Madras High Court
S.R.Nanda Kishore vs Archaeological Survey Of India on 7 June, 2018
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.06.2018
CORAM
THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM
WP.No.22583 of 2012
& MP No.1 of 2012
S.R.Nanda Kishore ...Petitioner
Vs.
1. Archaeological Survey of India,
Rep. by its Superintending Archaeologist,
Chennai Circle,
Fort St. George, Chennai - 600 009.
2. Deputy Superintending Archaeologist,
Archaeological Survey of India,
Chennai Circle, Fort St.George, Chennai - 600 009.
3. Senior Conservation Assistant,
Archaeological Survey of India,
Chennai Sub Circle,
Fort St. George, Chennai - 600 009.
4. The Executive Officer,
Madambakkam Town Panchayat,
Madambakkam, Chennai. ...Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to letter Ref.No.MBK(11)/A/195/11-12, dated 12.07.2011 of 3rd respondent read with letter No.A V Act/2010/NOC/CSC/4157, dated 07.09.2011 of 1st respondent addressed to the 4th respondent or any similar letter, quash the same and direct the 4th respondent to approve the layout without insisting on the NOC from respondents 1 to 3.
For Petitioner : Mr.V.Ramesh
for M/s.Sampathkumar and Associates
For Respondents : Mr.G.Karthikeyan, ASGI (RR1 to 3)
Mr.P.Sanjai Gandhi (for R4)
ORDER
This Writ Petition has been filed to quash the letters of the respondents 1 to 3, in and by which, a direction was given to obtain No Objection Certificate from the authorities of the Archaeological Survey of India to approve the layout and for a direction to the 4th respondent to approve the layout without insisting of the No Objection Certificate from the respondents 1 to 3.
2. According to the petitioner, he is a promoter of lay outs in Chengalpattu. When he had a proposal to form layout in the 4th respondent Village, he was informed that no layout would be approved, unless a No Objection Certificate is obtained from the respondents 1 to 3, pursuant to the impugned letters. The further case of the petitioners is that production of No Objection Certificates from the respondents 1 to 3 would arise only at the stage of construction of building within the prohibited and regulated area. The respondents 1 to 3 have no authority to issue the impugned notice.
3. The first respondent has filed a counter affidavit stating that the communique were issued to the 4th respondent to regulate the construction activities in the prohibited and regulated areas of national monument Sri Dhenupuriswara Temple in Madambakkam in accordance with the provisions of the National Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 (hereinafter called as AMASR Act).
4. It is further stated that the President of Madambakkam Town Panchayat, vide her letter, dated 18.07.2011 reported that an approval is being accorded for construction activities in the prohibited area in Survey Nos.577, 578 and 581 and requested the first respondent to take suitable action in the matter of maintaining environment of the national monument, by not allowing such unauthorised construction activities and unauthorised approvals. Hence, in the interest of public, and in order not to get them affected by illegal approval of layouts and construction plans and further to protect the environment of national monuments, the respondents 1 to 3 requested the 4th respondent to not to accord permission for any approval of lay out in the prohibited or regulated area.
5. It is further stated that the petitioner as well as the other layout promoters have to abide the provisions of AMASR Act without giving any room for illegal construction activity. Only because of some illegal approvals of layouts in that area, around the national monument Sri Dhenupuriswara Temple, Madambakkam, the President of the Village requested the office to stop the same. Layouts are made with a view to commence construction activity, when such layouts are made in an unscrupulous manner, the respondent Department has a duty to stop the same by cautioning the Executive Officer of the Panchyat. Unless the localbody monitors, it is very difficult to implement the provisions of the AMASR Act and construction activity will go unchecked from the national monument and sites in Tamil Nadu.
6. The learned counsel for the petitioner submitted that the provisions of the AMASR Act would apply only for the construction / repair / re-construction of buildings in the prohibited and regulated area and it would not apply at the time of approving the layout. It is further contended that the respondents have no authority to issue the impugned letters.
7. Per contra, the learned Assistant Solicitor General of India, has submitted that the layouts are being formed only for putting up residential construction and once the approval is given, the general public purchase the plots with a hope to construct house and at that time they are not informed, whether the layouts are formed in the prohibited or regulated area. So, only to protect the interest of the general public, this impugned letters have been issued and if the petitioner satisfies the provisions of the AMASR Act, the official respondents would give NOC and in that event the petitioner cannot have any grievance.
8. Heard the learned counsel for the petitioner, the learned Assistant Solicitor General of India for the respondents 1 to 3 and the learned counsel for the 4th respondent and perused the materials available on record.
9. The main contention of the learned counsel for the petitioner is that the letters are contrary to the provisions of the AMASR Act and the respondents have no authority to issue such letters.
10. It is not in dispute that as per the provisions of the AMASR Act, construction activity within 100 metres of the national monument is prohibited and construction activities can be done with a permission of the authorities within the distance of 100 to 300 metres. It is not the case of the respondents that statute mandates the promoters to obtain NOC, but the circulars have been issued only to protect the interest of the general public.
11. As rightly pointed out by the learned Assistant Solicitor General of India, once approval to the layouts is granted, the general public without knowing the fact that whether the layouts comes under the prohibited or regulated area as per the provisions of the AMASR Act invest their hard-earned money in purchasing plots with a fond hope to construct their dream houses. It is to be seen that most of the plots are purchased by the people belongs to the lower and lower middle class. After purchasing the plot, if they are not able to get NOC from the respondents, it would seriously affect their interest.
12. It is also submitted by the learned Assistant Solicitor General of India that the impugned circulars have been issued to protect the larger interest of public from being cheated by the promoters of the layouts and in the event of they succeed in the Writ Petition, it would be misinterpreted stating that the layouts got approval of the High Court. In my considered view, these arguments cannot be lightly brushed aside.
13. It is not the case of the petitioner that the layout is situated beyond the prohibited or regulated area and the authorities of the respondents 1 to 3 refused to issue NOC for getting layout approval. Further, no averment has been made nor any material has been produced by the petitioner to show his prejudice in issuing the impugned circulars.
14. In the light of the above facts, I do not find fault with the impugned notices and if the layout promoters satisfy the norms prescribed in the AMASR Act, they are entitled to get NOC from the official respondents. Therefore, I find no merit in this writ petition. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
07.06.2018 (3/3) Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order pvs K.KALYANASUNDARAM, J.
To
1. The Superintending Archaeologist, Archaeological Survey of India, Chennai Circle, Fort St. George, Chennai - 600 009.
2. Deputy Superintending Archaeologist, Archaeological Survey of India, Chennai Circle, Fort St.George, Chennai - 600 009.
3. Senior Conservation Assistant, Archaeological Survey of India, Chennai Sub Circle, Fort St. George, Chennai - 600 009.
4. The Executive Officer, Madambakkam Town Panchayat, Madambakkam, Chennai.
WP.No.22583 of 201207.06.2018 (3/3)