#30: Public heritage, private burden?
There are 3,695 zones in India where building anything is a 21-question obstacle course
A new crime is emerging in India—forging No Objection Certificates (NOCs) from the National Monuments Authority (the monuments authority). Four persons were booked by the Central Bureau of Investigation (CBI) in a case involving the issuance of fake NOCs for construction near a protected monument. In another case, 100 buildings in the old city of Ahmedabad are under investigation for unlawful construction in the proximity of a monument without a valid NOC from the monuments authority. In both cases, builders had not obtained NOCs from the monuments authority, as required by law. Events like these point to a problem with the existing heritage management system in India. Cities in India are facing a dilemma—responding to the needs of urbanisation while protecting nationally important monuments.
The genesis of this dilemma can be traced back to 2010 when the Indian Parliament amended the Ancient Monuments and Archaeological Sites and Remains Act (Monuments Act) to regulate construction around national monuments. The revised law classifies land around monuments into two zones depending on the intensity of restrictions placed on the buildings. Within the first 100 metres, i.e. the Prohibited Zone, no new construction is allowed. From 100 metres to 300 metres, i.e. the Regulated Zone, owners/developers need additional permissions to make new buildings or change existing buildings. These permissions are to be given by a new government regulator—the National Monuments Authority. Building owners need a No Objection Certification (NOC) from this authority before any construction can start. There are a total of 3,695 centrally protected monuments (national monuments) in India. As a result of these amendments, India now has 3,695 Prohibited and Regulated Zones.
Case of South Ex-1 market in Delhi
The Monuments Act zones ignore the ground realities around the monument. Irrespective of what exists around the monument, the restrictions on building and reconstruction apply. This may have unexpected or perverse consequences for the development of a city and place large restrictions on citizens without commensurate benefit to the country’s heritage.
An example of the perverse consequence of the restricted zone system is Delhi’s South Extension Market-I (South Ex-1). It is one of the city's oldest centres of retail commerce, established in 1959. The market is a vibrant hub. There are around 500 buildings and about 276 business establishments in this area. These include a diverse range of shops, restaurants, retail showrooms, hostels, banks, and healthcare facilities, all contributing to the market's unique character and economic activity. The market has no heritage character and is an urban market with modern commercial buildings.
However, South Ex-1 falls within the regulated and prohibited zones of the Tomb of Kale Khan, a national monument dating back to 1481 CE. As a result, South Ex-1’s buildings are now open to the Monument Act’s chilling effects. Many shops fall within the 100m zone of the Tomb of Kale Khan. This means these shops cannot be rebuilt, modernised, or expanded at all under the Monuments Act. Beyond the 100m radius, shops will need additional permission from the National Monuments Authority.
These restrictions on South Ex-1 present a conundrum. The area has always been identified as one of Delhi’s most modern (and glitzy) markets. Change and development are the features of South Ex-1, as famous brands continuously vie for a spot. A big jewellery showroom may turn into a clothing store within a year, only to change to the latest in-fad cuisine restaurant the next year. Buildings are constantly being merged, demerged, and modified to match the current trends and requirements of brands that want to establish themselves in Delhi’s competitive market. The market risks losing its customer appeal once the regulations are enforced in earnest.
At present, South Ex-1 is on temporary reprieve as the Government has yet to make the rules and restrictions for the tomb of Kale Khan. However, the law casts a shadow of risk on the market. Shopkeepers will face substantial restrictions the day the government notifies the restrictions around the tomb. One example of a regulation that may make retail commerce unviable is the ban on large glass windows. Heritage bye-laws framed for the Nizamuddin Basti group of monuments in Delhi contain this condition:
‘French doors and large glass façades along the front street or along staircase shafts will not be permitted.’ (Bye-law 6.12,d)
Similar controls on building facade designs exist in 15 of the 18 bye-laws implemented by the monuments authority. Large glass windows or glazing are not permitted in a building’s facade under these bye-laws. Several retail showrooms in South Ex-1 depend upon their permeable glass facades to exhibit their goods. Such restrictions can significantly impact South Ex-1’s commercial activities. It may make building retail spaces near monuments (that may attract tourists) disadvantageous.
