V.G. Palshikar, J.
1. Writ Petition No. 9165 of 2003 is filed by the firm of builders called Naiknaware & Associates from Pune. They have challenged a notice dated 20.9.2003 issued by the Pune Municipal Corporation on the basis of Government of India Notification dated 16.6.1992. By this communication they were required to stop their construction activity.
2. Writ Petition No. 5279 of 2005 was filed by one Mr. J.M. Lunawat who also is a builder in Pune. He has challenged the communication dated 8.7.2004 whereby he was informed that his application for grant of No Objection Certificate and sanction to his building plans cannot be granted. This circular was issued on the basis of notification dated 16.6.1992. He has therefore challenged that notification also. In fact, he has challenged the earlier circulars issued by the respondents. Then there are several interlocutory prayers. Basically the challenge is to the notification dated 16.6.1992 and contentions raised in favour of the petitioner are almost identical to those raised in Writ Petition No. 9165 of 2003. Writ Petition No. 4998 of 2005 is filed by a public oriented citizen of Pune praying for direction to the respondents to strictly implement the provisions of the Archaeological Sites & Remains Act, 1958 in relation to Shaniwarwada in Pune. It is therefore a petition which in fact supports the notification dated 16.6.1992.
3. Writ Petition No. 2213 of 2006 is filed by some builders in Pune who have also chosen to challenge the notification dated 16.6.1992. Contentions raised by them here also are almost identical to those raised in Writ Petition No. 9165 of 2003.
4. It will be seen that the most of the issues raised in all these petitions pertain to a notification dated 16.6.1992 and its implementation in relation to the precincts of two protected monuments in Pune viz. Shaniwarwada and Agakhan Palace. Several senior advocates appeared on behalf of respective parties and the matters were heard together. After hearing was over it was obvious that these petitions can be decided by a common order. Hence this common order.
5. For the purposes of adjudicating the questions arising in these petitions we will make reference to the facts in Writ Petition No. 9165 of 2003. M/s.Naiknaware & Associates are engaged in the business of building construction and have executed several projects in and around Pune. In the year 1995 they acquired development rights in final plot No. 14/1 of Town Plan Scheme No. I, Yerawada, at Pune.
6. On 31.3.2001 the Pune Municipal Corporation sanctioned the building plan submitted by the petitioners and granted them commencement certificate. Factually the construction started on 1.2.2002. On 16.3.2002 the petitioners sought revision of their construction/development plan and submitted the same to Pune Municipal Corporation. This revised plan was sanctioned by the Corporation on 11.7.2003. The construction continued and when the construction of nine stories out of 11 stories plan was complete the notice dated 20.9.2003 requiring them to stop work (construction) was received. This notice or order of stop work was a sequel to communication dated 8.9.2003 issued by the Superintending Archaeologist, Archeology Department, Aurangabad Circle, Aurangabad whereby the said Superintendent requested Pune Municipal Corporation to implement the notification of 16.6.1992 in relation to construction activity in and around ancient monuments in Pune. It is pertinent to note that in this communication reference was made to alleged unauthorized construction near Agakhan Palace and attention of the concerned was invited to the provisions of Archaeological Sites & Remains Act, 1958 and the Rules of 1959. The communication mentions three centrally protected monuments in the city of Pune, viz. Pataleshwar Caves, Shaniwarwada and Agakhan Palace. According to the department construction in violation of this notification should not be permitted. It was because of this communication dated 8.9.2003 that the impugned communication dated 20.9.2003 was issued which is impugned in this petition.
7. On 9.12.2002 Archaeological Survey of India published its intention to declare Agakhan Palace as an ancient monument of national importance. The notification invited objections to such declaration of intent. The schedule to this notice names Agakhan Palace building as the monument gives its survey number, its boundaries and total area. It is then accompanied by site plan of Agakhan Palace. The site plans show the existing Agakhan Palace building and other buildings in the vicinity. It will thus be seen that Agakhan Palace which was ancient monument was declared to be an ancient monument of national importance on 3.3.2003. From that date onwards Agakhan Palace is an ancient monument of national importance. We will advert to this factual situation again at the later stage. It is necessary to emphatically note here that Ancient Monuments and Remains Act, 1958 defines both ancient monuments and protected monuments. The ancient monument becomes a protected monument on a declaration to that effect being made under Section 4 of the Act. Therefore Agakhan Palace which is an ancient monument was declared to be a protected monument only in the year 2003.
