AMASRA: 2.63 Section 38. Power to make rule.

2.63 Power to make rule

2.63.1 Bare Act Provision:

38. Power to make rule.―(1) The Central Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:―

(a) the prohibition or regulation by licensing or otherwise of mining, quarrying, excavating blasting or any operation of a like nature near a protected monument or the construction of buildings on land adjoining such monument and the removal of unauthorised buildings;

(b) the grant of licences and permissions to make excavations for archaeological purposes in protected areas, the authorities by whom, and the restrictions and conditions subject to which, such licences may be granted, the taking of securities from licensees and the fees that may be charged for such licensees;

(c) the right of access of the public to a protected monument and the fee, if any, to be charged therefore;

1[(ca) the categories of ancient monuments or archaeological sites and remains, declared as of national importance, under subsection (1) of section 4A;

(cb) the manner of making application for grant of permission under subsection (1) of section 20D;

(cc) the category of applications in respect of which the permission may be granted and applications which shall be referred to the Authority for its recommendation, under subsection (2) of section 20D;

(cd) the other matters including heritage controls such as elevations, facades, drainage systems, roads and service infrastructure (including electric poles, water and sewer pipelines) under subsection (2) of section 20E;

(ce) the manner of preparation of detailed site plans in respect of each prohibited area and regulated area and the time within which such heritage byelaws shall be prepared and particulars to be included in each such heritage byelaws under subsection (3) of section 20E;

(cf) salaries and allowances payable to, and the other terms and conditions of service of, the wholetime Chairperson and wholetime members, or fees or allowances payable to the parttime members, of the Authority under subsection (1) of section 20H;

(cg) the form in which and time at which the Authority shall prepare an annual report giving full description of its activities for the previous year under section 20P;

(ch) the form and manner in which the Authority and competent authority shall furnish information to the Central Government under section 20Q;]

(d) the form and contents of the report of an archaeological officer or a licensee under clause (a) of subsection (1) of section 23;

(e) the form in which applications for permission under section 19 or section 25 may be made and the particulars which they should contain;

(f) the form and manner of preferring appeals under this Act and the time within which they may be preferred;

(g) the manner of service of any order or notice under this Act;

(h) the manner in which excavations and other like operations for archaeological purposes may be carried on;

(i) any other matter which is to be or may be prescribed.

(3) Any rule made under this section may provide that a breach thereof shall be punishable,―

(i) in the case of a rule made with reference to clause (a) of subsection (2), with imprisonment which may extend to three months, or with fine which may extend to five thousand rupees, or with both;

(ii) in the case of a rule made with reference to clause (b) of subsection (2), with fine which may extend to five thousand rupees;

(iii) in the case of a rule made with reference to clause (c) of subsection (2), with fine which may extend to five hundred rupees.

2[(4) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

Footnote:

1. Ins. by Act 10 of 2010, s. 11 (w.e.f. 1661992).

2. Subs. by Act 4 of 2005, s. 2 and the Schedule, for subsection (4) (w.e.f. 1112005).

Section 38 of the Ancient Monuments and Archaeological Sites and Remains (AMASR) Act, empowers the Central Government to make rules to implement the Act and specifies matters these rules may cover, along with penalties for breaches and parliamentary oversight.

2.63.2 Power to Make Rules

As per Section 38(1) of the AMASR Act, the Central Government can create rules to implement the AMASR Act by publishing them in the Official Gazette, but it must first share a draft of the rules publicly for feedback. This provision ensures that the AMASR Act is effectively implemented by allowing the Central Government to create detailed rules, while requiring public consultation through previous publication to promote transparency and stakeholder input in heritage protection.

2.63.3 Specific Matters for Rules

As per Section 38(2) of the AMASR Act, the rules made under Subsection (1) can cover specific matters, including:

1) Clause (a): Regulating or banning activities like mining, quarrying, or construction near protected monuments and removing unauthorized buildings.

2) Clause (b): Issuing licenses for archaeological excavations in protected areas, including who grants them, conditions, fees, and securities.

3) Clause (c): Managing public access to protected monuments and setting any fees.

4) Clause (ca): Defining categories of monuments or sites declared nationally important under Section 4A.

5) Clause (cb): Specifying how to apply for permission under Section 20D i.e. construction in regulated areas.

6) Clause (cc): Determining which permission applications can be approved directly and which need National Monuments Authority (NMA) recommendations under Section 20D(2).

7) Clause (cd): Setting heritage controls e.g., building designs, drainage, roads, under Section 20E(2).

8) Clause (ce): Detailing how to prepare site plans and heritage byelaws for prohibited and regulated areas under Section 20E(3).

9) Clause (cf): Setting salaries, allowances, and service conditions for NMA members under Section 20H(1).

10) Clause (cg): Specifying the format and timing for the NMA’s annual report under Section 20P.

11) Clause (ch): Defining how the NMA and competent authority provide information under Section 20Q.

12) Clause (d): Outlining the format and content of excavation reports under Section 23(1)(a).

13) Clause (e): Specifying application forms for permissions under Sections 19 or 25.

14) Clause (f): Detailing the process and timeline for filing appeals under the Act.

15) Clause (g): Describing how orders or notices are served under the Act.

16) Clause (h): Regulating how archaeological excavations are conducted.

17) Clause (i): Covering any other matters that need to be prescribed.

This provision enables comprehensive rulemaking to address specific operational and regulatory needs of the AMASR Act, ensuring detailed guidelines to protect Bharat’s cultural heritage effectively while allowing flexibility to cover various aspects of heritage management.

2.63.4 Penalties for Breach of Rules

As per Section 38(3) of the AMASR Act, breaking rules made under Section 38 can lead to penalties as follows:

1) Clause (i): For rules about prohibiting or regulating activities like mining or construction near monuments (Subsection 2(a)), the punishment can be up to three months in prison, a fine up to five thousand rupees, or both.

2) Clause (ii): For rules about excavation licenses (Subsection 2(b)), the punishment can be a fine up to five thousand rupees.

3) Clause (iii): For rules about public access to monuments (Subsection 2(c)), the punishment can be a fine up to five hundred rupees.

This provision deters noncompliance with heritage protection rules by establishing penalties for specific breaches, ensuring enforcement of regulations to safeguard Bharat’s monuments and sites.

2.63.5 Parliamentary Oversight of Rules

Every rule made under Section 38 must be presented to both Houses of Parliament as soon as possible for a total of 30 days. If both Houses agree to modify or cancel the rule within this period, it will take effect as modified or be nullified, but actions already taken under the rule remain valid. This provision ensures democratic oversight by requiring parliamentary review of rules, allowing modifications or annulment to align with public interest while protecting prior actions, thus balancing flexibility with accountability in heritage management.