THE JAMMU AND KASHMIR HERITAGE
CONSERVATION AND PRESERVATION
ACT, 2010
(Act No. XV of 2010)
[Received the assent of the Governor on 28th April, 2010 and
published in Government Gazette dated 29th April, 2010].
An Act to provide for conservation and preservation of heritage
both tangible and intangible, including buildings, structures, monuments,
precincts, areas/sites, artifacts, sculptures, paintings, handicrafts,
manuscripts etc. and music, dance, drama, performing arts, poetry, living
traditions like crafts and cuisine, traditional knowledge systems,
folklores, spiritual traditions; respectively of historic or cultural or
religious or aesthetic or architectural or environmental significance and
for matters connected therewith or incidental thereto.
Be it enacted by the Jammu and Kashmir State Legislature in the
Sixty-first Year of the Republic of India as follows:—
CHAPTER I
Preliminary
1. Short title, extent and commencement.—(1) This Act may be
called the Jammu and Kashmir Heritage Conservation and Preservation
Act, 2010.
(2) It shall come into force on such date as the Government may, by
notification in the Government Gazette, appoint:
Provided that different dates may be appointed for different
provisions of this Act and any reference in any such provision to the
commencement of this Act shall be construed as a reference to the
coming into force of that provision.
2. Definitions.—In this Act, unless the context otherwise
requires,—
(a) “authority” means the Jammu and Kashmir Heritage
Conservation and Preservation Authority constituted under
section 7;
(b) “conservation” means protection, preservation and restoration
of heritage sites/areas, heritage precincts, buildings, artifacts,
handicrafts, paintings, fabrics etc. and shall include only such
developmental activity that will enhance the heritage
significance of the heritage site within the frame work of this
Act;
(c) “development” means the carrying out of construction of
buildings, engineering, mining or other operations in, or over,
or under, land; or making of any material change in any
building or land; or in the use of any building or land; or
change to a heritage site including any material or structural
change in, or painting of, heritage building; or in a heritage
precinct; or on a listed natural feature; and includes demolition
of any existing building, structure; or erection of part of such
building, structure or erection and reclamation, redevelopment,
layout and sub-division of any land ; and “to develop” shall be
construed accordingly;
(d) “development right” means the right to carry out development
or to develop land or building or both and shall include the
“transferable development right” in the form of right to utilize
the floor area ratio/floor space index of land utilizable either
on the remainder of the land partially reserved for public
purpose or elsewhere, as may be provided in the heritage
regulations or as per the Master plan for the area;
(e) “director” means an officer authorized by the Government, by
notification in the Government Gazette, to exercise the powers
conferred, and to discharge the duties imposed, on the Director
under this Act;
(f) “documentation” means formal recording of characteristics or
features or details of any tangible or intangible item of heritage
value after conducting survey and research on the same;
(g) “floor area ratio/floor space index” means the ratio derived by
dividing the total covered area of all floors by the area of the
plot;
(h) “Government” means the Government of State of Jammu and
Kashmir;
(i) “grading” means classification of heritage both tangible and
intangible according to its heritage significance and the same
shall determine in the case of tangible heritage, the levels of
intervention permissible in conserving, preserving, maintaining
and upgrading the heritage including sites, buildings, artifacts,
structures, streets, precincts etc. of historic or architectural or
aesthetic or cultural or environmental significance and those
natural features or sites of scenic beauty including, but not
restricted to, sacred groves, mountains, hills, hillocks, lakes,
rivers and other water bodies (and the areas adjoining the
same), open areas, wooded areas, points, walks, rides, bridle
paths etc. and in the case of intangible heritage like music,
dance, drama, the level or nature of preservation or patronage
or promotion required;
(j) “heritage areas” means those areas of archaeological or
historical or architectural or aesthetic or scientific or
environmental or cultural significance including man made and
natural features and sites of scenic beauty (hereinafter referred
to as “listed areas” or “heritage areas”) which are included in a
list(s) published by notification in the Government Gazette, by
the Government, from time to time;
(k) “heritage buildings” means buildings (including artifacts),
structures of historical or aesthetic or architectural or
environmental significance (hereinafter referred to as “listed
buildings” or “heritage buildings”) which are included in a
