Karnataka High Court
N. Ananthalaxmi W/O Late Sri Rajagopal ... vs The State Of Karnataka on 25 February, 2020
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
Dated this the 25th day of February 2020
Before
THE HON'BLE MR.JUSTICE S.G. PANDIT
Writ Petition No.137772 of 2020 (GM-RES)
BETWEEN
N. ANANTHALAXMI
W/O LATE SRI RAJAGOPAL NAIDU
AGED ABOUT: 43 YEARS,
R/AT: HOUSE NO.52A,
VIRUPAPURA GADDI,
GANGAVATHI TALUK,
KOPPAL DISTRICT-500060. ...PETITIONER
(BY SRI. K. RAGHAVENDRA RAO & SMT. V. VIDYA,
ADVOCATES)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE,
M.S. BUIDLING,
VIDHANA VEEDHI,
BENGALURU-560001,
REP. BY HIS PRINCIPAL SECRETARY
2. THE DEPUTY COMMISSIONER
KOPPAL DISTRICT, KOPPAL-583227.
3. THE TAHSILDAR
GANGAVATHI TALUK,
KOPPAL DISTRICT,
KOPPAL-583227.
2
4. THE HAMPI WORLD HERITAGE AREA
MANAGEMENT AUTHORITY,
HAMPI, HOSAPETE TALUK,
BALLARI DISTRICT-583239. ...RESPONDENTS
(BY SMT. VEENA HEGDE, AGA FOR R1-R3
SRI. PRASHANT F. GOUDAR, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING ISSUE A
WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION DIRECTING THE RESPONDENTS 1 TO
4 NOT TO DEMOLISH THE CONSTRUCTION PUT UP BY THE
PETITIONER IN THE LAND BEARING SY.NO.47/B MEASURING
2 ACRES 17 GUNTAS SITUATE AT VIRUPAPURA GADDI,
GANGAVATHI TALUK, KOPPAL DISTRICT OWNED AND
POSSESSED BY THE PETITIONER AND ALLOW THE WRIT
PETITION WITH COSTS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court under Article 226 of the Constitution of India praying for a writ of mandamus or any other appropriate writ directing the respondents not to demolish the construction put up by the petitioner in the land bearing Sy.No.47/B measuring 2 acres 17 guntas situate at Virupapura Gaddi, Gangavathi Taluk, Koppal District.
32. The petitioner claims that she is the owner of the land bearing Sy.No.47/B measuring 2 acres 17 guntas situate at Virupapura Gaddi, Gangavathi Taluk.
She is eking out livelihood out of the land in question.
The petitioner is running tourist shelter and restaurant.
The respondents are trying to remove the construction of the hotel and restaurant and, if the respondents are permitted to remove the construction, it would cause great hardship to the petitioner and would affect her livelihood.
3. Learned counsel for respondent No.4 would submit that the petitioner had approached this Court in W.P. No.76675 of 2013 and in W.P. No.108987 of 2015 wherein this Court rejected the petitioner's request.
Moreover, it is submitted that the Hon'ble Apex Court in Civil Appeal Nos.1443-1456 of 2020 has held that the entire village of Virupapura Gaddi of Gangavathi Taluk falls within the core area of the respondent No.4- 4 authority and no commercial activitiy other than the agricultural activity is permitted.
4. On hearing the learned counsel for the petitioner and the learned counsels for the respondents and on perusal of the writ petition papers, I am of the view that the petitioner is not entitled to any relief under Article 226 of the Constitution of India. On two earlier occasions, the petitioner has suffered the order against her. The petitioner was before this Court in W.P. No.108987 of 2015 wherein she had sought for a writ of mandamus directing the respondents not to demolish the petitioner's house/rooms situated in the land in question. This Court, by its order dated 14.12.2015 dismissed the writ petition with costs.
