Karnataka High Court
Sri. Denis Crasta vs The Union Of India on 2 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 25.04.2025
Pronounced on : 02.06.2025
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.9010 OF 2025 (GM - RES)
BETWEEN:
SRI DENIS CRASTA
AGED 68 YEARS,
S/O LATE ELIAS CRASTA,
RESIDING AT
JEPPINAMOGERU ROAD,
THANDOLIGE, PADIL,
MANGALURU - 575 007.
... PETITIONER
(BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
1. THE UNION OF INDIA
MINISTRY OF CULTURE
24, TILAK MARG, BHAGWAN DAS LANE,
MANDI HOUSE, NEW DELHI,
DELHI - 110 001
REPRESENTED BY
SUPERINTENDENT ARCHAEOLOGIST.
2
2. THE SUPERINTENDING ARCHAEOLOGIST,
ARCHAEOLOGICAL SURVEY OF INDIA,
5TH FLOOR, 'F' WING,
KENDRIYA SADANA, KORAMANGALA,
BENGALURU - 560 034.
3. THE COMPETENT AUTHORITY AND
REGIONAL DIRECTOR (KARNATAKA),
GOVT. OF INDIA'S NATIONAL MONUMENTS AUTHORITY,
KSIMC BUILDING, INDUSTRIAL ESTATE,
RAJAJINAGAR, BENGALURU - 560 010.
4. THE COMMISSIONER,
CORPORATION OF CITY MANGALORE,
LALBAGH, MANGALURU - 575 003.
... RESPONDENTS
(BY SRI AJAY PRABHU, CGPC FOR R-1 AND R-2;
SRI SHAMANTH NAIK, HCGP FOR R-3;
SRI HARISH BHANDARY, ADVOCATE FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER NO. 4007/CA/KAR/BC-2024-1042 DTD 28.01.2025 PASSED
BY THE COMPETENT AUTHORITY AND REGIONAL DIRECTOR
KARNATAKA /R-3 AS PER ANNX-A; DIRECTING THE R-3 TO ISSUE
NOC TO THE PETITIONER TO CONSTRUCT THE RESIDENTIAL
HOUSE IN THE SCHEDULE PROPERTY AS PER THE LICENSE AT
ANNEXURE-J1 AND APPROVED PLAN AT ANNEXURE-J2 ISSUED BY
THE CITY CORPORATION OF MANGALORE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.04.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner calls in question an order dated 28-01-2025
passed by the Regional Director, National Monuments Authority,
Government of India, Bengaluru declining to grant permission and
directing to stop construction of the residential house in the
schedule property.
2. Heard Sri Pundikai Ishwara Bhat, learned counsel
appearing for the petitioner, Sri Ajay Prabhu, learned Central
Government Panel Counsel appearing for respondents 1 and 2,
Sri Shamanth Naik, learned High Court Government Pleader
appearing for respondent No.3 and Sri Harish Bhandary, learned
counsel appearing for respondent No.4.
3. Facts in brief, germane, are as follows:
The petitioner comes in possession of the subject property
pursuant to a decree in a partition suit - O.S.No.901 of 1993. It
appears that the judgment and decree in O.S.No.901 of 1993 was
4
challenged in R.A. Nos. 66 and 67 of 2009, which come to be
dismissed on 21-02-2011. Both the judgments and decrees of the
civil Court and the first Appellate Court were called in question in
R.S.A.Nos.1413 and 1414 of 2011. During the subsistence of
regular first appeals, the parties enter into a compromise and a
coordinate Bench of this Court disposed of regular first appeals in
terms of its order dated 22-04-2021 based on the said compromise
petition filed before the Court. In terms of the compromise petition
'A' schedule property measuring 8.80 cents was allotted to the
share of the petitioner. Final decree, in terms of the compromise
petition, was drawn in F.D.P.No.18 of 2018 on 11-08-2022.
4. The petitioner then gets the khata changed into his name
and becomes the absolute owner in possession and enjoyment of
the schedule property of 8.80 cents in Mangalore Thota Village,
Mangalore Taluk and applied for conversion of the land to
residential purposes. The Deputy Commissioner, in terms of his
order dated 27-09-2023, grants conversion. After securing
conversion for residential purposes, the petitioner applies for licence
to the Mangalore City Corporation ('the Corporation' for short) and
5
the Corporation in terms of its order dated 21-12-2023 grants
licence in favour of the petitioner for construction of a house. The
plan for construction was submitted to the Corporation which also
comes to be approved. In terms of the permission so granted, the
petitioner puts up construction up to a certain level.
5. When things stood thus, a stop notice comes to be issued
by the Conservative Assistant of Archaeological Survey of India,
Karkala Sub-Circle intimating that the petitioner was required to
take a no objection from the Archaeological Survey of India before
commencement of the construction, as the construction was coming
within the regulated area of 150 meters on north-east side of
Mangala Devi Temple which was declared as a protected monument
under the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 as amended in 2010 (hereinafter referred to as
the 'Act' for short). The petitioner then replies to the said notice
furnishing all the necessary details including licence obtained from
the Corporation and submitted that construction has been put up to
a particular level. The petitioner also sought for inspection of the
site for a review of the stop notice and a no objection with regard to
6
construction. A spot inspection report was drawn and the appraisal
was that construction was happening in the prohibited area, as it
was within 64 meters from Mangala Devi Temple. The petitioner
also receives another communication from the 3rd respondent that
no objection for construction of residential building near centrally
protected monument is refused as it is within 64 meters and in the
prohibited area. The petitioner then represents for grant of no
objection certificate. It is again rejected by the impugned order on
28-01-2025, which has driven the petitioner to this Court in the
subject petition.
6. The learned counsel appearing for the petitioner would
contend that the 3rd respondent has failed to exercise appropriate
jurisdiction as there is no impediment for grant of NOC and the
petitioner to go ahead with the construction as the constructed site
is neither in a prohibited area or protected area. It is in the
regulated area. If it is in the regulated area, flexibility would exist
and it can be regulated. He would submit that google earth image
that he has procured shows more than 151.1 meters between
Mangala Devi Temple and his site. He would submit that the
7
respondents have erroneously drawn google earth image to show
that it is at 64 meters. It is his submission that the construction
does not have any adverse impact on the preservation, safety or
security of the protected monument. The learned counsel would
further contend that the petitioner is not putting up a new
construction but has only brought down the earlier construction and
started re-construction of the house. According to him the
petitioner is not constructing anything new but only renovating the
old one which is permissible under the Act. He would seek
quashment of the order and permission to continue construction.
7. Per contra, the learned High Court Government Pleader
representing the 3rd respondent would vehemently refute the
submissions to contend that google earth images that are brought
during the inspection clearly indicate that the property is at a
distance of 64 meters from the protected monument where
construction is completely prohibited. It is his submission that it
would endanger the monument if the constructions of this kind are
permitted. That the petitioner cannot be permitted to construct, as
the construction has begun and come up to a certain level without
8
no objection from the 3rd respondent, which is an act of fraud
played by the 4th respondent in connivance with the petitioner. The
Corporation could not have issued NOC or sanctioned the plan for
construction without a NOC from Archaeological Survey of India. He
would seek dismissal of the petition.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The afore-narrated dates, link in the chain of events and
the manner in which the petitioner comes in possession of the
property are all a matter of record. The property was an
agricultural land. The petitioner applies for conversion before the
Deputy Commissioner. The Deputy Commissioner permits
conversion of the land from agriculture to residential purposes. The
order of conversion reads as follows:
"ಕ ಾ ಟಕ ಭೂ ಕಂ ಾಯ ಅ ಯಮ 1964 ರ ಕಲಂ 95 (2), 95(4) ಮತು 95(7) ರ
ಷರತುಗಳ ಾಗೂ ಈ ೆಳ ಾ ದ ಷರತು ೊಳಪ" . ಕ ಾ ಟಕ ಭೂ ಕಂ ಾಯ (#ದು$ಪ")
ಯಮಗಳ 1994 ರ ಯಮ 107(1) ರಂ%ೆ ಅ& ಾರ'ಾದ ()ೕ +ೆ , ಾ)-ಾ ./ ಎ12ಾ,
ಾ)-ಾ ., ರವರ ಅ& ಯನು5 ಪ6ಗ ಪಟ7ಣ ಾ)ಮದ S06-1360/1 ರ19 356.120 ರ19ನ ಒಟು7
9
202.350 ಚದರ <ೕಟ= > ೕಣ ದ ಅ ಯನು5 Residential - Personal Housing
ಉ ೆ$ೕಶ ಾAB §¼À¸À®Ä F PɼÀPÀAqÀ µÀgÀvÀÄÛUÀ½UÉ M¼À¥ÀlÄÖ ¨sÀÆ ಪ6ವತ ಾ ಆ ೇಶವನು5
ೊರ"ಸFಾB ೆ.
