient monuments etc. to be of national
importance. Section 4 of 1958 reads as under:
"4. Power of Central Government to declare ancient
monuments, etc. to be of national importance:
(1) Where the Central Government is of opinion that any
ancient monument or archaeological site and remains not
included in section 3 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.
(2) Any person interested in any such ancient monument
or archaeological site and remains may, within two months
after the issue of the notification, object to the declaration
of the monument, or the archaeological site and remains,
to be of national importance.
(3) 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 ancient monument or the archaeological site
and remains; as the case may be, to be of national
importance.
(4) A notification published under sub-section (3) shall,
unless and until it is withdrawn, be conclusive evidence of
the fact that the ancient monument or the archaeological
site and remains to which it relates is of national
importance for the purposes of this Act."
31. Thus, section 4 empowers the Central Government to
declare an ancient monument to be of national importance if it is
of the opinion that any ancient monument or archaeological site
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and remains not included in Section 3 is of national importance
on forming such an opinion. The procedure for forming such an
opinion is that two months' notice is published in the Official
Gazette revealing the intention of the Central Government to
declare such ancient monument or archaeological site and
remains to be of national important inviting objections to such
intended declaration. Sub Section (3) provides that after
considering the objections, if any, the Central Government may
declare, by Notification in the official gazette, such an ancient
monument / archaeological site and remains to be of national
importance. Sub Section (4) provides that the Notification
published under Sub Section (3) shall be conclusive evidence of
the fact that ancient monument or archaeological site and
remains is of national importance for the purposes of the said
Act.
32. Thus, if protection and preservation measures etc. are
sought in respect of any ancient structure or site under 1958
Act, it has either to be an ancient monument of national
importance under Section 3 or it has to be declared as such
under the provisions of Section 4. The scheme of 1958 Act
provides for various measures for protecting and preserving the
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ancient monuments and prohibition etc in the area surrounding
such sites.
33. However, for operation of 1958 Act, as is clear from the
scheme of the said Act itself, there has to be a declaration either
under Section 4 of the Act or the monument or the site should
have already been declared as such under the provisions of the
1951 Act, as provided by Section 3 of 1958 Act.
34. So far as subject matter of the instant Writ Petition is
concerned, there is nothing on record which can establish that it
is an ancient monument of national importance under Section 3
of the 1958 Act. Learned Counsel representing the Petitioners
has also not been able to establish that there is any declaration
in terms of Section 4 of 1958 Act in respect of the temple site in
question to be an ancient monument of national importance.
35. Accordingly, in view of the temple site in question having
not been declared as an ancient monument of national
importance under Section 4 of the 1958 Act and further having
not been included as an ancient monument or site of national
importance in terms of Section 3 of the 1958 Act, any direction
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sought by the Petitioners for protection and preservation of the
site in question under the provisions of 1958 Act, in our opinion,
would be impermissible.
36. Apart from 1958 Act, another statutory regime operating in
the field of preservation of ancient and historical monuments and
records and archaeological sites and remains (other than those
declared to be of national importance) in the State of
Maharashtra is the Maharashtra Ancient Monuments and
Archaeological Sites and Remains Act, 1960 (Act XII of 1961).
37. Section 2(1) of 1960 Act defines ancient and historical
monument to mean any structure, erection and monument or
cave or rock sculpture etc. which is of historical, archaeological
or artistic interest and which has been in existence for not less
than fifty years.
38. Section 2(1) of 1960 Act is quoted hereunder:
2(1). "ancient and historical 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
fifty years, and includes-
(a) The remains of such monument,
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(b) The site of such monument,
(c) Such portion of land adjoining the site of such
monument as may be required for fencing or covering in or
otherwise preserving the monument, and
(d) The means of access to, and from, and convenient
inspection of, such monument.
39. Section 3 of 1960 Act provides that ancient and historical
monument in the State of Maharashtra declared as such before
commencement of 1960 Act shall also be deemed to be
protected monument for the purpose of the said Act. Section 4
of 1960 Act empowers the State Government to declare any
ancient and historical monument to be protected monument.