5. The Hon'ble Apex Court in the decision rendered in Civil Appeal Nos.1443-1456 of 2020, disposed of on 11.02.2020, at para 9 formulated two questions for its consideration, which are as follows:
5"9. Upon perusing the material on record and in light of the arguments advanced by the parties, the following issues arise for our consideration in this appeal.
(i) whether the construction raised by the Appellants was lawful under the 1961 Act, in light of the 1988 notification?
(ii) If not, whether the HWHAMA had authority to demolish the said constructions?"
The Hon'ble Apex Court answered the question no.1, at para 16 to 18 which reads as follows:
"16. Here, since the entire area comprising Virupapura Gaddi had been declared as protected area vide the 1988 notification, it follows that the land owned by the Appellants could have only been used for the purpose of cultivation after the issuance of such notification. However, as mentioned supra, the Appellants had constructed huts and buildings on their lands for the commercial purpose of running hotels, restaurants, and guest houses. Clearly then, these constructions were in violation of Section 20(1) of the 1961 Act.6
17. Furthermore, the permissions/licenses obtained by the Appellants from the local panchayat were issued without any authority, as Section 20(1) of the 1961 Act makes the State Government the appropriate authority for granting permissions for non-cultivable use of protected areas. Thus, the licenses issued by the panchayat cannot but be said to be illegal.
18. In view of the foregoing discussion, we find that by virtue of the 1988 notification declaring the entire village of Virupapura Gaddi as a protected area, the restrictions on construction and use under Section 20(1) came into operation with effect from 22.10.1988 itself. Thus, the construction carried out by the Appellants on their lands at Virupapura Gaddi for commercial purposes was in violation of the 1961 Act."
The Hon'ble Apex Court answered the question No.2 at paras 20 to 24, 25 and 26, which reads as follows:
"20. In this regard, as mentioned supra, the Appellants have argued that the HWHAMA, which is a body set up under the Hampi Act, could not have issued such orders for demolition as the illegality of the constructions (if any) was rooted in the 1961 Act. At its very core, we find that this 7 issue relates to the interplay between the 1961 Act and the Hampi Act. Thus, before delving into the relevant legal provisions, we deem it fit to appreciate the objects underlying these statutes and the contexts in which they were enacted.
20.1 As mentioned supra, the 1961 Act was introduced with the object of ensuring the preservation of ancient monuments and archaeological sites and remains in Karnataka. In pursuance of the same, the 1988 notification was issued under Section 19(3) declaring certain areas in Hampi as 'protected areas'.
20.2 Notably, in 1989, the group of monuments at Hampi were inscribed in the list of "World Heritage sites" declared by the United Nations Educational, Scientific, and Cultural Organisation (hereinafter 'UNESCO'). The UNESCO is a specialized agency of the United Nations and inter alia its objective is to encourage the identification, protection, and preservation of cultural and natural heritage around the world considered to be of outstanding value to humanity. In pursuance of the same, the UNESCO Conference adopted the Convention concerning the Protection of the World Cultural and Natural Heritage in 1972, emphasizing the 8 obligation of State parties to take necessary measures for the conservation and protection of world heritage properties.
Specifically, the recognition of the monuments at Hampi as a World Heritage site was based on the fulfilment of the following points of the 10-point criteria stipulated by UNESCO:
Criterion (i)- to represent a masterpiece of human creative genius: The remarkable integration between the planned and defended city of Hampi with its exemplary temple architecture and its spectacular natural setting represent a unique artistic creation.
Criterion (iii)- to bear unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared: The city bears exceptional testimony to the vanished civilization of the kingdom of Vijayanagara, which reached its apogee under the reign of Krishna Deva Raya (1509-1530).
Criterion (iv)- to be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history: This capital offers an outstanding example of a type of structure which illustrates a significant historical situation: that of the destruction of the Vijayanagara kingdom at the Battle of Talikota (1565 CE) which left behind an ensemble of living temples, magnificent archaeological remains in the form of elaborate sacred, royal, 9 civil and military structures as well as traces of its rich lifestyle, all integrated within its natural setting.
