Heard.
The petitioners have filed this petition against the orders dated 29-06-2012 cumulative marked as Annexure P-1/1 to Annexure P-1/10.
By the aforesaid orders, the Chief Municipal Officer, Municipal Council rejected the representation of the petitioners. Earlier, this Court issued a direction to consider the representation of the petitioners.
The contention of the petitioners in this petition is that they had made construction prior to notification issued by appropriate Government under the provisions of the Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Rules, 1976. The authority has observed that the petitioners did not place any material to substantiate their claim that they had made construction prior to notification of the Rules. Earlier, this Court vide order dated 20-01-2012 disposed of Writ Petition No. 5015/2011 with the following observations:-
“The State Government declared the Fort of Vijaypur as protected monuments under sub Section 1 of Section 3 of the Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964 (hereinafter referred to as ‘the Rules of vide gazette notification dated 12th September, 1986. Thereafter a notification on 10 March, 1999 under sub Rule 1 of Rule 28 of the Madhya Pradesh Ancient Monuments and Archaeological Sites and remains Rules, 1976 (hereinafter referred to as the ‘Rules of 1976’) was issued and notified that the area of 100 mtrs. and thereafter 200 mtrs. is restricted in regard to construction and mining of protected monuments.
Section 16 of the Act of 1964 prescribes preservation of amenities of protected monuments. Sub-section 5 of the Section 16 of the Act of 1964 gives protection in regard to construction made prior to notification near the monuments. The relevant Section is as under:-
16. Preservation of amenities of protected monuments.(1) x x x x x
(2) x x x x x
(3) x x x x x
(4) x x x x x
(5) Nothing contained in any notification under sub-section (1) shall affect any building, structure or other work or any alteration or extension thereof, if it was constructed, erected, or executed before the date when notice of intention to issue such a notification was given under sub-section (2), and for the purpose of this provision a building, structure, or other work and any alteration or extension thereof shall be deemed to have been constructed, erected or executed before that date:
(a) if its construction, erection or execution was begun before that date; or
(b) if, and so far as, it is construction, erection or execution was necessary for the purpose of performing a contract made before that date.
From the perusal of the aforesaid Section, it is clear that if a building or construction was made before the date of notification then the aforesaid construction is saved.
Sub Rule 1 of Rule 28 of Chapter VI of Rules, 1976, prescribes notice of intention to declare a prohibited or regulated area. The aforesaid rule is as under:-
28. Notice of intention to declare as prohibited or regulated area. (1) Before declaring an area near or adjoining a State protected monument to be a prohibited area or a regulated area for purposes of mining operation or construction or both, the State Government shall, by notification in the official gazette give one month's notice of its intention to do so and a copy of such notification shall be affixed in a conspicuous place near the area.”
From the perusal of the aforesaid provisions of Act of 1964 and the Rules of 1976, it is clear that if the construction was made prior to notification then it is saved.
The case of the petitioners is that the petitioners had made construction prior to notification Annexure-R/1, dated 10-3-1999. In this view of the matter, this writ petition is disposed of with the following directions:-
i) The Nagar Panchayat Vijaypur, District Sheopur shall conduct an enquiry to the fact as to whether the petitioners made construction prior to 10 March, 1999 or not.
ii) If the the construction is prior to the aforesaid date, then the construction is saved in view of the Section 16(5) of the Act of 1964.
iii) No order as to costs.”
Thereafter, the Chief Municipal Officer considered the documents of the petitioners and observed that the petitioners did not take permission for construction. They did not produce electricity bills to substantiate their claim that their construction was prior to 10 March, 1999.
In the present petition also, the petitioners did not file any document to the effect that they had taken permission from the Municipal Council for construction. Only a letter has been filed by the petitioners to the effect that certain plots have been allotted to them. In our opinion, on the basis of the aforesaid letter, which is a letter of allotment of plots [Annexure P-5], it could not be held that the petitioners had made construction prior to 10 March, 1999. In such circumstances, there is no merit in this writ petition. It is hereby dismissed.
No order as to costs.