National and State Heritage Laws for Heritage

It is imperative for the development plan of Pune to look at the protected areas, regulated or prohibited areas of heritage value, defined under the national and state laws for heritage, as any development in such areas needs to be done with greater caution and care so as to not disturb or damage the heritage value of the city. This section looks at National and State laws for heritage conservation with regards to their relevance to Development Plan.

Article 51 A (f) of the Constitution of India states that “It shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture.”

Accordingly Entry No. 40 of the Concurrent List of the Seventh Schedule of the Constitution empowers both the Parliament and the State Legislatures to enact laws to protect the “Archaeological sites and remains”. Thus monuments, sites and remains declared by Parliament by law to be of national importance are protected under National laws while the State is empowered to extend to those ancient and historical monuments that are other than the national monuments. The national laws directly protect the national treasures and supersede all other laws that may be prevailing at the State level.

Below are some sections of the national law which are of relevance to development planning in the cities:

Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act 2010

The Ancient Monuments and Archaeological Sites and Remains Act, 1958 provides for the preservation of Ancient and historical monuments and archaeological sites and remains of national importance. It was amended in 2010 to include sections on prohibited and regulated areas to restrict construction activities around the national monuments. For their relevance in planning we shall look into some definitions under the act that conceive aspects of heritage that are valued for safeguarding, protecting and preserving.

According to this act:-

Section 2. (a) “ancient monuments” means any structures, 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 note less than one hundred years, and includes –

The remains of an ancient monument,

The site of an ancient monument

Such portion of land adjoining the site of an ancient monument as may required for fencing or covering in or otherwise preserving such monument, and

The means of access to, and convenient inspection of, an ancient monuments.

Section 2.(d) “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 –

Such portion of land adjoining the area as may be required for fencing or covering in or otherwise preserving it, and

The means of access to, and convenient inspection of, the area.

Section 2.(i) declares such a site and remains as “protected area” and further goes on to state the nature of restrictions on development and re-development in the protected area in Section 19(1) No person, including the owner or occupier of a protected area shall construct any building within the protected area or carry on any mining, quarrying, excavating, blasting or any operation of a like nature in such area, or utilise such area or any part thereof in any other manner without the permission of the Central Government.

In 2010 amendment to this Act added complexity to these restrictions with declaration of prohibited or regulated areas. Section 20A defined “prohibited areas” as every area, beginning at the limit of the protected area or the protected monument, as the case may be, and extending to a distance of one hundred metres in all directions. Section 20B declared “regulated areas” as beginning at the limit of the prohibited area and extending two hundred metres in all directions. Government of India can specify more area for prohibition and restriction of construction activities if it deems necessary.

Further in Section 20F, a National Monuments Authority is proposed that shall be notified in official gazette by the government of India and that shall work in consultation with government notified heritage expert bodies to formulate and regulate heritage bye-laws for protected monuments and areas. Among its several functions, two most relevant functions are – making recommendations for grading and classification of national monuments and sites; and to consider and make recommendations for measures regarding large scale development projects or public works or projects of public interest that may be proposed in the regulated areas under this Act.


Maharashtra Ancient Monuments and Archaeological Sites and Remains Act 1960

Any heritage structure listed as of importance to the State of Maharashtra and which is other than the declared national monument is protected by Maharashtra Ancient Monuments and Archaeological Sites and Remains Act 1960. This Act is drawn on the lines of the National enactment but as we shall see, it lacks the rigor and seriousness of the national law.

Sections covered

Definitions |Protected Monuments |Protected Areas |Archaeological Excavations |Protection of Antiquities |Principles of Compensation |Miscellaneous

Highlights of the Act

  • The Act seeks to notify all ancient and protected monuments in Maharashtra and declare them as protected monuments. These are apart from those included by the AMASR Act as being of national importance.
  • A State Advisory Board with the purpose of advising the State Government in the matters of preservation and maintenance of protected monuments and areas and in other matters incidental to the administration of the Act is suggested. The constitution, term and procedure of work of this Board may be as prescribed by the State Government.
  • District Collector assumes the guardianship of the protected monuments and has powers such as ; i) acquisition of rights in a protected monument, ii)Preservation by agreement with the owner, iii) Powers to make order prohibiting contravention of agreement, iv) enforcement of agreement, v) exemption from any legal suits in case of compensation and no criminal proceedings for matters acted under this Act.
  • State Government, under this Act, may prohibit or restrict any construction, erection or execution of buildings, structures and other works above the ground within the “controlled area” of the protected monument. It can further even prescribe position, height, size, design etc. to regulate the external appearance of buildings or structures and other works above ground in the controlled area. Among other measures for preservation of amenities of protected monuments, the State Government may also prohibit or restrict felling of trees within the controlled area.
  • The Land Acquisition Act of 1894 provides for the necessary guidance on acquiring the protected area or monument and deciding the suitable compensation as per the market value of the property.

