Balancing cultural heritage and need for development

By Amitabh Chaturvedi and Sumita Chauhan, Mine & Young
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India’s Ancient Monuments Preservation Act, 1904, was enacted to protect ancient monuments, sites and remains and prevent excavation at sites of historical interest and value. Monuments, sites and remains that were protected under the 1904 act were later declared as monuments and archaeological sites of national importance under the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951.

Amitabh Chaturvedi
Amitabh Chaturvedi

To bring the 1951 act at par with constitutional provisions and effectively preserve the country’s archaeological wealth, the Ancient Monuments and Archaeological Sites and Remains Act, 1958, was enacted, which provides for the preservation of monuments, sites and remains of national importance; the regulation of archaeological excavations; and the protection of sculptures, carvings and similar objects.

Under the 1958 act, “ancient monument” means any structure, erection or monument, or any tumulus or place of interment, 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 100 years. The term 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.

The Ancient Monuments and Archaeological Sites and Remains Rules, 1959, framed under section 38 of the 1958 act were then brought into force. Under rule 2(f), a “prohibited” 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 or regulated area for purposes of mining or construction or both.

Under rule 32, a notification dated 16 June 1992 was issued by the Archaeological Survey of India (ASI), under the Ministry of Culture, declaring areas up to 100 metres from the protected limits, and further beyond this up to 200 metres near or adjoining protected monuments, to be prohibited and regulated areas respectively for the purpose of mining and construction.

Thus, construction is prohibited within a 100-metre radius from the periphery of the protected monument, and regulated within a further 100 to 200-metre radius, which means construction can occur only in accordance with the terms and conditions of a licence granted by the director general of ASI.

Pre-existing construction

The 1992 notification does not have a retrospective effect and does not apply to buildings which were already under construction with due sanction of building plans. This was confirmed by Delhi High Court the case of Vaish International Pariwar supported by Delhi Legal Services Authority v Union of India & Ors, which related to the construction of apartments near the protected monument of Agrasen’s Baoli.

Sumita Chauhan
Sumita Chauhan

In Archaeological Survey of India v Narender Anand & Ors, Delhi High Court observed that under the 1992 notification, no construction activity could be permitted within 100 metres of the Jantar Mantar protected monument and held that construction within a radius of 100-300 metres from the protected limits of Jantar Mantar can be carried out only with a licence from the ASI in terms of rules 34-39 of the 1959 rules.

The court observed that the protection of historical monuments must be determined pragmatically, particularly with respect to development. If buildings in the vicinity can come up without any damage to an ancient monument then surely they should be permitted and there may be instances where even the 100 metres prohibition would not suffice. For example, the Supreme Court has issued a directive that prohibits any construction within 500 metres of the Taj Mahal.

2010 amendments

Under the 1958 act, as amended in 2010, persons owning a structure in a regulated area must obtain prior permission of the competent authority to carry on any construction, reconstruction, repair or renovation of the structure. Applications are forwarded to the National Monument Authority (NMA) to evaluate, within two months from the date of receipt of the application, the impact of such construction (including large-scale development projects, public projects and projects essential to the public), having regard to the heritage bye-laws relating to the protected monument or area. The competent authority grants or refuses the application as per the recommendation of the NMA.

Recently, the NMA has granted permission for construction of a multi-level parking structure within 100 metres of Agrasen’s Baoli, which according to the NMA might help in conserving the monument. This offers hope that under the amended 1958 act a harmonious balance between development and preservation of cultural heritage will be struck and the blanket roadblock to development in the vicinity of protected monuments will be to a large extent mitigated.

Amitabh Chaturvedi is the managing partner of Mine & Young, where Sumita Chauhan is a senior partner.

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