Allowed

Paresh Rajesh Badnore v. the State of Maharashtra and Others

Bombay HC30 Oct 2018PIL/17/2016

Case brief

AI extract

What is this about?

PIL petitioner sought directions to create a 24-meter approach road between Biwi-ka-Maqbara and Aurangabad Caves, improve drainage, and implement Eco-friendly lighting. The court directed the Respondents to immediate road construction within six months and authorized TDR/FSI if land acquisition is needed, with costs to be recovered from the State.

What did the court decide?

Directions to construct the road within six months; State to provide funds; TDR/FSI granted if land acquisition is required; Archaeological Department to oversee beautification.

Paresh Rajesh Badnore Vs the State of Maharashtra and Others — Land Acquisition | Bombay HC (2018)

¶1

¶2

PIL No. 17-2016.odt

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

BENCH AT AURANGABAD

¶5

PUBLIC INTEREST LITIGATION NO. 17 OF 2016

¶6

Paresh S/o Rajesh Badnore, Age : 30 Years, Occ. Tourist Guide, Translator R/o. Pahadsinghpura, Aurangabad. ..PETITIONER

¶7

1]	VERSUS The State of Maharashtra Through Principal Secretary, Department of Urban Development Mantralaya, Mumbai. 400 032
2]	The State of Maharashtra
3]	The state of Maharashtra, The Collector, Aurangabad 431 001.
4]	Archaeology Survey of India Through its Superintendent, Aurangabad Circle, Aurangabad
5]	Aurangabad Municipal Corporation, Through its Commissioner, Aurangabd- 431 001
6]	Heritage Conservbation Committee, Aurangabad Municipal Corporation, Through its Chairman, Jayant Deshpande, Retired IAS, Friends Colony, Aurangabad.
7]	The State of Maharashtra ..RESPONDENTS Through Chief Engineer, P.W. D. Aurangabad
	… Advocate for the petitioner : Mr. R. A. Jaiswal GP for Respondents : Mr. A. B. Girase, AGP : Mr. S. J. Salgare, Advocate for respondent no.5 : Mr. A. P. Bhandari

¶8

¶9

PIL No. 17-2016.odt

¶10

CORAM :T.V. NALAWADE AND

¶11

SMT.VIBHA KANKANWADI,JJ.

¶12

Judgment reserved on : 12.10.2018 Judgment pronounced on : 30.10.2018

¶13

JUDGMENT ( Per T.V. NALWADE, J] :-

¶14

Rule. Rule made returnable forthwith. By consent heard both the

¶15

sides for final disposal.

¶16

2] Present proceeding is filed under Articles 226 of the Constitution of India for giving direction to respondents, State Government, Aurangabad Municipal Corporation and Archaeological Department of the State Government to see that the work of creating and construction of approach road having 24 meters width which is in the development plan of the city and which is between the ancient monument, Biwi-kaMaqbara and Aurangabad Caves is immediately done. The prayer is also made to see that proper Eco-friendly street lights are fixed on both the sides of this road. Prayer is also made to see that in survey no. 38 of Pahadsinghpura the tree plantation is properly raised and its upgradation is done and proper water supply and drainage system is created in this area for preservation of the ancient monuments. The relief is claimed to give proper TDR or FSI, if some portion of the land situated between the two sides is required to be acquired. The lands are mentioned in the petition, the portion of which needs to be acquired for aforesaid purposes.

¶17

¶18

PIL No. 17-2016.odt

¶19

3] The Assistant Director of Town Planning has filed reply affidavit and he has contended that the local body Municipal Corporation is duty bound to implement the development plan sanctioned and finalized by the State Government. It is contended that some procedure would be required to be followed like acquisition of some portion of land for creation of the sanctioned road and there would necessity to remove unauthorized structures and encroachments made on the said portion. It is contended that proper steps will be taken to take care of existing tree plantation mentioned in the petition. It is contended that when there is acquisition, as per the rules and regulations, the TDR or FSI can be given and there is Development Control Regulations Rules of 2008 in that regard.

