A.S. Bopanna, J.@mdashIn this batch of writ appeals, WA No. 5546/03 arises out of W.P. No. 34400/01, WA No. 5654/03 arises out of W.P. Nos. 25928-30/2001, WA No. 5743/03 and WA No. 5919/03 arise out of W.P. Nos. 27038-47/02. The first three appeals are by the State who were respondents in the respective Writ Petition while the fourth of the above noted appeal is by the respondent Nos. 8 and 9 in the Writ Petition noted above. The Writ Petitions in the sequence mentioned above are by Sri Srikantadatta Narasimha Raja Wodeyar, who is the owner of the structure ''Janana Mantapa'', the owners of the godowns and buildings as well as vacant sites in the vicinity.
2. The common grievance of all the petitioners is against the impugned Notification declaring the ''Janana Mantapa'' as a protected monument, the surrounding area as protected area and also the consequential order of the Lokayuktha and endorsement of Municipal Council since the same have effected the right to enjoyment of their respective property. Considering that on similar set of facts, common questions of law was to be considered, the learned Single Judge considered and disposed of the Writ Petitions by a common order dated 03.06.2003. Since the common order of the learned Single Judge is assailed in all these appeals, the same are considered and disposed of by us, by this common order. The brief facts are that, there is said to exist a birth pandal to commemorate the birth of Chamaraja Wodeyar IX in 1774 A.D. who is none other than the ancestor of the petitioner in W.P. No. 34400/01. The said structure is known as ''Janana Mantapa'' occupying an area of 35'' X 29'' and is situate within the limits of Chamarajanagar Town Municipal Council.
3. The Government of Karnataka exercising the power u/s 4of the Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 (hereinafter referred to as the ''Act'' for short) declared the said ''Janana Mantapa'' as a protected monument initially under a notification dated 15.4.1997, which was questioned before this Court in W.P. No. 26503/1997. The learned Single Judge of this Court by order dated 21.7.1999, quashed the Notification and reserved the liberty to reconsider the same in accordance with law. Thereafter, the Government of Karnataka issued a Notification dated 10.8.2000 u/s 4(1) of the Act. Subsequent thereto by Notification dated 11.6.2001 u/s 4(3) of the Act, declared the same to be a protected monument.
4. As a consequence, Notification dated 18.6.2001 was issued notifying an area measuring 100+200=300 meters surrounding the ''Janana Mantapa'' as prohibited and protected area suspending certain right of enjoyment of the property by several private owners of property in the said area. As a sequel to the above, on certain complaints, the Lokayuktha by order dated 19.4.2002 directed the Commissioner, City Municipal Council against permitting constructions in the ''protected area'' and in obedience, the endorsement dated 18.5.2002 was issued by the Municipal Council prohibiting construction. Therefore the above stated Notifications, order and endorsement were assailed by the respective petitioners and by way of amendment the Act No. 7/1962 was sought to be struck down as being void and unconstitutional.
5. The learned Single Judge though did not advert to the contention regarding the constitutional validity, has however accepted the contentions put forth on behalf of the petitioners and quashed the impugned Notifications, order and endorsement which has resulted in these appeals.
Sri Basavaraj Kareddy, learned Government Advocate, while assailing the order dated 03.06.2003 passed in the Writ Petitions contended that the perusal of the order would indicate that the learned Single Judge has proceeded on a wrong basis since the question of the birth place not being of national importance cannot be the ground to quash the Notification since the place need not be of national importance for declaring the same as protected monument under the Act since the object of the Act itself is for preservation of monuments which are ancient, historical etc, but other than those declared to be of national importance by Central Act.
6. It is contended that therefore even if the same is not of national importance, the same can be declared as protected monument if it satisfies the requirement of Section 2(1) and (3) of the Act and if the procedure as contemplated u/s 4 is followed. According to the learned Government Advocate, the Archaeological Survey report of 1912 and 1937 stands testimony to the fact of birth of Chama Raja Wodeyar IX in 1774 A.D. from the stone tablet and the paintings therein is also referred to. Thus it is historically, archaeologically and artistically important and is also ancient having been constructed in 1826. It is further contended, in that view the Notification is in accordance with law. No doubt it is situated in private property but Section 13 of the Act provides for acquisition which is a subsequent procedure and as such the observation of the learned Single Judge in that regard is not justified according to the learned Government Advocate. In so far as the challenge to the constitutional validity, it is submitted that the same has withstood the test of time and would not arise at this stage.