8. The notification of 16.6.1992 prohibits mining or construction operations upto 100 meters from the protected limits, 200 meters from the adjoining protected monuments. As a legal consequence no construction activity is permissible beyond 200 meters of protected monument which in the instant case is the Agakhan Palace. This declaration in notification dated 16.6.1992 and the subsequent communication dated 20.9.2003 is the subject matter of this petition. Shri Aspi Chinoy, learned senior advocate appearing on behalf the petitioner submitted the following contentions:
(i) The notification 16.6.1992 is ultra vires the provisions of Rules 31 and 32 of the Rules as it is not issued as prescribed either by Rules 31 or 32;
(ii) The notification dated 16.6.1992 is general in nature and cannot apply to any particular protected monument. The notification to invite protection granted by Rule 33 must be a specific notification in relation to specific protected monument. That that being not the case the construction activity of the petitioner is not covered by this notification;
(iii) The notification is violative of Article 14 of the Constitution of India in as much as it treats unequals as equals that is to say it treats as equals to protected monument irrespective of its size, site, town and state. Wherever be the monument no construction activity would be permissible according to notification in an area 100 meters from the protected monument and 200 meters adjoining the protected monument. To illustrate it is submitted that the prohibition is equal in relation to Agakhan Palace in Pune and Ajanta Caves in Aurangabad.
Admittedly Agakhan Palace is an ancient monument and obviously it has become a protected monument only in the year 2003. The provisions of notification of 1992 cannot by very nature of things apply to a protected monument which come into existence as such in the year 2003.
(iv) The language of Rules 31 and 32 is very specific and clear and so a general notification covering several monuments cannot be issued. Such notification must be related to an individual protected monument identifying it and described in the notice inviting objections.
9. Shri V.V. Tulzapurkar, learned senior counsel appearing on behalf of the petitioner in Writ Petition No. 2213 of 2006 submitted that the notification dated 16.6.1992 is liable to be struck down as it is ultra vires the Act under which it is issued. He challenged the constitutional validity of Rules 31 to 33 of the Ancient Monuments and Archaeological Sites & Remains Rules, 1959, hereinafter referred to as the Rules of 1959, being ultra vires the provisions of Article 14 and 19 of the Constitution. The contention stated briefly is that the Rules do not provide any guidelines according to which the Rules are to be implemented. The Rules confer a blanket power to issue prohibitory orders in relation to protected monuments without any guidelines. According to him, reasonable restrictions can be put for protection of protected monuments. But those restrictions must be reasonable as contemplated by Article 19 of the Constitution. Such reasonableness being absent the Rules are liable to be struck down. For this proposition he relied upon various judgments of the Supreme Court of India. He then submitted that even assuming the Rules being constitutionally valid the Rules have not been followed while issuing notification dated 16.6.1992 and the notification being clearly in violation of the Rules is liable to be struck down. He has generally supported the contentions raised by Shri Aspi Chinoy.
10. Learned counsel appearing in other two writ petitions adopted the arguments made by these senior counsel. Submissions were countered by Shri Y.R. Mishra, appearing for the Union of India in Writ Petition No. 9165 of 2003 and Shri Rajiv Chavan appearing in Writ Petition No. 5279 of 2005. He contended that there is no illegality in framing the Rules 31 and 32 as contended by the petitioners. According to them the provisions of Rules 31 and 32 were substantially complied with and therefore there is no need to strike down the notification. We have to examine these rival contentions in the light of the provisions made in this behalf.
11. The Ancient Monuments and Archaeological Sites Remains Act, 1958 shall be hereinafter referred to as 'the Act of 1958', The Ancient Monuments and Archaeological Sites & Remains Rules, 1959 shall hereinafter be referred to as 'the Rules of 1959', the Bombay Provincial Municipal Corporation Act, 1949 shall be referred to as 'BPMC Act, The Maharashtra Regional Town Planning Act shall hereinafter be referred to as 'the MRTP Act'.
