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Rajasthan High Court · body

2009 DIGILAW 2141 (RAJ)

Suo Moto v. State

2009-10-13

JAGDISH BHALLA, M.N.BHANDARI

body2009
JUDGMENT 1. - This matter pertains to famous Amer Fort and palace which was declared as a protected monument by the notification dated 16.9.1968 under the provisions of the Rajasthan Monuments and Archaeological Sites and Entiquities Act, 1961 (hereinafter referred to as `the Act'). It is an important tourist place where tourists come from all over world apart from the various parts of the country thus its conservation, restoration and protection is important. A mishap of falling of wall causing injuries to the people took place while film shooting was going on. This Court took cognizance of the matter on 13.2.2009 to know as whether under the lust and greed of money, the people involved therein must not have became insane or insensitive. Film shooting was instantly stayed. For the purpose of knowing about the work performed in the protected monument and other aspects a detailed report was called through a Committee constituted by this Court. The Committee visited the palace and gave its report showing deficiencies in the work and at the same time appreciating it to some extent. On submission of the report, response has been given by the Government contending that they are calling corrective measures as per the observations made in the report so that conservation, restoration and protection work of Amer Fort and the Palace is undertaken within the framework of law. On 17.8.2009 this court issued restrain order on commercial activities in the Amer Fort and Palace thereunder. After passing the order dated 17.8.2009, the matter has come up for consideration on the application seeking vacation of the order dated 17.8.2009 and even for recalling of the order where few applicants were not impleaded as party but were allowed only to intervene. With the consent of the parties, matter was heard finally. 2. Amicus Curiae appointed in this matter has raised certain issues in reference to the matter. The first issue raised is regarding the constitution of Amer Development and Management Authority Society (hereinafter referred to as `the Society'). It is stated that under the Act and the Rules made thereunder there exists no provision to constitute a society by the State Government. This is more so, when the Society has been entrusted i with the work of conservation, restoration and protection of the protected monuments apart from the authority to enter into Memorandum of Understanding to allow commercial activities. This is more so, when the Society has been entrusted i with the work of conservation, restoration and protection of the protected monuments apart from the authority to enter into Memorandum of Understanding to allow commercial activities. The Society has no authority under the Law to allow commercial activities in the protected monuments. The act of the Society is thus contrary to the provisions of the Act and Rules. In view of the aforesaid argument, it is submitted by learned Amicus Curiae that all the Memorandum of Understanding permitting commercial activities be declared illegal being contrary to the law and it may further be held that the Society has no power to grant permission for commercial activities in the u protected monuments. The further prayer is that even the conservation, restoration and protection work of the monuments cannot be entrusted to the Society and, thereby, the Society be restrained from undertaking such work and if at ail they are so permitted as per the provisions of the law, conservation, restoration and protection work of the monuments should be undertaken strictly as per the provisions of the Act and the Rules made thereunder. Our attention was drawn towards the report submitted by the Committee showing certain deficiencies in the work and at the same time illegalities committed therein. 3. Learned Advocate General appearing for the State Government submitted that sofar as conservation, restoration and protection work of the monuments is concerned, the same would be undertaken as per the provisions of the Act and the Rules made thereunder and for that purpose case would be taken to remove deficiencies as pointed out by the Committee so that if any work has been undertaken contrary to the provisions of the Act and the Rules made thereunder, that will be rectified. So far as constitution of the Society and its authority to undertake conservation, restoration and protection work of the protected monuments and even to grant permission for commercial activities, it is stated that the officers like Chief Secretary of the State and Director of Archaeological Department of State of Rajasthan are the President and member of the Society. As per Section 13A of the Act conversation, protection and restoration of the monument can be undertaken through the Society. As per Section 13A of the Act conversation, protection and restoration of the monument can be undertaken through the Society. So far as signing of Memorandum of Understanding by the Society for grant of permission of commercial activities, it is to be presumed to be on behalf of the competent authorities as per Rule 8(d) of 3 the Rajasthan Monuments and Archaeological Sites and Entiquities Rules, 1968 (hereinafter referred to as `the Rules') because Director of the Department in one of the members of the Society. In the alternative, it was urged that if at all this Court comes to the conclusion that the Society is having no authority under law to enter into the Memorandum of Understanding to allow commercial activities then liberty may be given to the competent authority to act as per the previsions of the Rules. So that it competent authority takes a decision to permit commercial activities of the nature permissible under the Rules then necessary action can be taken. 4. Shri Abhay Bhandari, Sr. Counsel, Shri K.K. Sharma and Shri R.N. -Mathur adopting the arguments made by the learned Advocate General urged that it is at the instance of the Government that they had come forward to undertake activities of the nature advancing the cause of tourists and originality of the monuments is maintained. If any work is undertaken at the place allocated to them then it is without putting even a nail in the wall or otherwise destroying the monument in any manner. 