Interpretation of laws:
Interpretation of Section 2(dc):
The definition of the expression construction specifically excludes among other things, construction or maintenance, extension, management for supply and distribution of electricity to the public or a provision for similar facilities for the public. Moreover, where the construction is for the provision of conveniences for the public, that would not fall within the meaning of the expression ‘construction’ for the purposes of sub section 2(dc).
Interpretation of Section 2(m):
Section 2(m) defines ‘repair and renovation’ to mean alterations to a pre-existing structure or a building but so as not to include construction or a reconstruction.
Interpretation of Section 20-A:
Section 20-A(1) defines a prohibited area as a 100-meter radius around protected monuments or sites, where construction is generally banned to safeguard heritage integrity. Section 20-A(2) imposes a strict prohibition on construction within this prohibited zone unless explicit permission is obtained under Section 20-C, ensuring unapproved activities cannot proceed. Section 20-A(3) allows the Central Government or Director-General to grant exceptions in “exceptional cases” for public interest projects (e.g., roads, utilities) if they deem the work essential and unlikely to harm the monument’s preservation or access. On 16 June 1992, ASI issued a notification under Rule 32 of the Ancient Monuments and Archaeological Sites and Remains Rules 1959, defining 100 meters around protected monuments as a prohibited area and 200 meters as a regulated area, which laid foundation stone for protected area under this Section.
Section 20-A(2) imposes a prohibition on carrying on construction in any prohibited area but that is subject to Section 20-C. Section 20-A(3) empowers the Central Government or the Director-General to give permission broadly in matters involving public work or projects essential to the public in the public interest. However sub section (4) has stipulated that no permission under sub section (3) can be granted in any prohibited area on and after the date on which the Amended Act 2010 has received the assent of the President.
The expression “such other work or project” in clause (b) of Section 20-A(3) must be in the larger public interest in contrast to private interest. This is again emphasised by holding that in exercise of the power under Section 20-A(3) the Central Government or the Director-General cannot pass an order for permitting construction de hors the public interest and public interest “must be core factor to be considered” before allowing any construction.[1]
Interpretation of Section 20-C:
Section 20-C likely outlines the application and approval process for obtaining permissions to construct in prohibited areas, including procedural safeguards and conditions for compliance. On 16 June 1992, ASI issued a notification under Rule 32 of the Ancient Monuments and Archaeological Sites and Remains Rules 1959, defining 100 meters around protected monuments as a prohibited area and 200 meters as a regulated area, which laid foundation stone for permission process under this Section.
Section 20-C(1) operates in two well defined areas. The first is where any person who owns any building or structure which existed in a prohibited area before 16 June 1992 desires to carry out any repair or renovation. The second is in respect of a structure which has been constructed after 16 June 1992 with the approval of the Director-General, where the owner desires to carry out repair or renovation.
The expression “renovation” in Section 20-C will take its colour from the word “repair” appearing in that section and this would mean that in the garb of renovation, the owner of a building cannot demolish the existing structure and raise a new one and the competent authority cannot grant permission for such reconstruction.[2]
Interpretation of 1959 Rules:
Rule 32 empowered the Central Government to designate prohibited/regulated zones to safeguard monuments from mining or construction activities, establishing a legal framework for heritage protection. As per Rule 33 only Archaeological Officers could conduct construction/mining in these zones without a license; all others required written permission from the Director-General, ensuring compliance with conservation norms.
Interpretation of 2011 Rules:
The Ancient Monuments and Archaeological Sites and Remains (Framing of Heritage Bye-laws and Other Functions of the Competent Authority) Rules 2011 outline procedures for processing applications related to projects near protected monuments or areas, with Rule 6 mandating the Competent Authority to handle applications under defined categories. Category II specifically covers public utility projects (e.g., roads, highways) undertaken by government or public-private entities, requiring applications to be forwarded to the Competent Authority under Rule 7.
Under Rule 11, the Competent Authority evaluates proposals, assessing their potential impact on the heritage site’s significance and providing recommendations. Rule 15 grants the Competent Authority discretion to approve repairs, construction, or renovations in exceptional cases, even before finalizing heritage bylaws, provided the Authority concur. This framework balances developmental needs with heritage conservation by ensuring structured review and conditional approvals while awaiting comprehensive guidelines.
Precedent Analysis:
Archaeological Survey of India vs. Narender Anand & Ors.
The BHC noted that the Supreme Court emphasized that any permission granted for construction near an ancient monument must satisfy the twin requirements of protecting the monument and serving the public interest. Furthermore, the precedent mandated that any private interest must yield to the public interest in preserving ancient monuments. The BHC used this analysis to reinforce its finding that the PMC project was valid, as it was a public utility work driven by the larger public interest i.e. traffic alleviation, and was not the handiwork of a private developer motivated by commercial gain.
Court’s Reasoning
The BHC’s reasoning for upholding PMC’s construction of the grade separator was founded on two primary legal and contextual grounds:
- Exclusion from the Definition of “Construction”: The most critical point was the interpretation of Section 2(dc) of the Act. The court reasoned that the grade separator, which is an underpass set up to obviate traffic congestion and air pollution, constitutes a “facility for the public or a convenience for the public at large.” Since the statutory definition of “construction” in Section 2(dc) specifically excludes the provision of facilities of this nature for the public, the PMC’s work could not be regarded as prohibited construction under the Act.
- Public Interest and Nature of the Project: The court emphasized that the element of public interest must weigh in the decision. Citing the Supreme Court’s mandate, the court noted that any permitted work must comply with the twin requirements of protecting the monument and serving the public interest. The PMC’s project was a public work, not the handiwork of a private developer motivated by commercial gain, and was deemed necessary to improve chaotic traffic conditions. The court accepted the NMA decision and the steps to mitigate recommended in the impact assessment report, concluding the work did not suffer from any illegality.
Order of the BHC:
The final conclusion of the Bombay High Court was the dismissal of the Petition. The court found that no interference in the exercise of its jurisdiction under Article 226 of the Constitution was warranted. The court refused the Petitioner’s application for a stay on the judgment, noting the chaotic traffic conditions resulting from the incomplete work and that the work was substantially completed, thus no case for extending the stay order was made out. The judgment focused solely on the legality of the grade separator work, clarifying that it did not consider the merits of any other issues raised in the Petition, such as the finalization of Heritage bye-laws.
[1] Archaeological Survey of India vs. Narender Anand & Ors. [(2012) 2 SCC 562]
[2] Archaeological Survey of India vs. Narender Anand & Ors. [(2012) 2 SCC 562]
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