12. We may first dispose of the contentions raised by Shri Y.S.Jahagirdar, Senior Advocate on behalf of the petitioner in related petition that the Rules 31 and 32 are ultra vires Section 38 and other empowering sections of the Act of 1958. Section 38 of the 1958 Act empowers Government of India to make Rules for prohibition or regulation of mining, quarrying, excavating or any operation of the like nature in protected monument or construction building or land adjoining such monuments of unauthorized building. Power conferred on Government of India by these rules is therefore wide and clear. Rules of 1959 have been framed in exercise of these powers. What is provided by these Rules is a prescription made by the Government of India in relation to protection of ancient monuments. A notification thereunder may be invalid for vagueness but the Rules themselves cannot be termed as vague or ultra vires the Act of 1958. The purpose of the Rules is to effectively implement the provisions of the Act of 1958 for which purpose they can issue notifications under the Rules. In our opinion , the Rules are not in any manner ultra vires.
13. In order to appreciate the contentions raised by Shri Aspi Chinoy the provisions of Rules 31 and 32 of Rules of 1959 must be considered in detail.
31. Notice of intention to declare a prohibited or regulated area.-
(1) Before declaring an area near or adjoining a protected monument to be a prohibited area or a regulated area for purposes of mining operation or construction or both, the Central Government shall, by notification in the Official Gazette, give one month's notice of its intention to do so, and a copy of such notification shall be affixed in a conspicuous place near the area.
(2)Every such notification shall specify the limits of the area which is to be so declared and shall also call for objection, if any, from interested persons.
32.Declarat ion of prohibited or regulated area.- -After the expiry of one month from the date of the notification under Rule 31 and after considering the objections ,l if any, received within the said period, the Central Government may declare, by notification in the Official Gazette, the area specified in the notification under Rule 31, or any part of such area, to be a prohibited area, or, as the case may be, a regulated area for purposes of mining operation or construction or both.
It will be seen from the above that the Government is first required to issue notice of its intent to prohibit construction activities in and around protected monuments and after considering the objections are invited, issue final notification under Rule 32 of the Rules of 1959.
14. The contention on behalf of the petitioners specifically is that the language of Rules 31 and 32 makes it clear that notification to be issued thereunder must be specific, must relate to an individual protected monument and cannot be omnibus in nature. Rule 31 talks of notice of intent to declare a prohibited or regulated area. It prescribes that before declaring the area near or adjoining a protected monument to be a prohibited or regulated area for the purposes of construction activities the Government shall give one month's notice of its intention to do so and shall affix a copy of such notification of intention in a conspicuous place near the area. It will be seen that according to the Rules a declaration that a particular area in and around protected monument, prohibited or regulated area must relate to an identified protected monument. There cannot be a general notification in relation to a protected monument existing in India. In our opinion, it is pertinent to note that the prohibition to construct in and around prohibited or regulated area applies in relation to a protected monument and not ancient monument. Every protected monument is an ancient monument but every ancient monument need not necessarily be a protected monument. To make an ancient monument a protected monument under the Act of 1958 it is essential that the notification to that effect is issued under Section 4 of the Act of 1958. That being the legal position it will not be proper to contend that a general notification can issue in relation to all protected monuments. The identification of the protected monument covered by notice issued under the Rule 31 or declaration made under Rule 32 is in our opinion essential for the people to know that declaration of prohibited and regulated area pertains to an identified protected monument. It speaks in relation to an identified monument. To illustrate the Government may have the intention to declare prohibitory or regulatory area around an ancient monument or protected monument of the like Quitub Minar of Delhi. According to the Rules a copy of the notification under Rule 31 has to be affixed in the conspicuous place near the area which means near Quitub Minor area. For a general notification to issue under these Rules the affixing of notice of intention under Rule 31 will have to be seen near protected monument in the country. Assuming that such affixation is made somewhere in Maharashtra people of Maharashtra may or may not be interested in objecting to such regulatory measures in relation to land around protected monument in Delhi.
