Boundaries of Public Welfare versus Heritage Preservation in India: Pataleshwar Caves Pune Case Part 1

Introduction:

The challenge of balancing essential urban development with the protection of priceless historical sites lies at the heart of this significant judicial decision. The Bombay High Court delivered a landmark judgment in the case of Parisar Sanrakshan Sanwardhan Sanstha vs Pune Municipal Corporation, a key Public Interest Litigation (PIL) that sharply defined the boundaries of urban development versus heritage preservation in India. At the core of the matter was the construction of a grade separator by the Pune Municipal Corporation (PMC) near the 8th Century Pataleshwar Caves, a nationally protected monument. This case required the Court to interpret the critical provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASRA), specifically concerning construction activities within the 100-meter prohibited area of ancient sites. The ruling is essential for understanding how ‘public interest’ projects like infrastructure development are weighed against the statutory mandate to protect India’s irreplaceable archaeological heritage. Dive into the detailed analysis of the judgment that set a precedent for future infrastructure projects near historical sites.

Case Details

Title of the case: Parisar Sanrakshan Sanwardhan Sanstha vs Pune Municipal Corporation

Court: Bombay High Court (BHC)

Equivalent citation: AIR 2014 (NOC) 12 (BOM.), 2013 (6) ABR 558 (2013) 6 ALLMR 161 (BOM), (2013) 6 ALLMR 161 (BOM)

Judge of the case: Dr. D. Y. Chandrachud and M. S. Sonak, JJ. The Coram delivered the judgment

Author of the judgment: Dr. D. Y. Chandrachud

Names of Parties:

Petitioner: Parisar Sanrakshan Sanwardhan Sanstha (PSSS)
Respondents: Pune Municipal Corporation; Competent Authority, Mumbai Circle, Dept. of Archaeology and Museums; Superintending Archaeologist, Archaeological Survey of India; Union of India through National Monuments Authority and Union of India through Principal Secretary, Ministry of Culture

Type of matter in question: Civil PIL

Legal provisions discussed with appropriate section number and complete name of the Act:

The Ancient Monuments and Archaeological Sites and Remains Act, 1958: Specifically Section 20-A, Section 20-C, Section 2(dc), Section 38
The Ancient Monuments Preservation Act, 1904: Section 3(1)
Constitution of India: Article 226

Rules and Regulations discussed:

Ancient Monuments and Archaeological Sites and Remains (Framing of Heritage Bye-laws and Other Functions of the Competent Authority) Rules 2011 (Rules 6, 7, 11)
Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (Rule 34)

Precedents/other judgments referred:

Archaeological Survey of India vs. Narender Anand & Ors. discussing the interpretation of Sections 20-A and 20-B, cited as (2012) 2 SCC 562. This case concerns construction near Jantar Mantar, New Delhi.

Committee report, government report referred – if any:

Archaeological and Heritage related impact assessment report by Deccan College Pune
Observations/Recommendations of the National Monuments Authority (NMA)

Cause of Action of PIL:

The cause of action for the PIL filed by PSSS against PMC centered on the alleged unlawful construction of a public work near a protected monument. PMC began the work of constructing a grade separator, which can be used as an underpass, at the S. G. Barve Chowk on Shivaji Road, Pune. This construction was situated allegedly within the prohibited area of 100 meters from the boundary of the Pataleshwar Caves, an 8th Century Rock Cut Cave Temple declared a protected monument under the AMASRA.

The petitioner contended that the work was in direct violation of Section 20-A(4) of the AMASRA, which, following a 2010 amendment, prohibited the grant of any permission for construction or public work within the prohibited area. While the PMC had obtained a No Objection Certificate (NOC) from the National Monuments Authority (NMA), the petitioner challenged the validity of this permission itself, arguing that the absolute prohibition under Section 20-A(4) could not be overcome, even for a public interest project. In essence, the cause of action was the initiation of construction activities by the PMC in contravention of a statutory prohibition designed to protect an ancient monument of national importance.

NOC:

The PMC followed a defined procedure to seek approval for its construction work, which ultimately led to the NMA granting a conditional NOC. Here is complete step by step procedure followed in this matter:

On December 21, 2012, the Technical Director of the JNNURM Project Management Cell of the PMC officially sought permission from the Department of Archaeology & Museums of the State Government to carry out excavation and construction of the grade separator.
On January 5, 2013, the Competent Authority for the Monuments of Archaeological Survey of India, Mumbai Circle reviewed the proposal. After scrutiny and inspection, the Competent Authority forwarded the proposal to the NMA for its final decision, as required by the relevant rules, specifically Rule 7 of the 2011 Rules which states that public utility projects must be forwarded to the Authority.
The NMA called upon Deccan College Pune to furnish an Archaeological and Heritage related impact assessment report along with proposed mitigating measures. PMC made a presentation to the NMA on April 25, 2013, and subsequently provided clarifications on May 7, 2013, to address the observations made by the Authority members.

The NMA considered the case in its 86th meeting on May 21, 2013. Its decision to recommend the grant of the NOC was based on the following key findings and conditions:

The NMA noted that the issues it had previously raised were properly addressed by PMC.
The decision took into account that the construction involved an underground structure i.e. a grade separator and storm water drain, which does not involve construction / erection of any structure above the ground level.
Keeping the above points and other relevant aspects including the impact assessment in view, the NMA decided to recommend the grant of the NOC for the project.
The recommendation for the NOC was not unconditional; the PMC was required to follow four specific stipulations:

a) To set up a Monitoring cell that includes members from the PMC and the Archaeological Survey of India (ASI).

b) To set up an Interpretation Centre at or near the monument to provide heritage awareness among the public.

c) To engage Deccan College for the preparation of a Heritage Zone Management Plan for Pataleshwar Caves and Shaniwar Wada monuments.

d) To prepare a mitigation plan to address the issues created by vibration, pollution, and traffic as a consequence of the operation of the grade separator.

The Competent Authority subsequently issued the final NOC on May 29, 2013, strictly in terms of the NMA’s decision and its recommendations.