7. It is also contended that the learned Single Judge has not adverted to the same and as such at best it can only be remitted for consideration if that arises. Sri Ashwathanarayana Reddy, learned Counsel for the appellants in the appeal filed by respondents No. 8 and 9 of the Writ Petition, supported the contentions urged by the learned Government Advocate.
Per contra, Sri S.P. Shankar, learned Senior Counsel appearing for the respondents not only sought to sustain the order of the learned Single Judge but also contended that this Court should consider the contentions raised in attacking the constitutional validity of the Act. In this regard, the learned senior counsel took us through Entry 67 in List I and Entry 40 in List III of Schedule VII to the Constitution of India to contend that it is only the Parliament which has the competence to legislate in relation to Ancient and historical monuments, while the legislature has the competence only in respect of Archaeological sites.
8. The detailed contentions in this regard would be referred to at an appropriate stage, if found necessary. On the factual aspect of the matter, the learned senior counsel contended that the place called as ''Janana Mantapa'' is literally a labour ward and cannot relate to the birth place of Sri Chama Raja Wodeyar IX. The book published by the Directorate of Archaeology relating to the history of Wodeyars of Mysore would refer to the curse of Alamelamma on the royal family and therefore no male issues were born in the family. In that context, the genealogical table would indicate that Chama Raja Wodeyar IX was adopted and his period of rule has been indicated as 1868-1901 which would indicate that the period of birth in relation to the birth place which is now sought to be treated as a protected monument cannot be accurate and the same is not conclusive with regard to its historical or archaeological importance. Learned senior counsel would further refer to the earlier writ proceedings where the Notification was quashed. While reconsidering the issue, despite not only the objections filed by Sri Srikantadatta Wodeyar who is a descendant of the family but also the opinion expressed by the Director of Antiquities and Museum indicating that the same is not viable, there is no consideration whatsoever before issuing the impugned Notification and as such the same cannot be sustained.
9. Apart from the fact that the Notification suffers from non-application of mind, the same is also malafide for the reason that the same is issued at the instance of certain persons who had failed in their attempts earlier in securing occupancy rights in respect of the lands and in this regard the learned senior counsel referred to the details of the several rounds of litigation regarding the same. It is therefore contended that the persons who are ill-disposed due to this fact have now resorted to the present attempt to deprive the enjoyment of the lands by the petitioners. The Notification dated 18.6.2001 also lacks application of mind since the declaration of the protected area to the extent of 300 meters all around it, would mean that an area of 74.60 acres would be covered by the same which in fact has been indicated by the Town Development Authority and as such from out of the total extent of 136 acres available in Chamarajanagar Town, if an extent of 70 acres is declared as protected area, the same would not only be counter productive but would also affect the property rights of several individuals and would offend Article 300-A of the Constitution of India.
10. In so far as the contention urged on behalf of the Government that after the present declaration there is a provision to acquire the property, the learned senior counsel would contend that Section 13 referred to by the learned Government Advocate is only in respect of protected monument as defined u/s 2(10) of the Act and as such the same does not apply to protected area which is defined in Section 2(9) of the Act. The learned senior counsel therefore contends that not only the order of the learned Single Judge is to be upheld but the Act itself should be annulled.
11. Before examining the rival contentions urged, even though the learned senior counsel has attacked the constitutional validity of the Act and despite the same being open for our consideration even in the absence of the learned Single Judge choosing to advert to the same, we are of the view that the constitutional validity of the Act need not be examined merely because it is urged, but only if it becomes absolutely necessary as otherwise there should be a presumption with regard to the validity of the same. Hence in the instant case we would prefer to advert to the factual matrix and to examine as to whether the Notifications, orders and endorsement assailed would withstand judicial scrutiny even within the framework of the Act as it stands and only thereafter if the appellants are able to satisfy us on this aspect of the matter, then the question of the vires of the Act in the background of the competence to legislate would arise for consideration.
12. With the above understanding, we would now examine the sustainability or otherwise of the Notifications in order to come to a conclusion as to whether the learned Single Judge was justified in quashing the same by the impugned order. Even on this aspect of the matter, though the learned senior counsel appearing for the respondents has referred to the period of birth of Chama Raja Wodeyar IX and the family history regarding the curse which had befallen the family and to the effect that Chama Raja Wodeyar IX was only an adopted son, we do not wish to question the wisdom of the historians since the said role be best left to them as otherwise rendering any judicial finding on this aspect may amount to rewriting history or contradicting the historians which may have far reaching consequences.
