ORDER
G. Bikshapathy, J.
1. This writ petition is filed challenging the Letter No. 926-931/5/22/2001 dated 8-2-2001 of the 1st respondent refusing to grant permission to make construction in the premises bearing No. 22-5-926 to 931 at Charminar, Hyderabad on the ground that it falls within the distance of 100 meters from the Charminar, a protected monument.
2. It is the case of the petitioner that she is the owner of the premises bearing No, 22-5-926-931 at Charminar. As the said premises were in dilapidated condition, the Municipal Corporation of Hyderabad, the 1st respondent herein issued notice directing the petitioner to demolish the building. As per the directions of the Municipality, the petitioner demolished the building and thereupon she filed an application before the 1st respondent for grant of permission to make fresh construction and that this permission was rejected on the ground that it falls within 100 meters radius from the Charminar which is an eminent monument covered by various Acts. Questioning the action of the 1st respondent, the present writ petition has been filed.
3. Even though the Municipality has taken difference stands in their counter, but during the course of hearing of this writ petition, it seeks to justify its action on the ground that the area was declared to be a prohibited area by the Government of India in Notification dated 4-7-1992 and by virtue of the said notification any construction or mining operation without the permission of the Central Government cannot be undertaken and under these circumstances the order passed by the Municipality cannot be said to be illegal and contrary to law. Initially the contention of the Municipality was that the Charminar is a protected monument under Regulation 13 of the HUDA Regulations and the area was declared as a protected precinct and therefore the construction is not permissible, but it was found to be only a draft notification and it was not a final notification. The learned Standing Counsel for the Municipality abandoned the contention and relied on the notification Issued by the Central Government dated 4-7-1992 to justify the action taken by the 1st respondent. The learned counsel for the petitioner Mr. Vedula Venkataramana submits that none of the contentions raised by the 1st respondent are tenable.
4. For the purpose of deciding this case, it is necessary to refer to various enactments with regard to the protected monuments. The learned Counsel for the petitioner, however, brings to the notice of this Court various enactments. The 1st Act was the Ancient Monuments Preservation Act, 1904 and thereafter another enactment was made by the Central Government namely The Ancient And Historical Monuments Act, 1951 (for short 'the 1951 Act') By virtue of the 1951 Act. Charminar was declared to be an ancient monument of national importance but subsequently the 1951 Act was repealed by the Ancient Monuments And Archaeological Sites And Remains Act, 1958 (for short 'the 1958 Act'). Under this 1958 Act, the expression 'ancient monument', 'protected area' and 'prohibited area' were defined. But it is to be noted that Charminar and Golconda Fort were already declared as andent historical monuments of national importance under schedule to the 1951 Act. Therefore, they continue to be ancident monuments under the 1958 Act.
5. The question that arises for consideration is whether any construction can be undertaken within the vicinity of ancient monuments as declared under 1951 or 1956 Act.
6. Section 2(a) of the 1958 Act defines the expression 'ancient monument' as under :
2(a) 'ancient monument means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock sculpture, inscription or monolity, which, is 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.'
7. Sections 2 and 2(j) of the 1958 Act defines 'protected area' and 'protected monument' 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 an ancient monument which is declared to be of national importance by or under this Act.'
8. Under Section 38 of the 1958 Act. power is conferred on the Central Government to make rules for carrying out the purposes of this Act. Section 38(a) which is relevant is extracted hereunder :
'38(a) the prohibition or regulation by licensing or otherwise of mining, quarrying excavating, blasting or any operation of a like nature near a protected monument or the construction of buildings on land ad-joining such monument and the removal of unauthorised buildings.'
9. By virtue of the said power, the Central Government framed the Ancient Monuments And Archaeological Sites and Remains Rules, 1959 (for short 'the Rules'). Under the said rules. Rule 2(f) defines 'prohibited area' or 'regulated area' 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, or as the case may be, a regulated area, for purposes of mining operation or construction or both.'
10. Chapter VII of the Rules relates to mining operation and construction near protected monument. Rule 31 of the Rules obligates the Central Government to specify is intention to declare prohibited area or regulated area to issue notice in the Gazette as contained under Rule 31. Rule 31 of the Rules reads as under :
'31. Notice of Intention to declare a prohibited or regulated area --(1) Before declaring an area near or adjoining a protected monument to be a prohibited area or regulated area for purposes of mining operation or construction or both, the Central Government shall, by notification in the Official Gazette, give one month's notice of Its intention to do so, and a copy of such notification shall be affixed in a conspicuous place near the area.
2) Every such notification shall specify the limits of the area which is to be so declared and shall also call for objection, If any, from interested persons.'
11. Rule 32 of the Rules obligates declaration of prohibited or regulated area which reads as under:
'32. Declaration 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, 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 by. a regulated area for purposes of mining operation or construction or both.'
