IN THE HON’BLE HIGH
COURT OF JUDICATURE AT ALLAHABAD.
(Under Article 226 of
constitution of India)
Annexure No.
Civil Misc. Writ Petition
No. of 2004
(District – Agra)
Institute of Rewriting Indian History Through its Founder President, P. N. Oak.
S/O Late Shri Nagesh Krishna Oak, R/O - Plot No. 10, Goodwill Society,
Aundh, Pune – 411007 and
another…………..Pettioners
VERSUS
Union of India through
Secretary,
Human Resources
and Development (HRD),
Government of
India, New Delhi. ……………….Respondents
THE ANCIENT MONUMENTS PRESERVATION ACT, 1904
ACT NO.7 OF 1904
[AS ON 1957]
An
Act to provide for the preservation of Ancient Monuments and of objects of
archaeological, historical, or artistic interest.
[18th
March 1904.]
WHEREAS it is expedient to provide
for the preservation of ancient monuments, for the exercise of control over
traffic in antiquities and over excavation in certain places, and for the
protection and acquisition in certain cases of ancient monuments and of objects
of archaeological, historical or artistic interest; It is hereby enacted as
follows:—
1.Short title and extent.- (1) This Act may be called
the Ancient Monuments Preservation Act, 1904.
{
Subs.by the A.O.1950, for sub-section (2).}[(2) It extends to the whole of
India {Subs.by Act 3 of 1951, s.3 and Sch., for " except Part B States ".} [except the State of Jammu and
Kashmir].]
2.Definitions.- In this Act, unless there is anything repugnant in
the subject or context,—
(1) " 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, or any remains thereof, and includes—
(a)
the site of an ancient monument;
(b)
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
(c)
the means of access to and convenient inspection of an ancient monument:
(2)
"antiquities" include any
moveable objects which {Subs.by the A.O.1937, for " the Govt.".} [the
Central Government], by reason of their historical or archæological
associations, may think it necessary to protect against injury, removal or
dispersion:
(3)
" Commissioner " includes
any officer authorized by {Subs.ibid., for "the L.G."} [the Central
Government] to perform the duties of a Commissioner under this Act:
(4)
" maintain " and "
maintenance " include the fencing, covering in, repairing, restoring
and cleansing of a protected monument, and the (doing of any act which may be
necessary for the purpose of maintaining a protected monument or of securing
convenient access thereto:
(5)
" land " includes a
revenue-free estate, a revenue-paying estate, and a permanent transferable
tenure, whether such estate or tenure be subject to incumbrances or not: and
(6)
" owner " includes a joint
owner invested with powers of management on behalf of himself and other joint
owners, and any manager or trustee exercising powers of management over an
ancient monument, and the successor in title of any such owner and the
successor in office of any such manager or trustee:
Provided
that nothing in this Act shall be deemed to extend the powers which may
lawfully be exercised by such manager or trustee.
3.Protected monuments.- (1) The { Subs.by the
A.O.1937, for " L.G.".} [Central Government] may, by notification in
the Official Gazette, declare an ancient monument to be a protected monument
within the meaning of this Act.
(2)
A copy of every notification published under sub-section (1) shall be fixed up
in a conspicuous place on or near the monument, together with an intimation
that any objections to the issue of the notification received by the { Subs.by
the A.O.1937, for " L.G.".} [Central Government] within one month
from the date when it is so fixed up will be taken into consideration.
(3)
On the expiry of the said period of one month, the { Subs.by the A.O.1937, for
" L.G.".} [Central Government], after considering the objections, if
any, shall confirm or withdraw the notification.
(4)
A notification published under this section shall, unless and until it is
withdrawn, be conclusive evidence of the fact that the monument to which it
relates is an ancient monument within the meaning of this Act.
Ancient Monuments
4.Acquisition of rights in
or guardianship of an ancient monument.-(1) The Collector, with the sanction of the { Subs.by the A.O.1937, for "L G".} [Central Government],
may purchase or take a lease of any protected monument.
