High Court Denies Protection To Vithal-Rukumai Temple In South Mumbai Citing Lack Of Declaration As Monument Of National Or State Importance

The Bombay High Court held that it cannot issue direction for protection of a site as a monument of historical importance in the absence of a formal declaration of the site as a monument of State/National importance or a heritage site under a Central or State law or the Development Control and Promotion Regulations for Greater Mumbai (DCR).

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor refused to order protection of Vithal – Rukumai/Rukhmini Temple in South Mumbai observing –

“we are unable to grant the prayers in this Writ Petition in absence of declaration or inclusion of the temple site in question as an ancient monument of National / State importance or as a heritage site.”

The court dismissed a writ petition by four persons seeking protection and preservation of the temple, situated in Girgaum, Mumbai, claiming it to be an ancient temple over 200 years old, associated with historical events.

The court, however, permitted the petitioners to approach authorities in the Central and State Governments, or the MCGM, to seek formal declaration of the temple site as an ancient and historical monument or for inclusion in the list of heritage buildings and precincts.

The petitioners claimed that the temple is under threat due to a private individual purchasing the land and intending to carry out redevelopment. The temple also faces obstruction of religious activities by anti-social elements, the petitioners claimed.

The petitioners asserted that notable freedom fighters like Lokmanya Bal Gangadhar Tilak frequented the temple. The petitioners further provided details about the temple's structure, including stone carvings (Shilalekh) indicating its renovation in 1773, the presence of ancient idols of Vitthal, Rukumai, and Maruti (Hanuman), and stone pillars with carvings.

During the proceedings, the court appointed a committee to assess the historical and archaeological significance of the temple. The committee was tasked with determining whether the temple should be preserved and, if so, recommending measures for its preservation. Reports from three committee members supported the preservation of the temple.

Another committee was formed to assess the protection required during monsoon. Though joint inspections did not occur, report from a member suggested certain measures for safeguarding the temple during monsoon.

Based on these reports, the writ petition was amended, seeking directions for preservation, declaration of the temple as a historical and ancient monument, and compliance with committee recommendations for listing the temple as a heritage structure under relevant regulations.

The question before the court was whether it has the authority to pass directions for the protection of the temple site as a monument of historical importance in absence of a formal declaration of the site as an "ancient monument" under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (1958 Act), or as an "ancient and historical monument" under the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960 (1960 Act), or as a "heritage site" under DCR.

The court said that under Article 49 of the Constitution, the State's obligation to protect monuments of national importance is only in relation to those which are declared as such by or under the law made by the Parliament.

Section 3 of the 1958 Act provides that for any ancient monument to be deemed to be of national importance, there must be a declaration either under the 1951 Act or under the States Reorganization Act, 1956. Section 4 empowers the Central Government to declare an ancient monument to be of national importance.

“Thus, if protection and preservation measures etc. are sought in respect of any ancient structure or site under 1958 Act, it has either to be an ancient monument of national importance under Section 3 or it has to be declared as such under the provisions of Section 4”, the court observed.

The court noted that the provisions of the 1958 Act (Central Act) and the 1960 Act (State Act) are similar or in pari materia regarding the necessity of formal declarations for statutory protection of ancient and historical monuments.

“In absence of any site either falling within section 3 or Section 4 of 1960 Act, the statutory protection as per the said Act, in our opinion, will not be available”, the court held.

For seeking protection of statutory mechanisms available under DCR as well, the site needs to be listed as a heritage site in the heritage list and should be shown on the map, the court noted. The court observed that the temple site lacks the required declarations under the 1958 Act, the 1960 Act, or the DCR for statutory protection.

The petitioners were permitted to approach the appropriate authorities within a fortnight to seek a formal declaration. The court directed the authorities to take a decision within six months of the receipt of the petitioners' application.

Emphasizing the importance of preserving the subject matter of the dispute, i.e., the temple, the court ordered maintenance of status quo on the site until decisions regarding its protection are made by the authorities. The status quo order shall not be available if the petitioners fail to approach the authorities within the stipulated time.

Case no. – Writ Petition No. 2627 of 2014

Case Title – Shaila Madhukar Gore and Ors. v. Union of India and Ors.