ORDER
M.C. Jain, J.
1. This writ petition can be disposed of on a very short point regarding
the invalidity of the notification dated February 9, 1979 (Annx. 3). However, a few relevant facts may briefly be stated.
2. There is a ‘Jag Mandir Palace’ situated in Pichhola Lake in Udaipur City. In the year 1962, Maharana Bhagwatsingh, Ex-Ruler of Mewar sold Jag Mandir Island along with Sister-Island Jag Niwas and other properties to the petitioner-company by means of a registered sale-deed. The Government of Rajasthan published a notification under Sub-section (1) of Section 3 of the Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 (Act No. 19 of 1961) in the Rajasthan Gazette dated January 12, 1967 proposing to declare, inter alia, Jag Mandir Palace, Udaipur as a protected monument. The Jag Mandir was mentioned at S. No. 187 in the said notification with the following description in column No. 5. The relevant part of the notification (Annx. 2) reads as under : —
“EDUCATION IV DEPARTMENT
No. F.4(13)Edu./IV/66.
Whereas the monuments named below are proposed to be declared as protected, the Government of Rajasthan in exercise of the powers conferred by Sub-section (1) of Section 3 of the Rajasthan Monument, Archaeological Sites and Antiquities Act, 1961 (Act No. 19 of 1961) hereby gives notice of its intention to do so.
Any objection made by any interested person within two months from the date of affixing this notification shall be considered by the Government.
S. No.
Name of Monument Site Antiquity
Locality
District
Importance
1
2
3
4
5
187.
Jaga Mandir
Udaipur
Udaipur
Historic Palace on an island; situated inside the Pichhola lake at Udaipur, Prince Khurram – later an emperor Shah Jahan was made to stay here during exile. Date : 17th Century A. D.”
3. Objections were filed by the petitioner within time under Sub-section (3) of Section 3 of the Act of 1961, but objections have not been disposed of and no action has been taken thereon. After a lapse of about 12 years, the Government of Rajasthan published another notification No. 20(45)Edu./lV/79 dated February 9, 1979 declaring the building The whole Jag Mandir in the island of Pichhola Lake as a protected monument under Sub-section (4A) of Section 3 of the Act of 1961 as amended by Act No. 2 of 1976. The said notification reads as under :–
The above notification was published in the Rajasthan Gazette (Extraordinary) dated February 13, 1979 (Annex. 3).
4. The petitioner has challenged both the notifications Annexs. 2 and 3. So far as Annx. 3 is concerned, the ground of challenge, inter alia, is that the notification does not record the reasons for Government satisfaction that there exists immediate danger of removal or destruction of the monument. According to the petitioner, the notification is bad in the eye of law on the aforesaid ground that it does not state the reasons of such satisfaction of the Government.
5. Reply to the writ petition has been filed and rejoinder has also been filed. I need not state the averments made by both the parties in their respective pleadings. The material pleadings relating to the question on which the petition is being disposed of, shall be taken into consideration. The respondents in their reply stated that the documents, which have been filed along with reply, clearly make out that the Government was satisfied that the building in question is in immediate danger of change and destruction. The building is a historical monument and the same would be evident from the letter dated October 27, 1978 of the Director, Achaeological and Museum Department, Rajasthan, and from the note-sheet signed by the concerned Minister and the Chief Minister, wherein, objections raised by the petitioner, have been considered. The note-sheet also makes it clear that the building is a historical one and needs protection by the State by declaration as a protected monument. A photo of the Brass-plate fixed on the building was also produced, which also goes to show that the Jag Mandir is a historical monument.
6. On behalf of the petitioner, it is urged that the notification (Annx. 3) does not specify the essential requirement of Section 3(4A) of the Act of 1961, asmuch as notification does not embody the reasons of the satisfaction of the Government in respect of the monument in question that there is an immediate danger of its removal and destruction. When the essential requirement of this notification is not fulfilled in Annx. 3, then, the notification is bad.
