IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. D. B. CIVIL WRIT PETITION NO. 33/ 1982. Ram Gopal and Ors. Versus State of Rajasthan. Date of Judgment: 20th September, 2006 PRESENT Hon'ble Chief Justice S. N. Jha Hon'ble Mr. Justice R. S. Chauhan Mr. Paras Kuhad, for the Petitioners Mr. G. S. Gill, Addl. Advocate General for the State. **** BY THE COURT : (Per R. S. Chauhan J): REPORTABLE Sentinels of our past, repository of our culture and heritage, forts and palaces dot the hills and desert of Rajasthan. One such fort is the fort of Chomu, a town situated thirty-three kilometers from Jaipur. Scion of the royal family of Jaipur state, the Nathawats started the construction of the fort in the 17th century, and extensively enlarged it in the 18th century. The fort houses a palace complex and the fortress walls (“the Parkota”) and a ditch (“the khai”). The fort is the bone of contention between the petitioners and the state. Vide Notification dated 28-3-78, published on 8-4-78 in the Rajasthan Gazette, the State had declared the fort to be a “protected monument” under Section 3 (4A) of the Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 (henceforth to be referred to as the State Act, for short). The petitioners are challenging the validity of the said notification. They are also challenging the letter dated 16- 9-81, whereby the objections filled by the petitioners against the said notification were rejected by the State. This case has had a checkered history. On 7-12- 1972, the petitioners purchased the said fort, through five registered sale deeds, from the erstwhile royal family of Chomu. Subsequently, the petitioners rented out part of the fort to Shri Lakda Dal Mill, a partnership firm for founding its Dal Mill within the fort. The firm established not only a factory in the fort, but also used it for the purposes of storerooms, offices and for residential accommodations. On 7-2-1973, the Secretary of the Congress Committee, Chomu submitted a complaint to the then Chief Minister claiming that the fort had been sold at a nominal rate and the premises were being misused. The said complaint was also endorsed to the Director, Archeology and Museums, Rajasthan. It was requested that the State should acquire the said fort and stop the misuse of the premises. A year later, on 16-3- 1974, the Director Archeology and Museums also submitted his inspection report to the Assistant Secretary of the Chief Minister. According to the said report the erstwhile royal family of Chomu had sold the fort for a nominal price to the petitioners. It was also claimed that the petitioners were misusing the buildings and structures of the fort. Two years later, on 15-4-1976, the Director Archeology and Museums recommended to the State to protect the said fort under the provisions of the State Act. While the recommendation was pending with the State, the petitioners sold off part of the outer wall (“the Parkota”), the ditch (the khai) surrounding the fort and part of the land inside the fort to the Krishi Upaj Mandi, Chomu for establishing the Krishi Upaj Mandi under the Rajasthan Agricultural Product Market Act, 1961. Thus, the Krishi Upaj Mandi, established by the government, bought the aforementioned parts of the fort. Interestingly, the Krishi Upaj Mandi, run by the government, subsequently demolished part of the rampart (“the Parkota”), filled the ditch, constructed road thereupon, and constructed shops for the benefit of the traders of the market. Hence, the Mandi—a government run organization, itself began the systematic demolition of the fort. But, taking the recommendation of the Director Archaeological and Museums in earnest, the State, using its power under Section 3 (4A) of the State Act, declared the fort as a “protected monument” vide notification dated 28-3-1978 published in the Rajasthan Gazette on 8-4-1978. On 27-5-78, the petitioners filed their objections before the Commissioner-cum-Secretary, Department of Education, as at that moment the Department of Archaeological and Museums was under the Eduction Department. Vide letter dated 16-2-1981, the petitioners were informed that they should appear before the Education Minister on 28-2-81. However, when they appeared, no hearing took place. They were assured that the next date would be informed to them. Such an endorsement is made in the letter dated 16-2-81 (Ex.12). But, according to the Petitioners, they were never informed about the next date. It was only vide letter dated 16-9-1981, that the petitioners were informed that their objections were considered and dismissed by the Government. Since the petitioners were aggrieved both by the notification and by the letter dated 16-9-1981, they filed a writ petition before this Court. Vide judgment dated 25-1- 1996, this court allowed the writ petition. Thereupon, the State preferred an appeal before a Division Bench. Vide judgment dated 30-9-1996, the Division Bench dismissed the State appeal and confirmed the judgment of the Single Bench. Consequently, the State filed a SLP before the Hon'ble Supreme Court. But, the Hon'ble Supreme Court remanded the case back to the High Court to be decided by a Division Bench. Hence, this petition before us. Mr. Paras Kuhad, the learned counsel for the petitioners, has raised various contentions before us: firstly, the State did not have the power to declare the fort as a “protected monument” under the State Act. For, Section 2 (i) of the State Act while defining the term “ancient and historical monument”, excludes those “ancient monument as defined in the Central Act, to which the provisions of that Act apply for the time being.” According to Section 2 (a) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (henceforth to be referred to as the Central Act, for short), the term “ancient