COMMON ORDER
1. Sri Sthalasayna Perumal Temple, at Mahabalipuram, is an age old Hindu Temple. It is known for its rich heritage. It stands on the shore. It is a small temple with two major shrines for Lord Sthalasayana Perumal and Nilamangai Thayaar. It is believed that this is the birth place of the 2nd Azhwar - Boothathazhwar. Historians say that the architecture depicts the Pallava style and thus, it was built by Pallava Kings. It is one of the 108 Divayadesams. The said temple is under the control of the Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu, as per the provisions of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.The respondents 1 to 3, in exercise of power under Section 4(1) of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 [hereinafter referred to as the Central Act] have issued a notification expressing the intention of the Central Government to declare the said Temple as an ancient monument, which is of national importance. It is the said notification, which is under challenge in these writ petitions.
2. The petitioner in W.P.No.26061 of 2008 is the Special Commissioner and Commissioner, Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu. The petitioner in W.P.No.5470 of 2004 is the temple. Since both the writ petitions challenge one and the same notification, they were heard together and they are disposed of by means of this common order.
3. At the outset, let us have a survey of history behind the Central Act and the relevant Tamil Nadu Act as well and their salient features. Under the Government of India Act, 1935, the subject Ancient and historical monuments; archaeological monuments; archaeological sites and remains fell within Entry 15 of the Federal List. Under the Constitution, this subject has been distributed under three different heads namely, - Entry 67, Union List Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance. Entry 12, State List Ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance, and Entry 40, Concurrent List Archaeological sites and remains other than those declared by or under law made by parliament to be of national importance.
4. Originally there were two Acts in force relating to ancient monuments viz., The Ancient Monuments Preservation Act, 1904 and The Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951. The Act 1951 merely declared certain monuments, etc., to be of national importance and the Act of 1904 was also applicable to such monuments. While the Constitution has distributed the subject matter under three different heads, the Central Act of 1904 governs all ancient monuments whether falling in the Central field or the State field, and vests all executive power in the Central Government. The position of the then existing laws relating to ancient monuments was far from satisfactory. Therefore, the Central Government introduced The Ancient Monuments and Archaeological Sites and Remains Act, 1958 making it applicable exclusively to ancient and historical monuments and records and archaeological sites and remains of national importance falling under Entry 67 of List-I and to archaeological sites and remains falling under Entry 40 in the Concurrent List. Simultaneously, the Central Government advised the State Governments to enact similar laws in respect of ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance falling under Entry 12 in the State List. After the coming into force of the Central Act 24 of 1958, the Government of Tamil Nadu also passed a legislation known as the Tamil Nadu Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1966 [hereinafter referred to as the State Act]. Since this Act also covers Archaeological Sites and Remains which fall in Entry 40 of the Concurrent List, it received the assent of the President.
5. The object of the State Act is to provide for the preservation of ancient and historical monuments and archaeological sites and remains other than those of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects.
6. Before going into the actual issues involved in these writ petitions, let us now have a comparative study of these two enactments to find the wonder as to how these two enactments go hand-in-hand very successfully for several decades.
7. The expression ancient monument has been defined in Section 2(a) of the Central Act as follows:- 2. Definitions (a) ancient monument means any structure, erection or monument, or any tumulus or place of interest, 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;
8. Section 2(a) of The State Act also defines the very same expression viz., ancient monument as follows:-
2. Definitions (a) ancient monument means any structure, erection or monument, or any tumulus or place of interest, 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, (iv) the gardens, if any, appurtenant to an ancient monument, and
(v) the means of access to, and convenient inspection of an ancient monument; but does not include any ancient or historical monument declared by or under law made by Parliament to be of national importance;
9. A cursory comparison of these two provisions would go to show that they are in pari materia.
10. Section 2(j) of the Central Act defines the expression protected monument as follows:-
2(j) protected monument means an ancient monument which is declared to be of national importance by or under this Act.
[Emphasis supplied]
11. Similar expression protected monument has been defined in Section 2(j) of the State Act as follows:-
2 (j) protected monument means any ancient monument which is declared to be a protected monument under this Act.
12. A close comparison of these definitions under the Central and State enactments would make it abundantly clear that an ancient monument, which has got national importance as has been declared either by or under the Central Act, is a protected monument under the Central Act whereas an ancient monument, which has not been declared to be of national importance under the Central Act, is a protected monument under the State Act, if the same has been declared so by the State Government.
