Kerala High Court
Satish S. Nair vs Union Of India on 18 July, 2025
2025:KER:53566
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
WP(C) NO. 21809 OF 2021
PETITIONERS:
1 SATISH S. NAIR,
AGED 48 YEARS
S/O. P. SUKUMARAN NAIR, RESIDING AT T.C. 64/2358,
BHAVANA, OPPOSITE BNV AUDITORIUM, THIRUVALLAM P.O,
THIRUVANANTHAPURAM-695 027
2 SREEJA SATISH,
AGED 45 YEARS
W/O. SATISH S. NAIR, RESIDING AT T.C. 64/2358, BHAVANA,
OPPOSITE BNV AUDITORIUM, THIRUVALLAM P.O,
THIRUVANANTHAPURAM-695 027.
BY ADVS.
SMT.SREEDEVI KYLASANATH
SRI.ACHUTH KYLAS
SRI.JOSELAL GEORGE
SRI.R.MAHESH MENON
SRI.DEAGO JOHN K
SMT.SHALEENA RAJAN
DR.K.P.KYLASANATHA PILLAY (SR.)
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF CULTURE,
NATIONAL MONUMENT AUTHORITY, THILAK MARG, NEW DELHI 110
001.
2 CHAIRMAN,
DEPARTMENT OF ARCHEOLOGY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT-695 035.
3 NATIONAL MONUMENTS AUTHORITY ,
REPRESENTED BY ITS CHAIRPERSON, MINISTRY OF CULTURE,
WP(C) No. 21809 of 2021 -2-
2025:KER:53566
GOVERNMENT OF INDIA, 24, THILAK MARG, NEW DELHI-110
001
4 THE DIRECTOR GENERAL,
ARCHAEOLOGICAL SURVEY OF INDIA, MINISTRY OF CULTURE,
GOVERNMENT OF INDIA, JANPATH, NEW DELHI 110 011.
5 OFFICE OF THE CONSERVATION ASSISTANT,
ARCHAEOLOGICAL SURVEY OF INDIA, TRIVANDRUM SUB
CIRCLE, KSHB FLOTS NO. 101 AND 102, BLOCK NO. 8,
E.M.S NAGAR, PATTOOR, VANCHIYOOR,
THIRUVANANTHAPURAM-695 035.
6 THE COMPETENT AUTHORITY,
DIRECTOR, DEPARTMENT OF ARCHEOLOGY, SREEPADAM
PALACE, FORT PO, THIRUVANANTHAPURAM-695 023.
7 THE SUPERINTENDING ARCHAEOLOGIST,
A.S.I THRISSUR CIRCLE, FF19 (1) KSHB FLATS, BLOCK
III, PULLZAZHY P.O,THRISSUR-680 012
*ADDL.R8 THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS
SECRETARY,
LMS VELLAYAMBALAM RD, OPPOSITE LMS COMPOUND,
THIRUVANANTHAPURAM, KERALA 695033
*(IMPLEADED AS ADDITIONAL 8TH RESPONDENT AS PER
ORDER DATED
BY ADVS.
SHRI.DINESH R.SHENOY,SC, ARCHAEOLOGICAL SURVEY OF
INDIA
O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA
SC- SUMAN CHAKRAVARTHY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No. 21809 of 2021 -3-
2025:KER:53566
JUDGMENT
Dated this the 18th day of July, 2025 Petitioners have approached this Court challenging Exts.P6 and P8.
2. The brief facts necessary for the disposal of the writ petition are as follows:-
Petitioners are in possession of 2.03 ares of property in Re.Sy. No.36/6-2-12 of Thiruvallam Village in Thiruvananthapuram District. Petitioners submitted application before the Thiruvananthapuram Corporation for building permit which was granted as per Ext.P1. On the strength of Ext.P1 the residential house was constructed strictly in compliance with the conditions in Ext.P1. While so, petitioners were issued with Ext.P2 notice from the 5 th respondent intimating that the residential building is situated in a regulated area of centrally protected monument, Shri.Parasurama Temple at Thiruvallam, and the petitioners have to remove the unauthorised building/construction. Thereupon the 7th respondent issued Ext.P3 directing the petitioners to remove the construction undertaken by them on the basis of Ext.P1 permit issued by the local authority.