monument” means “any structure, erection or monument, or any tumulus or place or internment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and...” According to the learned counsel, since the fort is more than hundred years old, it is included in the definition of “ancient monument” as given in the Central Act. Thus, ipso facto it is excluded from the definition given in the State Act. Hence, the State Act does not cover the fort. Therefore, the State could not have declared the fort as “protected monument” under the State Act. Secondly, even if it were held that the State has the power to declare the fort as a protected monument, it has to follow the procedure prescribed in the State Act. Section 3 of the State Act prescribes an elaborate procedure for declaring a monument as protected. However, the procedure has not been followed. Section 3 (4A) contains the emergency power for declaring a monument as protected. However, even the procedure prescribed in sub-section (4A) has not been followed. Therefore, the impugned notification is invalid and illegal. Thirdly, Section 3 (4A) of the State Act requires the State to be satisfied “with respect to any monument, archaeological site or antiquity, that there is immediate danger of its removal or destruction.” The satisfaction and the reasons thereof have to be recorded in the notification itself. However, in the instant case, the State has neither recorded the possibility of “immediate danger of its removal or destruction”, nor stated its reasons for such a satisfaction. Hence, the notification is in violation of Section 3 (4A) of the State Act. Fourthly, the fort was bought in 1972, the complaint about its alleged misuse was made in 1973, the Director had submitted his report in 1974, in 1976 the Director had recommended that the fort be declared as “protected monument”, meanwhile the Krishi Upaj Mandi had demolished the outer walls of the fort. Despite the lapse of six years from the date of sale of the fort, it is only in 1978 that the notification was issued. The emergent power under Section 3 (4A) was invoked on the ground of “immediate danger of its removal or destruction” to the fort. However, such “an immediate danger of its removal or destruction” can not be said to exist after six years from the date of sale of the property and after two years of the recommendation made by the Director. Thus, the State is abusing the power given to it by the State Act. It is, obviously, a case of colorable exercise of power. Fifthly, the terms “ancient and historical monument”, “antiquity” and “archaeological site” have been defined differently under Section 2 of the State Act. Therefore, while classifying the fort, the State is required to specify the category in which the structure would fall. However, the State has used all the three terms, namely “ancient monument”, “antiquity” and “archaeological site”, in the impugned notification, without any distinction. Hence, the State has not applied its mind to see under which category the fort falls. Thus, the notification suffers from the virus of non-application of mind. Sixthly, according to Section 3 (4A) of the State Act, an opportunity of hearing has to be given to the persons interested in the monument. However, no such opportunity was given to the petitioners. Only vide letter dated 16-9-81, the petitioners were informed that the government has rejected their objections. Hence, their objections were rejected without hearing the petitioners. Thus, the State violated the principles of Natural Justice. On the other hand, Mr. G. S. Gill, the learned Additional Advocate General of the State, has argued firstly, that under Art. 246 of the Constitution of India, the State is empowered to enact laws on subjects enumerated in List II and List III of the Seventh Schedule of the Constitution. According to Entry 12 of the List II, the State can enact laws dealing with “ancient and historical monuments and records other than those declared by or under law made by Parliament to be of National importance.” Moreover, under Entry 40 of List III, the State can enact laws for “archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance.” Hence, under Entry 12 of List II and Entry 40 of List III—legislative fields demarcated for the the State legislature--the State can enact laws with regard to “ancient and historical monuments and archaeological sites and remains, other that those declared by or under law made by Parliament to be of national importance.” Secondly, according to the Central Act, unless a monument is declared to be of “national importance” under the Central Act, it is not deemed to be “protected monument”. Thus, until it is so declared to be of “national importance”, it continues of be subjected to the State Act. Merely because a monument is more than hundred years old, would not place it within the definition of “ancient monument” as given in the Central Act. The Central government would have to “declare” it to be of “national importance.” Once the Central Government declares a monument to be of “national importance”, it becomes a “protected monument”. But, the Central government has not declared the Chomu Garh as an ancient monument of “national importance”. Therefore, till such declaration is made by the Central government, the State has the power to declare the fort as “protected monument” under the State Act. Thirdly, after it was brought to the notice of the State that the fort is being misused by the petitioner— after receipt of the complaint and of the report of the Director, Archaeological and Museum—the government felt there is “immediate danger of its removal and destruction.” Hence, it has rightly exercised its power under Section 3 (4A) of the State Act. Fourthly, in the impugned notification the government has clearly stated