12. Relying on these two rules, the learned Counsel for the petitioner would submit that the power is vested with the Central Government to declare an area near or adjoining a protected monument as prohibited or regulated area. But before so doing the Central Government is required to comply with the provisions of Rule 31 of the Rules and the notification dated 4-7-1992 relied on by the respondents has no application to Charminar area as there was no specific notice of intention to declare a prohibited or regulated area was issued in respect of Charminar as required under Rule 31 or no declaration prescribing prohibited or regulated area was issued as required under Rule 32 of the Rules, He takes this Court through the notification dated 4-7-1992 issued by the Central Government and submits that it is a general notification and it cannot be construed as making it applicable to Charminar area. He further submits that the monuments which are declared as such under the Act do not occupy the same area and that each monument has to be notified by a separate notification by following the procedure contemplated under Rules 31 and 32 of the Rules. It is necessary to extract the notification dated 4-7-1992 Issued by the Central Government which reads as under :
'S.O. 1764--Whereas by the notification of the Government of India in the Department of Culture, Archaeological Survey of India No. S.O. 1447 dated the 15th May, 1991, published in the Gazette of India, Part II, Section 3, Sub-section (11) dated the 25th May. 1991, the Central Government gave one month's notice of its intention to declare areas up to 100 meters from the protected limits, and further beyond it up to 200 meters near or adjoining protected monuments to be prohibited and regulated areas respectively for purposes of both mining operation and construction.
And whereas the said Gazette was made available to be public on the 5th June, 1991 :
And whereas objections to the making of such declaration received from the person interested in the said areas have been considered by the Central Government.
Now, therefore, in exercise of the powers conferred by Rule 32 of the Ancient Monuments and Archaeological Sites and Ramains Rules, 1959, the Central Government hereby declares the said areas to be prohibited and regulated areas. This shall be in addition to and not in any way prejudice the similar declaration already made in respect of monuments at Fatehpur Sikri; Mahabali-puram, Golconda Fort, Hydera-bad (AndhraPradesh); Thousand Pillared Temple. Hanamakonda, District Warangal (Andhra Pradesh); Sher Shah Tomb, Sasaram (Bihar); Rock Edict of Ashoka, Kopbal, District Raichur (Karnataka), Fort Wall, Bijapur (Karnataka), Gomateswara Statue at Sravanbelgola, District Hassan (Karnataka), Elephanta Caves, Chanpur, District Kolaba (Maharashtra).
(No. F.8/2/90-M) M. C. JOSHI, Director General.'
13. From the reading of this notification, the learned counsel for the petitioner would submit that intention of the Government is that up to 100 meters from the protected limits and further beyond it up to 200 meters near or adjoining protected monuments to be prohibited and regulated areas for the purposes of both mining operation and construction and referring to the last paragraph of the notification that this notification shall be in addition to and not in any way prejudice the similar declarations already made in respect of monuments at Fatephur Sikri including Golconda Fort, Hyderabad contends that this notification cannot be made applicable to the monument Charminar for which no protected limits have been prescribed in any earlier notification.
14. On the other hand, the learned standing counsel for the respondent-Municipality would submit that once a notification is issued prescribing 100 meters from the protected limits and further beyond it up to 200 meters near or adjoining protected monuments to be prohibited or regulated areas, it should be construed that the same principle applies in respect of all protected monuments even in the absence of individual notifications in respect of each monument. Though his contention of the learned standing counsel for the respondent-Municipality appear to be appealing but on a close scrutiny of the Rules 31 and 32 of the Rules with reference to the Gazette published on 4-7-1992, this Court is not in a position to accept such a contention for the reason that Rules 31 and 32 of the Rules requires declaration of prohibited and regulated area in respect of each individual monument and there cannot be any general declaration in respect of all the monuments for the obvious reason that all monuments are not identical in size, design, area etc., and earmarking of prohibited or regulated area varies from monument to monument depending on its size and area. Therefore, a general notification as such which did not contain the name of protected monument Charminar cannot be said to cover the Charminar monument also and it cannot be made applicable so as to deny the grant of permission to the petitioner.
15. The learned counsel for the petitioner submits that the petitioner also made an application to the Archaeological Department which also refused to grant permission. But this is not relevant for the purpose of this case inasmuch as when such prohibited or regulated area does not apply in respect of monument Charminar, the refusal made by the Archaeological Department will be non est in law. Under these circumstances, I am convinced that the impugned refusal is illegal and without jurisdiction. Accordingly, the writ petition is allowed. The respondent-Municipality is directed to consider the plan submitted by the petitioner without reference to the notification dt. 4-7-1992. The petitioner shall re-submit his plan to the Municipality within a period of two weeks from the date of receipt of a copy of this order. On such resubmission, the respondent-Municipality shall consider the same as directed above within a period of three weeks from the date of its resubmission, if the plan submitted by the petitioner is in accordance with the building regulations. No order as to costs.
That Rule Nisi has been made absolute as above.