Follow Appropriate Procedures For Formal Declaration As Protected Monument Or Heritage Site: Bombay HC In Plea Seeking Protection Of Vithal Rukumai Temple

In a decision concerning the historic Vithal-Rukhmini Temple, the Bombay High Court directed the aggrieved individuals to initiate formal procedures for its recognition as a protected monument or heritage site.

A Writ Petition was filed seeking protection for the temple, which is claimed to be over 200 years old and allegedly holds significant historical and religious value.

The Court emphasized that before any actions can be taken to preserve or protect the temple site, it needs to be officially recognized as an ancient/historical/heritage site or monument. This can be done in one of three ways:

(a) Under Section 4 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act, 1958) the Central Government can declare the site an ancient monument of national importance.

(b) under Section 4 of the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960 (Act, 1960) the State Government of Maharashtra can declare the site a protected monument.

(c) the Mumbai City Government can declare the site a heritage site under the provisions of the Development Control and Promotion Regulations for Greater Mumbai (Regulations MCGM).

The Bench headed by Chief Justice Devendra Kumar Upadhyaya and comprising Justice Arif S. Doctor observed, “If the Petitioners seek any protection and preservation to be provided to the temple site by the State authorities or its instrumentalities, or authorities of Central Government or authorities of MCGM, the temple site needs to be first considered for declaration to be an ancient/historical/heritage site or monument either under Section 4 of the 1958 Act by the Central Government or under Section 4 of the 1960 Act by the State Government or under the provisions of the DCR by the authorities of the MCGM”.

Advocate S. K. Halwasia appeared for the Petitioners, Advocate Amol Raut appeared for the Applicants, Senior Advocate Ramchandra Apte appeared for the Union. Additional Government Pleader Abhay L Patki appeared for the State of Maharashtra. Advocate Narayan Bubna appeared for the Municipal Corporation of Greater Mumbai (MCGM) and Senior Advocate Anil V. Anturkar appeared for the Bhairav Kothari Realtors LLP (Eleventh Respondent).

A Writ Petition was filed seeking to protect and preserve Vithal – Rukumai/Rukhmini Temple in Mumbai. The Petitioners claimed that the temple was over 200 years old and associated with historical events. They also contended that the temple was located on land reserved for a “welfare centre and parking lot” and that some private person had purchased the land and intended to carry out redevelopment work. The Petitioners argued that the temple was ancient and should be protected as a monument of historical importance. The Director of Archaeology and Museum, and the Archaeological Survey of India filed affidavits opposing the petition to protect the Vithal Rukumai temple as an ancient monument. They contended that the temple was built in 1851 by a private family, renovated in 2007, and is not a protected monument under the Act, 1958 and Act, 1960.

During the pendency of the Writ Petition, the Court had appointed a committee to consider whether the Vithal Rakhumai temple is a historical or archaeological monument that needs to be protected. The Committee submitted reports recommending that the temple be preserved and protected due to its historical value. The Court then constituted another committee to suggest measures for protecting and preserving the temple during monsoon. This committee also submitted a report recommending specific measures. Based on these reports, the Writ Petition was amended to include prayers seeking preservation, conservation, and listing of the temple as a heritage structure.

The Bench framed the following issue:

“Whether in absence of the declaration of the temple site in question either as (i) “ancient monument” under 1958 Act, or (ii) as “ancient and historical monument” under 1960 Act, or (iii) as a “heritage site” under the DCR, the prayer for issuing direction for protection of the site as a monument of historical important can be granted?”

The Court observed that while Article 49 of the Constitution mandates the State to protect historical and artistic landmarks, this applies only to those declared as "national importance" by the Parliament. The Act, 1958, was enacted to preserve and regulate such sites, defining an "ancient monument" as a structure, monument, place, cave, rock sculpture, inscription, or monolith that is at least 100 years old and holds historical, archaeological, or artistic value.

However, the Court emphasized that for a site to be considered of "national importance" and protected under the Act, it must be declared as such by the Central Government through a specific process involving notice, objections, and conclusive declaration. As the temple in question does not fall under the categories specified in Sections 3 and 4 of the Act, any request for protection under the Act, 1958 is not permissible.

Furthermore, the Bench observed that the Act, 1960 provides another legal framework for protecting ancient monuments and sites within the state. Similar to the central act Act, 1958, it defines an "ancient and historical monument" as any structure, cave, or rock sculpture that has existed for at least 50 years and has historical, archaeological, or artistic significance. The Act, 1960 empowers the state government to declare a monument as "protected" through Section 4, and Section 3 deems monuments previously declared as such before the Act's enactment to be automatically protected. In the absence of fulfilling either of these criteria, the Act, 1960 does not offer legal protection for the monument.

Additionally, the Court noted that the Regulations of MCGM provide a framework for heritage site conservation and listing. However, to qualify for protection under these regulations, the site must be officially listed as a heritage site on the designated map.

The Bench observed that the Regulations MCGM allowed for the addition, modification, or removal of heritage sites on the list upon receiving proposals or through government initiative. However, before final approval, public feedback is gathered and considered. Additionally, any draft list awaiting government approval is temporarily considered part of the official heritage list.

However, the Bench noted that without a formal declaration under Sections 3 and 4 of the relevant Central (1958 Act) and State (1960 Act) enactments, the temple cannot claim protection under these laws due to the absence of an official declaration.

The Court acknowledged the various legal frameworks and mechanisms available for protecting historic and heritage sites but cannot grant the petitioners' request in the absence of formal recognition for the temple. The Bench emphasized that seeking protection for the temple from state, central, or MCGM authorities necessitates its official recognition as an ancient, historical, or heritage site. This can be achieved through a declaration under Section 4 of either the 1958 Act (Central Government), the 1960 Act (State Government), or the DCR (MCGM authorities).

Therefore, the Court directed the Petitioners to follow appropriate procedures for a formal declaration of the temple site as a protected monument or heritage site to obtain the desired protection. The Court instructed the authorities to decide on the applications within six months and to disregard any observations made by the court.

Accordingly, the Court disposed of the Writ Petition.

Cause Title: Shaila Madhukar Gore v Union Of India (2023:BHC-OS:14488-DB)

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