that “it is of the opinion.” An opinion is formed only after the government has reached a satisfaction about the existence of a thing. Hence, the satisfaction is recorded in the impugned notification. Fifthly, the scope of judicial review of the satisfaction of the government is a limited one. Since the opinion is a subjective one, the court cannot sit as a court of appeal over the satisfaction. Unless there is an allegation of mala fide, of arbitrariness, of non- application of mind, the court would not ordinarily interfere with the said satisfaction. It is for the petitioner to prove the existence of these factors. The court in its power of judicial review cannot ask the government to reveal the reasons for the formation of its opinion. In fact, the satisfaction is entitled to “great weight”. Sixthly, an opportunity of hearing was duly given to the petitioners. Their objections were rejected only after hearing them. Hence, the principles of natural justice were, indeed, followed. Hence, the requirement of Section 3 (4A) of the State Act has been fulfilled. The learned counsel has, thus, supported both the notification and the letter dated 16-9-81. We have heard the learned counsels and perused the impugned notification and the letter. India, an ancient civilization and a modern nation, is studded with ancient and historical monuments. The forts and the palaces, the temples and the mosques, the ruins of a university or of a city are part of our heritage. They are the achievements of our ancestors. These mute witnesses of our history testify to our grandeur, our glory, our concerns, our traditions, our culture. In stones and wood, in rocks and bricks, in ivory and clay, they have frozen the past for us: they have to be preserved for posterity. It is not only the duty of the State to conserve them, it is equally the fundamental duty of each citizen to preserve them. Thus, Art. 51 A (f) of the Constitution of India enjoins the citizen “to value and preserve the rich heritage of our composite culture.” While defining the legislative fields, Entry 67 of List I of the Seventh Schedule enables the Parliament to enact laws on “ancient and historical monuments and records and archaeological sites and remains declared by or under law made by Parliament to be national importance”. Likewise, Entry 40 in List III of the Seventh Schedule permits both the Parliament and the State Legislature to legislate on “archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance.” Entry 12 of List II of the Seventh Schedule of the Constitution of India, on the other hand, permits the State Legislature to enact laws about “...ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance.” A conjoined reading of these Entries clearly show that both the Parliament and the State Legislature can enact laws about the ancient and historical monuments, about archaeological sites and about remains. However, Entry 12 of List II and Entry 40 of List III are subject to Entry 67 of List I of the Seventh Schedule of the Constitution of India. Furthermore, while Parliament is enabled to deal with monuments of “national importance”, the State is enabled to control and preserve those monuments which are of importance within the state. This is also borne out from the Central and the State Acts before us. The object of the Central Act is “to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects.” (Emphasis added). The State Act, on the other hand, states the object to be “to provide for the preservation, protection, upkeep, maintenance, acquisition and regulation of, and control over, ancient and historical monuments, and antiquities in the State of Rajasthan.” Thus, the State Act deals with those ancient and historical monuments which are withing the state of Rajasthan and have some importance for the state. Prior to the coming of the Central Act, the Ancient Monument Preservation Act, 1904 covered the field. However, under the said Act, the Central Government could declare any monument to be “protected”, whether the said monument was of “national importance” or not. But such a scheme led to confusion between the Central Government and the State Government. Hence, in order to limit the power of the Parliament, and to give more power to State Government, the Central Act was enacted. This is clear from the Statement of Object and Reasons, part of which is as under: While the constitution has distributed the subject-matter under three different heads, the Act of 1904 governs all ancient monuments whether falling in the Central field or the State field, and vests all executive power in the Central government. The position of the existing law relating to ancient monuments is far from satisfactory. The present Bill purports to be a self-contained law at the Center which will apply exclusively to ancient monuments etc., of national importance falling under Entry 67 of List I and to archaeological sites and remains falling under Entry 40 in the Concurrent List. Simultaneously, the State Government would be advised to enact a similar law in respect of ancient monuments, etc., falling under Entry 12 in the State List. In this manner, the Central and the State fields will be clearly demarcated and the existing confusion and overlapping of jurisdiction arising from the Act of 1904 will be eliminated. Section 2 (j) of the Central Act defines the term “protected monument” as meaning “an ancient monument which is declared to be of national importance by or under this Act”. Section 4 empowers the Central government to declare an ancient monument to be of “national importance”. It prescribes the procedure for such declaration. Once an ancient monument is declared to be of “national importance”, ipso facto it becomes “a protected monument” according to the definition of “protected