13. Section 3 of the Central Act envisages, among other things, that all ancient monuments which have been declared and all archaeological sites and remains which have been declared by the Ancient and Historical Monuments and Archaeological Sties and Remains (Declaration of National Importance) Act, 1951 or by Section 126 of the States Reorganisation Act, 1956, to be of national importance shall be deemed to be ancient monuments declared to be of national importance for the purposes of the Central Act. Any ancient monument , which has not been included in Section 3 of the Central Act, if in the opinion of the Central Government, is of national importance, then, under Section 4 of the Central Act, the Central Government may declare the same as an ancient monument to be of national importance. Thus, any ancient monument to be of national importance, either included in Section 3 of the Central Act or declared by or under Section 4 of the Central Act, shall be a protected monument and the same shall be protected or preserved by the Central Government as provided in the latter provisions of the Act. For the purpose of our discussion, let us have a look into Section 4 of the Central Act which reads as follows:- 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 my 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.
14. In the State Act, under Section 3, the State Government has been vested with the power to declare an ancient monument as a protected monument as defined in Section 2(j) of the State Act. Section 3 of the Act reads as follows:- 3. Power of Government to declare ancient monuments, etc. to be protected monuments and areas.- (1) Where the Government are of opinion that any ancient monument or archaeological site and remains requires protection under this Act, they may, by notification give two months' notice of their intention to declare such ancient monument or archaeological site and remains to be protected monument or a protected area, as the case may be, and a copy of every such notification shall be affixed in a conspicuous place near the monument or the 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, as the case may be, to be a protected monument or a protected area. (3) On the expiry of the said period of two months, the Government may, after considering the objections, if any, received by them declare by notification the ancient monument or the archaeological site and remains, as the case my be, to be a protected monument or a protected area. (4) A notification issued under 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 a protected monument or a protected area for the purposes of this Act.
15. If once an ancient monument is so declared as a protected monument under Section 3 of the State Act, then, the same shall be protected or preserved as per the latter provisions of the State Act by the State Government.
16. If the State Government declares a monument as a protected monument under the State Act first and later on, if the Central Government declares the same as an ancient monument to be of national importance under Section 4 of the Central Act, then, the said monument shall be thereafter protected only by the Central Government as per the provisions of the Central Act. This is obvious from Entry 67 in the Union List and Entry 12 in the State List. Entry 12 in the State List envisages that ancient monuments other than those declared by or under law made by Parliament to be of national importance alone can be dealt with by the State. If an ancient monument has been declared to be of national importance by or under law made by Parliament, then, as per Entry 67 of the Union List and Entry 12 of the State List, the law made by the Parliament alone will be applicable. Therefore, if an ancient monument, which has already been declared as protected monument by the State Government, is subsequently declared as an ancient monument to be of national importance by the Central Government, then, the preservation and the protection of the same shall change to the hands of the Central Government and the same shall cease to be under the preservation and protection of the State Government.
17. With the above legal position, let us now, move on to the facts of the present case. The Temple in question has not so far been declared as a protected monument by the State Government as per Section 3 of the State Act. The said Temple has not been, admittedly, included in Section 3 of the Central Act. For the first time, the Central Government has issued the impugned Notification under Section 4 (1) of the Central Act notifying its intention to declare the same as an ancient monument to be of national importance. The Executive Officer of the Temple and the Commissioner, Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu are aggrieved by the said notification. That is how, they have come up with these writ petitions.
18. It is the contention of the petitioners that the temple in question is not at all an ancient monument as defined in both the Central Act and State Act. The learned Advocate General appearing for the Commissioner, HR & CE Department, Government of Tamil Nadu, would contend that that there is no national importance at all attached to the said temple and thus, the impugned notice is wholly without jurisdiction. It is the further contention of the learned Advocate General that the impugned notice reflects total non application of mind on the part of the Central Government. Finally, the learned Advocate General would contend that the impugned notification shows the predetermination of the Central Government to declare the temple in question as ancient monument to be of national importance.
19. The learned counsel appearing for the Executive Officer of the Temple, while adopting the arguments of the learned Advocate General, would add that the impugned notification is highly motivated and therefore, the same, according to the petitioners, is liable to be quashed.
20. But, a detailed counter has been filed by the 3rd respondent, wherein, in para 3, it has been explained as to how, it is an ancient monument having national importance. More precisely, it is stated that the temple represents the zenith of the temple architecture of temple of Tamil Nadu in particular and South India in general. It is further stated that the Central Government is of the opinion that the temple is an ancient monument which is of national importance. That is why, according to the respondents 1 to 3, the impugned notification has been issued. It is further contended that if the petitioners have got any objection regarding the same, they are at liberty to make their objection as provided in Section 4(3) of the Central Act.
21. The learned counsel appearing for the respondents 1 to 3 would submit that if the petitioners have got any objection, they can very well submit their objection(s) to the Central Government and if any such objection is received, the same would be meticulously considered by the Central Government before taking any final decision in this matter.