(2)
The Collector, with the like sanction, may accept a gift or bequest of any
protected monument.
(3)
The owner of any protected monument may, by written instrument, constitute the
Commissioner the guardian of the monument, and the Commissioner may, with the
sanction of the {Subs.by the A.O.1937, for "
L.G.".}[Central Government], accept such guardianship.
(4)
When the Commissioner 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 Commissioner had not been constituted guardian thereof.
(5)
When the Commissioner has accepted the guardianship of a monument under
sub-section (3), the provisions of this Act relating to agreements executed
under section 5 shall apply to the written instrument executed under the said
sub-section.
(6)
Where a protected monument is without an owner, the Commissioner may assume the
guardianship of the monument.
5.Preservation of ancient
monument by agreement.- (1) The Collector may, with the previous sanction of { Subs.by the
A.O.1937, for " the L.G "}
[the Central Government], propose to the owner to enter into an agreement with
{Subs, ibid., for "the Secretary of State for India in Council''.}[the
Central Government] for the preservation of any protected monument in his
district.
(2)
An agreement under this section may provide for the following matters, or for
such of them as it may be found expedient to include m the agreement:—
(a)
the maintenance of the monument;
(b)
the custody of the monument, and the duties of any person who may be employed
to watch it;
(c)
the restriction of the owner's right to destroy, remove, alter or deface the
monument or to build on or near the site of the monument;
(d)
the facilities of access to be permitted to the public or to any portion of the
public and to persons deputed by the owner or the Collector to inspect or
maintain the monument;
(e)
the notice to be given to {Subs.ibid.,
for "the Govt.".}the
Central Government in case the land on which the monument is situated is
offered for sale by the owner, and the right to be reserved to {Subs.ibid., for
"the Govt.".}[the Central Government] to purchase such land, or any
specified portion of such land, at its market-value;
(f)
the payment of any expenses incurred by the owner or by {Subs.by the A.O.1937,
for " the Govt.".}[the
Central Government] in connection with the preservation of the monument;
(g)
the proprietary or other rights which are to vest in Government in respect of
the monument when any expenses reinsured by {Subs.by the A.O.1937, for " the Govt."} [the Central
Government] in connection with the preservation of the monument;
(h)
the appointment of an authority to decide any dispute arising out of the
agreement; and
(i)
any matter connected with the preservation of the monument which is a proper
subject of agreement between the owner and {Subs.by the A.O.1937, for " the Govt.".}[the Central
Government].
{Sub-section
(3) omitted ibid.}
(4)
The terms of an agreement under this section may be altered from time to time
with the sanction of {Subs., ibid., for "
the L.G.".} [the Central Government] and with the consent of the
owner.
(5)
With the previous sanction of {Subs., ibid., for " the L.G.".}[the Central Government], the Collector may
terminate an agreement under this section on giving six months notice in
writing to the owner.
(6)
The owner may terminate an agreement under this section on giving six months'
notice to the Collector.
(7)
An agreement under this section shall be binding on any person claiming to be
owner of the monument to which it relates, through or under a party by whom or
on whose behalf the agreement was executed.
(8)
Any rights acquired by {Subs., ibid., for
" Govt.".}[the Central Government] in respect of expenses
incurred in protecting or preserving a monument shall not be affected by the
termination of an agreement under this section.
6.Owners under disability or
not in possession.- (1) If the owner is unable, by reason of infancy or other disability,
to act for himself, the person legally competent to act on his behalf may
exercise the powers conferred upon an owner by section 5.
(2)
In the case of village-property, the headman or other village-officer
exercising powers of management over such property may exercise the powers
conferred upon an owner by section 5.
(3)
Nothing in this section shall be deemed to empower any person not being of the
same religion as the persons on whose behalf he is acting to make or execute an
agreement relating to a protected monument which or any part of which is
periodically used for the religious worship or observances of that religion.
7.Enforcement of agreement.- (1) If the Collector
apprehends that the owner or occupier of a monument intends to destroy, remove,
alter, deface, or imperil the monument or to build on or near the site thereof
in contravention of the terms of an agreement for its preservation under
section 5, the Collector may make an order prohibiting any such contravention
of the agreement.
