Karnataka High Court
Moodabidri Town Municipal Council vs National Monuments Authority on 27 September, 2024
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NC: 2024:KHC:40359-DB
WP No. 31676 of 2017
C/W WP No. 51844 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No. 31676 OF 2017 (LB-RES)
C/W
WRIT PETITION No. 51844 OF 2019 (GM-RES)
IN WRIT PETITION No.31676 OF 2017
BETWEEN:
1 . JAISON MARSHALL SOARES,
S/O JOHN ANTHONY SOARES,
AGED ABOUT 34 YEARS,
RESIDING AT 1.30, "JOY NIVAS"
PUCHMOGARU VILLAGE,
TACCODI POST,
Digitally signed
by VALLI NEAR ADARSH HIGH SCHOOL,
MARIMUTHU KODANGALLU,
Location: High
Court of DAKSHINA KANNADA.
Karnataka
...PETITIONER
(BY SRI SACHIN B. S., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPESENTED BY ITS SECRETARY
TO THE REVENUE DEPARTMENT,
M. S. BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU-560001.
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WP No. 31676 of 2017
C/W WP No. 51844 of 2019
2. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF ROAD AND TRANSPORT,
NEW DELHI-110075.
3. NATIONAL HIGH WAY AUTHORITIES OF INDIA,
REPRESENTED BY ITS CHAIRMAN,
G5 & 6 SECTOR-10,
DWARAKA,
NEW DELHI-110 075.
4. ARCHAELOGICAL SURVEY OF INDIA,
REPRESENTED BY ITS CHAIRMAN,
JANPATH,
NEW DELH-110075.
5. UNION OF INDIA
REPRESENTED BY ITS SECRETARY
TO THE MINISTRY OF CULTURE,
NEW DELHI-110075.
6. ARCHAEOLOGICAL SURVEY OF INDIA,
BANGALORE CIRCLE,
KENDRIA SADANA,
V FLOOR, F WING,
KORAMANGALA,
BENGALURU-560 034,
BY ITS SUPERINTENDING ARCHAEOLOGIST.
7. MOODABIDRI TOWN MUNICIPAL COUNCIL,
MOODABIDRI,
MANGALORE TALUK-575101.
REPRESENTED BY ITS CHIEF OFFICER.
...RESPONDENTS
(BY SMT. SHWETA KRISHNAPPA, AGA FOR R1;
SRI K. ARVIND KAMATH, ASGI A/W
SMT. K.S. ANASUYADEVI, CGC FOR R2, R4 TO R6;
SRI SHOBITH N. SHETTY, ADVOCATE FOR R3;
SRI ASHOK HARANAHALLI, SENIOR ADVOCATE A/W
SRI K. CHANDRANATH ARIGA, ADVOCATE FOR R7)
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NC: 2024:KHC:40359-DB
WP No. 31676 of 2017
C/W WP No. 51844 of 2019
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECTING TO R-7 TO
PROHIBIT FROM PROCEEDING WITH THE CONSTRUCTION OF
NEW MARKET BUILDING BY DEMOLISHING THE EXISTING OLD
MARKET BUILDING LOCATED IN THE MOODABIDRI TOWN,
MANGALURU TALUK AND ETC.
IN WRIT PETITION No.51844 OF 2019
BETWEEN:
1. MOODABIDRI TOWN MUNICIPAL COUNCIL,
MOODABIDRI 574227,
MANGALURU TALUK,
REP. BY ITS CHIEF OFFICER.
..PETITIONER
(BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
SRI CHANDRANATH ARIGA K., ADVOCATE )
AND:
1. NATIONAL MONUMENTS AUTHORITY,
MINISTRY OF CULTURE,
GOVT. OF INDIA,
24, THILAK MARG,
NEW DELHI 110001,
BY ITS DIRECTOR (CONSULTANT)
2. ARCHAELOGICAL SURVEY OF INDIA,
BANGALORE CIRCLE,
KENDRIA SADANA,
5TH FLOOR, F WING,
KORAMANGALA,
BENGALURU 560034.
BY ITS SUPERINTENDING ARCHAELOGIST.
3. RAMANSHREE INFRASTRUCTURE,
OFF CANARA CLUB,
NEXT TO STATE BANK OF MYSORE,
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WP No. 31676 of 2017
C/W WP No. 51844 of 2019
SHIVABAGH ROAD,
KADRI, MANGALURU 575002.
...RESPONDENTS
(BY SRI K. ARVIND KAMATH, ASGI A/W
SRI MADHUKAR DESHPANDE, CGSC FOR R1 & R2;
SRI R. SUBRAMANYA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT DATED 16.09.2019 ISSUED BY R-1 IN ANNEXURE-
G; DIRECT THE R-1 TO CONSIDER THE APPLICATION DATED
12.09.2017 (ANNEXURE-B) FILED BY THE PETITIONER.