A comparison of National and State level Act is telling of the limited scope of State level enactment.

Table 1: Comparison between State and National Ancient Monuments and Archaeological Sites and Remains Acts

Maharashtra AMASR Act 1961 National AMASR Act 1958 (amended in 2010)
Defines:- ‘Ancient and historical monuments’(existence for not less than 50 years),’Antiquity’ (existence for not less than 50 years), Archaeological Sites and Remains’, Collector, Director, Protected area, Protected monument’’ Defines:- ‘Ancient and historical monuments’(existence for not less than 100 years),’Antiquity’ (existence for not less than 100 years), Archaeological Sites and Remains’, Collector, Director-General, Protected area, Protected monument, Prohibited Area, National Monuments Authority’.
Collector is the guardian of protected monuments and areas and has powers to purchase, take a lease of, accept a gift or bequest of any protected monument and such other powers. Director-General is the guardian of protected monuments and areas and can instruct the Collector to initiate with the owner of the monument an agreement with the Central government.
State has no right to conduct any archaeological excavations in areas not protected under National AMASR Act 1958 Rights to Archaeological Excavations are reserved by the Centre.
No declaration of regulated area and related rules or restrictions mentioned in the State Act. Prohibited and Regulated Area – The limits for regulation of the ‘protected area’ or monument extends to the distance of 100mtr in all directions and may extend beyond this limit on recommendation of National Monuments Authority.For ‘prohibited area’ the limit extends to 200mtrs in all directions. This may be extended further by the Central Government after notifying in the Offical Gazette. Permissions from Competent Authority is required for any repairs or renovation of any building within the regulated area limits.

 

Creation of a State Advisory Board to advice the State Government in the matters of preservation and maintenance of protected monuments and areas and other administrative matters under the purview of the Act. Creation of the National Monuments Authority through appointment by President with the purpose of grading and classification of protected monuments and areas, oversee work of competent authority, advice on matters of implementation of the Act.
There is no dedicated authority at the State level for heritage impact assessment for those protected monuments and areas that are not notified under National AMASR Act 1958 or by NMA as per 2010 amendments to the Act NMA has the right to conduct Heritage Impact Assessment of large-scale development projects including public projects proposed in the regulated areas and make recommendations and grant permissions.
Penalties– Any kind of contraventions of provisions in the Act shall be penalized with a fine extending from Rs.2000-Rs.5000 or imprisonment upto three months depending on the nature of violation. Certain offences are cognizable as contained un Code of Criminal Procedure 1898. Penalties– Contraventions of sorts are punishable through fine extending to one lakh rupees and/or imprisonment not exceeding 2 years. Incase of offences by government officers the imprisonment may extend to three years and/or fine.
Key Issues-

–          The Act needs modifications to counter challenges of the present development needs.

–          Penalties are too low to ensure protection and preservation.

–          Roles, tenure and scope and nature of work of State Advisory Board remains ambiguous.

–          Presently State Archaeology department is the authority for enactment but the department needs serious reformation

–          In the wake of rapid urbanization trends there is an increasing need for heritage impact assessment for large and medium scale development projects of which State is a partner

Key Issues-

–          The Act through its amendments and validation in 2010 is more decisive.

–          National Monuments Authority is also entitled to oversee the scope of work for the State competent authority.

–          Heritage Impact Assessment is an opportunity for the State and local self governments.

–          The rules related to any development in protected, prohibited and regulated areas impacts the Development Control Rules at the local self government level.

 

To reiterate, heritage aspects protected under the national and state laws must be incorporated within the development plans. However, local heritage not listed as of national and state importance, is protected through other, indirect, empowered plans such as, in the context of Pune, the MRTP Act 1966

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