Section 3 and 4 of 1960 Act are also quoted hereunder:
3. Certain ancient and historical monuments
deemed to be protected monuments
"All ancient and historical monuments in the State of
Maharashtra, which before the commencement of this Act
have been declared by or under the Ancient Monuments
Preservation Act to be protected monuments, and have not
been declared by or under any law made by Parliament to
be of national importance, shall be deemed to be protected
monuments for the purposes of this Act."
"4. Power of State Government to declare ancient
and historical monuments to be protected
monuments
(1) Where the State Government is of opinion that any
ancient and historical monument not included in section 3
and not declared by or under any law made by Parliament
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to be of national importance, should be a protected
monument, it may, by notification in the Official Gazette,
give two months' notice of its intention to declare such
monument to be a protected monument; and a copy of
every such notification shall be affixed in a conspicuous
place near the monument.
(2) Any person interested in any such monument may,
within two months of the issue of the notification, object to
the declaration of the monument to be a protected
monument.
(3) On the expiry of the said period of two months, the
State Government may, after considering the objections (if
any), received by it, declare by notification in the Official
Gazette, the ancient and historical monument to be a
protected monument.
(4) A notification published under sub-section (3) shall,
unless and until it is withdrawn by the State Government,
be conclusive evidence of the fact that the ancient and
historical monument to which it relates is of protected
monument for the purposes of this Act."
40. The 1960 Act also contains a statutory scheme for
preservation of protected monuments by the authorities of the
State Government. It is noteworthy that the scheme of 1958
Act, which is a Central enactment and that of 1960 Act, which is
a State enactment are akin to each other or in pari materia. Sub
Section (4) of Section 4 of 1960 Act also provides that
notification published under sub section (3), unless withdrawn,
shall be the conclusive evidence of the fact that ancient and
historical monument is a protected monument for the purpose of
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the said Act.
41. Thus, as in the case of central enactment, anyone seeking
protection under 1960 Act in respect of an ancient monument or
site, has to get a declaration under Section 4 or such historical
monument has to be enlisted in terms of the provisions of
Section 3 of 1960 Act. In absence of any site either falling
within section 3 or Section 4 of 1960 Act, the statutory
protection as per the said Act, in our opinion, will not be
available.
42. In the Writ Petition, we do not find any material
whatsoever to conclude that the temple site in question is a
protected monument either in terms of Section 3 or in terms of
Section 4 of 1960 Act and hence in absence thereof any
protection sought by the Petitioners for protection of the temple
site under the provisions of 1960 Act is also not permissible.
43. Apart from the statutory provisions contained in 1958 Act
and 1960 Act, there is yet another statutory provision in the
form of Development Control and Promotion Regulations for
Greater Mumbai which makes several provisions for conservation
of heritage sites and their declaration etc. In the said
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Regulations, 'heritage' has been defined to mean the area within
the boundary / extent of heritage building / precinct / natural
area included in the heritage list and shown as such on the map.
Regulations further provide that a list of heritage places and
heritage precincts shall be prepared by the Corporation and also
that even a heritage conservation fund shall be created. Thus, in
the Development Control and Promotion Regulations also there
exists a mechanism for conservation and preservation of
heritage sites, however for seeking protection of such statutory
mechanism available under the Regulations, the site needs to be
listed as a heritage sites,in the heritage list and should be shown
on the map.
44. The Regulations provide that a list of heritage buildings and
heritage precincts may be supplemented, altered, deleted or
modified from time to time by Government on receipt of
proposals from the Municipal Commissioner or by the
Government, suo-motu, provided that objections and
suggestions from the public are invited and considered by the
Municipal Commissioner and/or by the Government of
Maharashtra. Regulations further provide any draft list which is
published and is pending for approval of the Government of
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Maharashtra, shall in the interim period, be deemed to be part of
the heritage list. The relevant provision in the Regulations is
quoted hereunder:
"Preparation of list of Heritage Buildings and
Heritage Precincts:
The said heritage list to which this Regulation applies shall
not form part of this Regulation for the purpose of Sections
37 and 46 of the MR & TP Act, 1966. This List may be
supplemented, altered, deleted or modified from time to
time by Government on receipt of proposals from the
Commissioner or by the Government suo-motu, provided
that objections and suggestions from the public be invited
and duly considered by the Commissioner and/or by GoM
before notification.
Provided that any draft list which is published and pending
for the approval of GoM shall, in the interim period, be
deemed to be part of the heritage list and provisions of this
regulation shall be applicable to the said draft list."