list(s) published by notification in the Government Gazette, by
the Government, from time to time;
(l) “heritage inspection” means physical examination through spot
visit of the heritage by the authority or Municipal
Commissioner or Collector or Director concerned, as the case
may be, to ensure,—
(i) proper maintenance and conservation of the heritage; and
(ii) to ensure conformity with heritage and environmental
protection standards or requirements;
(m) “heritage precincts” means streets and spaces including those
around a heritage building or a group of such buildings of
which they are part and parcel (hereinafter referred to as
“listed precincts” or “heritage precincts”) which are included
in a list(s) published by a notification in the Government
Gazette, by the Government, from time to time;
(n) “heritage sites” means those buildings, artifacts, structures,
streets, areas and precincts of historic or aesthetic or
architectural or cultural or environmental significance
(hereinafter referred to as “listed sites” or “heritage sites”) and
those natural features of environmental significance and sites
of scenic beauty including, but not restricted to, sacred
groves, mountains, hills, hillocks, lakes, rivers, and other water
bodies (and the areas adjoining the same), open areas, wooded
areas, points, walks, rides, bridle paths etc. which are included
in a list(s) published by the Government, from time to time;
(o) “tangible heritage” means any material or physical heritage
like buildings, structures, artifacts, sculpture, handicrafts,
fabrics, paintings, etc.;
(p) “intangible heritage” means those aspects of culture that are
non-material and abstract like music, dance, drama, poetry,
living heritage like traditional crafts and cuisine and
knowledge systems, folklore, spiritual traditions like yoga and
Sufism, etc.;
(q) “land” means any area of land mass including water bodies;
(r) “listing” means inclusion of any heritage, tangible or
intangible, in a list to be maintained by the Government, from
time to time, after the particular heritage has been declared as a
heritage to be conserved or preserved through a notification in
the Government Gazette by the Government, from time to
time;
(s) “monument” means any ancient monument and site which is
not declared as such, by notification, to be a protected
monument under the Jammu and Kashmir Ancient Monuments
and Preservation Act,1920 and the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (Central Act 24
of 1958);
(t) “natural feature” means those features of environmental
significance and sites of scenic beauty including, but not
restricted to sacred groves, mountains, hills, hillocks, lakes,
rivers, and other water bodies (and the area adjoining the
same), open areas, wooded areas, points, walks, rides, bridle
paths, etc. (hereinafter referred to as “listed natural feature”)
which are included in a list(s) published in the newspapers by
the authority or Municipal Commissioner or Collector or
Director as the case may be, from time to time;
(u) “object” means any material or physical entity;
(v) “owner” includes :—
(i) a joint owner invested with power of management on his
own behalf and other joint owners and successors in title
of any such owner; and
(ii) any manager or trustee exercising powers of management
and the successor-in-office of any such manager or
trustee;
(w) “place” means any geographical area or space;
(x) “prescribed” means prescribed by rules made under this Act;
(y) “preservation” means redeeming or saving any cultural
heritage, tangible or intangible, from decay and fading away to
protect and patronize it;
(z) “regulations” means regulations made under section 20 of this
Act;
(z-i) “rules” means the rules made under section 19 of this Act;
(z-ii) “site” means areas, spaces, places, precincts, etc.;
(z-iii) “survey” means preliminary investigation of any tangible or
intangible item or object of apparent heritage value with a
view to undertake research and documentation of the same
and its subsequent listing for its protection or preservation.
CHAPTER II
3. Declaration of tangible heritage and heritage sites, etc.—(1)
The Government may, on the recommendation of the authority or
Municipal Commissioner or Collector or Director as the case may be,
from time to time, by notification in Government Gazette declare
buildings, artifacts, sculptures, paintings, photographs, or structures,
streets, areas and precincts of historic or architectural or aesthetic or
cultural or environmental significance and sites of scenic beauty,
including but not restricted to, scared groves, mountains, hills, hillocks,
lakes, rivers, and other water bodies (and the areas adjoining the same),
open areas, wooded areas, points, walks, rides, bridle, paths as heritage
or heritage site to be protected, and grade them as prescribed by the
regulations, under this Act:
Provided that such declaration is made after survey, research,
documentation and grading of the heritage has been undertaken by the
concerned authority.
