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Synopsis : -

The AMARSA 2010 Act creates a serious problem for house owners whose properties  fall within 100 m of protected monument. They cannot construct their own houses as their families grow . The government is amending the law to exclude public projects but there is no relief for common citizens affected by the law .  This is patently unfair and legally untenable as it violates the right to property and equality guaranteed by the constitution . We are asking that the law be amended to exclude  already existing houses within 100 of protected monuments. PLEASE SUPPORT THIS CAUSE AND HELP US - by signing this petition 

 

Given below is the text of the representation sent to the Prime Minister of India explaining how and why the problem can be resolved for common citizens who are suffering needlessly : 

The Prime Minister of India Dated:27/11/2017
South Block, Secretariat
New Delhi 110011
PROBLEMS FACED BY OWNERS OF HOUSES NEAR MONUMENTS
Owners of houses located near monuments are facing problems in rebuilding their old houses because of the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 2010 (AMASR Act). This note focuses on the situation in Delhi.
Background
Government created a large number of plotted residential colonies by
Town Planning to cope with the growth of population of Delhi after Partition in
1947, and subsequently also. Many of these plots were near monuments of
National importance or other monuments, but no restrictions were attached to
these plots; all plots were equal for building houses.
Owners of plots allotted as aforesaid, including those near monuments,
built houses on them in accordance with Municipal Rules and Byelaws from the
early 1950s or earlier. Later on, a large number of these houses were re-built
to modern specifications and many were converted into flats.
The AMASR Act, 1958
The AMASR Act was enacted in 1958. The preamble to the Act reads:
“An Act 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”.
The Act was not concerned with houses near monuments; nor did it define
construction. Its main purpose was the preservation of ancient and historical
monuments and protection of antiquities. However, it conferred rule-making
power to prohibit or regulate amongst other things “…construction of buildings
on land adjoining such monument …”. This could only be vacant land adjoining
a monument; it could not include land which Government had already allotted
for residential colonies and on which houses had been built.
The AMASR Rules, 1959, went beyond the Act
The Ancient Monuments and Archaeological Sites and Remains Rules,
1959, however, added a new definition of ‘construction’ by which additions or
alterations to ‘existing’ buildings were to be treated as construction. The Act
referred only to ‘land adjoining a monument’, but by this colourable exercise of
power ‘existing’ buildings replaced ‘land’. The Rules travelled beyond the Act
and thereby brought existing houses in developed areas within their purview.
The Rules also created a new concept of ‘prohibited’ and ‘regulated’ areas
– whereas the Act gave power to make Rules only concerning land adjoining
a monument. The creation of these areas was an illegal exercise of power:
the word ‘adjoining’ cannot be stretched to mean ‘any distance from’. Construction
within the ‘prohibited area’ was totally impermissible, while in a ‘regulated
area’ some construction was permitted on a ‘licence’ in the prescribed form. No
such notification was issued for more than thirty years.
New houses continued to be constructed near monuments in planned
residential colonies, and old houses were re-built into newer ones in accordance
with Municipal Rules & Byelaws as before.
The 1992 Notification
The Notification specifying the prohibited and regulated areas was issued
in 1992. It fixed 100 meters near a monument as the prohibited area, and
200 meters as the regulated area. Since it was not retrospective, it could at
best have applied to new construction in open spaces adjoining monuments. But the illegal subterfuge of including existing buildings in the definition of ‘construction’ in the Rules created problems for existing houses also. The ASI started granting ‘NOCs’ for re-constructing or renovating existing old houses in prohibited as well as regulated areas even when no construction was permitted in prohibited areas. Neither the Act nor the Rules referred to or enabled the grant of a ‘NOC’. By issuing NOCs on a case-to-case basis, with the usual implications, bureaucratic power replaced the law.
The International Practice
Before dealing with the anomalies in the AMASR Act and methods of
remedying them, a short account is given of ancient monuments and buildings
in other countries. Some of the monuments are two thousand years old; new
buildings co-exist alongside them, as illustrated by the photographs below.
The building on the right is the Hotel Rebstock in Lucerne, Switzerland. It was
built in the mid-1600s, about the same time as the Taj Mahal. The hotel has a
lift and a restaurant inside it and is joined to a less old building (yellow), which
in turn is joined to a modern glass and concrete building.