THESE WRIT PETITIONS COMING ON FOR FINAL DISPOSAL
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE
N. V. ANJARIA
and
HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE K.V. ARAVIND) Heard learned advocate Mr. B.S. Sachin for the petitioner, learned Additional Government advocate Smt. Shweta Krishnappa for respondent No.1, learned Additional Solicitor General of India Mr. K. Arvind Kamath along with learned Central Government Counsel Smt. K.S. Anasuyadevi for respondent Nos.2, 4 to 6, learned advocate Mr. Shobith N. Shetty for respondent No.3 and learned Senior Advocate Mr. Ashok Haranahalli along with learned advocate -5- NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 Mr. K. Chandranath Ariga for respondent No.7 in Writ Petition No. 31676 of 2017.
Learned Senior Advocate Mr. Ashok Haranahalli along with learned advocate Mr. K. Chandranath Ariga for the petitioner, learned Additional Solicitor General of India Mr. K. Arvind Kamath along with learned Central Government Standing Counsel Mr. Madhukar Deshpande for respondent Nos.1 and 2 and learned advocate Mr. R. Subramanya for respondent No.3 in Writ Petition No.51844 of 2019.
2. The petitioner of Writ Petition No.31676 of 2017 has preferred this public interest litigation seeking direction to prohibit the construction of the new market building in Moodabidri Town, Mangaluru Taluk.
2.1 The public interest petitioner is stated to be a resident of Moodabidri Town, a Journalist by profession and a public- spirited person. It is stated that Chowtra Aramane (Chowter Palace) is an ancient palace with unique archaeological beauty and monuments. It is stated that Chowter Palace is a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short 'Act of 1958), which -6- NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 stood amended in 2010 viz., the Ancient Monuments and Archaeological Sites and Remains (Amendment (5) Validation) Act, 2010 (for short 'Act of 2010). It is stated that the monument is included in the list of monuments regulated and protected by Archaeological Survey of India (ASI). 2.2 It is stated that the market building is under construction by the Town Municipal Council. It is the case that the construction of the market building is within the prohibited area of the protected monument. It is also the case that the proposed construction of a market building is unauthorised and against the provisions of the Act of 2010. 2.3 From the above pleadings, it can easily be noticed that the public interest petitioner's grievance is that the construction of a market building would affect the protected monument and is without permission from the ASI.
3. Writ Petition No.51844 of 2019 is preferred by Moodabidri Town Municipal Council challenging the order dated 16.09.2019 issued by the Government of India, Ministry of Culture, National Monuments Authority, wherein the permission to construct a new market building is rejected.
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4. Writ Petition No.4829 of 2018 is again a public interest litigation challenging the process of tender to construct market building in question.
5. Learned advocate for the petitioner submits that the proposed construction without the permission of ASI is contrary to the law. It is submitted that the construction is within the prohibited distance from the protected monument.
6. Sri Arvind Kamath, learned Additional Solicitor General of India appearing for respondent Nos.2, 4, 5 and 6, would submit that respondent No.7-Moodbidri Town Municipal Council has to seek the permission before construction-reconstruction from the competent authority under Act of 1958 as amended in the year 2010. It is submitted that the application seeking 'No Objection Certificate' was filed by the Municipal Council after commencement of construction work on the proposed site.
7. Sri. Ashok Haranahalli, learned Senior Advocate for respondent No.7-Moodabidri Town Municipal Council submits that the proposed construction is by demolition of the existing building, the market building existed much before the Chowter Palace was notified as a protected monument. It is submitted -8- NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 that the proposed construction area is not within the prohibited area. It is further submitted that the post facto permission by the ASI is permissible unless the same is within the prohibited area.
8. Sri P. P. Hegde, learned Senior Advocate appearing for the petitioner in the connected Writ Petition No.4829 of 2018, submits that the tender was not as per law. The contract awarded in favour of the contractor violates the procedure, and the public interest is ignored.
9. Considered the submission of learned advocates on both sides and perused the writ papers.
10. This Court in the order dated 11.06.2019 has recorded that respondent No.6 carried out site inspection and found the distance between the proposed construction and the protected monument is 190 meters. In the said order, respondent No.6 was directed to carry out a site inspection and survey to ascertain whether the construction is within the regulated area. In the order dated 16.07.2019, this Court records that as per the survey by respondent No.6, the market building is within -9- NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 the regulated area of the protected monument within the meaning of Section 20B of the Act of 1958.
11. There is no dispute to the factual aspect that the construction of market building is without permission under Sub-section (2) of Section 20C of the Act of 1958. Section 20C of the Act of 1958 would mandate filing of an application to the competent authority before the commencement of the construction or re-construction as a requirement.
12. During the pendency of the Writ Petition No.31676 of 2017, respondent No.6 passed an order dated 16.09.2019, rejecting the permission. The rejection is on the ground that the application was filed after the commencement of the construction work and not prior to the commencement of the construction. The order of respondent No.6 is silent on the possible prohibition to permit the construction of market building.
13. This Court in the order dated 21.06.2023 noticed the Heritage Impact Assessment Report prepared by Indian National Trust for Art and Culture Heritage (INTACH) at the request of the Municipal Council. The report reads as below:
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NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 "It was found during the Heritage Impact Assessment that there will be no direct impact of the municipal market redevelopment works on the Inner courtyard of the Chowter's palace which is located at a distance of 190 meter from the market site. There is also no substantial impact on the historic setting of the regulated or prohibited area due to the project because between the monument and the proposed G+3 market building and commercial complex there are already a few residential and commercial buildings of the same height or more. Therefore, the overall project impact on the Inner courtyard of the Chowter's palace complex and its regulated area or on any other heritage resource in the nearby areas is NEUTRAL or No change."