45. We do not find any document on record which may
establish that the temple site in question has been included in
the list of heritage sites or precincts or places under the DCR. In
absence of inclusion of temple site in the list of heritage sites,
the protection as available under the said Regulations can also
not be extended in the instant case.
46. Learned Counsel for the Petitioners has heavily relied upon
the judgment in the case of Rajeev Mankotia Vs. Secretary to
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the President of India3 and has submitted that as per the
dictum of Hon'ble Supreme Court laid down in the said
judgment, all ancient and historical monuments and all
archaeological sites etc. shall be deemed to be ancient and
historical monuments or archaeological sites and remains of
national importance and shall be so declared if they exist for a
century and further that same will be the situation in case of
monument of State importance covered under the State Act. His
submission is that in view of this judgment, since the temple site
in question is of more than 100 years, therefore, it qualifies and
it is deemed to be a historical monument of National / State
importance.
47. While we have considered the aforesaid submission, we
may, however, only observe that the judgment in the case of
Rajeev Mankotia (supra) does not come to the rescue of the
Petitioners in this case in absence of declaration under Sections
3 and 4 of both the Central enactment (158 Act) and State
enactment (1960 Act). In absence of any declaration, protection
under the said enactments, in our opinion, is not available.
3 1997(10) SCC 441
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(E) Conclusions:
48. Having noticed the statutory provisions / mechanisms /
schemes available for protection and preservation of ancient /
historical / heritage sites and monuments we are unable to grant
the prayers in this Writ Petition in absence of declaration or
inclusion of the temple site in question as an ancient monument
of National / State importance or as a heritage site. However,
what we also find from a perusal of various reports which have
been submitted pursuant to certain orders passed by this Court
in the instant matter is that certain recommendations have been
made and need has been felt to preserve the temple site. What
startles the Court is that no efforts by the Petitioners have been
made to seek declaration of the temple site either as a historical
and ancient monument or its inclusion in the list of Heritage
Buildings and Heritage Precincts under the aforementioned
statutory provisions. If the Petitioners seek any protection and
preservation to be provided to the temple site by the State
authorities or its instrumentalities, or authorities of Central
Government or authorities of MCGM, the temple site needs to be
first considered for declaration to be an ancient / historical /
heritage site or monument either under Section 4 of the 1958
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Act by the Central Government or under Section 4 of the 1960
Act by the State Government or under the provisions of the DCR
by the authorities of the MCGM.
(F) Directions:
49. We, thus, permit the Petitioners to approach the
appropriate authority / authorities in the Central Government /
State Government / MCGM seeking a declaration of the temple
site in question as an ancient and historical monument of
National / State importance or for its inclusion in the list of
heritage buildings and heritage precincts. The Petitioners will
move appropriate representation / application to the appropriate
authority / authorities concerned within a fortnight from today.
In case the Petitioners move the authority / authorities
concerned under this order, prayer of the Petitioners shall be
considered and appropriate decision shall be taken strictly in
accordance with the extant law and the rules applicable thereto.
The decision on the representation / application to be preferred
by the Petitioners under this order shall be taken by the
authority / authorities concerned positively within a period of six
months from the date such an application is received. The prayer
of the Petitioners, if made, shall be decided by the authority
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concerned uninfluenced by any observation, whatsoever, made
by us in this judgment.
50. Having regard to the nature of dispute / issue raised in this
Petition and also in the light of the discussions made in the
preceding paragraphs of this judgment, we find it appropriate to
direct that till decision under this order is taken by the
authority / authorities concerned, the parties to the petition shall
maintain status quo on the spot as it exists today. We, however,
provide that in case the Petitioners fail to approach authority /
authorities concerned under this order within the time stipulated
by way of making an appropriate application / representation,
the benefit of this order shall not be available to them. We direct
accordingly.
