Smt. Vishmillah Begum and Others vs State of U.P. and Others

Ravi S. Dhavan and V.P. Goel, JJ.—The Petitioner claim through their ancestors and submit that their ancestors were Proprietors and in possession of the land lying adjacent to the tomb of Sheikh Salim Chisti. They assert that their ancestors had received the land in issue from Moghul Emperors for (i) the unkeep and repair of the buildings and (ii) the maintenance and support of descendants, so that earnings from the land would be utilised.

They contend that their ancestors had succeeded in a suit recognizing such proprietary rights. The cause for filing this writ petition arose according to the Petitioners when the authorities and police officials prevented the Petitioners from mining and extracting minerals near the precincts of Fatehpur Sikri. The Petitioners contend that this right to mine and extract minerals is their livelihood and consequently from this earning, they also maintain the upkeep and repair of the tomb of Sheikh Salim Chisti and support the descendants of their ancestors. This grant made to them, the Petitioners contend cannot be interfered with.

The Petitioners pray that a writ of mandamus be issued by directing that the State of Uttar Pradesh, Senior Superintendent of Police, Agra and Station Officer, Police-Station Fatehpur Sikri, District Agra should not interfere with their rights to mine and excavate the stones near the buildings of Fatehpur Sikri.

The Petitioners contentions cannot hold under the law. The Petitioners apparently have forgotten that monuments are protected now as a national heritage under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the Rules framed therein. Under this Act, monuments and buildings which have been declared as one of national heritage are protected monuments. These monuments come under the direct control of the Central Government, i.e., the Archaeological Survey of India. The Archaeological Officer, concerned, is directly vested with the obligation to protect and maintain the protected monuments. The Petitioners have evaded to make the Union of India and the Archaeological Survey of India, otherwise, necessary parties, as party Respondent. No proprietary rights can be asserted on the monuments nor within their precincts. If the monuments be a place of worship, then, the licence to enter these monuments for this specific purpose continues. No one can make a vocation or occupation to make an earning within the precincts of these monuments. Such vocation is regulated by Ancient Monuments and Archaeological Sites and Remains Rule, 1959. Rule 8(d) of the aforesaid rule stipulates that no person shall hawk, sell or display wares for monetary consideration except under a licence to be granted by the Archaeological Officer, concerned.

In the circumstances, the Petitioners cannot be made an exception of excavating and mining minerals around the protected monuments as this would endanger the public monuments. Insofar as the occupation within the precincts of the monuments is concerned, it is to be regulated by the authority concerned. Any proprietary rights which the Petitioners lay a claim upon, cannot hold after the aforesaid Act had been enacted by the Parliament.

This writ petition is not only misconceived but misplaced. It is, accordingly, dismissed.

The Standing Counsel, U.P. will send a copy each of this order to the following Officers: (i) the District Magistrate, Agra; (ii) Senior Superintendent of Police, Agra and (iii) Archaeological Officer, Archaeological Survey of India, Agra.