G.Balakrishna Pillai vs The Director (Cons.) on 7 July, 2020

[Cites 7, Cited by 0]

Kerala High Court

G.Balakrishna Pillai vs The Director (Cons.) on 7 July, 2020

The petitioners, an aged couple, are in the process of completing the construction of a three storied residential-cum-commercial building in their property situated in Mattancherry Village of Kochi Taluk. The property of the petitioners is situated near the Mattancherry Palace; an ancient monument dating back to the year 1557. The palace was constructed by the Portuguese in the year 1545 and presented to Veera Kerala Varma Raja, the then ruler of Cochin State. The palace being in close proximity to the sea was ravaged over the years by inclement weather and sea borne attacks from enemies. The palace was rebuilt by the Dutch in the year 1663 and the later renovations were W.P.(C) No.41714 of 2018 3 carried out by the Rajas themselves. As a result, the Mattancherry Palace is resplendent of Portuguese and Dutch Architecture and portrays the grandeur of the Cochin royal family.

2. Article 49 of the Constitution of India casts an obligation on the State to protect every monument or palace or object of artistic or historic interest, declared by or under law made by the Parliament to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be. To give effect to this directive principle, the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short 'the Act') was enacted. The Mattancherry Palace is declared to be an ancient monument of national importance under Section 3 of the Act. The areas lying contiguous with, and in close proximity to, ancient monuments W.P.(C) No.41714 of 2018 4 are categorised as prohibited and regulated areas. As per Section 20A, 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. Section 20B provides for declaration of regulated area, which shall extend to a distance of 200 metres in all directions beginning at the limit of the prohibited area. In other words, the regulated area extends up to 300 metres of the protected monument. While activities within the prohibited area are restricted to repair or renovation of existing buildings, Section 20D provides for grant of permission for construction and reconstruction or repair or renovation within the regulated area. Under the Act, the function of processing W.P.(C) No.41714 of 2018 5 applications, recommending and granting permission for such construction is vested with two authorities; the Competent Authority (CA) defined under Section 2(db) and the National Monuments Authority (NMA)under Section 20(da).

3. The proposed construction of the petitioners being within a distance of 208 metres from the Mattancherry Palace and therefore within the regulated area, they submitted an application for grant of permission under Section 20D. The application was processed and forwarded to the NMA by the CA and the petitioners were issued with Ext.P1, permitting the construction, but restricting the total height of the building to 9 metres. Accordingly, petitioners completed the construction by restricting the height to 9 metres and submitted a belated request for grant of completion certificate along with a revised plan. W.P.(C) No.41714 of 2018 6 The CA forwarded the request and accompanying documents to the NMA under Annexure 2 letter dated 06.06.2018 and as per Annexure 3, the NMA directed a fresh application to be submitted as on date with all enclosures and to report about the present status of the construction. Petitioners submitted the fresh application as directed, as is evident from Annexure 4 dated 15.08.2018, and thereafter approached this Court in W.P.(C) No.29388 of 2018 alleging delay in consideration of their application. The writ petition was disposed of under Ext.P3 judgment directing the CA to take up, consider and pass appropriate orders on the applications preferred by the petitioners within six weeks.

4. Accordingly, the CA had forwarded the application to the NMA along with Ext.P9 site inspection report and P10 recommendation. As per W.P.(C) No.41714 of 2018 7 the site inspection report, almost 75% of the construction was completed as on September, 2018 and the proposed construction did not affect the safety, security, visibility, accessibility or stability of the monument. The CA therefore recommended for favorable consideration of the application. But, by Ext.P5, the NMA returned the application to the CA finding that the petitioners had completed their construction without obtaining prior permission. Further, the CA was required to direct the Statutory Authority of the Archaeological Survey of India to take appropriate action under the Act against the unauthorised construction at the earliest. Aggrieved, the writ petition is filed seeking to quash Ext.P5 and for ancillary reliefs.

5. Heard Sri.Joseph Jerard Samson Rodrigues, learned Counsel for the petitioners, learned W.P.(C) No.41714 of 2018 8 Assistant Solicitor General for respondents 1 and 3 and Sri.B.Premkumar, learned Standing Counsel for the 2nd respondent.

6. The contention advanced by the learned Counsel for the petitioners is that the building was constructed on the strength of Ext.P1 issued by the NMA. For reasons beyond the control of the petitioners, completion of the construction got unduly delayed and hence, application seeking completion certificate could be submitted only on 10.05.2018. The revised plan and fresh application were submitted as directed by the NMA, and the CA forwarded the application and revised plan along with its favourable recommendation. In spite of all this, the NMA issued Ext.P5 on the premise that the construction was carried out without prior permission and directed to take steps for demolishing the building. It is contended that the W.P.(C) No.41714 of 2018 9 action of the NMA is patently illegal, arbitrary and irrational.