51. At this juncture, Shri Anturkar, learned Senior Advocate
representing Respondent No.11 and Shir Tamboly, learned
Counsel representing Respondent No.9 have submitted that in
the light of the judgments of the Hon'ble Supreme Court in the
case of (i) Manish S. Pardasani (M/s. wine Kornder) and
Ors. Vs. Inspector State Excise, P-1, Division Mumbai
(Suburbs) and Ors.4 (ii) The State of Orissa Vs. Madan
4 (2019) 2 SCC 660
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Gopal Rungta5 and the judgment dated 22nd September 2022
passed by a coordinate bench of this Court in the case of
Pramod Premchand Oswal Vs. The Pune Municipal
Corporation (PIL No.109 of 2022), if no relief to the
Petitioners is being granted since the Petitioners are being
relegated to seek remedy under the statutory mechanisms as
discussed above, any order for maintenance of status quo may
not be passed. We have considered the said arguments raised
by Shri Anturkar, learned Senior Advocate and Shri Tamboly,
however, we find that in the case of Manish S. Pardasani
(supra), the Hon'ble Supreme Court was considering a
judgment passed by this Court in the case of Manish S.
Pardasni Vs. State Excise, 2018 SCC OnLine Bom 3163,
whereby this Court had directed the Commissioner, State Excise
to decide the appeals filed against the order of the Collector
(Excise) whereby the Collector (Excise) had directed de-sealing
of the shops of the license holders on certain conditions. This
Court, while directing the Commissioner, State Excise to decide
the appeal filed by the Superintendent of State Excise against
the order passed by the Collector (Excise), had also issued
directions in anticipation to the effect that if the Commissioner
5 AIR 1952 SCC 12
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State Excise passes any order adverse to the licensees then such
order should not be given effect to by State authorities for a
period of four weeks. It is in these circumstances that Hon'ble
Supreme Court has rendered the judgment in the case of
Manish S. Pardasani (supra) and has observed that this Court
ought not to have issued directions of this nature.
So far as the judgment in the case of Madan Gopal
Rungta (supra) is concerned, the Hon'ble Supreme Court has
observed in the facts of the said case that Article 226 of the
Constitution of India cannot be used for the purposes of giving
interim order as final relief. Hon'ble Supreme Court has further
observed that directions by High Court could not have been
issued to circumvent the provisions of Section 80 of the Code of
Civil Procedure, 1908 which was not within the scope of Article
226 of the Constitution of India. In this case Hon'ble Supreme
Court has further observed that an interim relief can be granted
only in aid of and as ancillary to the main relief which may be
available to the party on final determination of the rights in the
proceedings. Thus, the judgment in the case of Madan Rungta
(supra), in our opinion does not come to the aid of Shri Anturkar,
learned Senior Advocate and Shri Tamboly, for the reason that in
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the instant case, an interim order for maintenance of status quo
has been in operation since 9th September 2014 and further that
we are only directing consideration of the temple site in question
for being declared as an ancient historical monument of
State/National importance or as a heritage building or heritage
precinct. In case redevelopment is permitted and ultimately the
authorities either of the Central Government or the State
Government or of Municipal Corporation of Greater Mumbai form
an opinion to declare the temple site as a monument / site of
State / National importance or a heritage building / precinct, the
subject matter of such consideration, by the time final decision
under this order is taken, shall get extinguished. As far as the
judgment of coordinate bench of this Court in the case of
Pramod Premchand Oswal (supra) is concerned, it is to be
noticed that the said judgment was rendered in a matter of
tender, wherein the Writ Petitioner was granted liberty to
approach the Administrator of Pune Municipal Corporation for
redressal of his grievances and the prayer made in such situation
by the Writ Petitioner before the Court was that tender process
may not be carried forward till one week of communication of
Administrator's decision on the representation / objection. This
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judgment also does not help Shri. Anturkar and Shri. Tamboly.
52. The reason as to why we have issued the directions for
maintenance of status quo till decision by the authority /
authorities under 1958 Act / 1960 Act or under the Development
Control Regulations is taken under this order on the
representation / application to be preferred by the Petitioners,
have already been given above. We may reiterate that it is a
case where, in the facts, the subject matter of dispute needs to
be preserved till decision by the authority concerned is taken.
Otherwise, the very purpose of applying for seeking declaration
of the temple site as an ancient, historical monument of State /
National importance or as a heritage site shall get defeated.
Thus, submissions in this regard by Shri Anturkar, learned Senior
Advocate and Shri Tamboly, learned Advocate merit rejection,
which are hereby rejected.
53. The Writ Petition stands disposed in the aforesaid terms.
54. In the facts of the case, there will be no order as to costs.
55. All pending applications shall stand disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