1.ಈ ಭೂ<ಯು 2ಾವ ಉ ೆ$ೕಶ ಾAB ಪ6ವತ ೆ2ಾB ೆGೕ ಆ ಉ ೆ$ೕಶ ೆA
ಉಪGೕB ೊಳHಲು ಸIಮ Jಾ) ಾ6Kಂದ, ಅಂದ'ೆ ( /ಅMವೃOP ಮಂಡR
/ ಎಂ /Sಎಂ /Tಾ1ನU ಯಂvÀæಣ ಮಂಡR/ ಾ)ಮ ಪಂVಾK#ಗRಂದ
ಮಂಜೂ'ಾ#ಯನು5 ಪ+ೆಯದ ೊರತು ಈ ಆ ೇಶವX ಅನುಭವ ಾರ ೆ 2ಾವX ೇ ಹಕAನು5
ೕಡುವXOಲ9.
2. ಈ ಭೂಪ6ವ# ತ ಜ<ೕನನು5 Residential | Personal Housing ಉ ೆ$ೕಶ ಾAB
Tಾತ) ಉಪGೕB ೊಳHತಕAದು$, ಈ ಜ<ೕನನು5 ಪZ[ಾ ನುಮ# ಇಲ9 ೆ ]ೇ'ೆ
ಉ ೆ$ೕಶ ಾAB ಉಪGೕBಸ]ಾರದು.
3. ಈ ಆ ನ19 ಉ ೆ$ೕ( ರುವ ಬ+ಾವ_ೆ ನ`ೆ ಾಗೂ ಪರ[ಾನB ಇ%ಾUOಗಳನು5 ( /Jಾ) ಾರ
/ ನಗರJಾ1 ೆ/ಇ%ಾUO) ರವ6ಂದ ಅನುaೕO ೊಂಡು, ಆ ನಂತರ ಅನುaೕದ ೆ ೊಂಡ
ನ`ೆ ೆ ಅನುಗುಣ[ಾB ಕಟ7ಡವನು5 ಕಟು7ವXದು. ಸದ6 ಜ<ೕ ನ19 Fೇಔc Jಾ9 ೆ
ಅನುaೕದ ೆ ಪ+ೆಯ ೆ ಪರ]ಾ'ೆ Tಾಡಕೂಡದು.
4. ಇತ'ೆ ಅವಶU[ಾದ ರ-ೆ eಾಗ, ರ-ೆ Tಾ& /, fಾ1 eಾಗ ಇ%ಾUOಗಳನು5 (Jಾ) ಾರ /
ನಗರJಾ1 ೆ/ಇ%ಾUO) ರವ6ಂದ ಅನುaೕO ದ ಬ+ಾವ_ೆ ನ`ೆ ಪ) ಾರ ಾಗೂ
O ಷ7ಪ" ದ ಯಮಗಳ 6ೕತU ಸದ6 ಉ ೆ$ೕಶ ಾAB ಾK$6ಸತಕAದು$.
5. -ಾವ ಜ ಕ gತದೃh7Kಂದ ಸದ6 ಅ ನ19 [ೇಶನ ಾರ6 ೆ ಾಗ6ೕಕ -ೌಲಭUಗjಾದ
>ದುUಚkl, ೕರು ಸರಬ'ಾಜು ಒಳಚರಂ" ವUವ-ೆm, ಇ%ಾUOಗಳನು5 ಆ'ೋಗU ೈಮ °åÃಕರಣ
ಾಗೂ ಭದ)%ೆಗಳ ಉ ೆ$ೕಶOಂದ ಎFಾ9 -ೌಲಭUಗಳನು5 ಾನೂನು 6ೕತU ಒದB ೊಡುವXದು
ಅ& ಾರರ ಜ[ಾ]ಾ$62ಾBರುತ ೆ.
6. ಸ ಾ ರದ ಆ ೇಶ ಸಂ:oಡಬೂ9p." 7556-665-ಅ= ಮತು .-6-54-5 ಮತು ೇಂದ)
ಸ ಾ ರದ -ಾ6 ೆ ಇFಾfೆಯ ಪತ) ನಂ o1:7(11)67, O ಾಂಕ:1-1-1966 ರಂ%ೆ ಈ
ಜ<ೕ ನ19 ಕಟ7ಲು ಉ ೆ$ೕ( ರುವ ಕಟ7ಡವX 'ಾhqೕಯ ಾಗೂ 'ಾಜU ೆ ಾ$6 ೆ
ಸಂಬಂ ದಂ%ೆ ರ-ೆಯ ಮಧUsಾಗOಂದ 40 <ೕಟ= ಗಳ ಅಂತರವನು5 ಮತು &Fಾ9
ೆ ಾ$6 ೆ ಸಂಬಂ ದಂ%ೆ ರ-ೆಯ ಮಧUsಾಗOಂದ 25 <ೕಟ= ಗಳ ಅಂತರವನು5
ಾK$6ಸ]ೇಕು ಾಗೂ ಈ fಾ1 ಪ) ೇಶದ19 2ಾವX ೇ ಕಟ7ಡವನು5 ಕಟ7]ಾರದು.
10
7. ಅ& ಾರರು ನಗರ ಭೂ ಪ6<# ಾK ೆ 1976 > 6(1)ರ ಪ) ಾರ ಸIಮ
Jಾ) ಾರದ19 uೂೕಷ_ೆ ಪತ)ವನು5 ಸ19ಸOದ$19 ಈಗ ತIಣ ಅಂತಹ uೂೕಷ_ೆ ಪತ)ವನು5
ಸ19ಸತಕAದು$ ಮತು ಈ ಆ ೇಶದ ಪ)#ಯನು5 ಸಂಬಂಧಪಟ7 ಭೂ ಪ6<# Jಾ) ಾರ ೆA
ಕಳ gಸFಾB ೆ.
8. ಈ ಭೂ ಪ6ವತ ಾ ಜ<ೕ ನ19 -ಾmoಸFಾಗುವ ೈ ಾ6 ಾ ಘಟಕಗಳ ೊ ೆ ಅ ಲ
ಇತ'ೆ ಕಲwಶಗಳನು5 ಪ6_ಾಮ ಾ62ಾB ತ+ೆಗS7 -ಾವ ಜ ಕರ ಆ'ೋಗU ೆA 2ಾವX ೇ
6ೕ#ಯ ಾ 2ಾಗದಂ%ೆ ಾಗು ಪ6ಸರ Tಾ1ನU[ಾಗದಂ%ೆ ೋ" ೊಳHತಕAದು$.
ೈ ಾ6 ಾ ಉ ೆ$ೕಶ ಾAB ಭೂ ಪ6ವ# ತ ಜ<ೕ ನ19 -ಾmoಸುವ ೈ ಾ6 ಾ ಘಟಕಗಳ
ಕ ಾ ಟಕ Tಾ1ನU ಯಂತ)ಣ ಮಂಡR/ಪ6ಸರ ಇFಾfೆಗಳ ಅನುಮ# ೊಂOರತಕAದು$.