13. In that view of the matter, we would accept the position as it stands and from that standpoint examine as to whether the Notifications, orders and endorsements have been issued after following the due process of law and as to whether the issue of the same is justifiable even if certain of the facts exist. In this regard as pointed out by the learned Government Advocate, the very object of the Act would indicate that for declaring the structure or erection as a protected monument, the same need not necessarily be of national importance since the Central Act would take care of such monuments which are of national importance. Despite this position, in our view, no fault could be found with the order of the learned Single Judge on this aspect of the matter merely because the learned Single Judge has stated that the monument in question is not of national importance and that the birth place of a person cannot be of national importance since this aspect of the matter would also assume importance while the question of protected area and the manner of its acquisition is to be considered u/s 21 of the Act.
14. Be that as it may, on the aspect of the learned Single Judge coming to the conclusion that the Notification does not satisfy the requirements of Section 2(1) and 2(3) of the Act, it would be necessary for us to notice the contents of the said provisions which is extracted hereinbelow for ready reference.
Section 2(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 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;
but shall not include ancient and historical monuments declared by or under law made by Parliament to be of national importance.
(2) xxxxxxxxxxx
(3) ''Archaeological site and remains'' means any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than one hundred years, and includes:
i) such portion of land adjoining the area as may be required for fencing or covering in or otherwise preserving it; and
ii) the means of access to and convenient inspection of, the area.
15. For a structure to be called an ''ancient monument'', it should be of the nature indicated in the above provision which is also of historical, archaeological or artistic interest. In so far as ''archaeological site and remains'' the same should be an area which contains ruins or relics of historical or archaeological importance. In either case, the same should have been in existence for not less than 100 years. The power of the Government to declare ancient monuments to be protected monuments is contained in Section 4 of the Act where the preliminary Notification is issued u/s 4(1) of the Act and after following the procedure, the final Notification u/s 4(3) of the said Act is to be issued by way of declaration. Similarly Section 19(1) and 19(3) of the Act provide the power to notify protected areas. In the instant case, what requires to be examined is as to whether the conditions contemplated in the said provisions have been adhered to or not and as to whether the monument and the area in question would answer the requirement of the relevant provisions.
16. What is important to be noticed at this juncture itself is, though Clause (iii) of Sub-section (1) to Section 2 would include the requisite adjoining land also as ''Ancient monument'', the additional extent of 100 + 200 meters is not included as such site in the instant case since the Notification dated 15.6.2001 is only to the extent of 22.6 X 16.8 mtrs, which alone would be the purported ''Protected Monument''. The area declared under Notification dated 18.6.2001 would therefore have to satisfy the requirement of Protected area'' as defined and this Court would have to be satisfied on both these aspects. But what is evident is that the Notification dated 18.6.2001 is neither u/s 4 nor u/s 19 of the Act but under Rule 12 of the Rules, without following any procedure whatsoever.
17. In this regard, since it is contended that the tablet on the structure indicates the year of birth as 1774 A.D. and construction of the monument in 1826, the fact that it was more than 100 years old and therefore it is an ancient one cannot be disputed. However the question would be as to its historical, archaeological and artistic importance to declare the same as a ''protected monument'' as recent as in the year 2001 (at the first instance in 1997) and as to whether the area declared as protected area would satisfy that it is "Archaeological site and remains". The perusal of the Notification dated 15.6.2001 (Annexure-G to W.P. No. 34400/01) would indicate that the purpose of the Notification is to declare the place mentioned in the schedule which is the place of birth of Chama Raja Wodeyar situated as Chamarajanagar, Chamarajanagar Tq & District pursuant to a Notification dated 10.8.2000 which had been issued u/s 4(1) of the Act. The Notification further states that the objection filed by concerned persons have been considered.
18. Thereafter exercising the powers vested u/s 4(3) of the Act, the Government of Karnataka has declared the construction situated in the birthplace of Chama Raja Wodeyar IX mentioned in the schedule as state protected monument. The schedule further indicates that the birth pandal is the birth place of Chama Raja Wodeyar IX and the remarks column states that the birth is dated 1.3.1774 and the birth pandal was built in 1826. Even though these are the contents of the Notification, no other materials except the annual report of archaeological survey of Mysore published in 1912 and the annual report of the Mysore Archaeological Department of University of Mysore for the year 1937 produced in the writ proceedings along with the memo dated 17.12.2002, have been relied on behalf of the Government to justify their stand in coming to the conclusion that the place is of historical, archaeological and artistic importance.
