Historical Monuments as Common Property and as State Property

In one line

A monument is usually private in title, public in use, and State-controlled in fact, and the Act keeps all three at once.

In the wording a student can write in an exam: section 4 empowers the Central Government to declare a monument of national importance, on two months' notice and after considering objections, the notification being conclusive evidence of that fact; section 13 empowers it to acquire a protected monument where it apprehends that it is in danger of being destroyed, injured, misused or allowed to fall into decay, maintenance being deemed a public purpose; and section 18 provides that, subject to the rules, the public shall have a right of access to any protected monument.

The three positions a monument can occupy

Private property. Most protected monuments in India are privately owned, by a family, a trust or a religious endowment. The 1958 Act does not disturb that title. It regulates the owner: section 6 proposes an agreement, section 9 makes an order where he refuses, section 10 prohibits a threatened contravention, and section 11 lets the work be done at his cost.

State property. Where the Government has purchased, taken a lease, accepted a gift or bequest, assumed guardianship of an ownerless monument, or acquired one under section 13 or section 20. Section 14 then requires it to maintain the monument.

And common property, which is the interesting one. The public's right of access under section 18, the community's customary religious observances saved by section 5(6), and the concurrence of the persons in religious charge required by section 16(2)(a) before entry conditions are prescribed. Those three provisions describe a resource used by a defined public, whose use the law protects against the owner and against the State.

The section 18 right of access

"Subject to any rules made under this Act, the public shall have a right of access to any protected monument."

Two features make it a common property right rather than a mere permission.

It attaches to any protected monument, whoever owns it. A privately owned monument declared of national importance carries a public right of access; the declaration converts a private thing into a thing the public may enter.

And it is stated as a right, not as a licence. It is subject to the rules, which may charge a fee under section 38(2)(c), but it is not at the owner's discretion.

What limits it. Section 16(2)(a), where a monument in the Government's hands is used for worship: the Collector may prohibit entry except in accordance with conditions prescribed with the concurrence of the persons in religious charge, of any person not entitled to enter by the religious usages of the community using it. So the community's own usages govern access to a living place of worship, and neither the State nor the general public may override them.