From the above, it is evident that the recognition of Hampi as a World Heritage site was a testament to its immense historical importance. It was also a crucial milestone in the efforts to preserve and protect the Hampi monuments, as it paved way for India to access the annual World Heritage Fund of US$ 4 million earmarked by the UNESCO for the upkeep of World Heritage sites.
20.3 Soon after such recognition, as the number of tourists visiting Hampi increased, concerns began being raised about uncontrolled construction, haphazard development, and other illegal activities carried out in the garb of catering to tourists. In light of these developments, the UNESCO classified the Hampi World Heritage properties as being 'in danger' in 1999. This classification was significant inasmuch as it reflected the deteriorating condition of the area. Notably, the Hampi World Heritage properties continued to be classified as such till 2006.10
20.4 In view of such changes and its obligations under international conventions, the Government of Karnataka felt it necessary to create a body that would streamline the development in the Hampi region. However, till the time that a specific statute was enacted for such purpose, the HWHAMA was constituted as an interim authority vide a Government Order dated 21.03.2002. The Preamble to this order is notable:
"Preamble: Hampi has been declared as a World Heritage Site by the UNESCO and the Government of India has recently announced that Hampi would be developed as an international destination centre. There is a need for proper management and development of Hampi World Heritage Area in order to conserve and preserve the rich heritage in this area and at the same time develop the area for providing good facilities for both national and international tourists. Thus all the activities in the Hampi World Heritage Area need to be regulated and coordinated in order to provide facilities and at the same time ensure proper conservation of the heritage. There is a need for a statutory body regulating on the issues pertaining to the management and development aspects in the Hampi World Heritage Area. The Government is contemplating a legislation constituting Hampi World Heritage Area Management Authority. In the interregnum, there is an immediate need to have an interim body to promote coordinated development of the heritage 11 area. Thus the Hampi World Heritage Area Management Authority and the State Level Advisory Committee are being constituted through an executive order to manage the affairs of Hampi till the statutory bodies come into effect."
20.5 Subsequently, the State Government enacted a specific legislation for the conservation of the cultural heritage of Hampi, i.e. the Hampi Act. This Act was brought into force with effect from 27.01.2005, and the HWHAMA was constituted under Section 3 thereof. Until such time, the interim authority constituted vide Government Order dated 21.03.2002, mentioned supra, continued. The overall object of the Hampi Act can be gleaned from its Preamble, which reads as follows:
"An Act to provide for conservation of the cultural heritage of Hampi with all its archeological remains and natural environs; to preserve its cultural identity and to ensure sustainable development of the Hampi World Heritage Area, in the State of Karnataka and to constitute Hampi World Heritage Area Management Authority.
Whereas it is expedient to provide for,-
(a) the conservation of the Cultural Heritage and natural environs of Hampi and its surroundings;12
(b) the preservation of the historical and cultural identity of Hampi as a World Heritage Centre;
(c) preventing uncontrolled development and commercial exploitation of the area;
(d) sustained development of the area which is conducive to the above objectives, and
(e) for matters incidental thereto..."
20.6 A close reading of the Preamble to the Hampi Act reveals an underlying common object between the 1961 Act and the Hampi Act- providing for the preservation of the respective monuments and areas protected under these legislations. The difference is that the 1961 Act was enacted as a broader legislation covering the entire State of Karnataka, while the Hampi Act was enacted with a specific focus on the heritage site of Hampi, keeping in mind the international recognition that had been accorded to it.
20.7 In addition to such common object, certain other provisions of the Hampi Act also indicate a continuity between the legal regimes of the 1961 Act and the Hampi Act. For instance, the Hampi Act directly incorporates the 1988 notification 13 issued under Section 19(3) of the 1961 Act, while demarcating the Hampi heritage area in its Schedule. "Heritage area" has been defined as follows under the Hampi Act:
"Section 2: Definitions.- (1) In this Act unless the context otherwise requires,-...