19. That apart no records relating to the nature of consideration of the objections and the details of the decision making process to justify the Notification is relied on. That being the position, we have perused the archaeological report of 1912 which is a comprehensive report with regard to the entire state and we find that the same contains only a passing reference to the ''Janana Mantapa'' which reads as follows:
The structure known as ''Janana Mantapa'', built to commemorate the birth in A.D. 1774 of Chama Raja Wodeyar, father of Krishna Raja Wodeyar III, at Arikotara, the former name of Chamarajanagar, has a pretty appearance with paintings on the walls and a flower garden in front.
The annual report of the year 1937 reads as under:
CHAMARAJANAGAR
The Chamarajesvara temple and the Janana mantapa were inspected. The latter seems to have been constructed out of the materials brought from the temples in the neighbourhood, e.g., Terakanambi, Harajakote, Haradanahalli, etc. There is a stone tablet in English commemorating the birth-place of Chamaraja Odeyar in 1774 . The paintings on the wall represent to the left Rajarajesvari with cornucopia and sugarcane, and Chamundesvari to the right. The monument which was built in 1826 by Krishnaraja Odeyar III in memory of his father is a protected one and is in a good state of preservation.
20. The learned Government Advocate stressed on the said reports to contend that the same would indicate the importance of the monument as the birthplace. In this background, the reference made by us supra to the contents of the impugned Notification would indicate that the same has proceeded on the basis that the monument in question is the birthplace, obviously to contend that the birth of Chama Raj a Wodeyar IX had occurred at that place and therefore it is historically important and the drawings contained therein is of artistic value. If this is kept in view and the report of 1912 relied on by the Government is perused, it indicates that the Janana Mantapa is built to commemorate the birth in A.D. 1774 and does not state as the birth place and the subsequent report of 1937 indicates that the monument was constructed in the year 1826 which would clearly indicate that as in the year 1774 A.D. when the birth is said to have occurred, there was no construction therein and the construction made thereafter is only in commemoration.21. Therefore, apart from the said archaeological report, it was necessary for the Government to substantiate that in fact the birth also had occurred at the said place and therefore the place is of historical importance moreso when the same is declared as ''protected monument'' on the basis that it is the place of birth and not as a monument commemorating the birth. Since the report of 1912 indicates that it has been built to commemorate the birth, the meaning of the word ''commemorate'' assumes importance. The Chambers Dictionary would state ''to honour the memory of (a person or event) with a ceremony; to be a memorial to someone or something''. The Oxford dictionary would state that it is a memorial or reminder of some past event, person etc.
22. Even report of 1937 would further indicate that the monument in question was constructed nearly half a century after the event as a memorial of an event which had taken place earlier in 1774 A.D. and as already noticed above, the report no where indicates that the birth in fact had occurred at the very place or as to whether the monument was constructed only to commemorate the memory. In fact this should have also been the consideration before issuing the Notification. Thus there being no other supporting materials or even there being any detailed consideration while issuing the Notification, the mere compliance of Section 4 and 19 of the Act would not be sufficient and as rightly held by the learned Single Judge the same does not satisfy the requirement of Section 2(1) and 2(3) of the Act.
23. Further, as noticed above, the initial Notification which had been issued on 15.4.1997 had been quashed by this Court and liberty had been granted to the respondents to consider the objections and proceed in accordance with law. Subsequent thereto, the Notification dated 10.8.2000 was issued u/s 4(1) of the Act The petitioners had filed their objections, more particularly the petitioner in W.P. No. 34400/2001 who himself is a descendant of the royal family had objected to the said place being the place of birth of Chama Raja Wodeyar IX. That apart, prior to the issue of the impugned Notification dated 15.6.2001 u/s 4(3) of the Act, the Director, Directorate of Antiquities and Museum, Mysore by communication dated 8.3.2001 addressed to the Secretary, Ministry of Kannada and Culture had indicated certain reasons as to why it would not only be counter productive but would not be practicable to notify as proposed. It was specifically stated that though certain persons have demanded for such a declaration, the monument as well as the area surrounding it are in private ownership and the same is not of any artistic importance.