15. It will also be important to see that the copy of such notification is affixed in conspicuous place near the area. To continue the illustration notice of intention to declare prohibited and regulated areas around Quitub Minar is to be affixed near the area of that place near the area could be in a State of Maharashtra or Gujarat or Kerala. In our opinion, it may be possible to issue a common notice of intention but even in that event it must specify the protected monument, the place where it is situated, regulatory measures and the extent to which these regulating measures are to be made applicable will have to be stated in the notification. Whether notification is general covering several protected monuments so definitely identified or for a particular protected monument so identified issuance of notice of intention has to be accompanied by affixing the copy of such notification in conspicuous place near the area. Near the area meaning near the protected monument. Any other interpretation of the provisions of Rule 31 may not be permissible. If we look at the wording of Sub-rule 2 of Rule 31 it requires that every said notice of intention shall specify the limits of the area which is to be so declared and shall invite objections. It specifically contemplates specifications of limits of the area which is to be declared as prohibitory or regulatory area. By very nature of these rules therefore it cannot be one specification for all kinds of protected monuments. The area or the limit of area to be notified under Rule 31 must vary from protected monument to protected monument. To illustrate the prohibitory or regulated area around Shaniwarwada in Pune and that around Ajanta Caves in Ajanta cannot be the same. No purpose will be served around Ajanta caves if mining operations are to be prohibited only around area of 300 meters from Ajanta Caves. The entire hill on which caves are existing will have to be protected from mining operations which notification can issue under Rules 31 and 32 by giving limits of the area. The submission of the learned Counsel therefore is liable to be accepted that there cannot be a general notification for all monuments. It is obvious that such notifications will be treating all protected monuments with one yardstick, it will be treating unequals with equals and therefore such interpretation will be violative of protection granted by Article 14 of the Constitution.
16. In our opinion, therefore, the notification dated 16.6.1992 on which heavy reliance is placed by respondents for issuance of order dated 20.9.2003 is very general and vague and cannot be made applicable to individual protected monument. The notification cannot be relied upon preventing any construction around Agakhan Palace without there being a notification under Rule 32 pertaining to Agakhan Palace.
17. In our opinion, there is yet another aspect which must be noticed. Section 2 of Act of 1958 defines what an ancient monument is. It also defines what protected monument is. According to the resolution protected monument means an ancient monument which is declared to be of national importance by or under the Act of 1958. The power to so declare an ancient monument is one of national importance and is vested in the Central Government by Section 4 of the Act of 1958. Rules 31 and 32 of the 1959 Rules speak of protected monuments. Rule 31 specifically says that before declaring an area near or adjoining the protected monument. Rule 32 also says that after expiry of one month period contemplated under Rule 31 the Central Government may declare the area specified in the notification under Rule 31 or any part thereof as regulated or prohibited area for mining operation or construction or both. The area to be declared is protected, prohibited or regulated under Rule 32 is therefore an area notified as such under Rule 31 and therefore a notification under Rule 32 can issue only in relation to protected monument and not in relation to an ancient monument. We have noted above that Agakhan Palace was declared to be a protected monument only in the year 2003. Prior to that it was not a protected monument and consequently notification issued under Rules 31 and 32 of the 1959 Rules cannot apply to it till it becomes a protected monument which factually became in the year 2003. The order or communication requiring the petitioner to stop work by reference to this notification of 1992 is therefore void ab initio.
18. There is yet another aspect which, in our opinion, requires consideration. The impugned communication in this case is one dated 20.9.2003. A perusal of the document will show that it is a notice issued by 15
Municipal Corporation of Pune under Section 267 of the BPMC Act and Section 54 of MRTP Act. It calls upon the petitioner to stop work in view of the communication dated 8.9.2003 issued by Archaeological department. Even the communication of 8.9.2003 makes a reference to protected monument. It reads thus:
Further, it is to inform you that the construction & mining activities within 100 mtrs. Area from the protected limits of a centrally protected monument & further beyond it upto 200 mtrs. near or adjoining the protected monuments, has been declared as prohibited.
It will thus be seen that according to the department also the prohibition of construction activity is in or around protected monument. As we have already noticed Agakhan Palace became protected monument from 3.3.2003 the prohibition or construction or regulation of construction therefore can take place around Agakhan Palace as protected monument only after it became the protected monument on 3.3.2003. The department of Archaeological invited attention of the Municipal Engineer bringing to his notice unauthorized construction around Agakhan Palace obvious after it became protected monument by very nature of things therefore the notification of 1992 cannot apply to construction commenced prior to Agakhan Palace being declared as protected monument.