(2) Where the authority is of the opinion that it is necessary so to
do, it may, from time to time, by notification in Government Gazette, and
also by publication in leading newspapers, give thirty days notice of its
intention to declare any building, artifacts, structures, streets, areas and
precincts of historic or architectural or aesthetic or cultural or
environmental significance and a natural feature of environmental
significance and site of scenic beauty, including but not restricted to,
scared groves, mountains, hills, hillocks, lakes, rivers, and other water
bodies (and the areas adjoining the same) open areas, wooded areas,
points, walks, rides, bridle, paths etc. as heritage or heritage site from
protection under this Act, for inviting objections or suggestions in
writing from any person or the public or any organization and any such
notification and newspaper publication shall be affixed in a conspicuous
place near the site.
(3) On expiry of the said period of thirty days, the authority may
recommend to the Government for declaring any building, artifacts,
structures, street, precinct, area, or natural features to heritage or heritage
site, as the case may be, under sub-section (1).
(4) A heritage site so declared shall be graded according to its
heritage significance by the authority and the authority will also
determine the scope for change in the heritage site, if so required.
4. Acquisition of heritage site.—The Government may, by
notification in the Government Gazette, from time to time, acquire or
take possession of any heritage or heritage site for maintenance.
5. Temporary Protection Order.—If the authority considers that
a property has, or may have, heritage value or environmental
significance, or scenic beauty and is likely to be altered for any reason,
whatsoever, it may by order prohibit the owner or lessee, from making
any alteration of the property for a period of one hundred and twenty
days subject to such conditions or requirement as the authority may
consider appropriate:
Provided that within the said period, the Government may declare
such property as a heritage or heritage site, as the case may be, in
accordance with the provisions of this Act.
6. Declaration of intangible heritage like music, dance, drama
etc.—(1) The Government may on the recommendations of the authority
or Municipal Commissioner or Collector or Director, as the case may be,
from time to time, by notification in the Government Gazette declare
cultural items like music, dance, drama, living traditions like local crafts
and cuisines, knowledge systems, folklores, spiritual traditions like
Yoga, Sufism etc. as heritage to be protected under this Act after
conducting survey, research and documentation and grading them.
(2) Where the Government is of the opinion that it is necessary to
do so, it may, from time to time, by notification in the Government
Gazette and also by publication in leading newspapers give thirty days
notice of its intention to declare a particular cultural feature/ item such as
music, lyrics, dance, drama as heritage to be preserved, promoted and
patronized under this Act for inviting objections/suggestions from
general public.
(3) On the expiry of the said period of 30 days, the Government
may after considering the objections and suggestions, if any, received by
it, declare by notification in the Government Gazette the particular
cultural feature/item like music, dance, drama etc. to be heritage.
(4) A heritage item so declared shall be preserved, promoted and
patronized by the Government.
(5) A heritage or heritage site so declared shall be graded
accordingly to its heritage significance by the authority and the authority
shall also determine the scope for change in the heritage site, if so
required.
CHAPTER III
7. Constitution of Authority.—The Government may, by
notification in the Government Gazette, constitute an Authority known as
the “Jammu and Kashmir Heritage Conservation and Preservation
Authority” for the purposes of exercising powers and performing the
functions assigned to it under this Act.
8. Constitution of Executive Committee.—There shall be an
Executive Committee which shall co-ordinate and implement the
decisions of the Heritage Conservation and Preservation Authority. The
said Executive Committee shall consist of such persons, not exceeding
ten including the Member-Secretary as may be prescribed.