24. It is further stated in the said communication that Chamarajanagar was not a district center earlier and since the same has been recently declared as a district center, the town has improved many folds and in that context if 300 meters radius is declared as protected area, it would prevent development in the Central part of the town and also the acquisition of the area would involve huge expenditure and the same would not serve any public purpose. The consideration of the objections of the interested persons nor the consideration of the opinion expressed by the Directorate, which is contained in Annexure-K to W.P. No. 34400/2001 is not reflected from any of the records. Therefore at the outset the Notification suffers from non-application of mind to the relevant facts before exercising the powers u/s 4 and 19 of the Act.
25. In addition to the above, the denial of right to enjoy the property of the petitioners not only due to declaration of the ''Janana Mantapa'' as the protected monument but also the surrounding area as protected area to a radius of 300 meters is also an issue which requires consideration. Though the Notification indicates the protected area is to the distance of 100 + 200 meters i.e., in all 300 meters in length, if the same is worked out mathematically to consider the total protected area surrounding the monument, the same would be to the extent of 74.60 acres as worked out by the petitioners. This in fact has been admitted by the Town Development Authority, Chamarajanagar by its communication dated 30.12.2002 addressed to one of the petitioners wherein it has been stated that the 300 meters area surrounding the Janana Mantapa would be 70 acres. Neither the said correspondence nor the calculation on this aspect is disputed. Further this large extent of land is not established to be a ''Archaeological site and remains'' in terms of Section 2(3) of the Act. If that be so, prevention of development or enjoyment of the property by the persons residing and carrying on business in an extent of 70 acres without being acquired or being duly compensated would naturally offend the right available under Article 300-A of the Constitution of India.
26. Though the learned Government Advocate contended that the declaration of the protected monument and the protected area is the first step and the acquisition can always take place as contained u/s 13 of the Act, a perusal of Section 13 would indicate that the same does not as a natural consequence provide for acquisition but all that the provision contains is that only if the government apprehends that a protected monument is in danger of being destroyed, injured, misused or allowed to fall into decay, it may acquire the protected monument under the provisions of the Land Acquisition Act 1894 for the purpose of maintenance as a public purpose. Therefore in so far as the owner of the property, the said provision does not indicate that a right would be created in favour of the owner, the moment the structure is notified as protected monument. Further in so far as the protected area is concerned, the power to acquire is u/s 21 of the Act. As per the said provision, if the Government is of the opinion that any protected area contains an ancient monument or antiquities of national interest and value, it may acquire such area under the provisions of the Land Acquisition Act, 1894 as if the acquisition were for public purpose.
27. The said provision would in fact run contrary to the contention put forth by the learned Government Advocate since as noticed above, the very basis of the contention to sustain the Notification was that the power exercised under the present Act need not relate to the national importance since the Central Act would take care of the same. However, Section 21 of the Act would indicate that acquisition of a protected area under the present Act is permissible under this Act only if an ancient monument is of national interest and value. Therefore, in the facts of the present case, since the area in question has been declared as protected area even though it is not of national importance as admitted on behalf of the Government, it would not be open for the Government to contend that right of enjoyment is not denied since the property could be acquired after declaring the property surrounding the monument as protected area.
28. This coupled with the fact that on declaration of the area as a protected area, all development activities/construction activities should come to a grinding halt more particularly with the restrictions as contemplated u/s 20 of the Act would mean that the property rights of a citizen is curtailed without resorting to due process of law. Therefore in a circumstance of this nature, if at all the Government was interested in protecting the area the only option would have been to acquire the property in accordance with law after duly compensating the owners and thereafter utilising the area as a protected area after declaring so.
29. Therefore, in the present facts and circumstances of the case, the Notifications dated 10.8.2000, 15.6.2001, 18.6.2001 and the consequential orders dated 19.4.2002 and endorsement dated 18.5.2002 are not sustainable and as such the learned Single Judge was justified in quashing the same. Considering this aspect of the matter we are also of the opinion that the contentions raised assailing the constitutional validity of the Act need not be gone into in the present case and all contentions in this regard are left open to be considered in an appropriate case.
30. In that view of the matter, the above appeals in WA No. 5546/2003, 5654/2003, 5743/2003 and 5919/2003 are devoid of merit. The same are accordingly dismissed with no order as to costs. Copy of this order be retained in each connected appeals.