(2)
If an owner or other person who is bound by an agreement for the preservation
or maintenance of a monument under section 5 refuses to do any act which is in
the opinion of the Collector necessary to such preservation or maintenance, or
neglects to do any such act within such reasonable time as may be fixed by the
Collector, the Collector may authorize any person to do any such act, and the
expense of doing any such act or such portion of the expense as the owner may
be liable to pay under the agreement may be recovered from the owner as if it
were an arrear of land-revenue.
(3)
A person aggrieved by an order made under this section may appeal to the
Commissioner, who may cancel or modify it and whose decision shall be final.
8.Purchasers at certain
sales and persons claiming through owner bound by instrument executed by
owner.-
Every person who purchases, at a sale for arrears of land-revenue or any other
public demand, or at a sale made under the Bengal Patni Taluks Regulation,
1819, (Ben.Reg., 8 of 1819) an estate or tenure in which is situated a monument
in respect of which any instrument has been executed by the owner for the time
being, under section 4 or section 5 and every person claiming any title to a
monument from, through or under an owner who executed any such instrument,
shall be bound by such instrument.
9.Application of endowment
to repair of an ancient monument.- (1) If any owner or other person competent to enter
into an agreement under section 5 for the preservation of a protected monument,
refuses or fails to enter into such an agreement when proposed to him by the
Collector, and if any endowment has been created for the purpose of keeping
such monument in repair, or for that purpose among others, the Collector may
institute a suit in the Court of the District Judge, or, if the estimated cost
of repairing the monument does not exceed one thousand rupees, may make an
application to the District Judge for the proper application of such endowment
or part thereof.
(2)
On the hearing of an application under sub-section (1), the District Judge may
summon and examine the owner and any person whose evidence appears to him
necessary, and may pass an order for the proper application of the endowment or
of any part thereof, and any such order may be executed as if it were the
decree of a Civil Court.
10.Compulsory purchase of
ancient monument.- (1) If the {Subs.by the A.O
1937, for " L.G.".}[Central
Government] apprehends that a protected monument is in danger of being
destroyed, injured or allowed to fall into decay.{Subs., ibid., for " the L.G.may proceed to acquire it
".}[the Central Government may direct the State Government to acquire
it] under the provisions of the Land Acquisition Act, 1894, (1 of 1894)as if
the preservation of a protected monument were a " public purpose " within the meaning of that Act.
(2)
The powers of compulsory purchase conferred by sub-section (1) shall not be
exercised in the case of—
(a)
any monument which or any part of which is periodically used for religious
observances; or
(b)
any monument which is the subject of a subsisting agreement executed under
section 5.
(3)
In any case other than the cases referred to in sub-section (2) the said powers
of compulsory purchase shall not be exercised unless the owner or other person
competent to enter into an agreement under section 5 has failed, within such
reasonable period as the Collector may fix in this behalf, to enter into an
agreement proposed to him under the said section or has terminated or given
notice of his intention to terminate such an agreement.
{
Ins.by Act 18 of 1932, s.2.}[10A.Power Central Government to control mining,
etc., near ancient monument.- (1) If the{Subs.by the A.O 1937, for " L.G.".} [Central
Government] is of opinion that mining, quarrying, excavating, blasting and
other operations of a like nature should be restricted or regulated for the
purpose of protecting, or preserving any ancient monument, the {Subs.by the A.O
1937, for " L.G.".}[Central
Government] may, by notification in the Official Gazette, make rules—
(a)
fixing the boundaries of the area to which the rules are to apply,
(b)
forbidding the carrying on of mining, quarrying, excavating, blasting or any
operation of a like nature except in accordance with the rules and with the
terms of a licence, and
(c)
prescribing the authority by which, and the terms on which, licences may be
granted to carry on any of the said operations.
(2)
The power to make rules given by this section is subject to the condition of
the rules being made after previous publication.
