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In an attempt to protect monuments, “prohibited” and “regulated” areas have been created around them, much to the dismay of populations staying close by. But now, easing of norms is on the anvil. Will it harm the lesser monuments of India?

By Meha Mathur

Recently, a report in The Times of India largely went unnoticed. It said that the Tomb of Khan Shahid in the sprawling Mehrauli Archaeo- logical Park in South Delhi had been vandalized, its walls whitewashed and clothes laid out to dry. More startling was the response of Deepak Bhardwaj, a surveyor with the Archaeological Survey of India (ASI), Delhi, who told the newspaper: “We don’t know whether ASI, Delhi Wakf Board or DDA is responsible for it.”

This is the fate of many monuments in India. While responsibility for their upkeep is passed from one agency to another, few shed tears over their plight as heritage is a non-issue. There are many reasons for this: the greed of builders, the pressure on land, general apathy towards monuments and lack of funds for their upkeep.

Such is the nonchalance towards heritage buildings that a family living next to Mirza Ghalib’s haveli in Old Delhi can bribe its guard and use it as kitchen for a marriage occasion. Yes, this actually happened in December 2009. The writing on the wall, literally and figuratively, goes largely unnoticed.

And this is the state of affairs despite strict laws. Since British times, not only vandalism and encroachment, but digging and construction activity in the vicinity of a monument have been discouraged as this would mar its beauty or weaken its structure.
Let’s start with the Ancient Monuments Preservation Act, 1904, which says that a certain area around monuments should be left outside the ambit of construction. It includes not only the “protected monument”—the structure and its precincts, but also “such portion of land adjoining the site of an ancient monument as may be required for fencing… or otherwise preserving such monument”.

Then, after Independence, Article 49 in the Directive Principles of State Policy put an obligation upon the government to protect every monument, place or object of artistic or historic interest, as specified by parliament.


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A kos minar, one of the many medieval milestones


In 1951, parliament enacted the Ancient and Historical Monuments and Archaeolo-gical Sites and Remains (Declaration of National Importance) Act, whereby certain monuments were declared to be of national importance. Under this act, the central government can notify any structure to be of national importance after making a public announcement about its intention and after considering objections within a specific period. As of today, there are about 3,600 monuments of national importance. Similarly, there are monuments which have become protected structures as per laws enacted by states.

Heritage is a non-issue in India due to the greed of builders, the pressure on land, general apathy towards monuments and lack of funds for their upkeep.

In 1958, further protection was granted to monuments under the Ancient Monuments and Archaeological Sites and Remains Act, which said that a certain area adjoining the protected monument could be demarcated as “prohibited area”. No construction work could be carried out here except under the supervision of an archaeological officer. There was also a provision for a “regulated” area, where some restrictions would apply.

In June 1992, the central government issued a notification under Rule 31 of the Rules under the 1958 Act, which, for the first time, declared an area of 100m from the protected limits as “prohibited” area, and a further 200m as “regulated” area.

Finally in 2010, the 1958 act was amended by the Ancient Monuments and Archaeological Sites and Remains (Amendment and Vali-dation) Act, 2010, which barred any construction in the 100m area, except under the supervision of an archaeological officer. It further mandated that if any renovation work was to be done in the next 200m, a “competent authority” had to be consulted. Another component of the Act was the creation of a National Monument Authority which would create categories and grading of monuments and guard the 300m around them, and formation of competent authorities (involving specialized bodies like INTACH) in various cities.

And therein lies the problem. With the 300m surrounding monuments, the battlelines seem to be drawn between the development and the conservation lobby. Both the development lobby and common people have a grouse that the 300m rule is impractical in present times as there are often residential property falling within it. While on the one hand, there are monuments like the Taj Mahal in the list of protected monuments, there are also “kos minars” (medieval milestones erected during Sher Shah Suri’s reign). Is it fair to put both on the same platform?