9. xೕಲAಂಡ 2ಾವX ೇ ಷರತುಗಳನು5 ಉಲ9ಂy ದ19 ಈ ಭೂ ಪ6ವತ ೆ ಆ ೇಶ 2ಾವX ೇ
ಸೂಚ ೆ ೕಡ ೆ ರದು$ ೊRಸFಾಗುವXದು ಮತು ಕ ಾ ಟಕ ಭೂಕಂ ಾಯ ಾz$ 1964 ರ
ಕಲಂ 96 ರಂ%ೆ ದಂಡ ಶುಲAವನು5 > ಸಲು ಮುಂOನ ಕ)ಮ %ೆ ೆದು ೊಳHFಾಗುವXದು. ಅಲ9 ೇ
ಈ ಜ<ೕ ನ19 ಅನ ಕೃತ[ಾB ಕS7ದ ಕಟ7ಡಗಳನು5 2ಾವX ೇ ಪ6 ಾರ ೕಡ ೇ
%ೆರವX ೊRಸಲು ಕ)ಮ %ೆ ೆದು ೊಳHFಾಗುವXದು. ಾಗೂ ಅದ ೆA ತಗಲುವ [ೆಚ{ವನು5
ಭೂಕಂ ಾಯ ]ಾl ಎಂದು fಾ%ೆ ಾರ6ಂದ ವಸೂ1 TಾಡFಾಗುವXದು.
ೆಚು{ವ6 ಷರತುಗಳ
1. ಈ ಭೂ ಪ6ವತ ೆ ಆ ೇಶವX ಮುಂOನ ಆ ೇಶದವ'ೆಗೂ |ಾಶ}ತ[ಾB TಾನU[ಾBರುತ ೆ, ಭೂ
ಪ6ವತ ೆಯ ಉ ೆ$ೕಶ ಬದFಾವ_ೆ2ಾಗ]ೇ ಾದ'ೆ -ೆI/ 97 ರ ಪ) ಾರ ೊಸ ಆ ೇಶ
ಪ+ೆಯತಕAದು$.
2. ಷರತು (೨) ರ19 #R ರುವಂ%ೆ ಭೂ ಪ6ವ# ತ ಜ<ೕನನು5 Residential - Personal
Housing ಉ ೆ$ೕಶ ಾAB Tಾತ) ಉಪGೕB ೊಳHತಕAದು$, ]ೇ'ೆ ಉ ೆ$ೕಶ ಾAB
ಉಪGೕBಸ]ೇ ಾದ'ೆ -ೆI/ 97 ರ ಪ) ಾರ ಮರು ಅನುಮ#ಯನು5 ಪ+ೆಯತಕAದು$. ಸದ6 ಭೂ
ಪ6ವ# ತ ಜ<ೕನನು5 2ಾವ ಉ ೆ$ೕಶಗR ೆ ಪ6ವತ ೆ2ಾB ೆGೕ ಆ ಉ ೆ$ೕಶಗR ೆ
Gೕಜ ಾ Jಾ) ಾರ / ಅMವೃOP ಮಂಡR / ಎಂ / Sಎಂ /Tಾ1ನU ಯಂತ)ಣ ಮಂಡR /
ಾ)ಮ ಪಂVಾK#ಗRಂದ ಅಗತU ಮಂಜೂ'ಾ#ಯನು5 ಪ+ೆಯತಕAದು$.
3. ಸದ6 ಭೂಪ6ವತ ೆ ಆ ೇಶವನು5 ಅ& ಾರರು ೕ"ರುವ ಅ•ಡ>c (ಪ)Tಾಣಪತ))
ಆ€ಾರದ19 ೕಡFಾBದು$ ಅ•ಡ>c ಪ)Tಾಣಪತ)ದ19 ೕ"ರುವ Tಾg#ಯು ಒಂದು [ೇjೆ
ತJಾ•Bದ$19 ಈ ಆ ೇಶವX ಯTಾನು-ಾರ ರದ$# Tಾಡುವ ಷರ# ೆ ಒಳಪಡುತ ೆ
11
‚ೆಡೂUƒ >ವರ
ದ„ಣ ಕನ5ಡ &Fೆ9, ಮಂಗಳ...ರು %ಾಲೂ9ಕು, ಪಟ7ಣ, S06-1360/1, ರ19ನ ಒಟು7 ಎಕ'ೆ 202.350 ಚದರ
<ೕಟ= > ೕಣ ವX ಭೂಪ6ವತ ೆ2ಾBದು$, ಇದರ ಚಕುAಬಂO :
ಚಕುAಬಂO
ಯುoಓಆ= ಆ ಸಂfೆU: > ೕಣ
ಪZವ ೆA ಪ({ಮ ೆA ಉತರ ೆA ದ„ಣ ೆA
S06-1360/1 202.350 S06-1360/1 S06-1360/1 S06-1360/1 S06-1360/1
ಸg/-
DC Name: &Fಾ9 ಾ6,
Mullai Muhilan MP ದ„ಣ ಕನ5ಡ &Fೆ9."
Pursuant to conversion of land, the petitioner applies for permission
to construct ground floor and first floor on the property. Permission
is granted by the Corporation on 21-12-2023. The sanction for
construction reads as follows:
"ಮಂಗಳ...ರು ಮ ಾನಗರ Jಾ1 ೆ
ಕಟ7ಡ ಪರ[ಾ ೆ
ಕ ಾ ಟಕ ಮ ಾನಗರ Jಾ1 ೆಗಳ ಅ ಯಮ-1976ರ ಕಲಂ 301 ಾಗೂ ಕ ಾ ಟಕ ನಗರ ಮತು
ಾ)Tಾಂತರ Gೕಜ ಾ ಾz$-1961ರ ಕಲಂ 15ರ ಅನ}ಯ
ಸಂfೆU: MNG-LBPAS-19195/23-24/BP ¢£ÁAPÀ: 21 Dec 2023
ಅ& ಸಂfೆU:MNG-LBPAS-19195/23-24/BP, ¢£ÁAPÀ: 12 Dec 2023 gÀAzÀÄ ²æêÀÄw
/ ²æà DENNIS CRASTA ರವರು ೕ"ದ ಅ& ಯನು5 ಪ6(ೕ1ಸFಾKತು, ಅದ ೆA
ಲಗ#ಸFಾBರುವ ನ`ೆಯನು5 ಅನುಸ6 Mangaluru City Corporation [ಾUoಯ ಕಂ ಾಯ
12
ವಸೂFಾ# ಏ62ಾ ಸಂfೆU:639/(P) (ಪ)ಸುತ ಚು ಾವ_ಾ [ಾˆ ಸಂfೆU:54), Dakshina
Kannada,54 ಪ) ೇಶದ19ರುವ ಾ)ಮದ 'ೆ>ನೂU ಸ[ೇ ನಂಬ=: 639/(P), [ೇಶನದ ಸಂfೆU
639/(P) ಅ-ೆ,xಂc / fಾ%ೆ / +ೋ= ನಂಬ= 23131060, ()ೕಮ#/()ೕ DENNIS CRASTA
#5/179/3 JAPPINAMOGARU TANDOLIGE PADI॥ ಇವರ Tಾ1ೕಕತ}ದ ಸ}#ನ19 ಈ
ೆಳ ೆ ಾ ದ ಷರತುಗಳ ಾಗೂ ಬಂಧ ೆಗR ೊಳಪಟು7 ವಸ# ಉ ೆ$ೕಶ ೆA ಕಟ7ಡ Tಾ ಣ
Tಾಡಲು ಪರ[ಾ ೆ ಮಂಜೂರು TಾಡFಾB ೆ.
ಮಂಜೂ'ಾದ ಪರ[ಾ ೆ >ವರಗಳ :
• ಕಟ7ಡವನು5 eಾಗದ ಎಡ sಾಗದ19 0.50 <ೕ., ಬಲ sಾಗದ19 0.98 <ೕ., gಂsಾಗದ19
1.00 <ೕ, ಮುಂsಾಗದ19 2.63 <ೕ., eಾಗವನು5 .ಟು7 ಕS7 ೊಳH]ೇಕು.