19. It will be seen from the Scheme of the Act of 1958 and the Rules that declarations or notifications under Rules 31 and 32 of Rules of 1959 can issue from time to time in relation to identified protected monuments. Since that is the basic requirement of law it is obvious that every such notification will be prospectively applicable whenever it is issued. Such kind of notifications were prohibitory or regulatory and measures adopted by recourse to enactment of that effect have to be prospective in their operation. Such notifications cannot have any retrospective effect for the simple reason that it will then require demolition of construction already made in the past by recourse to legal means of making such construction. That effect to such notification is not intended by Rule 33 of the Rules of 1959. A cursory reading of the Act of 1958 and Rules of 1959 do specifically spell out the prospectivity of notifications issued thereunder. It is obviously impermissible in law to declare an ancient monument as protected monument in the year 2006 and require the demolition of all constructions made around it in the prohibitory or regulatory areas prior to even publication of the notification of intent under Rule 33 of Rules of 1959. Read from any point therefore the notification dated 16.6.1992 cannot operate on unspecified or protected monuments. 20. Yet another aspect of law which in our opinion, needs consideration is the provisions of BPMC Act and MRTP Act. The notice makes mention of Section 267 of the BPMC Act. That section spells out powers of the Municipal Commissioner to direct removal of unlawful work. Section 267 reads as under:
267. Powers of Commissioner to direct removal of person directing unlawful work.
(1) If the Commissioner is satisfied that the erection of any building or the execution of any such work as is described in Section 254 has been unlawfully commenced or is being unlawfully carried on upon any premises, he may, by written notice, require the person, directing or carrying on such erection or execution to stop the same forthwith.
(2) If such erection or execution is not stopped forthwith, the Commissioner may direct that any person directing or carrying on such erection or execution shall be removed from such premises by any police officer and may cause such steps to be taken as he may consider necessary to prevent the re-entry of such person on the premises without his permission.
(3) The cost of any measures taken under Sub-section (2) shall be paid by the said person.
It therefore speaks of the Commissioner being satisfied that the erection of any building or execution of such work as described in Section 254 has been unlawfully commenced or is being unlawfully carried on in order to exercise the powers under Section 267 therefore the construction has to be one contemplated by Section 254 of the BPMC Act.
Section 254 of the Act empowers a person to apply for permission to make addition to a building or alteration in the building and provides for different contingencies similar thereto. It is after the protection is granted and violated that the power under Section 267 can be exercised by the Commissioner. The present construction around Agakhan Palace is not one which can fit the description of construction activity contemplated by Section 254 of the BPMC Act.
21. Similarly Section 54 of the MRTP Act speaks of power of the Planning Authority to stop unauthorized development. It says that where any unauthorized development of land as indicated in Section 52 is being carried out but has not been completed the Planning Authority may serve on the owner notice to discontinue the said activity. Section 52 talks of penalty for unauthorized development or for use of otherwise in conformity of development plan. The construction activity by the petitioner- company after sanction plans by the Pune Municipal Corporation and after sanction of its amendments also cannot be termed as unauthorized development as contemplated by Section 52 which can be stopped under Section 54 of the MRTP Act. In our opinion, the notice issued under Section 54 of the MRTP Act and 267 of the BPMC Act is therefore without jurisdiction and hence void ab initio.
22. Viewed from any point therefore, the communication dated 20.9.2003 issued by the Pune Municipal Corporation is void, illegal and therefore liable to be quashed. It is accordingly quashed.
23. In the view that we have taken the petitions are liable to be disposed of as per the following order:
O R D E R
i) Writ Petition No. 9165 of 2003 is allowed. Notice dated 20.9.2003 is quashed and set aside. The respondents-Corporation shall permit the petitioners to complete their project in accordance with sanctioned plans. The notification dated 16.6.1992 not being retrospective in effect cannot apply to any ancient monument declared as protected monument prior to the date of that declaration. It is consequently not applicable in the case of Agakhan Palace.
ii) Writ Petition No. 4998 of 2005. Taking into consideration the fact that the concerned Governments are taking adequate steps to protect ancient and protected monuments no orders specifically need be passed in this petition. It is accordingly disposed of.
iii) Writ Petition No. 5279 of 2005 is allowed. Order dated 8.7.2004 is quashed and set aside. Communication dated 2.4.2004 is quashed. It is declared that the communication dated 16.6.1992 does not apply to the protected monuments in Pune city. The petitioners are entitled to a direction to the respondents-Municipal Corporation to process its application for grant of No Objection Certificate or sanction of building plans.
iv) Writ Petition No. 2213 of 2006. The notification dated 16.6.1992 cannot be made applicable in relation to ancient monuments not declared as protected monument specifically by any notification under Rules 31 and 32. It is also declared that such notifications are of necessity prospective in nature. The communication dated 21.2.2005 is quashed and set aside.
All the above petitioners are accordingly disposed of.