7. Mr. L. R. Mehta, learned counsel for the petitioner in order to support his contention placed reliance on a decision of the Supreme Court in Narayan Das Indurkhya v. State of M.P., AIR 1972 SC 2086. In that case, the State Government had forfeited the copies of books under Section 4(1) of the Criminal Law (Amendment) Act, 1961. Section 4(1) of the Act empowers the Government to declare every copy of the issue of the newspaper containing such matter and every copy of such book or other document to be forfeited to the Government, the publication of which is punishable under Section 2 or Section 3(2) but the Government is required to do so by publishing a notification in the official Gazette stating the grounds of its opinion. In that case, the opening paragraph of the order merely quoted a portion of the words of Section 2 merely, that the books “questioned the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety or security of India.” The order gave no indication of the facts or the statement or the representations contained in the book which according to the State Government offended Section 2. In the order itself, there was no reference to any map or any text in the book, which would come within the mischief of the said section. The order gave no indication which formed the reasons for Government taking the view that the book should be forfeited. The State Government merely gave its opinion and not the grounds for its opinion. Clearly the grounds must be distinguished from the opinion. The order of the Government was, therefore, quashed.
8. In the present case, the notification simply records that the Government is satisfied that the monument in question is of historical importance, and there is immediate danger of its removal or destruction. No reasons have been assigned in respect of such satisfaction. Only the language of the provision has been used in the notification. The necessary facts or reasons on which such satisfaction is based, are nowhere recorded in the notification. Sub-section (4-A) of Section 3 of the Act reads as under : —
“3(4A). Notwithstanding anything contained in Sub-sections (2) and (3) where the State Govt. is satisfied with respect to any monument, archaeological site or antiquity, that there is immediate danger of its removal or destruction, it may instead of proceeding under the said sub-sections, by notification in the official Gazette and for reasons of its satisfaction to be recorded in such notification, forthwith make a declaration under Clauses (i), (ii) or (iii) as the case may be of Sub-section (4) in respect of any such monument, archaeological site or antiquity :
Provided that any person interested in any such monument, archaeological site or antiquity may, within two months after the publication of such notification object to the declaration so made and the State Government after giving to such person an opportunity of being heard, may by order in writing dismiss the objection of or withdraw the notification.
9. A perusal of the above provision would make it clear that the legislature very clearly provided that the notification must contain the reasons of satisfaction of the State Government. It may be mentioned that the underlying idea is that when objections can be filed after the declaration is made by the State Government in the notification issued under Section 3(4A) of the Act of 1961, the objectors should have due notice of the mind of the State Government regarding the reasons of the requisite satisfaction. Here is the provision where the persons interested have been given an opportunity of hearing after completion of the act i.e. declaration by the State Government of any property to be treated as monument, Archaeological Sites or Antiquities. Such power has been conferred on the State Government only with a view to protect the property, where such properties are in immediate danger of being removed or destroyed. The power can be exercised by the Government by issuance of the notification under Section 3(4A) of the Act of 1961, but while exercising such power, the legislature made it clear that the notification must provide the reasons of satisfaction of the State Government. If there are no reasons of such satisfaction then such power is not open to be exercised at all by the State Government under Section 3(4A) and if the reasons exist, then they have to be recorded in the notification.
10. The learned Advocate General on behalf of the State of Rajasthan with all emphasis submitted that the reasons have been clarified by the respondents in their reply and in the documents submitted along with the reply and this Court while considering the question of validity of the notification, should consider those reasons. The notification, should not be treated to have been rendered invalid solely on this technical aspect that the notification does not record the reasons of satisfaction of the State Government. I am unable to agree with the contention of the learned Advocate General. When once the Government chooses to act under Section 3(4A), then it is obligatory for the State Government to state in the notification the reasons of its satisfaction regarding the fact that there is immediate danger of removal or destruction of the monument else the power cannot be exercised by the State Government. The notification extracted above, simply states that the Government is satisfied. On what material and facts and for what reasons, the Government is satisfied are not recorded in the notification. The case relied upon by Mr. LR. Mehta, learned counsel for the petitioner fully applies to the notification in question. Recording of satisfaction in the notification is there but the reasons of satisfaction are missing. There may be good reasons with the State Government but if the essential requirements of law are not fulfilled in the notification, then, it is not open to canvass that there were good reasons on which, the State Government was satisfied for issuance of the notification under Section 3(4A) of the Act of 1961.
11. In the light of the above discussion, I find force in the submission of the learned counsel for the petitioner that the notification is bad and it is liable to be struck down. So far as the notification Annx. 2 is concerned, it is not necessary to strike it down as no final action has so far been taken in pursuance of that notification.
12. In the result, this writ petition is partly allowed, the notification (Annx. 3) is quashed and set aside and consequential orders Annx. 6 dated 12-2-79 and Annx. 11 dated 9-12-82 automatically fall. However, it would be open to the State Government to take fresh action in accordance with law if so advised.
13. The parties shall bear their own
costs.