Yet another NOC
What happens when an area is designated as a heritage zone? The owners/developers (within the zones) now have to undergo additional compliances that may involve substantial expenses. This additional compliance comes in the form of an 'Archaeological impact assessment report’ that owners/developers must file for every new construction within the 100-300m zone. This report has to be filled under five heads: i) Impact on built heritage, ii) Impact on natural heritage, iii) Impact on intangible heritage, iv) Visual impact & v) Other direct & indirect impacts. Any building (within the zone) can be redeveloped only after the National Monuments Authority is satisfied with the report.
Under the five heads of the report, the owners/developers have to carry out substantial technical research. Some of the questions are:
‘Does the proposal Involve alteration of existing natural drainage systems? - Give details on a contour map showing the natural drainage near the proposed project site’ (2.1)
‘Will there be shadow on the monument due to the height of the proposed construction? illustrate through shadow analysis’ (4.2)
‘Provide details of the movement patterns with Internal roads, bicycle tracks, .. pedestrian pathways, footpaths etc., with areas under each category. (5.3)
These are 3 of the 21 questions under the 5 heads that the owner/developer needs to answer in the archaeological impact assessment report. Shadow analysis, preparation of contour layout, or mapping of movement patterns in an area are technical tasks. The project proposers will have to depend upon professionals to get the correct data for the report.
Instead of assisting owners/developers, the 21 questions transfer the burden of protecting monuments ultimately to the neighbours. The government could have created a contour map of areas around the heritage sites and marked the drainage routes. The owners could then use the maps to check if their construction affected drainage. This would mean one contour map from which all developers could draw the relevant data. Instead, each and every developer around a national monument now has to develop a contour map every time a development takes place. Similarly, building owners/developers have to carry out traffic analysis (movement patterns) for each development, something that the government must have done and save duplication of work.
The scale of the problem
South Ex-1 is not an isolated case. There are 174 national monuments in Delhi alone, translating into 174 heritage regulation zones. A basic calculation shows that in Delhi alone, 48.72 square kilometres is regulated by the 2010 amendment. If we consider 11,300 per square kilometre as the average population density of Delhi, over 5,50,000 people are now subjected to these heritage regulations only in Delhi. The Tomb of Kale Khan is one monument out of the 174 in the city. Satellite images show over 500 buildings in the 300m heritage zones around this monument. A conservative estimation of 250 buildings in each of the 174 zones leads to over 43,000 buildings in Delhi alone, which face limitations on renovation and construction.
Many of these monuments are located in the core areas of large cities like Ahmedabad, Bhubaneswar, Delhi, Mumbai, and Pune. These core areas are typically high-activity neighbourhoods inside cities designated as such through land use regulations. These areas are packed with commercial and residential buildings, and are hubs of economic activity like trade, commerce, and retail shopping. The blanket implementation of heritage regulations has brought such high-activity areas under additional regulatory scrutiny. A recent news report quoted the RWA president of Greenpark, Delhi, who stated that many plots are lying vacant in the 300m radius of the monument and that the value of properties has gone down because of the regulation. Similar cases have been reported for Hauz Khas, South Extension, Nizamuddin, Greater Kailash, and Saket in Delhi. Similarly, no new construction is now allowed in the core areas of Bhubaneswar, Odisha, due to the presence of protected monuments.
The government seems to understand that such restrictions are counterproductive. The Parliament amended the law in 2017 to allow the construction of public amenities in the first 100m radius. However, the exemption is limited to government entities only. Private persons living within the 100m limit do not enjoy similar exemptions. The amendment indicates that the government is aware that the law is unworkable. However, instead of rethinking the principles, the government chose to merely exempt itself from the Monuments Act.
Regulator’s capacity to implement the law
While a substantial burden has been placed on private citizens, the government has not invested in building state capacity to protect national monuments. The law states that each protected monument will have specific heritage bye-laws. In 2022, a report from the Comptroller and Auditor General of India noted that 12 years after the amendment, the monuments authority had formed bye-laws for 0.84% of the total monuments. To date, heritage bye-laws for only 49 out of 3,695 (1.32%) centrally protected monuments have been notified. Moreover, the National Monuments Authority has designated the Regional Directors of ASI circles as the competent authority to issue NOCs. This is despite the fact that the ASI is already struggling to fulfil its central mandate of heritage preservation. Not only is the ASI struggling to track the different monuments across the country, but also, over 30% of the posts in various departments of ASI are vacant.