5. Mr. Paras Kuhad, learned counsel appearing for the applicant initially pressed his application for recalling of the order by which the applicant was not made a party but was allowed to intervene only. It was urged that in absence of a party no adverse order can be passed. Thus, if out come of the judgment is adverse order against the applicant then he may first be impleaded as a party respondent by recalling the order dated 17.8.2009 and then only the matter may be proceeded further. The argument aforesaid was later on not pressed and it was stated that if the State Government or the competent authority is given opportunity to act as per the provisions of the Act and the Rules made thereunder then in that case he does not press his argument that without impleading as a party no adverse order can be passed. The argument aforesaid was later on not pressed and it was stated that if the State Government or the competent authority is given opportunity to act as per the provisions of the Act and the Rules made thereunder then in that case he does not press his argument that without impleading as a party no adverse order can be passed. This is more so, when the applicant has placed material on record by moving an application and argued the matter on merits as if it is a party. Rest of the arguments as made by the learned Advocate General were adopted though initially it was submitted that the Memorandum of Understanding signed by the Society is nothing but at the instance of the Government because it is the Government who gave such an authority to the Society. The Memorandum of Understanding may thus be saved. It is alternatively submitted that if for the reason of violation of the legal provisions, Memorandum of Understanding cannot be saved then competent authority may be given liberty to act as per the provisions of the law. 6. Shri S.P. Sharma appearing for one of the applicants joined the issue with Amicus Curiae and urged that the order passed by this Court on 17.8.2009 may be made absolute. 7. We have heard learned counsel for the parties. It is to be noted that the matter pertains to a protected monument of tourism importance and economy of various countries and States depends on the tourism. While aforesaid aspect is to be kept in mind one should not forget compliance of statutory provisions. The arguments raised by the parties are in two parts. One pertains to constitution of the Society along with entrustment of conservation, restoration and protection work. This is apart from the authority of the Society to grant permission to run commercial activities in the protected monuments. Bare perusal of the Act and the Rules does show that an advisory Board can be created by not the Society. In this case the Society has been created under the provisions of Rajasthan Registration of Societies Act, thus, the Society can exist independently but can be assigned work to the extent permissible under the Act and the Rules. Bare perusal of the Act and the Rules does show that an advisory Board can be created by not the Society. In this case the Society has been created under the provisions of Rajasthan Registration of Societies Act, thus, the Society can exist independently but can be assigned work to the extent permissible under the Act and the Rules. As per the provisions Section 13A of the Act an agreement for the purposes of maintenance of certain monuments can be made with any person, firm or trust and in view of the aforesaid provision, no doubt that maintenance work can be entrusted to any person, firm or a trust but then it should not be inconsistent with the provisions of the Act and rules. In the present case we have seen the report of the Committee appointed by this Court and find that at many places conservation, protection and restoration work has not been undertaken properly. The Committee in its report has noted that even the patch work undertaken is so visible that it does not match to the old plaster. Many photographs have been annexed to show that at many places damage has been caused to the monument may be of a small nature but then such damages and that too in the name of conservation, restoration and protection work is not proper. It was expected of the Government to undertake the work strictly as per the provisions of the Act and the rules made thereunder. Even if experts were appointed then it was expected from i them to see that the conservation, restoration and protection work is undertaken in a manner which should not damage the old construction and does not create a patch making it shabby then to add the beauty. Picture No. 1 (photo no. 1) shows that all trees and vegetation which were existing on 5 the slops of the foothill of Fort towards East have been removed whereas existence of the trees in that area is noticed from the old photograph. If the plants grown gradually were of Julie Flora and have been removed then the same is required to be appreciated because plants of Julie Flora is damaging to the environment. If the plants grown gradually were of Julie Flora and have been removed then the same is required to be appreciated because plants of Julie Flora is damaging to the environment. It is, however, necessary to observe that shrub can be k grown at foothills with a view to add beauty of the area after taking care of the fact that it should not cause obstruction to the light and sound show. All other suggestions made by the Committee are required to be looked into and to be carried out and for that purpose the Rules should be strictly followed. Thus, if there exists an agreement to undertake maintenance work n of the protected monument inconsonance of the provisions of Section 13A there is nothing illegal therein. However, as per the provisions of Section 13A of the Act itself condition of agreement cannot be inconsistent with the provisions of the Act and rules and obviously the conservation, restoration and protection work should be undertaken strictly in consonance with the provisions of Law. 8. Sofar as the second aspect of the matter is concerned, i.e. regarding permission to allow commercial activities, this Court while passing the order dated 17th August, 2009 noted that Memorandums of understanding have been signed by the Society to permit commercial activities. Initially, argument was made from the side opposite to justify their action based on the order passed by the Government. State Government authorised the Society to enter into Memorandums of understanding with other parties to grant permission for commercial activities. A perusal of the order passed by the Government shows that the same has been issued In ignorance of the statutory provisions. If we look at Rules 7 and 8 of the Rules, it becomes clear that authority lies with the State Government under Rule 7 and of the Director or Superintendent of Archaeological Department under Rule 8. Rules 7 and 8 are quoted hereunder: "7. Holding of meetings etc. in Monuments : (1) No protected : monument shall be used for the purpose of holding any meeting, reception party, converences or entertainment except under and in accordance with a permission in writing granted by the Government of Rajasthan. (2) Nothing in sub-rule (1) shall apply to the meeting, reception, party, conference or entertainment which is held in pursuance of a recognised religious usage of custom. 