(3)
A rule made under this section may provide that any person committing a breach
thereof shall be punishable with fine which may extend to two hundred rupees.
(4)
If any owner or occupier of land included in a notification under sub-section (1)
proves to the satisfaction of the {Subs.by the A.O.1937, for " L, G.".} [Central
Government] that he has sustained loss by reason of such land being so
included, the {Subs.by the A.O.1937, for "
L, G.".} [Central Government] shall pay compensation in respect of
such loss.]
11.Maintenance of certain
protected monuments.- (1) The Commissioner shall
maintain every monument in respect of which the Government has acquired any of
the rights mentioned in section 4 or which the Government has acquired under section
10.
(2)
When the Commissioner has accepted the guardianship of a monument under section
4, he shall, for the purpose of maintaining such monument, have access to the
monument at all reasonable times, by himself and by his agents, subordinates
and workmen, for the purpose of inspecting the monument, and for the purpose of
bringing such materials and doing such acts as he may consider necessary or
desirable for the maintenance thereof.
12.Voluntary
contributions.- The Commissioner may receive
voluntary contributions towards the cost of maintaining a protected monument
and may give orders as to the management and application of any funds so
received by him:
Provided
that no contribution received under this section shall he applied to any
purpose other than the purpose for which it was contributed.
13.Protection of place of
worship from misuse, pollution or desecration.-
(1)
A place of worship or shrine maintained by the Government under this Act shall
not be used for any purpose inconsistent with its character.
(2)
Where the Collector has, under section 4, purchased or taken a lease of any
protected monument, or has accepted a gift or bequest, or the Commissioner has,
under the same section, accepted the guardianship thereof, and such monument,
or any part thereof, is periodically used for religious worship or observances
by any community, the Collector shall make due provision for the protection of
such monument or such part thereof, from pollution or desecration—
(a)
by prohibiting the entry therein, except n accordance with conditions
prescribed with the concurrence of the persons in religious charge of the said
monument or part thereof, of any person not entitled so to enter by the
religious usages of the community by which the monument or part thereof is
used, or
(b)
by taking such other action as he may think necessary in this behalf.
14.Relinquishment of
Government rights in a monument.- With the
sanction of {Subs., ibid., for " Govt." } [the Central Government],
the Commissioner may—
(a)
where rights have been acquired by {Subs., ibid., for " Govt." } [the
Central Government] in respect of any monument under this Act by virtue of any
sale, lease, gift or will, relinquish the rights so acquired to the person who
would for the time being be the owner of the monument if such rights had not
been acquired; or
(b)
relinquish any guardianship of a monument which he has accepted under this Act.
15.Right of access to
certain protected monuments.- (1) Subject
to such rules as may after previous publication be made by { Subs.by the
A.O.1937, for " the L.G.".} [the Central Government], the public
shall have a nut right of access to any monument maintained by {Subs., ibid.,
for " the Govt." } [the Central Government] under this Act.
(2)
In making any rule under sub-section (1) {Subs.by the A.O.1937, for " the
L.G.".} [the Central Government] may provide that a breach of it shall be
punishable with fine which may extend to twenty rupees.
16.Penalties.- Any person other than the owner who destroys,
removes, injures, alters, defaces or imperils a protected monument, and any
owner who destroys, removes, injures, alters, defaces or imperils a monument
maintained by {Subs., ibid., for " Govt." }[the Central Government]
under this Act or in respect of which an agreement has been executed under
section 5, and any owner or occupier who contravenes an order made under
section 7, sub-section (1), shall be punishable with fine which may extend to
five thousand rupees, or with imprisonment which may extend to three months, or
with both.
Traffic in Antiquities
17.Power to Central
Government to control traffic in antiquities.-
(1)
If the Central Government apprehends that antiquities that are being sold or
removed to the detriment of India or of any neighbouring country, it may, by
notification {For notification, see Gazette of India, 1917, Pt.I, p 989.} in the Official Gazette, prohibit or restrict the bringing or taking
by sea or by land of any antiquities or class of antiquities described in the
notification into or out of {Subs.by Act 3 of 1951.3 and Sch., for " the
territories for the time being comprised within Part A States and Part C States
".}[the territories to which this Act extends] or any specified part of
{Subs.by the A.O.1950.for " the Provinces ".} [the said territories].