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Char Minar is part of the living heritage of Hyderabad


Jayant Tripathi, a lawyer representing the ASI, says that despite the provision for categorization and gradation of monuments, the 100m prohibition applies to all monuments. In his paper, A 100 meter Problem in an INTACH publication, Built Heritage: A Role for Incentives, he writes: “Here is an Act of Parliament that puts the kos minar at a higher priority than the needs of the community around it. If a person is unfortunate enough to have a plot of land, say, 90 meters from the kos minar, he cannot build his house on it.” Regarding the stringent rules for the next 200m (which may contain residential property), he asks: “Why is it necessary to take the permission of the competent authority to replace windows and doors? Or to whitewash or paint the house?”

Even ASI Additional Director-General
BR Mani agrees with this. Speaking to India Legal a few weeks before the recent move to liberalize the norms, he had said: “Our idea is that in case of further amendment, various gradations of monuments should be treated differently in terms of the 100m restriction. In case of monuments like the Taj and the Qutab Minar, the 100m restriction can be maintained; in case of the second category of monuments, there can be 50m restriction, and in case of the third category, a 25m restriction.”

However, not everybody is in sync with this view. Dr Nayanjot Lahiri, eminent historian and archaeologist, is appalled that the ASI, which is supposed to protect monuments, has become a clearance agency, okaying one development project after another, irrespective of the norms. She says that if only present needs are to be taken into consideration, “then we should be upfront and say that our past doesn’t matter to us.”
Historically, the sanitized approach of leaving such a huge area untouched is not an Indian practice. In Jaisalmer, a “living heritage”, a sizable population lives within the fort area. In places, such as Rajwada, the palace of the Holkars in Indore; Char Minar in Hyderabad and Jama Masjid in Delhi, populations have grown organically (over a period of time) around the structures. And if the British had not razed the houses adjoining Red Fort when they recaptured Delhi after the failed 1857 mutiny, we would not have seen the vacant land where Independence Day celebrations take place. This concept of space and aesthetics is very British.

These conflicting interests are evident in a legal issue over Jantar Mantar in New Delhi and adjoining high-rises. In 2002, the ASI took a builder, Narender Anand & Others, to court for undertaking construction of a high-rise in plot No 7 of Janpath, well within 100m of the Jantar Mantar complex, despite the 1992 notification. The New Delhi Municipal Corporation (NDMC) had sanctioned the construction in 2000, but when ASI raised objections, NDMC directed the builders to stop construction and seek ASI’s permission.

The development lobby and common people feel that the 300m rule is impractical in present times as there is often residential property falling within it.

When the matter went to the Delhi High Court, the counsel for builder argued that there was no justification for banning construction in this case because a number of other high-rises had already come up, including buildings under Phase-II of NDMC’s plan (because of which a number of astronomical instruments have stopped working). These were also well within 100m of Jantar Mantar.
When the high court directed the ASI to explain why it had not stopped the construction of these buildings, the response of the superintending archaeologist betrayed the helplessness of the agency. In its affidavit, ASI replied: “…Archaeological Survey of India does not have any machinery, either to demolish the construction or to stop the construction… It is significant to note that in the present case the construction was carried out by none other than the municipal authority.” Please give the photocredit ---- Saranya Ghosh/Wikimedia

Habitation inside Jaisalmer Fort


In its order, the high court directed the central government to review the 1992 notification and relax the prohibited area of 100m on a case-to-case basis. It said there has to be “application of mind on these and other issues linked with preservation of monuments….”

Finally, in 2012, it fell upon the Supreme Court to rule in favor of ASI, saying that in the name of development and accommodating the needs of multi-storey structures, the high court was not right in issuing a “mandamus” to the central government to review its 1992 rule. It said: “…if effective steps are not taken to check the same, these monuments may become part of history.”

A balanced approach towards conserving monuments needs to be explored. Sifting greed from genuine needs and inculcating the right spirit for heritage and aesthetics through education and community involvement should be started. If this means relocating smaller structures to alternative places or the population staying close by without affecting their livelihoods, so be it.

With inputs from Shailendra Singh

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