¶20

4] It is not disputed that under the provision of The Ancient Monument and Archaeological Sites and Remains Act 1958 ( herein after referred to as 'The Central Act') structure viz Biwi-ka-Maqubara is declared as ancient monuments of national importance. Aurangabad caves are covered by the State Act on this subject. It is also not disputed that in view of the provisions of Constitution of India like Articles 49, entry No.7 of list I of the Constitution of India and entry no. 12 of said list the first structure is within domain of central Government. The definition of The 'archaeological site and remains' is given in Section 2(d) is as under :-

¶21

4 PIL No. 17-2016.odt

¶22

2(d) ' archaeological site and remains' means any area

¶23

which contains or is reasonably believed to contain ruins

¶24

or relics of historical or archaeological importance which have been in existence for not less than one hundred

¶25

years ad includes-

¶26

(i) Such portion of land adjoining the area as may be

¶27

required for fencing or covering in or otherwise preserving it and

¶28

( ii) the means of access to, and convenient inspection of the area''

¶29

In the State Act similar provisions are there but the age of

¶30

structure needs to be 50 years. Aurangabad caves were created in around 400 A.D. The aforesaid provision show that this is the responsibility of the Central Government to see that proper access is created for approaching the ancient monument of National importance. There is similar liability of the State for caves. Thus it is responsibility of the Central Government and the State Government to create and maintain proper roads for having access and for having inspection of the area. In the present matter, Archaeological department of the Central Government is made a party respondent, though Central Government is not made party respondent and so this Court holds that it can be presumed the Central Government is represented by proper authority

¶31

5 PIL No. 17-2016.odt

¶32

under this Act. There are many other provision in the Central Act showing powers and also responsibility of the Central Government with regard to ancient monuments which are declared as of national importance. Aurangabad caves can be declared as of national importance in view of their age and that needs to be done immediately.

¶33

5] It appears that in spite of the provisions made in the Central Act and the State Act which are mentioned above, the central Government and State Government have not created proper approach roads for these places. It is true that under Maharashtra Municipal Corporation Act, 1949, it is the obligation of the Corporation also to create and maintain the roads which are shown in the development plan of the city, but when there are structures of national importance as mentioned above, the funds needs to be provided by the Central Government. If the proper implementation of the provision of Corporation Act is not done by the local body, it is always open to the State Government to step. This way, the Central Government or State Government need to create and maintain the access roads for approaching and for inspection of the ancient monuments of national importance. In PIL No. 29 of 2015 decided on 22.10.2018, this Court has already suggested to the State Government to see that the caves are covered by the Central Act.

¶34

The submissions made and the record produced show that

PIL No. 17-2016.odt

the number of visitors, tourist who come to visit Biwi- ka-Maqbara is comparatively higher, many times more than visitors visiting to Aurangabd Caves . Aurangabd Caves are also of importance and for the present purpose their description needs to be given which is as under :-

¶39

Pre-history caves of Aurangabd are 12 caves which are at the distance of 2 K.m from Bibi-ka-Maqbara. In these caves, there are Buddhist excavations comparable to Ajanta and form part of the great network of Buddhist rock-cut sites of Maharashtra. They were made between 2^nd and 5^th centuries and they are ascribed to Satavahana and Kalachuri rulers, the Decean rulers. One of the caves has Chaitya or Shrine for devotion and has monolithic stupa at the end. There are images of teaching Buddha and images of kneeling devotees. In some caves there are images of Bodhisattvas and in one cave there is image of Buddhist Goddess Tara. '' ( The aforesaid history is given on the basis of history given in the book titled as ' Aurangabad with Daulatabad, Khultabad and Ahmednagar' by Pushkar Sohani published in 2015)

¶40

7] It appears that the Central Government has come with a scheme, project like Buddhist circuit. In view of the nature of ancient monuments at this region and particularly the monuments involved in the present matter, Aurangabad Caves, the people not only of this

¶41

¶42

PIL No. 17-2016.odt

¶43

country but other countries would like to visit those caves. Ordinarily the tourist come to place like Aurangabad after studying the history and so they are interested to see such ancient monuments. The Buddhist Caves are not only of national importance but they are of International importance and this circumstances needs to be kept in mind by both the Central Government and the State Government. The Central Government needs to care these structures under the Central Act.