...(l) "Heritage Area" means the whole of the area comprising the Core Area Zone, Buffer Zone and Peripheral Zones, but excluding the area referred to as protected area under the Ancient Monuments and Historical sites and Remains Act, 1958 (Central Act 24 of 1958);"
Parts A, B, and C of Schedule I to the Hampi Act respectively indicate the extent of the core area zone, buffer zone and peripheral zone forming part of the Hampi heritage area. Under Part A, which indicates the extent of the core area zone, there is a clear reference to the area of 41.80 sq kms declared to be protected area under the 1988 notification.
20.8 Furthermore, even the applicable restrictions under the Master Plan 2021 prepared under the Hampi Act are similar to those imposed by virtue of the 1988 notification, inasmuch as no development of Virupapura Gaddi is permissible. The Master Plan 2021 came into force on 10.07.2008. It stipulates the 14 formation of development schemes for towns and villages included within the Hampi local planning area. Though it did not provide for a specific development plan for Virupapura Gaddi, it provides Zonal Regulations for areas under
special control, which include river islands, tank beds et al. Regulation 2(f) of these Zonal regulations, which deals with such areas of special control is relevant here:
"(f) No development is permitted in eco-
sensitive areas like river islands, tank bed areas, rocky outcrop, hillocks, and forest areas."
In light of this, given that Virupapura Gaddi is a river island, it is evident that no development is permissible there even per the Master Plan 2021 prepared under the Hampi Act. When juxtaposed with the restrictions under Section 20(1) of the 1961 Act, this also indicates a continuity between the 1961 Act and the Hampi Act.
21. In view of the foregoing factors, we do not find merit in the Appellants' argument that the Hampi Act is purely prospective in nature and that the HWHAMA, which has been established under such Act, cannot enforce prior 15 notifications. In our considered opinion, the 1961 Act and the Hampi Act cannot be viewed as separate, watertight compartments that operate independent of each other. Such an understanding would not only defeat their underlying common objective, but also belie the events leading up to the enactment of the Hampi Act, all of which clearly reflect that the Hampi Act was a culmination of continuing attempts by the State Government to preserve and protect the cultural heritage of Hampi. Therefore, the 1961 Act and the Hampi Act must not be construed as isolated silos. Since they both seek to fulfill a common object, they must be interpreted in a manner that seeks to further such objective, and not obstruct it.
22. In the present case, since it is established that the structures erected by the Appellants were in violation of the 1961 Act, given the common thread underlying the 1961 Act and the Hampi Act, it cannot be said that such illegality ceased to exist when the Hampi Act came into force. Thus, the HWHAMA was, and is entitled to proceed against the development raised by the Appellants, which had been rendered illegal under the prior legislation.
1623. It may also be useful to appreciate the background in which the HWHAMA had proceeded to take action against the Appellants. As mentioned supra, the Hampi World Heritage properties had been included in the 'in danger' list by UNESCO in 1999. However, owing to serious efforts by the State Government and the HWHAMA, this classification was dropped in 2006. The threat to the various monuments and the integrity of the landscape of Hampi, however, continued. This is well reflected in the resolution of the 33rd meeting of the World Heritage Committee of UNESCO in 2009, wherein rampant illegal constructions in the village of Virupapura Gaddi, found a specific mention:
"...The World Heritage Committee,
1. xxx
2. xxx
3. xxx
4. xxx
5. xxx
6. xxx
7. Expresses its concern over illegal constructions and other developments, such as social housing projects, within the extended boundaries which are being considered for the possible extension of the property, particularly in Virupapura Gada island and Hampi villlages, which 17 appear to have a negative impact on the integrity of the landscape...."
Similar concerns were also raised at the 34th meeting of the UNESCO World Heritage Committee in 2010.
24. It was in the context of these developments that the HWHAMA had directed the local authorities to not renew the trade licenses issued to the Appellants, and later proceeded to issue notices for demolishing the constructions raised by the Appellants. In view of the broad ranging functions envisaged for the HWHAMA under Section 11 of the Hampi Act, we find that its actions were lawful, as it was incumbent upon the authority to act and not turn a blind eye to the illegality being perpetrated by the Appellants.