9. Appointment of Officers and staff.—In addition to the
Member Secretary of the authority, the Government may appoint such
officers and staff to assist the authority in preparation and
implementation of Heritage Conservation Plans as it deem fit. The
Directors concerned shall prepare proposals on the subjects concerning
them for listing, grading, conservation and preservation of heritage etc.
for the consideration and approval of the authority. For this purpose, the
authority may constitute one or more committees as provided for in this
Act and the Director concerned shall be the Convener of the said
Committee. The Director concerned shall invariably submit all
papers/proposals so prepared by him or the Committee to the Heritage
Conservation and Preservation Authority through the Executive
Committee.
CHAPTER IV
10. Preparation, approval and sanction of Heritage
Conservation and Preservation Plans.—(1) The authority shall within
such time as may be prescribed have the Heritage
Conservation/Preservation Plans in respect of both tangible and
intangible heritage prepared by the concerned Commissioners or
Collectors or Directors or Committees.
(2) Such Plans may propose or provide for all or any of the
following matters, namely:—
(a) regulations for preservation, conservation and administration
of heritage (objects, buildings, sites etc.);
(b) listing and grading of heritage;
(c) prescription for development control for conservation of
heritage;
(d) specific urban/rural design proposals in the case of heritage
sites in order to preserve and protect the character of the area;
(e) proposals for incentives such as tax exemption, transfer of
development rights or acquisition of property, if found
necessary for the protection of heritage or heritage sites;
(f) proposals on a case to case basis, for any relaxation to
development control regulations necessary for the protection
and enhancement of the heritage value of the heritage/sites:
Provided that all such provisions of the Heritage Conservation Plans
shall as for as possible, be in conformity with the existing laws on the
relevant subject/ building by-laws applicable to local bodies and Master
Plan for the respective localities.
(3) After submission of the Heritage Conservation Plans but not
later than such date as may be prescribed, the Government may, after
consulting the authority, either approve such plans or approve them with
such modifications as the Government may consider necessary or return
them to the authority to modify the plans or prepare fresh plans in
accordance with such directions as the Government may issue in this
behalf and the modified plans as prepared by the authority shall be
resubmitted to the Government for its approval.
(4) The Heritage Conservation Plans approved by the Government
shall be published by the Government by notification in the Government
Gazette and leading newspapers published in the State for inviting
suggestions or objections from the public. If objections and suggestions
are received from the public within the stipulated period, the
Government shall consider the same and after getting opinion of the
authority, modify the Heritage Conservation Plan accordingly, if
necessary and grant sanction to the same:
Provided that once the said plans are prepared by the authority, all
permissions for development that might affect the heritage/heritage sites
shall be in conformity with the said plans.
(5) If any heritage/heritage site has not been listed / incorporated in
the Heritage Conservation Plan, the authority may, from time to time,
issue a notice in leading newspapers published in the State to give the
same, the status of heritage/heritage site inviting objections and
suggestions within thirty days from the publication of the notice.
(6) After the expiry of the period specified in sub-section (5) and
after considering the objections and suggestions, if any, the authority
shall, if it finds fit, recommend to the Government that the object/
property be declared as a heritage/heritage site and the Government may
declare the same accordingly.
CHAPTER V
11. Development Control.—(1) After the date of preparation of
the Heritage Conservation Plans by the authority under section 12, all
licenses, building licenses, Planning permissions affecting Heritage
objects/sites including the views and lines of sight of or from them shall
be issued by the local planning authority, municipal body, local body or
Collector/Director concerned only in conformity with the provisions of
the heritage regulations made and the Heritage Conservation Plans
approved, and on the advice of the authority or of the Heritage
Conservation Committees constituted by the authority under this Act.
(2) Any relaxation of the existing laws/building bye-laws or
incentives provided under a Heritage Conservation Plan or otherwise
shall require the owner, lessee or power of attorney holder, as the case
may be, to execute an undertaking agreeing to maintain the listed
heritage object/building in good condition/ state of good repair and to
preserve its heritage value with due maintenance and such owner, lessee
or power of attorney holder, as the case may be, shall permit heritage
inspections after due notice by the authority and shall duly implement the
suggestions made in this regard.