(2)
Any person who brings or takes or attempts to bring or take any such
antiquities into or out of {Subs.by the A.O.1950.for " the Provinces
".} [the said territories] or any part of {Subs.by the A.O.1950.for "
the Provinces ".} [the said territories] in contravention of a
notification issued under sub-section (1), shall be punishable with fine which
may extend to five hundred rupees.
(3)
Antiquities in respect of which an offence referred to in sub-section (2) has
been committed shall be liable to confiscation.
(4)
An officer of Customs, or an officer of Police of a grade not lower than
Sub-Inspector, duly empowered by the {Subs.by the A.O.1937, for
"L.G." }[Central Government] in this behalf, may search any vessel,
cart or other means of conveyance, and may open any baggage or package of
goods, if he has reason to believe that goods in respect of which an offence
has been committed under sub-section (2) are contained therein.
(5)
A person who complains that the power of search mentioned in sub-section (4)
has been vexatiously or improperly exercised may address his complaint to the
{Subs.by the A.O.1937, for "L.G." }[Central Government], and the
{Subs.by the A.O.1937, for "L.G." }[Central Government] shall pass
such order and may award such compensation, if any, as appears to it to be
just.
Protection of Sculptures,
Carvings, Images, Bas-reliefs, Inscriptions or like objects.
18.Poweer to Central
Government to control moving of sculptures , carvings or like objects.- (1) If {Subs., ibid.for
" the L.G.".} [the Central Government] considers that any sculptures,
carvings, images, bas-reliefs, inscriptions or other like objects ought not to
be moved from the place where they are without the sanction of {Subs., ibid., for " the Govt."}
[the Central Government], {Subs., ibid.for " the L.G.".} [the Central
Government] may, by notification in the Official Gazette, direct that any such
object or any class of such objects shall not be moved unless with the written
permission of the Collector.
(2)
A person applying for the permission mentioned in subsection (1) shall specify
the object or objects which he proposes to move.and shall furnish, in regard to
such object or objects, any information which the Collector may require.
(3)
If the Collector refuses to grant such permission, the applicant may appeal to
the Commissioner, whose decision shall be final.
(4)
Any person who moves any object in contravention of a notification issued under
sub-section (1), shall be punishable with fine which may extend to five hundred
rupees.
(5)
If the owner of any property proves to the satisfaction of {Subs.by the A.O.1937 for " the
L.G."}[the Central Government] that he has suffered any loss or damage by
reason of the inclusion of such property in a notification published under
sub-section (1), {Subs.by the A.O.1937 for " the L.G."}[the Central
Government] shall either—
(a)
exempt such property from the said notification;
(b)
purchase such property, if it be moveable, at its market - value; or
(c)
pay compensation for any loss or damage sustained by the owner of such
property, if it be immoveable.
19.Purchase of sculptures,
carvings or like objects by the Government.- (1) If
{Subs.by the A.O.1937 for " the L.G."} [the Central Government]
apprehends that any object mentioned in a notification issued under section 18,
sub-section (1), is in danger of being destroyed, removed, injured or allowed
to fall into decay, {Subs.by the A.O.1937 for " the L.G."} [the
Central Government] may pass orders for the compulsory purchase of such object
at its market-value, and the Collector shall thereupon give notice to the owner
of the object to be purchased.
(2)
The power of compulsory purchase given by this section shall not extend to—
(a)
any image or symbol actually used for the purpose of any religious observance;
or
(b)
anything which the owner desires to retain on any reasonable ground personal to
himself or to any of his ancestors or to any member of his family.