25. Finally, we advert to the claim of the Appellants that the lack of a notification under Section 14(1) of the Hampi Act fettered the powers of the HWHAMA to take action against them. It may be useful to refer to Section 14 in this regard:
"Section 14: No other authority or person to undertake development without permission of the Authority.-18
(1) Notwithstanding anything contained in any law for the time being in force, except with the previous permission of the Authority, no other authority or person shall undertake any development within the Heritage Area, of the types as the Authority may from time to time specify by notification published in the Official Gazette.
(2) No local authority shall grant permission for any development referred to in sub-section (1), within the Heritage Area, unless the Authority has granted permission for such development.
(3) Any authority or person desiring to undertake development referred to in sub-section (1) shall apply in writing to the Authority for permission to undertake such development.
(4) The Authority may, after making such inquiry as it deems necessary grant such permission without or with such conditions, as it may deem fit, to impose or refuse to grant such permission.
(5) Any authority or person aggrieved by the decision of the Authority under sub-section (4) may, within thirty days from the date of the decision appeal against such decision to the State Government, whose decision thereon shall be final:
Provided that, where the aggrieved authority submitting such appeal is under the administrative control of the Central Government, the appeal shall be decided by the State Government, after consultation with the Central Government.
(6) In case any person or authority does anything contrary to the decision given under sub-section (4) as modified in sub-section (5), 19 the Authority shall have power to pull down, demolish or remove any development under taken contrary to such decision and recover the cost of such pulling down, demolition or removal from the person or authority concerned."
Evidently, under Section 14(1), the HWHAMA is made the sole authority for undertaking development in the heritage area of such types as it may specify by a notification.
25.1 Though the Appellants have contended that such a notification under Section 14(1) is a pre- condition for the HWHAMA to exercise its powers to order demolition under Section 14(6), we are not inclined to accept such an argument. In view of the co-terminus legislative scheme of the 1961 Act and the Hampi Act, we find that Section 14 of the Hampi Act acts as an overarching provision that enables the issuance of a further notification to control development in the Hampi heritage area. This, however, does not mean that the lack of a notification under Section 14(1) renders a prior notification intended for the same purpose unenforceable, as is the case with the 1988 notification here.
25.2 In any case, we find that the notification dated 10.07.2008 regarding the implementation of the Master Plan 2021 and the Zonal 20 Regulations fulfils the requirement of Section 14(1) in the present case, as they clearly specify the restrictions as to land use and the prohibited types of development. Thus, the Appellants cannot use the absence of regulation of Virupapura Gaddi as a ground to justify the illegal construction on their land.
26. In light of the foregoing discussion, we conclude that the construction of rooms, thatched roof huts, temporary structures, and buildings by the Appellants to carry on the business of hotels, restaurants, or guesthouses in Virupapura Gaddi was in violation of the 1961 Act. Further, it is held that the HWHAMA had the authority to proceed with the demolition of such illegal constructions. Thus, we do not find any reason to interfere with the impugned final judgment and order dated 27.04.2015 passed by the High Court of Karnataka."
6. The Hon'ble Apex Court in the above decision has dealt with Mysore Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 (hereinafter 'the 1961 Act') and the Hampi World Heritage Area Management Authority Act, 2002 21 (hereinafter 'the Hampi Act'). The Hon'ble Apex Court dealt with identical facts wherein the appellants were carrying on business of hotels, restaurants or guesthouses in Virupapura Gaddi village. In the case on hand also, the petitioner's land is situated at Virupapura Gaddi Village. The petitioner has not placed on record permission or licence obtained from any of the authorities. Moreover, similar relief prayed by the petitioner was rejected by this Court in W.P. No.108987 of 2015 dated 14.12.2015
7. For the reasons stated above, the petitioner would not be entitled to any relief. Accordingly, the writ petition stands rejected.
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