(3) The owners, lessees and power of attorney holders of listed
heritage objects/sites shall not carry out development on heritage
objects/sites nor shall they demolish, alter, or add to them or undertake
repairs thereof, without the prior permission of the authority or of the
Heritage Conservation Committee constituted by the authority. Such
permissions may be refused or granted, as the case may be, based on the
findings of the inspections carried out by the authority or Municipal
Commissioner or Collector or Director, as the case may be, or the
Heritage Conservation Committee or any officer authorized by the
authority.
(4) In case demolitions or major changes of a heritage object or
building or a building in heritage precinct, or a major development on a
listed natural feature is recommended under extraordinary circumstances
or major repairs are to be undertaken as a result of the heritage
inspections report, the authority or the Heritage Conservation Committee
shall give thirty days notice in the news- papers calling for objections
and suggestions from the public and take a decision after considering the
objections and suggestions received, if any.
(5) If the authority or the Heritage Conservation Committee comes
to the conclusion that a listed heritage object/site is not being maintained
properly or that such site needs repair, the authority shall serve a notice
on the owner, lessee or power of attorney holder, as the case may be, to
maintain the heritage object/site properly or to repair the object/site
within thirty days of the service of the notice and in the event of non-
compliance, the authority or the Heritage Conservation Committee shall
take such steps as to carry out the necessary repairs and recover the cost
from such owner, lessee or power of attorney holder, as the case may be,
and if the latter fails to make the payment, the amount shall be
recoverable by the Government as arrears of land revenue.
(6) Conservation cells shall be created by the authority for the
maintenance and restoration of all listed heritage object, buildings,
heritage sites and heritage areas which shall be headed by a Chief
Architect/Chief Conservationist with such specialization in architecture
and conservation of artifacts as may be prescribed.
(7) Such Chief Architect/Chief Conservationist shall be supported
by technical staff with prescribed qualifications and shall follow the
prescribed and established guidelines for the conservation of such
heritage objects/buildings and sites.
12. Control of Changes/Distortions/Tampering in/of Intangible
Cultural Heritage.—The Government or authority shall control
changes/distortions/tampering etc. in/of intangible Cultural Heritage like,
music, poetry, traditional knowledge systems, living traditions like crafts
and cuisines etc. by devising such Scientific Documentation Methods/
Heritage Patent Regimes/Intellectual Property Rights/Community Rights
over such Intangible Cultural Heritage, as may be prescribed.
CHAPTER VI
13. Finance.—(1) The Government may constitute a fund known
as the “Jammu and Kashmir Heritage Conservation and Preservation
Fund” for the purpose of,—
(a) maintenance and improvement of heritage objects, areas,
buildings, heritage precincts and heritage sites and
environmentally sensitive areas; and
(b) preservation and promotion of intangible cultural heritage.
(2) The Heritage Conservation and Preservation Fund would have a
“Corpus Money” to the tune of Rupees 50 crores which shall be
earmarked by the Government.
(3) The Government may, from time to time, allocate to the Fund
moneys from the Consolidated Fund of the State and contribution to the
fund may also be received by way of donations, grants, etc. from
individuals, trust, local bodies companies and other agencies towards
heritage conservation.
(4) Moneys may be advanced by the Government to the authority,
as grants or loans, on such terms and conditions as the Government may
determine, for the performance of its functions under this Act.
(5) The said fund shall be administered by the Government and
audited by the Accountant General every year.
(6) Every local body/concerned departments in the State shall
contribute such moneys to the fund account of the authority as the
Government may specify from time to time.
(7) The authority shall utilize the fund for meeting:—
(a) the cost of acquisition of heritage objects, building, artifacts,
handicrafts or heritage precincts or heritage area for the
purpose of conservation;
(b) the expenditure for any development or works on any tangible
heritage and preservation and promotion of any intangible
cultural heritage as contemplated in the Heritage Conservation
and Preservation Plan.
(8) The authority may disburse funds to the owners, lessees or
power of attorney holders of listed heritage objects/buildings, artifacts,
handicrafts, paintings etc. even if they are private, for maintenance of
the buildings, artifacts/handicrafts/paintings in good condition, if such
maintenance are found necessary. Besides, funds/ incentives may be
given to individuals/groups/communities for preserving intangible
cultural heritage.