This is a 1st century AD Roman Stadium discovered under a road in Plovdiv.
After excavation and restoration a restaurant has been built next to it; the main
road with buildings runs around it in a pedestrian zone.

The first picture is of the main part of Diocletian’s Palace of the 3rd century AD
in Split. The second shows restaurants and shops alongside it. The town of
Split in Croatia is a UNESCO World Heritage site. “Today the [Diocletian] palace, along with adjoining areas to the west, forms the very heart of Split. Many shops, restaurants, bars and apartments for tourists can be found within the palace.” (Wikipedia). These old monuments and buildings in other countries have been beautifully restored and preserved – quite unlike the pitiful and decrepit state of
monuments in India, most of which are tombs. The concept is entirely different
in other countries: importance is paid to restoration and preservation of monuments,
and not to buildings near them. The past and the present are blended.
More such illustrations in different countries can be supplied.
The AMASR Act after amendment in 2010
The AMASR Act after amendment in 2010 retains the preamble without
change, its objects remain unchanged. It brings in prohibited and regulated areas
as a part of the Act itself, and adds a plethora of requirements for permissions
for rebuilding, renovating or repairing buildings near monuments. But
nothing is added about restoration or preservation of monuments themselves.

The Statement of Objects and Reasons for the 2010 Amendment Bill of
the AMASR Act states –
“With the passage of time, the implementation of the provisions of the
Act has become difficult especially due to increase in population in the
areas surrounding the monuments and sites which is detrimental to the
safety and security of monuments. Besides, the penal provisions in the
Act for endangering the monuments, etc., are not stringent enough to
provide effective deterrence. As a consequence of increased pressures
of habitation, especially in urban area, protected monuments and protected
sites are getting hemmed in from all sides, detracting from the aesthetics of the monuments and sites.” These objects clearly apply to new structures or buildings, if any are sought to be erected in open space near monuments. They obviously cannot relate to old residential houses in plotted residential colonies which have existed near monuments for decades through acts of Town Planning. The fact that
the area in which these houses are built later became prohibited or regulated
areas (the legality of creation of these was not examined) cannot retrospectively
alter legal rights attached to the houses. These old houses have not affected
the safety and security of monuments; and re-building them into newer ones
will not hem in monuments because they already exist there. Interestingly, the definition of ‘construction’ in s.2(dc) expressly excludes ‘re-construction, repair and renovation of an existing structure or building’, thereby excluding existing houses from the tentacles of the Act. The Objects and provisions of the Act do not reveal any reason for interfering with reconstruction of old houses near monuments. Nevertheless, later sections in it require applications for every change to existing buildings near monuments, and tie them up in endless and absurd red tape.


One example of the absurdity is that reconstruction or renovation of old
houses is limited to their existing vertical and horizontal dimensions. A singlestorey
house will thus always remain single-storied, while a four-storey house, next to it can be reconstructed in all four storeys. This is ridiculous. It demonstrates
the absurd bureaucratic mindset behind the amendments to the Act.
Can legislative power to preserve monuments affect Property rights
The Constitution confers power to legislate for “Ancient and historical
monuments and records and archaeological sites and remains …”. This power
cannot be stretched to include modern buildings or property rights of owners.
The use of a law to preserve monuments – the AMASR Act – to instead throttle
rebuilding of houses near monuments is illegal.
The Act has no provisions for preservation of monuments
The amendments of 2010 are concerned almost entirely with buildings
near monuments and their repair and renovation – the Act continues to not
have provisions for preserving or restoring monuments, i.e. for implementing its
basic objects. A cursory view of monuments shows shoddy repair work – some
stones of repaired walls have colours different from the original ones, marble is
replaced by white paint, it is doubtful whether the whitewash now being used in
monuments existed in original Mughal architecture, etc. The obsession with throttling rebuilding of old houses near monuments in the Act is purely a bureaucratic construct and outside its objects. The complex web of sections dealing only with re-building or renovating existing buildings does not reveal any rational link with the objects of the Act, i.e. preservation of monuments; and it violates property rights of owners of those houses. It is these missing areas that need to be looked at. It is high time the Act was examined to focus on ensuring authentic, high-class restoration and preservation of monuments by highly qualified staff, as is done in other countries. The Act’s fixation with lawfully constructed houses has to be removed.