[ೇಶನದ > ೕಣ :202.13 ಚ.<ೕ., ಎŠ.ಎ.ಆ= : 0.88
ಪZವ ೆA :RSY NO 639/(P)
ಪ({ಮ ೆA :RSY NO 639/(P)
ಉತರ ೆA :ROAD
ದ„ಣ ೆA :RSY NO 639/(P)
ಮಹ"ಯ ಮಹ"ಯ MlÄÖ MlÄÖ < ದ ¤ªÀé¼À FAR
> ೕಣ ಕ"ತ ಕ"ತ ೊR > ೕಣ
ಸಂfೆU ಉಪGೕಗ > ೕಣ
(ಚದರ ೊR ದ (ಚದರ ದ (ಚದರ
<ೕಟ=) > ೕಣ > ೕಣ <ೕಟ=)
<ೕಟ=)
(ಚದರ (ಚದರ
<ೕಟ=) <ೕಟ=)
GROUND ವಸ# 121.19 0 121.19 32.21 88.98
FLOOR
FLOOR ವಸ# 101.52 0 101.52 12.54 88.98
1
ROOF Vಾವ 0 0 0 0 0
ªÉÆvÀÛ 222.71 0 222.71 44.75 177.96"
13
Plan is submitted for approval and the plan is sanctioned by the
Corporation and construction comes up to a certain level. The
Archaeological Survey of India then issues a stop notice on
04-05-2024. This notice is the beginning of the issue in the subject
petition. The stop notice reads as follows:
"Date: 04-05-2024
STOP NOTICE
Whereas, it has been brought to the notice of this office
Mr. Dennis Crasta Mangala Nagara, Crasta Compound,
Near Mangala Devi Temple, Mangalore (575001) is carrying
out unauthorized new construction of House within the
Regulated area around 150 Mts. In North-East side of
Mangala Devi Temple at Mangalore, Centrally Protected
Monument without obtaining an NOC for the same from the
Competent Authority (Competent Authority (Karnataka)/
Regional Director (South), Archaeological Survey of India,
KSIMC Building, Industrial Estate, Rajajinagar, Bangalore-43),
which is illegal under the provisions of the Ancient Monuments
and Archaeological Sites and Remains Act, 1958 as amended by
the Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Act, 2010.
WHEREAS, Section 20A of the Ancient Monuments
and Archaeological Sites and Remains Act, 1958 and
Ancient Monuments and Archeological Sites and Remains
Act (Amendment and Validation) Act, 2010, provides
that, every area, beginning at the limit of Protected area
or the protected monument as the case may be, and
extending to a distance of 100 meters in all directions
shall be the Prohibited area in respect of such protected
area or Protected monument.
AND Section 20B of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 and Ancient
Monuments and Archaeological Sites and Remains Act
Amendment and Validation) Act, 2010 provides that,
14
every area, beginning at the limit of the Prohibited area
in respect of every ancient monument and Archaeological
site and remains, declared as of National importance
under Sections 3 and 4 and extending to a distance of
200 meters in all direction shall be the Regulated area in
respect of every ancient monument and archaeological
site and remains;
AND WHEREAS sub-section (1) of Section 20C of
the Ancient Monuments Archaeological Sites and Remains
(Amendment and Validation) Act, 2010 provides that any
person, who owns any building or structure, which
existed in a prohibited area before the 16th day of June,
1992, or, which had been subsequently constructed with
the approval of the Director General and desires to carry
out any repair or renovation of such building or structure,
may obtain prior permission from the Competent
Authority for carrying out such repair or renovation as
the case may be, under Sub-section (4) of Section 20A no
permission shall be granted for construction works in
Prohibited area. Under Section 30A of the said Act,
whosever raises, any construction in the prohibited area,
shall be punishable with imprisonment not exceeding two
years or with fine which may extend to one lakh rupees
or with both.
AND WHEREAS sub-section (2) of Section 20C of the
Ancient Monuments Archaeological Sites and Remains
(Amendment and Validation) Act, 2010 provides that any
person, who owns or possess any building or structure or land in
any Regulated area and desire to carryout any construction or
reconstruction or repair of renovation of such building or
structure on such land, as the case may be, may make an
application to the Competent Authority for carrying out
construction or re-construction or repair or renovation as the
case may be. Under Section 30(B) of the said Act, whoever
raises, any construction in the Regulated area without the
previous permission of the Competent Authority or in
contravention of the permission granted by the Competent
Authority, shall be punishable with imprisonment not exceeding
2 years or with fine which may extend to one lakh rupee or with
both.
15
NOW THEREFORE you are directed to stop
unauthorized constructions/repairs/renovations/
reconstructions immediately and intimate the
undersigned within 03 days about the action taken to
stop work. You are also directed to approach the
Competent Authority (Karnataka)/Regional Director
(South), Archaeological Survey of India, KSIMC Building,
Industrial Estate, Rajajinagar, Bangalore-43 for obtaining
permission.
To
Mr. Dennis Crasta,
Manager Nagara, Crasta Compound,
Near Mangala Devi Temple,
Mangalore- (575 001)"
(Emphasis added)
The issue is, why did Archaeological Survey of India enter into the
scenario. It is the allegation in the stop notice that the petitioner is
constructing a new house in the regulated area around 150 meters
from 'Mangala Devi Temple' at Mangalore. Mangala Devi Temple
is declared to be a protected monument under the Act and any
construction in the surrounding area of the protected monument is
regulated under the Act and the Rules framed thereunder.
10. Therefore, it becomes necessary to notice certain
provisions of the Act. The protection, prohibition and regulation of
construction activities is regulated under the Act. Section 2(da) of
16
the Act defines "Authority", Section 2(db) defines "Competent
Authority", 2(ha) defines "prohibited area", Section 2(i) defines
"protected area", Section 2(j) defines "protected monument",
Section 2(k) defines "re-construction", Section 2(l) defines
"regulated area" and Section 2(m) defines "repair and renovation",
all of which read as follows:
"Section 2(da) - "Authority" means the National
Monuments Authority constituted under section 20F.
Section 2(db) - "Competent Authority" means an
officer not below the rank of Director of archaeology or
Commissioner of archaeology of the Central or State
Government or equivalent rank, specified, by notification in the
Official Gazette, as the competent authority by the Central
Government to perform functions under this Act:
Provided that the Central Government may, by
notification in the Official Gazette, specify different competent
authorities for the purpose of sections 20C, 20D and 20E.
.... .... ....
Section 2(h) - "prescribed" means prescribed by rules
made under this Act;
Section 2(ha) - "prohibited area" means prescribed
by rules made under this Act;
Section 2(i) - "protected area" means any
archaeological site and remains which is declared to be of
national importance by or under this Act;
Section 2(j) - "protected monument" means any
ancient monument which is declared to be of national
importance by or under this Act.
17
Section 2(k) - "re-construction" means any erection
of a structure or building to its pre-existing structure, having the
same horizontal and vertical limits;
Section 2(l) - "regulated area" means any area
specified or declared under section 20B;
Section 2(m) - "repair and renovation" means
alterations to a pre-existing structure or building, but shall not
include construction or re-construction."
Prohibited area and regulated area are as found in Sections
20A and 20B of the Act, which read as follows:
"Section 20A. - Declaration of prohibited area and
carrying out public work or other works in prohibited
area.-- Every area, beginning at the limit of the protected area
or the protected monument, as the case may be, andextending
to a distance of one hundred metres in all directions shall be the
prohibited area in respect of such protected area or protected
monument:
Provided that the Central Government may, on the
recommendation of the Authority, by notification in the Official
Gazette, specify an area more than one hundred metres to be
the prohibited area having regard to the classification of any
protected monument or protected area, as the case may be,
under section 4A.
(2) Save as otherwise provided in section 20C, no person,
other than an archaeological officer, shall carry out any
construction in any prohibited area.