Our history of NOCs is not promising. Obtaining NOCs is a challenging task, particularly when the Union government is involved alongside local authorities. The law says that the competent authority may take up to 75 days to grant NOC for a building proposal. This NOC is required alongside building permissions from town and country planning authorities and/or municipal authorities. Building developers/owners already face significant delays in obtaining NOCs from fire or forest departments. Researchers at Prosperiti analysed pending applications for Forest NOCs in one state. Results show that at least 45% of applications were not issued within the statutory timeline.
Conclusion
Monuments are our collective heritage, and their preservation is the collective responsibility of society. Yet, a group of people owning properties near these monuments has been assigned the responsibility for their preservation. They are not just bearing the additional compliance cost; in many cases, people cannot reconstruct dilapidated houses and shops. In many cases, our national monuments are located in the core areas of cities. These core areas are centres for commerce and are often home to small businesses. The blanket imposition of such prohibited and regulated zones around each monument may be counterproductive. This may generate a sense of resentment towards the monument among people.
Other countries take a more balanced approach to protecting national monuments. In Italy, Article 34 of the Italian law states that the state will bear the cost of conserving cultural heritage if the measures are of significant value or if the property is for public enjoyment. British regulations extend protection with a provision for compensation for such property owners.
Instead of burdening the community, inviting community participation can lead to a much more efficient preservation of heritage fabric. It is a case for us to advocate that those living around the monuments must be treated as heritage preservation and management stakeholders. They should be compensated in some form for the loss of development rights they suffer due to the heritage regulations. There is also a need to change the way we treat our monuments. In most cases, they are in isolation from what happens around them. They are like the islands in our cities. Incorporating them into areas' commercial and recreational activities may serve better for their preservation. We will explore some of these strategies in our subsequent blogs.
References
Comptroller and Auditor General of India. 2022. “Follow-up on the Performance Audit of Preservation and Conservation of Monuments and Antiquities.” 10 of 2022. Ministry of Culture, Government of India.
Government of Italy. 2016. “Decreto Legislativo 22 Gennaio 2004, n. 42 - Normattiva.” Government of Italy.
Government of the United Kingdom. 1997. Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. Statute Law Database.
Indira Gandhi National Centre for the Arts. n.d. “Information Kala Gumbad.” Ministry of Culture, Government of India. Accessed July 10, 2024.
Minister of Culture. 2018. The Ancient Monuments and Archaeological Sites and Remains (Amendment) Bill, 2017.
Ministry of Environment, Forest and Climate Change. 2024. “Parivesh (CPC Green).” July 10, 2024.
National Monument Authority. 2019. “Heritage Byelaws for Nizamuddin Basti Group of Monuments.” Ministry of Culture, Government of India.
———. n.d.-a. “Competent Authority under Section 20E of the AMASR Act, 1958: Gazette Notification.” Accessed July 10, 2024.
———. n.d.-b. “Format for Archaeological Impact Assessment Report.” Ministry of Culture, Government of India. Accessed July 10, 2024.
Parliamentary Standing Committee on Transport, Tourism and Culture. 2023. “Functioning of Archaeological Survey of India.” 359. Rajya Sabha, Parliament of India.
Singh, Abhishek, and Bhuvana Anand. 2023. “Seeing Forests Everywhere: A Cure Is Finally within Sight.” LiveMint, July 20, 2023.
The Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act. 2010.
The Indian Express. 2021. “Nod for Construction near Monuments: Vadodara ASI, NMA Officials Booked for Fraud,” October 21, 2021.
The New Indian Express. 2022. “National Monument Authority Bars New Constructions near Bhubaneswar’s Rajarani Temple,” August 22, 2022, Bhubaneswar edition.
The Times of India. 2018. “House Owners near Heritage Sites Still Cannot Carry out Repairs,” January 4, 2018.
———. 2022. “100 Buildings near ASI Sites in Ahmedabad under CBI Scanner,” September 16, 2022.
ThePrint. 2023. “Does ASI Protected Monuments List Need Pruning? Historians Debate What’s Nationally Important,” March 14, 2023.
Bhuvana Anand, Shubho Roy, and Shaunak Desai are researchers at Prosperiti.