¶44

8] It is unfortunate that the Corporation gives lame excuse that it has no resources and no sufficient funds are available to create and maintain proper access roads for going to such structures. Due to bad conditions of the roads and lot of inconvenience caused to the tourists particularly foreign tourist, the number of visitor has come down drastically over last few years. This area is dry and drought prone area. Not many industries are now coming to this region due to lack of facilities and inconveniences which they are required to face. Considering the historic importance of this region and as these ancient monument were created about four hundred years after Christ, it is necessary for Central Government and to the State Government to take such immediate and proper steps that will help the development of tourism. That will also give employment opportunities to the people of this region and that will help to develop this region at least to some extend. If there are schemes of the Government like Buddhist circuit or heritage city development

¶45

¶46

PIL No. 17-2016.odt

¶47

and fragmentation project, the city like Aurangabad needs to be included in those project and over all development of the city needs to be done by the Central Government and the State Government. It appears that in the year 2015, project of such development was declared but till the end of 2018 nothing is done in that regard. This Court has already made observations about the historical importance of this region in the PIL No. 29 of 2015 ( Mr. Shahid Aslam Vs. The State of Maharashtra and others) . This Court has no hesitation to hold that the road which is shown in the development plan of the city of the width mentioned in the plan needs to be created and maintained by the State Government. For its creation and maintenance the Corporation needs to take steps and Corporation will be entitle to recover the amount spent by it from the Government. In regard to creation of this road, the observations made by this Court for interpretation of various provisions of Corporation Act in the case reported as PIL No. 111 of 2016

¶48

Qudari Sayyed Tabishuddin S/o Gasihuddin Vs. The State of

¶49

Maharashtra and Others decided on 02.08.2017 at this Bench can be used by the Commissioner of local body, Corporation. In the result following order.

¶50

ORDER

¶51

I] The petition is allowed.

¶52

II] Direction is given to local body as prayed in prayer clause

¶53

Nos. (A) and (B) of the petition. It is needless to mention

¶54

¶55

PIL No. 17-2016.odt

¶56

here that as per the rules and regulations, the TDR or FSI can be given by local body or by entering into an agreement, compensation also can be given and that amount can be recovered from State Government. The Archaeological Department of the State Government is directed to take steps immediately to see that beautification of the road and surrounding is done and oversee the road widening.

¶57

III] Aurangabad Municipal Corporation is expected to complete the work within six months from the date of the Judgment.

¶58

IV] The State Government is to make available funds to the Corporation within three months for execution of the aforesaid work.

¶59

V] No litigation is to be entertained in respect of the subject matter of the present petition by subordinate Courts and for clarification etc. the party affected or interested may come to this Court in the present proceeding only.

¶60

VI] Rule made absolute in those terms.

¶61

[SMT.VIBHA KANKANWADI] [T.V. NALAWADE] JUDGE JUDGE

¶62

YSK/

Paresh Rajesh Badnore v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Paresh Rajesh Badnore v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chandrabhan S/O Dhondopant Kolte and Another Vs the State of Maharashtra, Thr. Its Secretary, School Education and Sports Dept., Mumbai and Others

Rajesh Motheba Mhaske Vs the State of Maharashtra and Others

Venkatrao Malharrao Kakade Vs the State of Mah and Ors.

Shahid Aslam Gulam Ahmed Vs State of Maharashtra and Others

Dilip Baban Kate Vs the Union of India, the Ministry of Defence and Ors.

Valmik Pandharinath Wakchaure and Another Vs the State of Maharashtra and Others

Vinod Subhash Thorat and Anr. Vs the State of Maharashtra, the Addl. Chief Secretary and Ors.

Navi Mumbai Environment Preservation Society and Anr. Vs Ministry of Environment, through Secretary, Dept of Environment and Ors.

Kiran Laximanrao Donglikar and Ors. Vs the State of Maharashtra

Dr. Naresh Vasantrao Gavande Vs Meerabai Datta Patil and Anr.

Sunil S/O Kashinath Patil Vs the State of Maharashtra and Other

Nilkanth Apparao Ghaytadak Vs the State of Maharashtra and Ors.

Sitaram Budhaji Shinde and Anr. Vs the State of Maharshtra and Anr.

Sanjay S/O Danchand Ghodawat and Others Vs the State of Maharashtra and Others