2.12 Failure or refusal to enter into an agreement:
2.12.1 Bare Act Provision:
9. Failure or refusal to enter into an agreement.―(1) If any owner or other person competent to enter into an agreement under section 6 for the maintenance of a protected monument refuses or fails to enter into such an agreement, the Central Government may make an order providing for all or any of the matters specified in sub-section (2) of section 6 and such order shall be binding on the owner or such other person and on every person claiming title to the monument from, through or under, the owner or such other person.
(2) Where an order made under sub-section (1) provides that the monument shall be maintained by the owner or other person competent to enter into an agreement, all reasonable expenses for the maintenance of the monument shall be payable by the Central Government.
(3) No order under sub-section (1) shall be made unless the owner or other person has been given an opportunity of making a representation in writing against the proposed order.
2.12.2 Failure or Refusal to Enter into an Agreement
Section 9(1) of the AMASR Act provides for the Failure or Refusal to Enter into an Agreement. This sub-section addresses situations where the owner or any person legally entitled to enter into an agreement under Section 6 for maintaining a protected monument either refuses or fails to do so. In such cases, the Central Government has the authority to issue a binding order that enforces the maintenance obligations outlined in Section 6(2). This order is legally binding not only on the owner or the person refusing/failing to agree but also on anyone claiming rights to the monument through or under them (e.g., heirs, successors, or assignees).
The doctrine underlying this sub-section is State Authority over Public Heritage.[1] It empowers the government to intervene when private parties fail to fulfill their responsibilities toward preserving national heritage, ensuring that protected monuments are maintained despite resistance or inaction. It reflects the principle of parens patriae, where the state acts as a guardian of public interest.
2.12.3 Maintenance by Owner with Government Funding
Section 9(2) of AMASR Act provides for Maintenance by Owner with Government Funding. If the order issued under Section 9(1) mandates that the owner or another competent person must maintain the monument, the Central Government is responsible for covering all reasonable expenses incurred for its upkeep. This ensures that financial constraints do not hinder the preservation of the monument.
The doctrine here is Shared Responsibility with State Support. It balances private ownership with public interest by ensuring that the owner maintains the monument while the government provides financial support, recognizing the monument’s cultural significance as a public good.[2]
2.12.4 Opportunity for Representation:
Section 9(3) of AMASR Act provides for Opportunity for Representation. This sub-section ensures procedural fairness by requiring that the owner or competent person be given an opportunity to submit a written representation against the proposed order before it is issued under Section 9(1). This protects against arbitrary government action.
The doctrine here is Natural Justice, specifically the principle of audi alteram partem means hear the other side. It ensures that no order is passed without giving the affected party a chance to present their case, safeguarding their rights.
References:
[1] Working Group Report on Improving Heritage Management in India, Niti Aayog, 2019
[2] Report of the Comptroller and Auditor General of India on Performance Audit Of Preservation And Conservation Of Monuments And Antiquities, Union Government (Civil) Ministry of Culture Report No.18 of 2013
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