(3) In a case where the Central Government or the
Director-General, as the case may be, is satisfied that-
(a) it is necessary or expedient for carrying out
such public work or any project essential to the
public; or
18
(b) such other work or project, in its opinion; shall
not have any substantial adverse impact on the
preservation, safety, security of, or, access to,
the monument or its immediate surrounding.
it or he may, notwithstanding anything contained in sub-section
(2), in exceptional cases and having regard to the public
interest, by order and for reasons to be recorded in writing,
permit, such public work or project essential to the public or
other constructions, to be carried out in a prohibited area:
Provided that any area near any protected monument or
its adjoining area declared, during the period beginning on or
after the 16h day of June, 1992 but ending before the date on
which the Ancient Monuments and Archaeological Sites and
Remains (Amendment and Validation) Bill, 2010, receives the
assent of the President, as a prohibited area in respect of such
protected monument, shall be deemed to be the prohibited area
declared in respect of that protected monument in accordance
with the provisions of this Act and any permission or licence
granted by the Central Government or the Director-General, as
the case may be, for the construction within the prohibited area
on the basis of the recommendation of the Expert Advisory
Committee, shall be deemed to have been validly granted in
accordance with the provisions of this Act, as if this section had
been in force at all material times:
Provided further that nothing contained in the first
proviso shall apply to any permission granted, subsequent to
the completion of construction or re-construction of any building
or structure in any prohibited area in pursuance of the
notification of the Government of India in the Department of
Culture (Archaeological Survey of India) number S.0.1764,
dated the 16th June, 1992 issued under rule 34 of the Ancient
Monuments and Archaeological Sites and Remains Rules, 1959,
or, without having obtained the recommendations of the
Committee constituted in pursuance of the order of the
Government of India number 24/22/2006-M, dated the 20th
July, 2006 (subsequently referred to as the Expert Advisory
Committee in orders dated the 27th August, 2008 and the
5th May, 2009).
19
(4) No permission, referred to in sub-section (3),
including carrying out any public work or project essential to the
public or other constructions, shall be granted in any prohibited
area on and after the date on which the Ancient Monuments and
Archaeological Sites and Remains (Amendment and Validation)
Bill, 2010 receives the assent of the President.
Section 20B - Declaration of regulated area in
respect of every protected monument. - Every area,
beginning at the limit of prohibited area in respect of
every ancient monument and archaeological site and
remains, declared as of national importance under
sections 3 and 4 and extending to a distance of two
hundred metres in all directions shall be the regulated
area in respect of every ancient monument and
archaeological site and remains:
Provided that the Central Government may, by
notification in the Official Gazette, specify an area more than
two hundred metres to be the regulated area having regard to
the classification of any protected monument or protected area,
as the case may be, under section 4A:
Provided further that any area near any protected
monument or its adjoining area declared, during the period
beginning on or after the 16th day of June, 1992 but ending
before the date on which the Ancient Monuments and
Archaeological Sites and Remains (Amendment and Validation)
Bill, 2010, receives the assent of the President, as a regulated
area in respect of such protected monument, shall be deemed to
be the regulated area declared in respect of that protected
monument in accordance with the provisions of this Act and any
permission or licence granted for construction in such regulated
area shall, be deemed to have been validly granted in
accordance with the provisions of this Act, as if this section had
been in force at all material times."
(Emphasis supplied)
20
An application for renovation in the prohibited area, construction or
re-construction or repair or renovation in the regulated area is dealt
with in Section 20C and grant of permission by competent authority
within regulated area is dealt with in Section 20D of the Act, which
read as under:
"Section 20C - Application for repair or renovation
in prohibited area, or construction or re construction or
repair or renovation in regulated area.--
(1) Any person, who owns any building or structure, which
existed in a prohibited area before the 16th day of June,
1992, or, which had been subsequently constructed with
the approval of the Director-General and desires to carry
out any repair or renovation of such building or structure,
may make an application to the competent authority for
carrying out such repair or renovation, as the case may
be.
(2) Any person, who owns or possesses any building or
structure or land in any regulated area, and desires to
carry out any construction or re- construction or repair or
renovation of such building or structure on such land, as
the case may be, may make an application to the
competent authority for carrying out construction or re-
construction or repair or renovation, as the case may be.
Section 20D - Grant of permission by competent
authority within regulated area.--
(1) Every application for grant of permission under section
20C of this Act shall be made to the competent authority
in such manner as may be prescribed.
(2) The competent authority shall, within fifteen days of the
receipt of the application, forward the same to the
Authority to consider and intimate impact of such
construction (including the impact of large-scale
21
development project, public project and project essential
to the public) having regard to the heritage bye-laws
relating to the concerned protected monument or
protected area, as the case may be:
Provided that the Central Government may
prescribe the category of applications in respect of which
the permission may be granted under this sub-section
and the application which shall be referred to the
Authority for its recommendations.
(3) The Authority shall, within two months from the date of
receipt of application under sub-section (2), intimate to
the competent authority impact of such construction
(including the impact of large-scale development project,
public project and project essential to the public).
(4) The competent authority shall, within one month of the
receipt of intimation from the Authority under sub-section
(3), either grant permission or refuse the same as so
recommended by the Authority.
(5) The recommendations of the Authority shall be final.
(6) In case the competent authority refuses to grant
permission under this section, it shall, by order in writing,
after giving an opportunity to the concerned person,
intimate such refusal within three months from the date
of receipt of the application to the applicant, the Central
Government and the Authority.
(7) If the competent authority, after grant of the permission
under sub- section (4) and during the carrying out of the
repair or renovation work or re-construction of building or
construction referred to in that sub- section, is of the
opinion (on the basis of material in his possession or
otherwise) that such repair or renovation work or re-
construction of building or construction is likely to have
an adverse impact on the preservation, safety, security or
access to the monument considerably, it may refer the
same to the Authority for its recommendations and if so
recommended, withdraw the permission granted under
sub-section (4) if so required:
22
Provided that the competent authority may, in
exceptional cases, with the approval of the Authority
grant permission to the applicant referred to in sub-
section (2) of section 20C until the heritage bye- laws
have been prepared under sub-section (1) of section 20E
and published under sub-section (7) of that section.
(8) The Central Government, or the Director-General, as the
case maybe, shall exhibit, on their website, all the
permissions granted or refused under this Act."
The afore-quoted provision of law clearly mandate, that there can
be no construction activities in the prohibited, and regulated areas,
of a site which has been declared to be monument of national
importance, except in terms of the afore extracted provisions of
law, as Section 20C of the Act clearly mandates that what is
permissible is only repair or renovation of an earlier existing
building. A new construction in the prohibited and regulated areas is
clearly barred under Sections 20A and 20B of the Act.
11. Provisions of the Act would clearly indicate that what is
permitted around protected monument is only a repair or
renovation of an earlier existing building. The plan that is sought
for, by the petitioner, is noted hereinabove. It is ground floor and
first floor and a new construction. Nowhere the permission is
23
granted by the Corporation for renovation. Photographs of
construction that are appended to the petition would clearly
demonstrate that it is a new construction after razing the old
construction to the ground. The contention is that the petitioner's
property is being constructed beyond 150 meters which is
permissible. The learned counsel appearing for the 2nd respondent-
Archaeological Survey of India has produced the site inspection
report. The site inspection report clearly indicates that it is within
64 meters from the prohibited area. The indication in the report is
as follows:
"8. Distance from the 64.00 Meters - Prohibited
protected monument / area.
protected area:
(distance should be
measured from the notified
boundary)
(Emphasis supplied)
The respondents have also produced google earth images.
According to the petitioner, the google earth image taken shows the
distance as 151.01 meter. It is deliberately shot from a different
angle and enlarged so that the distance would change. The
24
respondents have placed google earth image taken by them which
clearly depicts that the property which is being constructed is within
64 meters from the protected monument. Around the protected
monument, as observed hereinabove, the statute clearly bars any
kind of new construction, but permits only repair and minor
renovation of an old structure. Therefore, the permission granted
falls foul of the mandate of the statute, so does the construction.
12. It becomes apposite to refer to the judgment of the Apex
Court in the case of ARCHAEOLOGICAL SURVEY OF INDIA v.
NARENDER ANAND1, wherein the Apex Court has delineated
entire spectrum of the statute, considering every one of the
provisions. The Apex Court has held as follows:
".... .... ....
2. While the Archaeological Survey of India has
questioned the direction given by the Division Bench of the High
Court for review of Notification dated 16-6-1992, Respondents 1
and 2 have challenged that portion of the impugned judgment
by which the Division Bench vacated the order of injunction
passed by the learned Single Judge.
3. Archaeological and historical pursuits in India
started with the efforts of Sir William Jones, who put
together a group of antiquarians to form the Asiatic
1
(2012) 2 SCC 562
25
Society on 15-1-1784 in Calcutta. He was supported by
many persons who carried out survey of monuments in
various parts of India. The identification of Chandragupta
Maurya with Sandrokottos of Greek historians by Jones
helped in fixing a chronological horizon of Indian history.