Equal rights to re-construct old houses – near monuments or not – must be ensured to all house owners under the equality clause of the Constitution. If lawfully constructed old houses are not kept out of the purview of the Act then monuments will be surrounded by dilapidated old houses ruining their aesthetics and view. The very opposite of what the Act envisages. The ASI is a department of the Ministry of Culture; there appears to be no legislation governing its existence, functions or powers, methods of staffing, qualifications of personnel in archaeology, or training in preservation of ancient monuments. There is also no provision about other institutions, e.g. the Aga Khan Trust, being entrusted with the work of preserving or restoring monuments. The functions of the ASI appear to be only in exercise of executive power without guidelines or control by law. The Act creates a National Monuments Authority with specific provisions concerning qualifications of its members, their selection, salaries, removal and the like. But no corresponding provisions exist for members of the ASI. Also, the authority can more usefully take up the object of preserving monuments, instead of concerning itself with re-building of old houses. Consequences of preventing re-building of old houses
A consequence of the illegal stranglehold on re-building old houses near monuments will result in those houses becoming still more decrepit and dilapidated
with passage of time – freezing the accommodation they can provide, despite increases in family sizes and the need for more accommodation. Rebuilding
old houses that have become structurally weak will be far more practical than renovation and cosmetic repairs.

The legal and Constitutional aspects of the Act are not considered in
depth here. But the very concept of interfering with the right to lawfully re-build
old residential houses on land chosen by Government’s town planning experts
in the past, on equal terms with all house owners, shows how unreasonable
the Act is – and how far it dispossesses property rights of these house owners.
Property rights also include Human rights.
The Act is a creature of the Ministry of Culture, while Town planning is
an entirely different subject. The Act conflicts with acts of Town Planning and
legal rights created thereby. The Act creates two classes of house owners –
one free to re-build houses as permitted by Municipal Rules, and the other that
is not allowed to re-build similarly. There cannot be two classes of citizens in so
far as re-building of lawfully built houses is concerned.
The Pending Amendment of the Act
The pending amendment of the AMASR Act for excluding construction
of Public Works, i.e. buildings, roads, railway lines, etc. near monuments from
the scope of the Act, fully demonstrates the absurdity created by the Act. If major,
new Public Works can be constructed near monuments then it is utterly illogical
and absurd to restrict mere re-building of old existing houses. Building of public projects, and re-building of old houses, near monuments are identical in nature and do not bear discrimination. If the first is permissible there is no reason why the second should not also be permissible. Therefore, it would be appropriate and just if restraints on re-building of old houses are also removed along with removal of restraints on building of public projects near monuments by making suitable deletions in the AMASR Act and incorporating them in the existing Amendment Bill of 2017, so that both are on par and can be passed together one Bill in Parliament.
The Supreme Court has very recently pronounced that property rights are not only Constitutional rights but are also Human rights. Citizens cannot be deprived of their Property and Human rights by exercise of power to legislate for Preservation of Monuments.
As it is, a railway line runs in the prohibited area of Humayun’s tomb. Mathura road has been widened to bring it to within twenty meters of the structure of Khan-e-Khanan Rahim’s tomb; and a few years ago a new road running within 30 meters of it has been constructed on its southern boundary; the ASI supported this construction in the High Court, stating in its affidavit that motor roads next to monuments improve their ambience and vehicular traffic helps in their maintenance. Strange things happen in bureaucratic rule. Parts of the AMASR Act may be in conflict with the DUAC Act, which assigns to the DUAC the duty to scrutinise, approve, reject or modify proposals in respect of re-development of areas in the vicinity of Jama Masjid, Red Fort, Qutab Minar, and Humayun’s Tomb.
All these matters reveal an urgent need to re-visit the AMASR Act to confine it to restoration and preservation of monuments.
It is our request that suitable amendments be made in the Act to exclude
existing, lawfully built old houses near monuments in residential colonies
from the purview of the Act. Any other method will continue to create discrimination
between houses near monuments and other houses.
Citizens all over India who own houses near monuments will welcome
the removal of un-Constitutional limitations imposed on their property and their
human rights by the AMASR Act.
Copy: The Minister for Culture
Ministry of Cultural Affairs

 



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