14.1 As per the report, the construction of municipal market is located at a distance of 190 meters from the protected monument. The construction/redevelopment of the municipal market building will not directly impact the protected monument. It is further stated that the construction is within the regulated area.
15. This Court noticing the report by INTACH under order dated 21.06.2023 directed respondent No.6 to consider the application filed by the Town Municipal Council as per Sections 20 D(3) and 20 D(4) of the Act of 1958. The respondents No.1 and 2 have filed an affidavit along with the decision dated 28.07.2023 in compliance of the direction of the Court dated 21.06.2023. The authority has recorded a finding that NOC for
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NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 construction work cannot be issued after commencement of work. It is stated that the provisions of the Act of 1958 does not empower to grant post facto permission for construction already in progress.
16. The material on record would indicate that the City Municipal Council, after demolishing the existing market, has already contracted for construction/redevelopment of the market. The construction of the market building is substantially progressed with huge structures. Presently, the objection by respondent No.6 is only limited i.e. that the application was filed after commencement of the construction, which should have been filed before commencement of the construction. Respondent No.1 has not placed any material to contend any possible damage or otherwise to the protected monument, if construction is permitted. The authorities under the Act of 1958 in the impugned order dated 16.09.2019 and further decision dated 28.07.2023 have not highlighted any obstruction either structural or visual to the protected monument.
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17. It is the stand of the competent authority that as per Act of 1958 necessary permission was mandatory much prior to commencement of the work and the provisions do not permit post facto approval. In the peculiar situation it is for the Court to balance the equities.
18. The record indicate that the City Municipal Council has invested huge public money on the structure. As per the photographs on record, the structure in existence is huge. Dealing of the issue on hyper technicalities would only result in wastage of public money and natural resources as well the man power. While protecting the public interest, it is equal important to ensure safety to the protected monument.
19. This Court, having regard to the aspect that substantial public money already spent in the construction of a market building and to ensure the safety of the protected monument, directed respondent No.6 to file a report. Respondent No.6 has filed a memo dated 08.08.2024 in Writ Petition No.51844 of 2019 along with the communication/report dated 07.08.2024 by the Superintending Archaeologist ASI, Bengaluru Circle. As per the communication dated 07.08.2024, the report submitted
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NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 by INTACH is endorsed as by one of the agencies permitted to assess the impact.
20. In other words, the recommendation by INTACH in its report is accepted by respondent No.6. Respondent No.6 has agreed with the INTACH report, which stated that the market building under construction, the impact is 'Neutral or No change'. In the communication, it is further stated that there is no structural and visual impact of the proposed Municipal market building on the protected monument.
21. Respondent No.6 by reiterating its reasoning in the rejection of 'NOC' has stated that permission under Section 20C of the Act of 1958 is mandatory before commencement of the construction, whereas the application for permission was filed much after the commencement of the construction. Respondent No.6 has not expressed or stated any serious concerns in reconsidering the matter in terms of Section 20C of the Act of 1958.
22. The respondent No.6 in the impugned order dated 16.09.2019, order dated 28.07.2023 and the report filed along with memo dated 08.08.2024 would stress on the mandatory
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NC: 2024:KHC:40359-DB WP No. 31676 of 2017 C/W WP No. 51844 of 2019 requirement of filing application for permission before commencement of construction.
23. On the basis of the above documents, the Court finds no other prima facie reason preventing respondent No.6 to consider the application on merits. The Court while balancing the interest of the stakeholders and the peculiar situation can consider to direct respondent No.6 to reconsider the application for NOC afresh.
24. The above exercise if directed, in view of the reports of respondent No.6, it would protect the on going market building as well the protected monument. In such circumstances, the Court is of the view that the requirement of filing application to issue NOC for construction/reconstruction can be waived as one time measure.
25. In the light of the discussion as above and the material available on record, the following directions are issued,
(i) The Town Municipal Council Moodabidri is permitted to file fresh application as per the provisions of Act of 1958 seeking NOC within three week from today.
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WP No. 31676 of 2017
C/W WP No. 51844 of 2019
(ii) Respondent No.6 shall consider the
application filed by the City Municipal
Council under Section 20 C of the Act of
1958.
(iii) Respondent No.6 shall also consider the
application to issue NOC within three
months thereafter on its own merits and in the light of the observations made above.
(iv) The parties shall maintain status quo on construction activity till consideration of application by respondent No.6.
26. Subject to the extent of relief granted herein, Writ Petition No.31676 of 2017 and Writ Petition No.51844 of 2019 are disposed of.
Writ Petition No.4829 of 2018 involving legality of the tender process shall be considered subject to the outcome of the above directions. It is ordered to be de-linked.
Sd/-
(N. V. ANJARIA) CHIEF JUSTICE Sd/-
(K. V. ARAVIND) JUDGE MV, List No.: 1 Sl No.: 7