22. The learned counsel for the respondents 1 to 3 would further submit that the impugned notification came to be issued after fully analysing the relevant materials and by meticulously applying the mind of the Central Government. The learned counsel would further add that there is neither motivation nor any predetermination on the part of the Central Government. For all these reasons, according to the learned counsel for the respondents 1 to 3, these writ petitions are liable to be dismissed.
23. As we have already seen, if only the temple in question falls within the definition of ancient monument as defined in Section 2(a) of the Central Act and further if only the Central Government finds that the temple has national importance, the Central Government can issue a final declaration under Section 4(3) of the Central Act. Under Section 4 (1) of the Central Act what is required for the Central Government to issue notification is only its preliminary opinion that it is an ancient monument having national importance. Such opinion cannot be equated to a final decision. Final decision can be taken only after holding enquiry and after hearing the objections, if any in respect of the same.
24. The contention of the learned Advocate General is that the impugned notification does not contain the details as to whether the temple in question is of historical interest or archaeological interest or artistic interest as defined in Section 2(a) of the Central Act. The further contention of the learned Advocate General is that there are no details given in the impugned notification as to how, the temple in question is of national importance. The next contention of the learned Advocate General is that the absence of these details in the impugned notification reflects only the total non application of mind on the part of the Central Government. These arguments of the learned Advocate General cannot be countenanced at all for, a notification under Section 4(1) need not contain these details. It would be suffice, if the notification reflects the opinion and its intention to declare the same as an ancient monument to be of national importance. These basic requirements have been satisfied in the impugned notification.
25. The last contention of the learned Advocate General that the Central Government has already determined to declare the temple in question under Section 4(3) of the Central Act and the enquiry which is going to be held is only an empty formality also finds no strength. The said argument of the learned Advocate General is based on the averment made in the counter affidavit of the 3rd respondent in para 7 which reads as follows I state that considering the archaeological, architectural and historical importance of the temple, the Union of India decided to declare it as a monument of national importance. From this , the learned Advocate General would try to project that the Central Government has already decided to declare the temple in question as a monument of national importance. But, the learned counsel appearing for the respondents 1 to 3 would submit that instead of using the appropriate term intended, by mistake, the term decided has been used in the counter affidavit. The learned counsel would further submit that it should be read as Union of India has intended to declare it as a monument of national importance. Thus, I find no predetermination on the part of the Central Government as projected by the learned Government Advocate.
26. The contention of the learned counsel for the Executive Officer of the temple in question that the notification is motivated cannot be adjudicated upon in this writ petition inasmuch as it is a disputed question of fact which can be adjudicated upon only on evidence.
27. From the foregoing discussions, it emerges crystal clear that the petitioners have rushed to this court without availing the alternative remedy of making their objections to the intention of the Central Government, as provided in Section 4 (2) of the Central Act. If it is the firm stand of the petitioners that the temple does not fall within the ambit of the Central Act, it is open for them to raise their objections before the Central Government. The Central Government, in turn, will meticulously consider such objections and then take appropriate final decision as provided in Section 4 (3) of the Central Act. While doing such exercise, I am sure, the Central Government will consider whether the temple in question is an ancient monument as defined in Section 2(a) and whether it has got any national importance as required under Section 4(1) of the Act and then take appropriate final decision. Before such decision is taken, it is absolutely necessary that the petitioners should be given sufficient opportunity to make their objections including personal hearing. It is made clear that not only the petitioners but also any person, who is interested in the temple in question will be at liberty to submit his objection and to participate in the enquiry. Since the impugned notice was issued in the year 2004 and the same was stayed by this Court in the year 2004 itself, at this length of time, it would be appropriate for the Central Government to make advertisements for the information of the public about the impugned notification under Section 4(1) of the Central Act so as to enable them to submit their objections, if any, and to participate in the enquiry.
28. For the aforesaid reasons, I hold that the writ petitions are highly premature and they are not maintainable as the petitioners can very well avail the alternative remedy under Section 4(2) of the Central Act.
29. In the result, both the writ petitions are disposed of in the following terms:-
(i) The petitioners will be at liberty to submit their written objections to the impugned notification within a period of two months from the date of receipt of a copy of this order to the Central Government.
(ii) The Central Government shall take steps to make advertisements of the impugned notification for the information of the public so as to enable them to file their objections, if any within two months from the date of such advertisements. The said advertisements shall be made in prominent news papers having wide circulation in the State of Tamil Nadu.
(iii) After the expiry of two months stipulated above, the Central Government shall consider the objections, afford sufficient opportunity to the objectors, including the petitioners herein, afford them personal hearing and then take a final decision. While doing so, the Central Government shall objectively consider as to whether the temple in question is an ancient monument and whether it has got any national importance besides the religious sentiments of the local people.
(iv) There shall be no order as to costs.