8. (2) Nothing in sub-rule (1) shall apply to the meeting, reception, party, conference or entertainment which is held in pursuance of a recognised religious usage of custom. 8. Prohibition of certain acts within protected monument-No person shall within a protected monument- (a) do any act which causes or is likely to cause damage or injury to any part of the monument; or (b) discharge any fire-arms; or (c) cook or consume food except In areas, if any, permitted to be used for that purpose; or (d) hawk or sell any goods or wares or canvass any cystinger for such goods or wares or display any advertisement in any form show a visitor round for monetary consideration, except under the authority of or under and in accordance with the conditions of a licence granted by the Director or the Superintendent of Archaeology, Government of Rajasthan; or (e) beg for alms, or (f) violate any practice, usage or custom applicable to or observed in the monument; or (g) bring, for any purpose other than the maintenance of the monuments (i) any animal, or (ii) any vehicle except in the areas reserved for the parking thereof." 9. It is not made clear as to how the Government can issue an order contrary to the statutory provisions of law. During the course of arguments, learned counsel appearing for the respondents and interveners accepted that sofar as the Society is concerned, it has no right to enter into an agreement and to sign Memorandum of understanding for commercial activities. The only argument was however raised that if the order of the Government and the authority of the Society to grant permission for commercial activities are held to be illegal then the Government or the Competent Authority may be given liberty to take action as per the provisions of the law. Learned Amicus Curiae and other counsel supporting the cause of Suo Moto petition also agreed to the proposition that the competent authority can be given a liberty to act as per the provisions of the law but then strict compliance of the Rules should be made in that regard so that the glory and originality of the monument is maintained. 10. 10. In view of the above discussions it becomes clear that all the Memorandums of understanding signed by the Society cannot be endorsed to be legal rather it was beyond the competence of the society to enter into Memorandums of Undertaking to grant permission for commercial activities and if the Government has passed any order conferring such authority to the Society in violation of Rule 8 of the Rules then the said order is nothing but to held as illegal. 11. The consequence of the aforesaid discussion is that the Society was having no power to enter into agreement and to sign MOUs for grant of permission for commercial activities, such Memorandums of Understanding are held to be in violation of the provisions of the law, thus are not allowed to stand. The respondent Director and Superintendent of Archaeological Department would however, be at liberty to act as per the provisions of the Rules, if at all they feel that commercial activities are to be permitted, they would be at liberty to act as per law. Here it is to be made clear that if a all a decision is taken by the competent authority to allow some commercial activities in the area of the protected monument then care should be taken that such commercial activities are directly co-relate to the tourism and the tourists or for advancement of handicraft of the State of Rajasthan as well as of India and commercial activities of any nature different than connected with the tourists or tourism may not be permitted. This observation has been made to avoid increase of commercialisation in the area concerned. 12. If any decision to permit the commercial activities is taken then it should be strictly in consonance with the provisions of the Act and Rules. The conditions narrated in Rule 14 and other Rules should strictly be adhered to. It is seen from the report that some damages have been caused to start commercial activities. It is, hence necessary to observe that while the recommendations of the Committee are implemented, care should be taken that nothing should be permitted which may cause damage to the monument and at the same time originality of the monument is maintained. If any part of ?he monument is allowed to be used for meeting, reception party, conference or entertainment, that can be only under the permission of the Government of Rajasthan. If any part of ?he monument is allowed to be used for meeting, reception party, conference or entertainment, that can be only under the permission of the Government of Rajasthan. For that aforesaid purposes, compliance of Rule 7 of the Rules is to be made in strict terms. 13. It is also noticed that there exists a famous temple of Shillamata in the premises and public sentiments are attached to the temple. Looking to the aforesaid and in view of the provisions of Rule 14(11) of the Rules, the competent authority will not permit anything which is likely to offer or affect public sentiments. The identity and the glory of the temple should be maintained so that it may not hurt the feelings of any one. 14. In view of the directions and observations made above, this petition is disposed off. The respondent Government and the authorities under the Act and the Rules are directed to submit the compliance report within a period of two months from today. The report should indicate as to how the suggestions made by the Committee have been carried out and further to regulate conservation, restoration and protection work of Amber, strict compliance of the provisions of the Act and the Rules is to be made. If any commercial activity is permitted by the competent authority then report should indicate the nature of the commercial activity permitted and while permitting such activity glory and originality of the monument is to be maintained. Report should also indicate as how other directions have been carried out.Writ Petition disposed of as above. *******