7. A statement has been filed on behalf of the CA narrating the sequence of events which culminated in Ext.P5 communication. It is stated that the petitioners should not have carried out the construction without the CA issuing No Objection Certificate (NOC) in Form IV. The reason for non-issuance of NOC is stated to be failure of the petitioners to submit a revised plan, restricting total height of the construction to 9 metres, in compliance of the stipulation in Ext.P1. It is alleged that the petitioners filed the revised plan only on 15.08.2018; after a time gap of more than six years, when the validity period of the permit was only five years. In spite of this defect, the revised plan and fresh application were forwarded to the NMA after W.P.(C) No.41714 of 2018 10 carrying out mandatory site inspection and survey. The learned Standing Counsel submitted that the CA is not conferred with authority to issue NOC for construction activities in regulated areas. The process involved is to conduct site inspection and survey of the property when an application is received and to forward the application to the NMA for approval along with the opinion of the CA. On receipt of approval from the NMA, the CA will convey the approval and will issue NOC in Form IV. The NMA having refused approval, the CA cannot independently process the application and grant NOC.

8. The procedure for grant of permission by the CA within the regulated area is prescribed in Section 20D of the Act, which is as under:

"20-D. Grant of permission by competent authority within regulated area.--(1) Every application for grant of permission under Section 20-C of this Act shall be made to the competent authority in such manner as may be W.P.(C) No.41714 of 2018 11 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 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 W.P.(C) No.41714 of 2018 12 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:

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 20-C until the heritage by-laws have been prepared under sub-section (1) of Section 20-E and published under sub-section (7) of that section. (8) The Central Government, or the Director-

General, as the case may be, shall exhibit, on their website, all the permissions granted or refused under this Act."

A careful scrutiny of the Section reveals that on receipt of the application, the CA should forward the same to the NMA for the purpose of considering and intimating the impact of such construction. The impact is to be assessed, having regard to the heritage bye-laws relating to the concerned protected monument. After such assessment the NMA should intimate the impact of such construction and the CA shall either grant or refuse permission W.P.(C) No.41714 of 2018 13 based on the recommendation of the NMA, which shall be final.

9. The heritage bye-laws, which is the basis for assessing the impact of the construction is dealt with in Section 20E, as per which, the CA, in consultation with the Indian National Trust for Arts and Cultural Heritage or such other expert heritage bodies as may be notified by the Central Government, should prepare heritage bye-laws in respect of each protected monument and protected area. The heritage bye-laws thus prepared shall include matters relating to heritage controls such as elevations, facades, drainage systems, roads and service infrastructure. The heritage bye-laws should be made available to the public by the CA, by exhibiting the same on its websites and also in such other manner as it may deem fit, immediately after lying the same before each House of W.P.(C) No.41714 of 2018 14 Parliament.

10. In exercise of the rule making power under Section 33 of the Act, the Central Government formulated the Ancient Monuments and Archaeological Sites and Remains (Framing of Heritage Bye-laws And Other Functions Of The Competent Authority) Rules, 2011 (for short 'the Heritage Rules'). Rule 5 therein mandates that the CA should process with due care, the application received by it for grant of permission for repair, renovation, construction and reconstruction of building in the prohibited or regulated area. As per Rule 6, the applications are to be processed under different categories. Category V therein is with respect to construction of residential buildings or structures in the land owned by any person, the State Government or Central Government or any other agency located in the regulated area. W.P.(C) No.41714 of 2018 15 As per the proviso to Section 20D(2) of the Act, the Central Government is conferred with the authority to prescribe the category of applications in respect of which permission can be granted by the CA and those which are to be referred to the NMA for recommendation. Rule 7 of the Heritage Rules deals with the category of applications to be forwarded to the NMA and Rule 8 about the applications to be processed and cleared by the CA under intimation to the NMA. Category V, to which the building of the petitioners belong, falls among the category of applications to be forwarded to the NMA. Rule 7 also prescribes the different stages of processing of applications to be undertaken by the CA, which include site inspection, measurement of the distance between the protected monument and the proposed location of the building etc. After completing these W.P.(C) No.41714 of 2018 16 formalities, the CA should forward the application along with a record of its observations, including its assessment of the impact of such construction on the protected monument. The next step, prescribed under Rule 11, is for the NMA to examine the proposal forwarded by the CA along with its observations or comments and thereafter convey its recommendation, including the impact of such construction on the significance of the protected monument. Rule 12 stipulates that on receipt of such recommendation, the CA has to inform the applicant about the grant or refusal or permission based on the recommendation by the NMA in Forms III, IV and V. Before refusing permission, based on the recommendation by the NMA, the CA should give an opportunity to the applicant to submit or offer his comments and clarifications and thereafter, convey the refusal W.P.(C) No.41714 of 2018 17 in Form V to the applicant within a period of three months.