This was followed by the identification of Pataliputra
(Palibothra of classical writings) at the confluence of
Ganga and Sone. The decipherment of Gupta and Kutila
scripts by Charles Wilkinson was a landmark in this
regard. Thereafter, many individuals made contribution in
surveying different monuments in India.
4. In 1861, Alexander Cunningham was appointed as the
first Archaeological Surveyor. He surveyed areas stretching from
Gaya in the east to Indus in the north-west, and from Kalsi in
the north to Narmada in the south, between 1861 and 1865. For
this, he largely followed the footsteps of the Chinese pilgrim
Hiuen Tsang. However, with the abolition of the Archaeological
Survey in 1866, this work came to a grinding halt.
5. In the meanwhile, an Act was passed in 1863
empowering the Government to prevent injury to, and preserve
the buildings remarkable for their antiquity and historical or
architectural value. In 1878, the Treasure Trove Act was
enacted which enabled the Government to confiscate treasures
and antiques found during chance digging. After 26 years, the
Ancient Monuments Preservation Act, 1904 (for short "the 1904
Act") was enacted for the preservation of ancient monuments
and objects of archaeological, historical or artistic interest.
6. Section 2(1) of the 1904 Act, which contains the
definition of "ancient monument" and Section 3 under which the
Central Government was empowered to declare an ancient
monument to be a protected monument were as under:
"2. Definitions.--In this Act, unless there is
anything repugnant in the subject or context--
(1) 'ancient monument' means any structure,
erection or monument or any tumulus or place of
interment, or any cave, rock sculpture, inscription or
monolith, which is of historical, archaeological or
26
artistic interest, or any remains thereof, and
includes--
(a) the site of an ancient monument;
(b) such portion of land adjoining the site of an
ancient monument as may be required for fencing or
covering in or otherwise preserving such monument; and
(c) the means of access to and convenient inspection
of an ancient monument;
* * *
3.Protected monuments.--(1) The Central
Government may, by notification in the Official
Gazette, declare an ancient monument to be a
protected monument within the meaning of this Act.
(2) A copy of every notification published under sub-
section (1) shall be fixed up in a conspicuous place on or
near the monument, together with an intimation that any
objections to the issue of the notification received by the
Central Government within one month from the date when
it is so fixed up will be taken into consideration.
(3) On the expiry of the said period of one month,
the Central Government, after considering the objections, if
any, shall confirm or withdraw the notification.
(4) A notification published under this section shall,
unless and until it is withdrawn, be conclusive evidence of
the fact that the monument to which it relates is an ancient
monument within the meaning of this Act."
7. The Framers of the Constitution were very much
conscious of the need of protecting the monuments and
places/objects of artistic and historic importance. This is
why Article 49 was incorporated in the directive
principles of State policy (Part IV of the Constitution)
whereby an obligation has been imposed on the State to
protect every monument or place or object of artistic or
historic interest declared by or under law made by
Parliament. For the sake of reference Article 49 is reproduced
below:
"49.Protection of monuments and places
and objects of national importance.--It shall be
27
the obligation of the State to protect every monument
or place or object of artistic or historic interest,
declared by or under law made by Parliament to be of
national importance, from spoliation, disfigurement,
destruction, removal, disposal or export, as the case
may be."
8. In 1951, Parliament enacted the Ancient and Historical
Monuments and Archaeological Sites and Remains (Declaration
of National Importance) Act, 1951, whereby certain monuments,
etc. were declared to be of national importance. After 7 years,
Parliament enacted the Ancient Monuments and Archaeological
Sites and Remains Act, 1958 (for short "the 1958 Act") to
provide for the preservation of ancient and historical
monuments and archaeological sites and remains of national
importance, for the regulation of archaeological excavations and
for the protection of sculptures, carvings and other like objects.
Similar legislations have been enacted by various State
Legislatures with reference to Schedule VII List II Entry 12 of
the Constitution.
9. The definition of "ancient monument" contained in
Section 2(a) and Sections 3, 4, 38(1), (2)(a) and (b) and 39 of
the 1958 Act, which are relevant for deciding the issues raised
in these appeals are reproduced below:
"2.Definitions.--In this Act, unless the context
otherwise requires--
(a) 'ancient monument' means any structure,
erection or monument, or any tumulus or place of
interment, or any cave, rock sculpture, inscription or
monolith, which is of historical, archaeological or artistic
interest and which has been in existence for not less than
one hundred years, and includes--
(i) the remains of an ancient monument,
(ii) the site of an ancient monument,
(iii) such portion of land adjoining the site of an
ancient monument as may be required for fencing or
covering in or otherwise preserving such monument, and
28
(iv) the means of access to, and convenient
inspection of an ancient monument;
***
3.Certain ancient monuments, etc. deemed to
be of national importance.--All ancient and historical
monuments and all archaeological sites and remains which
have been declared by the Ancient and Historical
Monuments and Archaeological Sites and Remains
(Declaration of National Importance) Act, 1951 (71 of
1951), or by Section 126 of the States Reorganisation Act,
1956 (37 of 1956), to be of national importance shall be
deemed to be ancient and historical monuments or
archaeological sites and remains declared to be of national
importance for the purposes of this Act.
4.Power of Central Government to declare
ancient monument, etc. to be of national
importance.--(1) Where the Central Government is of
opinion that any ancient monument or archaeological site
and remains not included in Section 3 is of national
importance, it may, by notification in the Official Gazette,
give two months' notice of its intention to declare such
ancient monument or archaeological site and remains to be
of national importance; and a copy of every such
notification shall be affixed in a conspicuous place near the
monument or site and remains, as the case may be.
(2) Any person interested in any such ancient
monument or archaeological site and remains may, within
two months after the issue of the notification, object to the
declaration of the monument, or the archaeological site and
remains, to be of national importance.
(3) On the expiry of the said period of two months,
the Central Government may, after considering the
objections, if any, received by it, declare by notification in
the Official Gazette, the ancient monument or the
archaeological site and remains; as the case may be, to be
of national importance.
(4) A notification published under sub-section (3)
shall, unless and until it is withdrawn, be conclusive
evidence of the fact that the ancient monument or the
archaeological site and remains to which it relates is of
national importance for the purposes of this Act.
***
29
38.Power to make rules.--(1) The Central
Government may, by notification in the Official Gazette and
subject to the condition of previous publication, make rules
for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may provide
for all or any of the following matters, namely--
(a) the prohibition or regulation by licensing or
otherwise of mining, quarrying, excavating, blasting or any
operation of a like nature near a protected monument or the
construction of buildings on land adjoining such monument
and the removal of unauthorised buildings;
(b) the grant of licences and permissions to make
excavations for archaeological purposes in protected areas,
the authorities by whom and the restrictions and conditions
subject to which, such licences may be granted, the taking
of securities from licensees and the fees that may be
charged for such licences;
* * *
39.Repeals and saving.--(1) The Ancient and
Historical Monuments and Archaeological Sites and Remains
(Declaration of National Importance) Act, 1951 (71 of
1951), and Section 126 of the States Reorganisation Act,
1956 (37 of 1956), are hereby repealed.
(2) The Ancient Monuments Preservation Act, 1904
(7 of 1904), shall cease to have effect in relation to ancient
and historical monuments and archaeological sites and
remains declared by or under this Act to be of national
importance, except as respects things done or omitted to be
done before the commencement of this Act."
10. In exercise of the power vested in it under Section 38
of the 1958 Act, the Central Government enacted the Ancient
Monuments and Archaeological Sites and Remains Rules, 1959
the relevant provisions whereof are extracted below:
"31.Notice or intention to declare a prohibited
or regulated area.--(1) Before declaring an area near or
adjoining a protected monument to be a prohibited area or
a regulated area for purposes of mining operation or
30
construction or both, the Central Government shall, by
notification in the Official Gazette, give one month's notice
of its intention to do so, and a copy of such notification shall
be affixed in a conspicuous place near the area.
(2) Every such notification shall specify the limits of
the area which is to be so declared and shall also call for
objection, if any, from interested persons.