3. Thereafter the 6th respondent competent authority as per the provisions of the Ancient Monuments and Archeological Sites and WP(C) No. 21809 of 2021 -4- 2025:KER:53566 Remains Act, 1958 (hereinafter referred to as the 'Act, 1958') conducted an inspection of the site as per the provisions of the Act and the Rules, and submitted a proposal and recommendation to the 3rd respondent which is the "authority" as per the Act, 1958. The competent authority while issuing Ext.P4 recommendation to the authority has taken note of the fact that the site of construction is 240 metres away from the protected monument and comes within the regulated area of the monument, and that there are two storeyed buildings around the monument and two storeyed buildings around the proposed site, and the proposed construction is a double storeyed building having only a plinth area of 157.70 metre square, and that it will not affect the safety, beauty, accessibility or visibility of the monument in any way. It is also reported that the applicant has almost completed the construction without an NOC from the competent authority, and that the petitioners have constructed the building on the strength of the building permit issued by the Corporation authorities and was not aware of getting NOC from the competent authority, and that the Corporation authorities are now denying to issue building number and approval for the construction. Therefore, the competent authority requested the 3 rd respondent which is the authority under the Act to ratify the petitioners' action done due to lack of awareness of the Act, 1958. WP(C) No. 21809 of 2021 -5-
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4. The authority, respondent No.3 by Ext.P6 communication intimated the competent authority the 6th respondent herein that at the time of processing the NOC application it was observed that the applicant has almost completed the construction without any prior approval, and therefore directed the competent authority to issue show cause notice to the applicant and obtained a reply of the same and to refer back to the 3 rd respondent after a decision is taken by the Archeological Survey of India on the show cause notice issued. Later by Ext.P7 the show cause notice issued to the petitioners, its reply and the letter from the Archeological Survey of India was forwarded to the 3rd respondent authority. The authority by Ext.P8 intimated the competent authority that, in the meeting of the NMA held on 21.06.2017 it was decided to reject the proposal due to the fact that the applicants have almost completed the construction of the building without obtaining NOC as per the provisions of the Act, 1958. The competent authority again represented the 3 rd respondent as per Ext.P11 intimating that the competent authority has verified the explanation submitted by the applicants and it is seen that the explanation is satisfactory and further that the construction undertaken is within the regulated area and may be regularised conditionally. But by Ext.P12 the 3rd respondent again rejected the case of the petitioners for grant of an NOC. It is in the said WP(C) No. 21809 of 2021 -6- 2025:KER:53566 circumstances that the present writ petition has been filed challenging Exts.P8 and P12.
5. Respondents 1 to 3 have filed a detailed counter affidavit stating that, as the petitioners have undertaken construction activity without obtaining necessary NOC from the 3rd respondent, the application is liable to be rejected. Respondents 3, 4, 5 and 7 has also filed a detailed counter affidavit reiterating the very same stand that, since the construction was undertaken without obtaining an NOC from the 3rd respondent the request of the petitioners to ratify the construction cannot be permitted. In reply to the same petitioners on the basis of Exts.P14 to Ext.P27 documents submitted that in similar circumstances, permissions were granted even in cases where the construction of the building was undertaken without obtaining NOC from the 3rd respondent, and that the petitioners alone were discriminated.
6. I have heard the rival contentions on both sides.
7. Admittedly, the construction of the building was undertaken only on getting necessary building permit from the local authority as evident from Ext.P1. The case of the petitioners is that they were not aware of the fact that a No Objection Certificate and permission has to be obtained from respondents 3 and 6 and therefore sought for ratification of the construction already WP(C) No. 21809 of 2021 -7- 2025:KER:53566 undertaken and to grant necessary permission for the same. Section 20D of the Act, 1958 deals with the grant of permission by the competent authority within the regulated area. Section 20C of the Act, 1958 deals with application for repair or renovation in a prohibited area or construction or reconstruction or repair or renovation in a regulated area, which mandates that any person who wishes to carry out construction or reconstruction in a regulated area shall make an application to the competent authority for carrying out construction. Section 20D deals with the grant of permission by the competent authority on an application made under Section 20C which mandates that the competent authority shall forward the application to the authority, the 3 rd respondent herein, and intimate the impact of such construction having regard to the heritage bye law related to the concerned protected monument or protected area as the case may be, and the authority shall intimate the competent authority the impact of such construction etc. and on the basis of the same the competent authority shall either grant permission or refuse the same as recommended by the authorities.
