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Judgment
S.K. Gangele, J.—This Public Interest Litigation was registered on the basis of suo motu cognizance, which had been taken by then Administrative Judge of this Bench, on the basis of news article published in daily newspaper "Nai Dunia", Gwalior City Edition dated 1st April, 2010. Two tombs of historical monuments in the shape of Maqbara, one is Sangeet Samrat Tansen and another is Mohd Ghaus with two mosques, are situated at Gauspura at the western side of Hazira Chauraha, on the revenue plot Nos. 199 and 200, area 13 bighas 11 biswas within the limits of Municipal Corporation, Gwalior. These are ancient heritage buildings and protected monuments of national importance under the Ancient and Historical Monuments and Archaeological Sites and Remains [Declaration of National Importance] Act, 1951 [hereinafter called as ''''Act of 1951''''].
The Archaeological Survey of India in its reply admitted the fact that some persons have made encroachment over the land and some persons made construction within 100 to 200 mtrs of the monuments in violation of Ancient Monuments and Archaeological Sites and Remains Act, 1958 [hereinafter called as ''''the Act of 1958'''']. The Archaeological Survey of India initiated proceedings against the persons, copy of details of the persons who had made encroachment and made illegal constructions, has been filed as Annexure D-3 along-with the reply.
The Archaeological Survey of India further pleaded that it had written letters to the Commissioner, Municipal Corporation to shift the shops which are adjacent to the monuments and prevention of some illegal activities which were being carried out within the periphery of monuments. In the letter dated 06-08-2012 (Annexure R-3) written by the Superintending Archaeologist, Archaeological Survey of India, Bhopal Circle to the Collector, Gwalior mentioned that some persons namely, Sayeed Sifte Hassan, Sayeed Mohammed Hassan, Sayeed Sabla Hassan and other Muslim Community Greater, Gwalior had organized an "Urs" at the Maqbara from 02/08/2012 to 04/08/2012. During the aforesaid period, they had installed electricity, electric wires and other equipments on the premises of heritage building. They had also destroyed sanctity of the building and when the employees of Archaeological Survey of India tried to prevent them, the members had misbehaved and abused them. In another letter, the Superintending Archaeologist, Archaeological Survey of India, informed the Collector that some illegal persons used to play football and cricket on the lawn of the building and some persons used to prepare food and even had been organizing ''''bhandara''''. In another letter, the Superintending Archaeologist submitted that some persons had beaten the security guards and they had also tried to occupy some part of the building.
The Municipal Corporation in its reply admitted the fact that some persons have made encroachment over the Government land. The Corporation further pleaded that it had also issued notices to the encroachers and proper action shall be taken against the encroachers. Along-with the return, Municipal Corporation filed a map of the area. The heritage buildings i.e. Sangeet Samrat Tansen and Tombs of Mohammad Ghaus are surrounded by a wall. There are two gates and as per the map in front of the Gates No. 1 and 2 some persons have made encroachments.
Section 14 of the Act of 1958 prescribes maintenance of protected monuments and the duty of Union of India to protect the monuments. The relevant Section reads as under:--
Maintenance of certain protected monuments.--(1) The Central Government shall maintain every monument which has been acquired u/s 13 or in respect of which any of the rights mentioned in section 5 have been acquired.
(2) When the Director- General has assumed the guardianship of a monument u/s 5, he shall, for the purpose of maintaining such monument, have access to the monument at all reasonable times, by himself and by his agents, subordinates and workmen, for the purpose of inspecting the monument and for the purpose of bringing such materials and doing such acts as he may consider necessary or desirable for the maintenance thereof.
Section 16 of the Act prescribes use of protected monuments for any purpose inconsistent with its character. The relevant Section reads as under:--
Protection of place of worship from misuse, pollution or desecration.--(1) A protected monument maintained by the Central Government under this Act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character.
(2) Where the Central Government has acquired a protected monument u/s 13, or where the Director-General has purchased, or taken a lease or accepted a gift or bequest or assumed guardianship of a protected monument u/s 5 and such monument or any part thereof is used for religious worship or observations by any community, the Collector shall make due provision for the protection of such monument or part thereof, from pollution or desecration-
(a) by prohibiting the entry therein except in accordance with the conditions prescribed with the concurrence of the persons, if any, in religious charge of the said monument or part thereof, of any person not entitled so to enter by the religious usages of the community by which the monument or part thereof is used, or
(b) by taking such other action as he may think necessary in this behalf.
The Union of India has also made rules in exercise of powers conferred by Section 38 of the Act of 1959, named as "Ancient Monuments and Archaeological Sites and Remains Rules, 1959 [hereinafter called as "the Rules of 1959'''']". Rule 7 restricts holding of meetings, etc., in monuments. The relevant Rule is as under:--
Holding of meetings, etc., in monuments.--(1) No protected monuments shall be used for the purpose of holding any meeting, reception, party, conference or entertainment except under and in accordance with a permission in writing granted by the Central Government.
(2) Nothing in sub-rule (1) shall apply to any meeting, reception, party, conference or entertainment which is held in pursuance of a recognized religious usage or custom.
Rule 8 further prohibits certain acts within monuments, which are as under:--
Prohibition of certain acts within monuments.--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 ware or canvass any custom for such goods or wares or display any advertisement in any form or show a visitor round for monetary consideration except under the authority of, or under and in accordance with the conditions of a license granted by, an archaeological officer; or
(e) beg for alms; or
(f) violate any practice, usage or custom applicable to or observed in the monument,-
(g) bring, for any purpose other than the maintenance of the monument,-
(i) any animal or;
(ii) any vehicle except in areas reserved for the parking thereof.
In our opinion, it is the duty of Municipal Corporation to take proper steps in regard to identification of encroachment and thereafter, removal of the same. Similarly, it is the duty of Archaeological Survey of India to identify the encroachment, if any, in accordance with the provisions of Act of 1958 and Rules of 1959 made therein and submitted a list to the State Administration so that the encroachment after identification could be removed. It is also the duty of State Administrative Authorities to take effective steps against the elements who are trying to occupy some part of protected monuments and who have used the place for their personal purpose i.e. playing football, cricket, prepare food and even organizing ''''bhandara'''' etc.
In this view of the matter, this Public Interest Litigation is disposed of with the following directions:- (I) That, the Archaeological Survey of India and Municipal Corporation, Gwalior shall identify the encroachment within the territory of protected monuments in accordance with the procedure established by law and if it is found that there is an encroachment, appropriate action shall be taken for removal of encroachment.
(II) That, the State Government and Union of India shall not permit the organizer to hold any urs or other activities without prior permission of Archaeological Survey of India within the territory of protected monuments and if any permission be granted, the provisions of Act of 1958 and Rules of 1959 shall be taken into consideration by the authorities and it shall also be kept in mind that there should not be any damage caused to the monuments.
(III) That, the District Administration shall take necessary steps and provide help to the Archaeological Survey of India to prevent illegal activities within the territory of protected monuments and the Collector shall ensure that the grievance made by Superintending Archaeologist, Archaeological Survey of India, Bhopal Circle shall be sorted out and proper action shall be taken against the person or persons, who violates the directions issued by Archaeological Survey of India.
The aforesaid directions shall be complied with within a period of three months from the date of receipt of certified copy of this order.
No order as to costs.