32.Declaration of prohibited or regulated
area.--After the expiry of one month from the date of the
notification under Rule 31 and after considering the
objections, if any, received within the said period, the
Central Government may declare, by notification in the
Official Gazette, the area specified in the notification under
Rule 31, or any part of such area, to be a prohibited area,
or, as the case may be, a regulated area for purposes of
mining operation or construction or both.
33.Effect of declaration of prohibited or
regulated area.--No person other than an Archaeological
Officer shall undertake any mining operation or any
construction--
(a) in a prohibited, area, or
(b) in a regulated area except under and in
accordance with the terms and conditions of
a licence granted by the Director General."
... ... ...
43. At this stage, it is apposite to mention that during the
pendency of these appeals the 1958 Act was amended by the
Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Act, 2010 and Sections 20-A and
20-B were inserted with effect from 16-6-1992 and Sections 20-
C to 20-Q were inserted with effect from 29-3-2010.
44. Since the validity of the Amendment Act has not been
questioned before us, we do not propose to examine the same.
However, we would like to notice the provisions of Sections 20-
A, 20-B, 20-C and 20-F(1) and (2), the interpretation of which
will have far-reaching impact on the future of protected
monuments of national and international importance including
Jantar Mantar, New Delhi. These sections read as under:
31
"20-A.Declaration of prohibited area and
carrying out public work or other works in prohibited
area.--Every area, beginning at the limit of the protected
area or the protected monument, as the case may be, and
extending to a distance of one hundred metres in all
directions shall be the prohibited area in respect of such
protected area or protected monument:
Provided that the Central Government may, on the
recommendation of the Authority, by notification in the
Official Gazette, specify an area more than one hundred
metres to be the prohibited area having regard to the
classification of any protected monument or protected area,
as the case may be, under Section 4-A.
(2) Save as otherwise provided in Section 20-C, no
person, other than an archaeological officer, shall carry out
any construction in any prohibited area.
(3) In a case where the Central Government or the
Director General, as the case may be, is satisfied that--
(a) it is necessary or expedient for carrying out
such public work or any project essential to
the public; or
(b) such other work or project, in its opinion,
shall not have any substantial adverse impact
on the preservation, safety, security of, or,
access to, the monument or its immediate
surrounding.
It or he may, notwithstanding anything contained in
sub-section (2), in exceptional cases and having regard to
the public interest, by order and for reasons to be recorded
in writing, permit, such public work or project essential to
the public or other constructions, to be carried out in a
prohibited area:
Provided that any area near any protected
monument or its adjoining area declared, during the period
beginning on or after the 16th day of June, 1992 but ending
before the date on which the Ancient Monuments and
Archaeological Sites and Remains (Amendment and
Validation) Bill, 2010, receives the assent of the President,
as a prohibited area in respect of such protected
monument, shall be deemed to be the prohibited area
declared in respect of that protected monument in
32
accordance with the provisions of this Act and any
permission or licence granted by the Central Government or
the Director General, as the case may be, for the
construction within the prohibited area on the basis of the
recommendation of the Expert Advisory Committee, shall be
deemed to have been validly granted in accordance with the
provisions of this Act, as if this section had been in force at
all material times:
Provided further that nothing contained in the first
proviso shall apply to any permission granted, subsequent
to the completion of construction or reconstruction of any
building or structure in any prohibited area in pursuance of
the notification of the Government of India in the
Department of Culture (Archaeological Survey of India) No.
S.O. 1764, dated 16-6-1992 issued under Rule 34 of the
Ancient Monuments and Archaeological Sites and Remains
Rules, 1959, or, without having obtained the
recommendations of the Committee constituted in
pursuance of the order of the Government of India No.
24/22/2006-M, dated 20-7-2006 (subsequently referred to
as the Expert Advisory Committee in orders dated 27-8-
2008 and 5-5-2009).
(4) No permission, referred to in sub-section (3),
including carrying out any public work or project essential to
the public or other constructions, shall be granted in any
prohibited area on and after the date on which the Ancient
Monuments and Archaeological Sites and Remains
(Amendment and Validation) Bill, 2010 receives the assent
of the President.
20-B. Declaration of regulated area in respect
of every protected monument.--(1) Every area,
beginning at the limit of prohibited area in respect of
every ancient monument and archaeological site and
remains, declared as of national importance under
Sections 3 and 4 and extending to a distance of two
hundred metres in all directions shall be the
regulated area in respect of every ancient monument
and archaeological site and remains:
Provided that the Central Government may, by
notification in the Official Gazette, specify an area more
than two hundred metres to be the regulated area having
regard to the classification of any protected monument or
protected area, as the case may be, under Section 4-A:
33
Provided further that any area near any
protected monument or its adjoining area declared,
during the period beginning on or after the 16th day
of June, 1992 but ending before the date on which the
Ancient Monuments and Archaeological Sites and
Remains (Amendment and Validation) Bill, 2010,
receives the assent of the President, as a regulated
area in respect of such protected monument, shall be
deemed to be the regulated area declared in respect
of that protected monument in accordance with the
provisions of this Act and any permission or licence
granted for construction in such regulated area shall,
be deemed to have been validly granted in
accordance with the provisions of this Act, as if this
section had been in force at all material times.
20-C.Application for repair or renovation in
prohibited area, or construction or reconstruction or
repair or renovation in regulated area.--(1) Any
person, who owns any building or structure, which
existed in a prohibited area before the 16th day of
June, 1992, or, which had been subsequently
constructed with the approval of the Director General
and desires to carry out any repair or renovation of
such building or structure, may make an application
to the competent authority for carrying out such
repair or renovation, as the case may be.
(2) Any person, who owns or possesses any
building or structure or land in any regulated area,
and desires to carry out any construction or
reconstruction or repair or renovation of such
building or structure on such land, as the case may
be, may make an application to the competent
authority for carrying out construction or
reconstruction or repair or renovation, as the case
may be.
* * *
20-F.Constitution of National Monuments
Authority.--(1) The Central Government shall, by
notification in the Official Gazette, constitute an Authority to
be called as the National Monuments Authority.
(2) The Authority shall consist of--
34
(a) a Chairperson, on whole-time basis, to be
appointed by the President, having proven
experience and expertise in the fields of
archaeology, country and town planning,
architecture, heritage and conservation-
architecture or law;
(b) such number of members not exceeding five
whole-time members and five part-time members
to be appointed, on the recommendation of the
Selection Committee referred to in Section 20-G,
by the Central Government, having proven
experience and expertise in the fields of
archaeology, country and town planning,
architecture, heritage, conservation-architecture
or law;
(c) the Director General as member, ex officio."
45. What has been done by enacting Sections 20-A
and 20-B is to give legislative mandate to the concept of
prohibited and regulated areas respectively for the
purposes of mining operation and construction. Before
the 2010 Amendment, the Central Government could
issue notification under Rule 31 read with Rule 32 and
declare an area near or adjoining a protected monument
to be a prohibited area or a regulated area for the
purposes of mining operation or construction or both.
With the insertion of Section 20-A it has been made clear
that every area, beginning at the limit of the protected
area or the protected monument, as the case may be, and
extending to a distance of one hundred metres in all
directions shall be the prohibited area in respect of such
protected area or protected monument.
46. Not only this, by virtue of the proviso to Section 20-
A(1) the Central Government has been clothed with the power
to extend the prohibition beyond 100 m by issuing a notification
in the Official Gazette keeping in view the classification of any
protected monument or protected area, as the case may be,
under Section 4-A. Of course, this power can be exercised only
on the recommendations of the Authority as defined in Section
2(da) and constituted under Section 20-F. Somewhat similar
provision has been made in Section 20-B for the regulated area
35
in respect of every ancient monument and archaeological site
and remains. The proviso to that section empowers the Central
Government to issue notification in the Official Gazette and
specify an area more than two hundred metres to be the
regulated area having regard to the classification of any
protected monument or protected area, as the case may be,
under Section 4-A.
47. In terms of Section 20-A(2), it has been made
clear that no person other than an Archaeological Officer
shall carry out any construction in any prohibited area.
This is subject to Section 20-C, which can be treated as
an exception to Section 20-A(2). That section lays down
that any person who owns any building or structure,
which existed in a prohibited area before 16-6-1992 or
had been subsequently constructed with the approval of
the Director General may carry out any repair or
renovation of such building or structure by making an
application to the competent authority. The term
"renovation" appearing in Section 20-C will take its
colour from the word "repair" appearing in that section.
