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2012 Supreme(Mad) 1358
High Court of Judicature at Madras
S. NAGAMUTHU
Sri Sthalasayna Perumal Temple, Rep. By its Executive Officer, Pon Swaminathan
Versus
The Union of India, Rep. By its Secretary to Government & Others
Writ Petition Nos.5470 of 2004 & 26061 of 2008
Decided on: 15-03-2012
For the Petitioner:V. Raghavachari, Advocate.
For the Respondents:R1 to R3 - S.M. Deenadayalan, Standing Counsel for ASI, R4 & R5 -A. Navaneethakrishnan, Advocate General for R. Kannan, Government Advocate.
Ratios
a. An ancient monument, which has got “national importance” as has been declared either by or under the Central Act, is a protected monument under the Central Act whereas an ancient monument, which has not been declared to be of national importance under the Central Act, is a protected monument under the State Act, if the same has been declared so by the State Government.
b. If an ancient monument, which has already been declared as protected monument by the State Government, is subsequently declared as an ancient monument to be of national importance by the Central Government, then, the preservation and the protection of the same shall change to the hands of the Central Government.
c. A monument can be finally declared as ancient monument of national importance by the Central Government only after holding enquiry and after hearing the objections, if any in respect of the same.
Headnote:(A)The Ancient Monuments and Archaeological Sites and Remains Act, 1958(24 of 1958)-Sec.4-Ancient monument-National importance-Preservation-Declaration-Notification-Objection-When the Central Government had issued a notification expressing its ‘intention’ to declare few temples in Mamallapuram as ancient monument of national importance, the State Government and the temple authorities challenged it by contending that even before hearing their objections, the Central Government had taken a decision and the intended hearing was only a formality and the temple in question was not a monument of national importance-Respondents resisted it by contending that the notification was only a preliminary one and the petitioners could raise their objections to the Central Government-Held, the notification stated that the Central Government was “intended” to declare the temple as national monument and so it was not a final decision and the petitioners could raise their objections to the authorities who had to consider the same-Respondents were directed to issue fresh advertisement to invite objections which were to be considered by the authorities-Writ petitions were dismissed.
(B)The Ancient Monuments and Archaeological Sites and Remains Act, 1958(24 of 1958)-Sec.4- Tamil Nadu Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1966-Sec.3-Ancient monument-National importance-Preservation-Declaration-Notification-An ancient monument, which has got “national importance” as has been declared either by or under the Central Act, is a protected monument under the Central Act whereas an ancient monument, which has not been declared to be of national importance under the Central Act, is a protected monument under the State Act, if the same has been declared so by the State Government.
A close comparison of these definitions under the Central and State enactments would make it abundantly clear that an ancient monument, which has got “national importance” as has been declared either by or under the Central Act, is a protected monument under the Central Act whereas an ancient monument, which has not been declared to be of national importance under the Central Act, is a protected monument under the State Act, if the same has been declared so by the State Government. Para 12
(C)The Ancient Monuments and Archaeological Sites and Remains Act, 1958(24 of 1958)-Sec.4-Ancient monument-National importance-Preservation-Declaration-State Government-Authority-If an ancient monument, which has already been declared as protected monument by the State Government, is subsequently declared as an ancient monument to be of national importance by the Central Government, then, the preservation and the protection of the same shall change to the hands of the Central Government.
Entry 12 in the State List envisages that ancient monuments other than those declared by or under law made by Parliament to be of national importance alone can be dealt with by the State. If an ancient monument has been declared to be of national importance by or under law made by Parliament, then, as per Entry 67 of the Union List and Entry 12 of the State List, the law made by the Parliament alone will be applicable. Therefore, if an ancient monument, which has already been declared as protected monument by the State Government, is subsequently declared as an ancient monument to be of national importance by the Central Government, then, the preservation and the protection of the same shall change to the hands of the Central Government and the same shall cease to be under the preservation and protection of the State Government. Para 16
(D)The Ancient Monuments and Archaeological Sites and Remains Act, 1958(24 of 1958)-Sec.4-Ancient monument-National importance-Preservation-Declaration-Notification-Objection- A monument can be finally declared as ancient monument of national importance by the Central Government only after holding enquiry and after hearing the objections, if any in respect of the same.
As we have already seen, if only the temple in question falls within the definition of ancient monument as defined in Section 2(a) of the Central Act and further if only the Central Government finds that the temple has national importance, the Central Government can issue a final declaration under Section 4(3) of the Central Act. Under Section 4 (1) of the Central Act what is required for the Central Government to issue notification is only its preliminary opinion that it is an ancient monument having national importance. Such opinion cannot be equated to a final decision. Final decision can be taken only after holding enquiry and after hearing the objections, if any in respect of the same. Para 23
Common Order
1. "Sri Sthalasayna Perumal Temple", at Mahabalipuram, is an age old Hindu Temple. It is known for its rich heritage. It stands on the shore. It is a small temple with two major shrines for Lord Sthalasayana Perumal and Nilamangai Thayaar. It is believed that this is the birth place of the 2nd Azhwar -Boothathazhwar. Historians say that the architecture depicts the Pallava style and thus, it was built by Pallava Kings. It is one of the 108 Divayadesams. The said temple is under the control of the Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu, as per the provisions of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.The respondents 1 to 3, in exercise of power under Section 4(1) of "The Ancient Monuments and Archaeological Sites and Remains Act, 1958" [hereinafter referred to as "the Central Act"] have issued a notification expressing the intention of the Central Government to declare the said Temple as an ancient monument, which is of national importance. It is the said notification, which is under challenge in these writ petitions.
2. The petitioner in W.P.No.26061 of 2008 is the Special Commissioner and Commissioner, Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu. The petitioner in W.P.No.5470 of 2004 is the temple. Since both the writ petitions challenge one and the same notification, they were heard together and they are disposed of by means of this common order.
3. At the outset, let us have a survey of history behind the Central Act and the relevant Tamil Nadu Act as well and their salient features. Under the Government of India Act, 1935, the subject "Ancient and historical monuments; archaeological monuments; archaeological sites and remains" fell within Entry 15 of the Federal List. Under the Constitution, this subject has been distributed under three different heads namely, -
"Entry 67, Union List -Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.
Entry 12, State List - Ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance, and
Entry 40, Concurrent List - Archaeological sites and remains other than those declared by or under law made by parliament to be of national importance."
4. Originally there were two Acts in force relating to ancient monuments viz., The Ancient Monuments Preservation Act, 1904 and The Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951. The Act 1951 merely declared certain monuments, etc., to be of national importance and the Act of 1904 was also applicable to such monuments. While the Constitution has distributed the subject matter under three different heads, the Central 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 then existing laws relating to ancient monuments was far from satisfactory. Therefore, the Central Government introduced "The Ancient Monuments and Archaeological Sites and Remains Act, 1958" making it applicable exclusively to ancient and historical monuments and records and archaeological sites and remains 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 Central Government advised the State Governments to enact similar laws in respect of ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance falling under Entry 12 in the State List. After the coming into force of the Central Act 24 of 1958, the Government of Tamil Nadu also passed a legislation known as the "Tamil Nadu Ancient and Historical Monuments a