{The
heading and ss.20, 20A, 20B and 20C subs.by Act 18 of 1932, s.3, for the
original heading and s.20 Power of Central Government to notify areas as
protected.}
[Archaeological Excavation]
20.Power of Central
Government to notify areas as protected.-(1) If the Central Government {The words "
after consulting the L.G." omitted by the A.O.1937.} of opinion that
excavation for archaeological purposes in any area should be restricted and
regulated in the interests of archaeological research, the Central Government
may, by notification in the Official Gazette specifying the boundaries of the
area, declare it to be a protected area.
(2)
From the date of such notification all antiquities buried in the protected area
shall be the property of the Government and shall be deemed to be in the
possession of the Government, and shall remain the property and in the
possession of the Government until Ownership thereof is transferred; but in all
other respects the rights of any owner or occupier of land in such area shall
not be affected.
20A.Power to enter upon and
make excavations in a protected area.- (1) Any
officer of the Archaeological Department or any person holding a license under
section 20B may, with the written
permission of the Collector enter upon and make excavations in any,
protected area.
(2)
Where, in the exercise of the power conferred by sub-section (1), the rights of
any person are infringed by the occupation or disturbance of the surface of any
land, {Subs.by the A.O.1937, for "the Govt.".}[the Central Government]
shall pay to that person compensation for the infringement.
20B.Power of Central
Government to make rules regulating Archaeological excavation in protected
areas.- (1)
The Central Government may make rules {For such rules, see Gazette of India, 1934,
Pt.I, p.1103.}—
Power of Central Government
to make rules regulating archaeological excavation in protected areas.
(a)
prescribing the authorities by whom licences to excavate for archæological
purposes in a protected area may be granted;
(b)
regulating the conditions on which such licences may be granted, the form of
such licences, and the taking of security from licensees;
(c)
prescribing the manner in which antiquities found by a licensee shall be
divided between {Subs.by the A.O.1937, for "Govt.".}[the Central
Government] and the licensee; and
(d)
generally to carry out the purposes of section 20.
(2)
The power to make rules given by this section is subject to the condition of
the rules being made after previous publication.
(3)
Such rules may be general for all protected areas for the time being, or may be
special for any particular protected area or areas.
(4)
Such rules may provide that any person committing a breach of any rule or of
any condition of a licence shall be punishable with fine which may extend to
five thousand rupees, and may further provide that where the breach has been by
the agent or servant of a licensee the licensee himself shall be punishable.
20C.Power to acquire a
protected area.-
If the Central Government is of opinion that a protected area contains an
ancient monument or antiquities of national interest and value, it may direct
the State Government to acquire such area, or any part thereof, and the State
Government may thereupon acquire such area or part under the Land Acquisition
Act, 1894, as l o for a public purpose.]
General
21.Assessment of
market-value or compensation.- (l) The
market-value of any property which Government is empowered to purchase at such
value under this Act, or the {The words
" amount of " omitted by Act 18 of 1932, s.4.} compensation to be
paid by Government in respect of anything done under this Act, shall, where any
dispute arises {Subs.by s.4, ibid., for " touching the amount }[in
respect] of such market-value or compensation, be ascertained in the manner
provided by the Land Acquisition Act, 1894, sections 3, 8 to 34, 45 to 47,
51and 52, so far as they can be made applicable:
Provided
that when making an inquiry under the said Land Acquisition Act, 1894, the
Collector shall be assisted by two assessors' one of whom shall be a competent
person nominated by the
Collector,
and one a person nominated by the owner or, in case the owner fails to nominate
an assessor within such reasonable time as may be fixed by the Collector in
this behalf, by the Collector.
22.Jurisdiction.- A Magistrate of the third class shall not
have jurisdiction to try any person charged with an offence against this Act.
23.Power to make rules.- (1) The Central Government {The words "
or the L G." omitted by the A.O.1937.} may make rules for carrying out any
of the purposes of this Act.
(2)
The power to make rules given by this section is subject to the condition of
the rules being made after previous publication.
24.Protection
to public servants acting under Act.- No suit
for compensation and no criminal proceeding shall lie against any public
servant in respect of any act done, or in good faith intended to be done, in
the exercise of any power conferred by this Act.
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