This would mean that in the garb of renovation, the
owner of a building cannot demolish the existing
structure and raise a new one and the competent
authority cannot grant permission for such
reconstruction.
48. Section 20-A(3) lays down that the Central
Government or the Director General can, in exceptional cases
and having regard to the public interest, pass a reasoned order
and permit a public work or any project essential to the public
or other construction in a prohibited area provided that such
construction does not have substantial adverse impact on the
preservation, safety, security of, or access to the protected
monuments or its immediate surrounding. The use of the
expression "such other work or project" in clause (b) of Section
20-A(3), if interpreted in isolation, may give an impression that
the Central Government or the Director General is empowered
to allow any other work or project by any person in the
prohibited area but, in our view, the said expression has to be
interpreted keeping in view the mandate of Article 49 of the
Constitution and the objects sought to be achieved by enacting
the 1958 Act i.e. preservation of ancient and historical
36
monuments, archaeological sites and remains of national
importance. This would necessarily imply that "such other work
or project" must be in the larger public interest in contrast to
private interest.
49. In other words, in exercise of power under
Section 20-A(3), the Central Government or the Director
General cannot pass an order by employing the stock of
words and phrases used in that section and permit any
construction by a private person dehors public interest.
Any other interpretation of this provision would destroy
the very object of the 1958 Act and the prohibition
contained in the Notification dated 16-6-1992 and sub-
section (1) of Section 20-A would become redundant and
we do not think that this would be the correct
interpretation of the amended provision. It also needs to
be emphasised that public interest must be the core
factor to be considered by the Central Government or the
Director General before allowing any construction and in
no case the construction should be allowed if the same
adversely affects the ancient and historical monuments
or archaeological sites.
50. We may now revert to the impugned judgment in
these appeals. In our view, the Archaeological Survey of India is
fully justified in making a grievance that the Division Bench of
the High Court was not justified in directing the Central
Government to review the prohibition contained in the
Notification dated 16-6-1992. The High Court's anxiety to
maintain a balance between the dire necessity of protecting
historical monuments of national and international importance
and development of infrastructures is understandable, but it is
not possible to approve the fiat issued to the Central
Government to review the prohibition contained in the
Notification dated 16-6-1992. That notification was issued by
the Central Government for implementing the policy enshrined
in Article 49 of the Constitution and the 1958 Act i.e. to
preserve and protect ancient and historical monuments and
archaeological sites and remains of national importance.
51. Section 19 of the 1958 Act contains a restriction
against construction of any building within the protected area or
carrying out of any mining, quarrying, excavating, blasting or
37
any other operation of similar nature in such area. Rules 31 and
32 of the Rules empower the Central Government to declare an
area near or adjoining a protected monument to be a prohibited
area or a regulated area for the purposes of mining operation or
construction. The Central Government must have issued the
Notification dated 16-6-1992 after consulting experts in the field
and keeping in view the object of the 1958 Act. Therefore, in
the name of development and accommodating the need for
multi-storeyed structures, the High Court could not have issued
a mandamus to the Central Government to review/reconsider
the Notification dated 16-6-1992 and that too by ignoring that
after Independence a large number of protected monuments
have been facing the threat of extinction and if effective steps
are not taken to check the same, these monuments may
become part of history.
52. One of such monuments is Jantar Mantar, New
Delhi. Some of its instruments have become
unworkable/non-functional. This is largely due to
construction of multi-storeyed structures around Jantar
Mantar. Therefore, we have no hesitation to hold that the
High Court was not justified in directing the Central
Government to review or reconsider the Notification
dated 16-6-1992 and, to that extent, the impugned
judgment is liable to be set aside. We may add that with
the insertion of Sections 20-A and 20-B, the direction
given by the High Court for review of the Notification
dated 16-6-1992 has become infructuous and the
Government is no longer required to act upon the same.
53. The appeal of Respondents 1 and 2 is wholly
meritless. The High Court, in our view, has rightly held that
even though the Notification dated 3-5-1957 did not become
effective because the same was not published in the Official
Gazette, the earlier Notification issued on 4-10-1956 remained
effective and the same was saved by Section 39(2) of the 1958
Act. We may add that even though the Notification dated 3-5-
1957 was issued in supersession of the Notification dated 4-10-
1956, the same remained alive because of non-compliance with
Section 3(2) of the 1904 Act. The High Court's interpretation of
the prohibition contained in the Notification dated 16-6-1992 is
correct and the distance of 100 m has to be counted from the
outer boundary wall of Jantar Mantar which has protected area
38
of 5.39 acres and not the physical structures of the observatory.
The High Court has given detailed reasons for rejecting the plea
of Respondents 1 and 2 that the provisions of the DDA Act
would prevail over those contained in the 1958 Act and we
entirely agree with it."
(Emphasis supplied)
13. In the light of unequivocal facts obtaining in the case at
hand, as narrated hereinabove, and statutory mandate and
judgment rendered by the Apex Court, the unmistakable inference
is that the construction of the petitioner cannot be permitted to be
completed. It is to be noticed that framers of the Constitution
were conscious of the need to shield the monuments and
places of historic importance from spoilation and
disfigurement. This is the soul of Article 49 of the Constitution of
India. Article 49 reads as follows:
"49. Protection of monuments and places and
objects of national importance.--It shall be the obligation
of the State to protect every monument or place or object
of artistic or historic interest, declared by or under law
made by Parliament] to be of national importance, from
spoliation, disfigurement, destruction, removal, disposal or
export, as the case may be."
(Emphasis supplied)
39
Article 49, a part of the directive principles of the State policy
mandates protection of monuments and places and objects of
national importance. It is the obligation of the State to protect
every monument of historic interest. If this is the mandate of
the Constitution, in terms of law and when Mangala Devi Temple is
declared to be a protected monument, it is ununderstandable as to
how the Corporation has granted permission to put up a new
construction, that too without keeping Archaeological Survey of
India in the loop, is deeply perturbing. Permission is granted in
blithe ignorance or indifference to the statutory embargo.
Public functionaries are the custodians of the law, not its
adversaries.
14. The Corporation officials have wantonly ignored the
mandate of the law in permitting construction of the kind that is
permitted in the case at hand, which undoubtedly undermines
statutory sanctity. Therefore, action should ensue against those
erring officials who have permitted such construction. A
departmental enquiry shall be initiated against those erring officials
and appropriate action be taken, on identification of the role of such
40
erring officers qua the permission granted for putting up the subject
construction. The departmental enquiry shall be held in strict
consonance with the principles of natural justice and affording of
adequate opportunity to such officials so identified. I further deem
it appropriate to direct the State Government in the Department of
Urban Development, to issue a circular to restrict the officers from
granting permission to put up new constructions, in and around the
protected monuments, and if any permission is to be granted in
tune with the statute, such permission shall precede a no objection
from the Archeological Survey of India. The circular shall also
indicate that permissions if granted by officers contrary to law, they
would be doing so at their peril, making themselves open for
initiation of a departmental enquiry.
15. For the aforesaid reasons, the following:
ORDER
(i) The Writ Petition being devoid of merit stands dismissed.
41(ii) The impugned order dated 28-01-2025 issued by the Regional Director, National Monuments Authority stands upheld.
(iii) The petitioner is restrained from proceeding with the construction which stands in breach of Section 20A and 20B of the Ancient Monuments and Archaeological Sites and Remains Act.
(iv) A copy of this order shall be transmitted to the Principal Secretary, Department of Urban Development for its compliance of issuance of a circular.
(v) A circular shall be issued within 8 weeks from the date of receipt of the copy of the order and the same be placed before the Registry of this Court.
(vi) Departmental enquiry against the erring officials be initiated and conducted strictly in consonance with principles of natural justice after identifying those officers who has/have granted permission to put up a new construction contrary to the Statute.
42(vii) Action taken report on the said departmental enquiry shall also be placed before the Registry of this Court within 3 months from the date of receipt of the copy of this order.
SD/-
(M.NAGAPRASANNA) JUDGE bkp CT:MJ