monument”. The rest of the provisions of the Central Act lay down the provisions with regard to protection, acquisition, maintenance etc., of the protected monuments. Hence, the Central Act deals with only monuments of “national importance” which automatically stand as “protected monument” under the Central Act. Meanwhile, the State Legislature can enact a law dealing with those ancient or historical monuments which have not been declared by the Parliament to be of “national importance”. Once a monument has been declared to be of “national importance” under the Central Act, it is out of the purview of the State Act. In the present case the petitioners have not placed any evidence to prove the fact that the Chomu Garh has been declared by the Parliament to be of “national importance” and hence a “protected monument” under the Central Act. Since the Chomu Garh has not been declared to be of “national importance” by the Parliament, the State is competent to declare the fort to be “protected monument” under the State Act. The learned counsel for the petitioners has made much of the use of the word “defined” used in Section 2 (i) of the State Act. Section 2 (i) of the State Act while defining the term “ancient and historical monument” contains an exception. It defines the term, but states that the term “does not include an ancient monument as defined in the Central Act, to which the provisions of that Act apply for the time being.” (Emphasis added). The definition of “ancient monument” contained in the Central Act and of “ancient and historical monument” contained in the State Act are similar in nature. The distinguishing feature between the two definition is the element that if the monument is more than hundred years old, it comes within the Central Act. According to him, since the fort is more than hundred years old, it automatically falls within the definition of “ancient monument” as contained in the Central Act. According to the learned counsel even if the fort has not been declared to be of “national importance”, the mere fact it is more than hundred years old, would make it an “ancient monument” as defined in the Central Act. Therefore, the fort comes within the purview of the Central Act and not of the State Act. Section 2 (i) of the State Act reads as under: “(1) ancient and historical monument” means any archaeological building, structure, erection or monument or any tumulus, tomb or place of interment or any cave, rock-sculpture, rock- painting or sculpture of or on stone, metal terracotta or other immovable object or any inscription or monolith, which is of historical, archaeological or artistic importance, interest or value, and includes - (a) any remains thereof, (b) the site thereof, (c) the portion of land adjoining such site which may be necessary or required for the preservation, protection, upkeep and maintenance of the same, and (d) the means of access thereto and of convenient inspection and repairs thereof, but does not include an ancient monument as defined in the Central Act, to which the provision of that Act apply for the time being. (Emphasis added).“ On the other hand, Section 2 (a) of the Central Act defines the term “ancient monument” as under: “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 and which has been in existence for not less than one hundred years, and includes- (i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) 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 (iv) the means of access to, and convenient inspection of, an ancient monument. A conjoined reading of the two provisions does make the contentions of the learned counsel appear to be strong at the first blush. After all, Section 2 (i) of the State Act ousts those “ancient monument as defined in the Central Act.” However, at a closer look, the contention is without merit. Firstly, the section further requires “to which the provisions of that Act apply for the time being.” The provisions of the Central Act apply only to those ancient monuments which have been declared to be of “national importance.” Hence, merely because a monument is more than hundred years old would not automatically make it “an ancient monument” under the Central Act. In order for the Central Act to apply to the said monument, it would have to be declared as an ancient monument of “national importance.” Thus, a declaration by the Parliament is a sine quo non condition before a monument comes within the purview of the Central Act. As stated above, the Parliament has not declared the Chomu Garh to be of “national importance”. Therefore, the Central Act is not applicable to the fort. Secondly, if every monument older than a hundred year is ipso facto included in the Central Act, then they need not be declared to be of “national importance.” Such an interpretation would dilute Entry 12 in List II and Entry 40 in List III. For, the words “other than those declared by or under law made by Parliament to be of national importance” used in these Entries would be meaningless. Further, it would also dilute the scope of the State Act. For, the State Act would be applicable only on those “ancient and historical monument” which are less than a hundred years old. It would, certainly, lead to an absurd situation. A monument less than a hundred year cannot be termed as “ancient”. According to the Webster's Third New International Dictionary, the word “ancient” means “belonging or relating to a remote period to a time early in history, or to those who lived in such a period or time.” Considering the fact that India is a one of the oldest civilizations, the word “ancient” would mean “centuries old” or historically speaking “belonging to Pre-Muslim period of our history.” Hence, the word “ancient” would lose its meaning if the State Act were it to deal with only those monuments