UNIVERSE Vs. GOVT OF ORISSA

JUDGEMENT

(1.) The Barabati Fort is an ancient monument as defined under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and a protected monument as notified under Section 3 of the Ancient Monuments Preservation Act, 1904. It is situated in the town of Cuttack historically assessed to have been established in the year 989 A.D. on the confluence of rivers Mahanadi and Kathajodi. As set out in the writ petition, the Fort was constructed by the Third Ananga Bhimadev, who ruled Orissa from 1216 to 1235. The Fort had seen occupation by a series of Rulers including the British. In the year 1915, on 22-3-1915 to be exact, a notification was issued under Section 3 of the Ancient Monuments Preservation Act, 1904 (hereinafter called the 'Preservation Act') declaring the same as a Protected Monument. The notification marked Annexure 1 insofar as it is relevant reads thus:-

(2.) Though the British took some interest in the preservation of ancient monuments in this country, the same cannot be said of some of the State Governments and even the Union Government after independence. After independence, according to the writ petition, no attempt was made to preserve the Barabati Fort notified as an ancient monument. Nothing was also done even after the enactment of Section 126 of the States Reorganisation Act, 1956 or after the coming into force of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter called the 'Remains Act') which repealed Section 126 of the States Reorganisation Act. Even before the coming into force of the Remains Act, the State Legislature enacted the Orissa Ancient Monuments Preservation Act, 1956 with the object of preservation of ancient monuments and objects of archaeological, historical or artistic interests in the State of Orissa. But according to the pleadings in the writ petition, no serious effort was made at the Government level to preserve and protect the ancient fort with its moat, gateway, the historic structure which originally apparently had either seven storeys or seven divisions and other structures. It is seen that a Standing Order was issued by the Government that no permanent building should be constructed in the Fort area. There is a further Standing Order that no building should be constructed out of Government Fund, without selection of a site by the Site Selection Committee, a statutory Committee with the Collector as Chairman. It is seen from the proceeding of the meeting, at the instance of the Chief Secretary of the State of Orissa on 23-4-1989, that there was a consensus that the Barabati Fort area should be kept as a park and be so converted in a phased manner over a period of time. It was decided to shift some of the existing quarters inside the Fort area and to establish them on the Cantonment Road in view of the historical importance of Barabati Fort. It was decided that necessary steps should be taken to protect its remains. It is also seen that the Chief Secretary directed that plying of heavy vehicles through the main entrance gate be stopped as it affected the life and stability of the gate.

(3.) The complaint in the writ petition is that nothing has been done to preserve the Fortress and to protect the monument or the moat. The Public Work Department and the Cuttack Club are putting up unauthorised constructions within the area. The Cuttack Club is said to be a lessee under the Government of one of the structure that existed within the Fort, and covered by the notification. The other structure is occupied by the Chief Justice of the High Court as his quarters. The Public Works Department is in occupation of some areas and it has allowed some unauthorised structures to spring up. The ancient temple and the mosque exist within the Fort and the mosque alone has been excluded from the notification issued under Section 3 of the Preservation Act. The Archaeological Department started excavation of the ruins, but it stopped the same possibly due to want of co-operation from the State Government and the failure of the Government to facilitate digging by not getting removed some unauthorised structure in and around the main structure within the Fort. An indoor stadium had been constructed within the Fort by some one who had absolutely no sense of history. A Road had also been laid by filling up a portion of the moat and attempts have been made to fill up the moat which is a historic one and which has been described in various historical records referred to in the writ petition. It is submitted that it is absolutely necessary to preserve the Fort, the gateway, and the moat in its entirety and the historic constructions within the Fort and direct removal of unauthorised constructions put up in violation of the notification and the Standing Orders restricting construction of permanent buildings. Such constructions should be directed to be pulled down. The lease in favour of the Cuttack Club is unauthorised and improper. To preserve the ancient monuments, the lease must be cancelled. At the time of arguments, it was submitted that the renewed lease would expire by 2003 and the opposite parties should be directed not to renew the lease. It is also contended that unauthorised constructions have been made by the Cuttack Club against the covenant in the lease deed produced along with the Club's counter. Counsel further submitted that constructions have been made by the Club in a haphazard manner and even without reference to the Orissa Development authorities Act and the Building Rules. It was therefore necessary to remove those structures which are clearly unauthorised. It is also prayed that the moat may be fully restored, cleared up and made suitable for rowing, so that those visitors who come to visit the ancient monuments could also use the facility of rowing which will be a further attraction.