Shaikh Shahid Petitioner v. The State Of Madhya Pradesh

Heard counsel for the parties.

This petition essentially takes exception to the decision of the Commissioner dated 21.4.2014 (Annexure P-18). The Commissioner has allowed the appeal preferred by the Respondent No. 18 and, in turn, has set aside the orders passed by the subordinate Authorities refusing permission to Respondent No. 18 on the ground that allowing Respondent No. 18 to put up any structure would violate the provisions of law. The Commissioner, no doubt, has relied on the “Najri Naksha” and has found that the distance between the two spots is around 233.35 meters and then proceeded to decide the matter keeping in mind the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and Rules framed thereunder.

However, the grievance of the petitioner, is that, the issue ought to be answered on the basis of provisions of Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Rules, 1976, which have been framed under the provisions of Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964. The Commissioner has not considered those provisions though applicable to the case on hand, which prohibits any construction in the areas upto 100 meters and further beyond it upto 200 meters from the protected limits near or adjoining to any protected monument of the State for the purposes of mining and construction.

The argument of Respondent No. 18, however, is that the prohibition of construction is only within 100 meters from the protected monument of the State and the activity proposed to be carried out by the said respondent was permissible in the regulated area.

As aforesaid, the Commissioner has not examined these aspects of the matter at all. The issues raised in the present petition are both about the correct location and distance of the land from the protected monument of the State as also about the applicability of provisions of the State Act of 1964 and the Rules of 1976 framed thereunder. Therefore, the Commissioner is obliged to keep in mind all the relevant records that may be relied upon by the parties or to be produced by the Revenue Authorities. After determining the factual position about the actual distance from the monument, the Commissioner may then examine the legal question about the applicability of the State enactment and the prohibition specified as per those Rules and then opine whether the said prohibition is attracted in the fact situation of the present case. All these aspects will have to be considered by the Commissioner in the first place, which, as aforesaid, has been glossed over in the impugned decision.

Accordingly, the impugned decision is quashed and set aside and instead the parties are relegated before the Commissioner for reexamination of the appeal on its own merits, in accordance with law.

As the proposal submitted by the Respondent No. 18 relates back to 13.12.2012 (Annexure P-1), we direct the Commissioner to decide the said appeal proceedings expeditiously and preferably not later than six weeks from the date of receipt of copy of this order. We once again reiterate that all questions of fact and law will have to be considered by the Commissioner on its own merits afresh in accordance with law.

The petition is disposed of accordingly.