(9) The authority shall approve every year, a budget in respect of
the next financial year with its estimated receipts and expenditures under
the fund.
CHAPTER VII
14. Dissolution of the authority.—(1) Where the Government is
satisfied that the purposes for which the authority was established under
this Act have been substantially achieved so as to render the continued
existence of the authority in the opinion of the Government, unnecessary,
the Government may, by notification in the Government Gazette, declare
that the authority shall be dissolved with effect from such date as may be
specified in the notification and the authority shall be deemed to have
been dissolved accordingly.
(2) From the said date,—
(a) all properties, funds and dues which are vested in, or realizable
by the authority shall vest in, or be realizable by the
Government;
(b) all liabilities which are enforceable against the authority shall
be enforceable against the Government; and
(c) for the purpose of carrying out any development or
promotion/preservation activity which has not been fully
carried out by the authority and for the purpose of realizing
properties, funds and dues referred to in clause (a), the
functions of the authority shall be discharged by the
Government.
15. Penalties.—(1) Whoever contravenes any provisions of
this Act or the rules and regulations made thereunder or fails to comply
with any direction or order lawfully given to him or any requisition
lawfully made upon him, shall on conviction, be punished with
imprisonment for a term which may extend to three years and with fine
which may extend to ten thousand rupees, or with both and for any
subsequent offence, with fine which may extend to five thousand rupees
for every day of continuance of offence thereafter.
(2) In case of wilful damage, neglect, demolition or major change
to the whole or portion of a heritage/heritage site, the offender shall
forfeit his right to construct any further structure on the site or to carry
out any further development on the heritage and the undoing of the
development/removal of the structure already constructed in
contravention of the provisions of this Act or the rules, regulations or
orders made or issued thereunder, shall be at the cost of the owner, lessee
or power of attorney holder, as the case may be, or even the agent/builder
making the construction/development.
16. Composition of offences.—(1) The authority by general or
special order in this behalf, may in special circumstances and for reasons
to be recorded in writing, either before or after the institution of the
proceedings, compound any offence made punishable by or under this
Act:
Provided that no offence shall be compoundable which is
committed by failure to comply with a notice, order or requisition issued
by or on behalf of the authority unless and until the same has been
complied with so far as the compliance is possible.
(2) Where an offence has been compounded, the offender, if in
custody, shall be discharged and no further proceedings shall be taken
against him in respect of the offence so compounded.
17. Court competent to try offences under this Act.—No Court
inferior to that of a Sessions Court shall try any offence punishable under
this Act.
18. Protection of action taken in good faith.—No suit,
prosecution or other legal proceedings shall lie against any person for
anything which is in good faith done or intended to be done in
pursuance of this Act or of any rules or regulations made thereunder.
19. Power to make rules.—The Government may, by notification
in the Government Gazette, make rules to carry out all or any of the
purposes of this Act including constitution of an authority under section
7 and prescription of the date for approval of conservation plans by the
Government.
20. Power to make regulations.—(1) The authority may make
regulations concerning any matter which is to be, or may be, prescribed
under this Act.
(2) Without prejudice to the generality of its powers, under sub-
section (1), the authority may make regulations to provide for all or any
of the following matters:—
(a) gradation of heritage both tangible and intangible declared as
such for protection and preservation under the Act;
(b) prescription of the specialization in architecture/conservation
as required for the Chief Architect/Chief Conservationist
respectively to head the conservation cells;
(c) prescription of the qualifications of the technical staff of the
Chief Architect/Chief Conservationist;
(d) prescription of the guidelines to be followed by the Chief
Architect/Chief Conservationist for conservation of heritage
building, artifacts and sites;
(e) prescriptions of guidelines to be followed by Directors
concerned for preservation and promotion of intangible
heritage;
(f) any other matter which is to be, or may be prescribed under
this Act.
21. Powers to remove difficulties.—If any difficulty arises in
giving effect to the provisions of this Act, the Government may, by
order, do anything which appears to it to be necessary for the purpose of
removing the difficulty:
Provided that no such order shall be made after the expiry of two
years from the date of commencement of this Act.
_____