2.8 Acquisition of rights in a protected monument
2.8.1 Bare Act Provision:
PROTECTED MONUMENTS
5. Acquisition of rights in a protected monument.―(1) The Director-General may, with the sanction of the Central Government, purchase, or take a lease of, or accept a gift or bequest of, any protected monument.
(2) Where a protected monument is without an owner, the Director-General may, by notification in the Official Gazette, assume the guardianship of the monument.
(3) The owner of any protected monument may, by written instrument, constitute the Director-General the guardian of the monument, and the Director-General may, with the sanction of the Central Government, accept such guardianship.
(4) When the Director-General has accepted the guardianship of a monument under sub-section (3), the owner shall, except as expressly provided in this Act, have the same estate, right, title and interest in and to the monument as if the Director-General had not been constituted a guardian thereof.
(5) When the Director-General has accepted the guardianship of a monument under sub-section (3), the provisions of this Act relating to agreements executed under section 6 shall apply to the written to agreements executed under the said sub-section.
(6) Nothing in this section shall affect the use of any protected monument for customary religious observances.
2.8.2 Acquisition of Protected Monuments
The section 5(1) allows the Director-General of the Archaeological Survey of Bharat (ASI), with the Central Government’s approval, to acquire a protected monument in four ways: by purchasing it, leasing it, accepting it as a gift, or receiving it through a will. In simple terms, the ASI can take ownership or control of a monument to ensure its protection, but only if the Central Government agrees. This ensures that significant historical sites are preserved under government oversight.[1]
The section 5(1) allows the Director-General, with Central Government approval, to purchase, lease, or accept a gift or bequest of a protected monument. The underlying doctrine is the public interest in preserving cultural heritage, which places a responsibility on the state to protect monuments of national importance. The state acts as a custodian of cultural assets to ensure their preservation for future generations.[2] Additionally, the doctrine of administrative discretion is evident, as the Director-General’s actions require Central Government sanction, ensuring checks and balances in the acquisition process.
2.8.3 Guardianship of Ownerless Monuments
If a protected monument has no owner (for example, an abandoned ancient site), the Director-General can declare, through an official notification in the government gazette, that the ASI will take over its guardianship.[3] This means the ASI becomes responsible for protecting and maintaining the monument. This provision ensures that neglected or abandoned heritage sites are not left unprotected.
This provision of Section 5(2) enables the Director-General to assume guardianship of a monument without an owner through an official notification. The doctrine of parens patriae applies here, where the state steps in as a guardian to protect assets, in this case, ownerless monuments, that are vital to the public good but lack individual stewardship. This reflects the state’s role in safeguarding cultural heritage when no private entity is responsible, preventing neglect or destruction.[4]
2.8.4 Owner-Appointed Guardianship
The owner of a protected monument can voluntarily appoint the Director-General as its guardian through a written agreement. The Director-General can accept this role, but only with the Central Government’s approval. This allows owners who may lack the resources or expertise to maintain a monument to hand over its care to the ASI while retaining ownership.
The Section 5(3) is supported by the doctrines of Contractual Agreement and Cooperative Federalism. This sub-section allows the owner of a protected monument to appoint the Director-General as its guardian through a written agreement, subject to Central Government approval. The doctrine of contractual agreement governs the voluntary transfer of guardianship responsibilities, as it is based on mutual consent between the owner and the state. Additionally, the requirement of Central Government sanction reflects cooperative federalism, as it involves coordination between the central authority (ASI) and the government to ensure national oversight of cultural preservation.
2.8.5 Rights of the Owner under Guardianship
When the Director-General becomes the guardian of a monument under Section 5(3), the owner retains all their legal rights, title, and interest in the monument, except where the AMASR Act specifies otherwise. In simple terms, the owner still legally owns the monument, but the ASI takes on the responsibility of its upkeep and protection. This balances the owner’s rights with the need to preserve the monument.
Section 5(4) is based on the doctrine of Protection of Property Rights. When the Director-General accepts guardianship under sub-section (3), the owner retains their legal estate, right, title, and interest in the monument, except as specified in the Act. This reflects the doctrine of protection of private property rights, which ensures that the owner’s legal ownership is not unduly compromised by the state’s guardianship role. It balances individual property rights with the public interest in monument preservation.[5]
2.8.6 Application of Agreements
When the Director-General accepts guardianship under Section 5(3), the written agreement between the owner and the ASI is treated similarly to agreements made under Section 6 of the Act. Section 6 deals with agreements that outline how a monument will be maintained or used. This ensures that the terms of guardianship are legally binding and consistent with other provisions of the Act.
This sub-section states that agreements for guardianship under sub-section (3) are subject to the same rules as agreements under Section 6 of the Act. The doctrine of legal continuity ensures that guardianship agreements are consistent with other legal frameworks within the Act, maintaining uniformity in how monuments are managed. The doctrine of binding agreements underscores the enforceability of these written contracts, ensuring that both the owner and the ASI adhere to agreed terms.
2.8.7 Protection of Religious Observances
This Section 5(6) clarifies that nothing in Section 5 affects the use of a protected monument for customary religious practices. For example, if a temple or mosque is a protected monument, people can continue to use it for traditional worship. This provision respects the cultural and religious significance of such sites while ensuring their preservation.
This provision ensures that Section 5 does not interfere with customary religious observances at protected monuments. The doctrine of secularism is central, as it mandates that the state respects religious practices while managing monuments, ensuring neutrality in matters of faith. Additionally, the doctrine of cultural sensitivity acknowledges the living cultural and religious significance of monuments, allowing their traditional use while ensuring their preservation.[6]
Reference
[1] Ramesh Kumar Sharma vs Union Of India, Allahabad High Court in WP no. 43540 of 2011, Dt. 22.04.2016 available at https://indiankanoon.org/doc/118499053/, Last visited on 18.07.2025
[2] “Preserving Cultural Heritage”, Urban Sustainability Exchange, available at https://use.metropolis.org/newsroom/5-approaches-to-preserving-cultural-heritage, Last visited on Dt. 18.07.2025
[3] Archaeological Survey of Bharat v. State of M.P., [(2012) 4 MPLJ 323]
[4] Karnataka Board of Wakf v. Govt. of Bharat [(2004) 10 SCC 779]
[5] “Report of the Comptroller and Auditor General of Bharat on Performance Audit Of Preservation And Conservation Of Monuments And Antiquities”, Union of India, Ministry of Culture, Report no. 18 of 2013.
[6] “Frequently Asked Questions”, Ministry of Culture, available at https://asi.nic.in/HQ/faq/, Last visited on 18.07.2025
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