11. Rule 22, which is also relevant, deals with framing of heritage bye-laws. As per Sub rule (6) of Rule 22, the heritage bye-laws shall include the use of building material, facade, roofing pattern, colour, height, built up area, usage, drainage system, roads and service infrastructure and such other factors which may be necessary within the prohibited areas and regulated areas of the protected monuments. The essence of the consideration, on receipt of an application by the CA as well as the NMA, shall be with regard to the impact of such construction and such consideration should be guided by the heritage bye-laws relating to the concerned protected monument.

12. On a close scrutiny of the procedure so W.P.(C) No.41714 of 2018 18 far adopted, it is clear that the CA as well as the NMA failed to follow the procedure prescribed under the Act and the Heritage Rules. The CA finds fault with the applicant for having constructed the building without being issued with permission under Form IV. A perusal of Ext.P1 shows that the NMA had recommended the original application submitted by the petitioners, with the observation that NOC is granted with the terms and conditions mentioned in the report of the CA. Thus, from Ext.P1, it would appear that the NMA itself had granted/issued the NOC/permission. Even otherwise, on receipt of Ext.P1 recommendation from the NMA, it was the duty of the CA to have informed the applicant about the grant or refusal of permission as recommended by the NMA in Forms III, IV and V within a period of one month. Having failed to issue permission in the prescribed form, the CA W.P.(C) No.41714 of 2018 19 cannot find fault with the petitioners for having commenced the construction on receipt of Ext.P1.

13. The version of the CA that permission in the prescribed form was not issued since a revised plan in accordance with the stipulation regarding height of the construction in Ext.P1 was not submitted by the petitioners, is also difficult to digest. Other than granting permission for the construction, with a stipulation that the height of the building shall be 9 metres, there is nothing in Ext.P1 recommendation of the NMA to indicate that the plan submitted along with the original application was for constructing a building with height of more than 9 metres or that the NMA had made its recommendation subject to the petitioners submitting a revised plan. The NMA having recommended grant of NOC it was imperative for the CA to have acted accordingly in W.P.(C) No.41714 of 2018 20 view of the stipulation in Section 20D(5) that recommendation of the NMA shall be final.

14. From a conspectus of the relevant provisions, it emerges that the paramount consideration in deciding as to whether permission for construction of building in a regulated area should be granted or not is the impact that the construction would have on the protected monument. The impact should be assessed, having regard to the heritage bye-laws. Surprisingly, no reference to the heritage bye-laws is made either by the CA or NMA in any of its communications issued in connection with the application submitted by the petitioners. The CA had stated in its recommendation that the proposed construction does not affect the safety, security, visibility, accessibility or stability of the monument. Unfortunately, the recommendation was not taken W.P.(C) No.41714 of 2018 21 into consideration by the NMA on the specious reasoning that the petitioners had almost completed construction of their building before submitting the revised application. The NMA having issued Ext.P1 recommendation and the CA having failed to issue permission in the prescribed form, the petitioners cannot be faulted for constructing the building on the strength of Ext.P1. Therefore, the finding in Ext.P5 that construction was carried out by the petitioners without permission is wrong. Consequently, rejection of the application is liable to be interfered with.

In the result, the writ petition is allowed. Ext.P5 is quashed. Respondents 1 and 2 are directed to consider the application along with revised plan submitted by the petitioners afresh, strictly in terms of the procedure prescribed under Sections 20D and 20E of the Act and Rules 8 W.P.(C) No.41714 of 2018 22 to 13 and 22 of the Heritage Rules. The consideration as directed above shall be completed and decision intimated to the petitioners within an outer limit of four months from the date of receipt of a copy of this judgment.

Sd/-

V.G.ARUN JUDGE Scl/07.07 W.P.(C) No.41714 of 2018 23 APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NO OBJECTION CERTIFICATE BEARING NO. F.NO. 2-23 / 34/2011-NOC /NMA ISSUED BY THE FIRST RESPONDENT DATED 12.10.2012 EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT BEARING NUMBER F.NO. 2- 23/34/2011-NOC/NMA DATED 12.10.2012 EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN WRIT PETITION (CIVIL) NO. 29388 OF 2018 DATED 6.9.2018 EXHIBIT P4 TRUE COPY OF THE LETTER OF THE SECOND RESPONDENT TO THE FIRST RESPONDENT BERING NO. 731/18/CA/AMASR DATED 9.11.2018 EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT BEARING NUMBER F. NO.

2-23/934/2018-NOC/NMA DATED 11.12.2018 EXHIBIT P6 TRUE COPY OF THE REPLY LETTER DATED 17.2.2018 SENT BY THE PETITIONER TO THE FIRST RESPONDENT EXHIBIT P7 TRUE COPY OF THE LETTER OF SECOND RESPONDENT DATED 6.6.2018 EXHIBIT P8 TRUE COPY OF THE LETTER OF THE FIRST RESPONDENT DATED 2.8.2018

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