The Bombay High Court stated that without an official declaration designating a site as a monument of State/National significance or as a heritage site according to Central or State laws, or in accordance with the Development Control and Promotion Regulations for Greater Mumbai (DCR), it cannot issue directives for the protection of such a historical site.

A division bench consisting of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor declined to issue an order for the protection of the Vithal-Rukumai/Rukhmini Temple located in South Mumbai.

“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 observed.

The court rejected a writ petition filed by four individuals who sought legal safeguards for the preservation of the temple in Girgaum, Mumbai. They asserted its historical significance, dating back over 200 years and linked to pivotal historical events.

However, the court granted permission to the petitioners to pursue recourse by engaging with the Central and State Government authorities or the Municipal Corporation of Greater Mumbai (MCGM). They can seek an official declaration acknowledging the temple site as an ancient and historically significant monument or propose its inclusion in the roster of heritage buildings and precincts.

The petitioners asserted that the temple is currently under threat as a private individual has acquired the land with plans for redevelopment, posing a risk to its existence. Additionally, they highlighted instances of disruption to religious practices at the temple by individuals categorized as anti-social elements.

The petitioners asserted that esteemed freedom fighters such as Lokmanya Bal Gangadhar Tilak were regular visitors to the temple. They also presented intricate information about the temple's architecture, highlighting stone carvings (Shilalekh) that signified its restoration in 1773. Additionally, they emphasized the existence of ancient idols depicting Vitthal, Rukumai, and Maruti (Hanuman), along with elaborately carved stone pillars.

In the course of the proceedings, the court designated a committee to evaluate the temple's historical and archaeological importance. Their primary objective was to ascertain whether preserving the temple was warranted and, if so, to propose specific preservation strategies. Reports submitted by three committee members unanimously advocated for the preservation of the temple.

The court deliberated on whether it possessed the jurisdiction to issue directives for safeguarding the temple premises as a historical monument, considering the absence of a formal designation of the site under various acts such as the Ancient Monuments and Archaeological Sites and Remains Act of 1958, the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act of 1960, or as a "heritage site" under the Development Control Regulations (DCR).

The court highlighted that as per Article 49 of the Constitution, the State's responsibility to safeguard nationally significant monuments pertains only to those officially designated as such by laws enacted by Parliament. Section 3 of the 1958 Act specifies that for an ancient monument to be acknowledged as nationally important, it necessitates a declaration either under the 1951 Act or the States Reorganization Act of 1956. Additionally, Section 4 grants authority to the Central Government to proclaim an ancient monument as nationally significant.

The court observed that the stipulations within both the 1958 Act (a Central Act) and the 1960 Act (a State Act) are akin or in pari materia concerning the requirement of formal declarations to afford statutory protection to ancient and historical monuments.

The court highlighted that to avail of protective measures provided by the Development Control Regulations (DCR), the site must be specifically listed as a heritage site within the heritage list and depicted on the corresponding map. The court further noted that the temple site did not possess the necessary declarations under the 1958 Act, the 1960 Act, or the DCR to qualify for statutory protection.

The court granted permission to the petitioners to approach the relevant authorities within a fortnight to formally request a declaration. Additionally, the court directed these authorities to make a decision within six months from the date of receiving the petitioners' application.

The court underscored the significance of conserving the temple, the focal point of the dispute, by instructing that the current condition of the site should be maintained until authorities make determinations regarding its protection. However, this status quo directive will not remain in effect if the petitioners fail to engage with the authorities within the specified timeframe.

Case no. – Writ Petition No. 2627 of 2014

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