8. It is true that petitioners undertook construction activity without getting any necessary permission as mandated in Section 20D of the Act, 1958. This Court in Balakrishna Pillai G. and WP(C) No. 21809 of 2021 -8- 2025:KER:53566 Another v. Director (CONS.), National Monuments Authority and Others [2020 (4) KHC 427] has held that the paramount consideration in deciding as to whether permission for the construction of a building in a regulated area should be granted or not is the impact that the construction have on the protected monument. Since construction activity is not prohibited in a regulated area the consideration for the authorities as held by this Court in Balakrishna Pillai G's case cited supra is the impact of the construction that would have on the protected monument. Based on the request made by the petitioners Ext.P4 proposal for grant of permission for construction in regulated area was forwarded by the 6th respondent to the 3rd respondent. The recommendation of the competent authority as found in Ext.P4 reads as follows:-
"Recommendation of the Competent Authority The proposed new construction of a double storied residential building comprised in R. Survey No: 36/6-2-1-2 owned by Sri. Satheesh S Nair & Sreeja, T.C- 64/2358, 'Bhavana', Thiruvallam. P.O., Trivandrum - 27 and comes within the regulated area of the protected monument - Parasurama Temple, Thiruvallam - built in the 13-14th century. The total height of the monument is 10 mts. The site of construction stands 240 mts away from the protected monument and comes in the regulated area of the monument. There are two storied buildings around the monument and two storied buildings around the proposed site. The proposed construction is a double storied one having a plinth area of 157.70 m2 only, WP(C) No. 21809 of 2021 -9- 2025:KER:53566 it will not affect the safety, beauty, accessibility or visibility of the monument in any way. In this case it may be noted that the applicant had almost completed the construction works. without legal NOC. When notice was issued he reported that he has already got the building permit from the corporation authorities and was not aware of getting NOC from Competent Authority. Now the corporation authorities denied to issue building number and approval of the construction. He has requested the kind consideration of NMA for ratifying his action in the light of lack awareness of the act. The case may be considered accordingly.
In the above circumstances, the application of Sri. Satheesh S Nair & Sreeja, may be considered accordingly."
(underline supplied) But the said proposal has been rejected as per Ext.P8 order by the 3rd respondent only for the reason that the petitioners have almost completed the construction of the building without obtaining NOC, and that show cause notice has been issued by the Archeological Survey of India by Ext.P12. It was informed that the revised proposal submitted by the 6th respondent as per Ext.P11 could not be considered till a decision is taken by the Archeological Survey of India.
9. I have already found that the paramount consideration for considering an application for issuance of NOC in a regulated area is the impact that the construction would have on the protected monument. In the recommendation of the competent authority as WP(C) No. 21809 of 2021 - 10 - 2025:KER:53566 evident from Ext.P4, it is specifically reported that the site construction is 240 metres away from the protected monument and there are other two double storeyed building, one around the monument and one around the proposed site, and that the petitioners' building is only having a plinth area of 157.70 metre square and it will not affect the safety, beauty, accessibility and visibility of the monument in any way. So by Ext.P4 recommendation of the competent authority the impact the construction on the protected monument has been duly studied and reported that the same would have no impact on the protected monument. The only reason for rejecting the same is that the construction has been completed without obtaining NOC from the 6th respondent. Petitioner would submit that he is a layman and was not aware that before starting construction of the building he ought to have obtained NOC from the 3rd and 6th respondents. But it is to be noted that the petitioners did not undertake any unauthorised construction. Before starting construction petitioners have obtained Ext.P1 permit from the local authority. The local authority should have intimated the petitioners of the necessity of obtaining a No Objection Certificate from the 3rd and 6th respondents, and should have granted a building permit only after obtaining such NOC from the authorities as per the Act, 1958.
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10. An interesting aspect to be noted is that the main objection raised by the 3rd respondent in not ratifying the construction or granting an NOC is that the petitioners have completed the constructions without obtaining an NOC. Petitioners have produced Exts.P14 to P20 which are the recommendations of the 6th respondent in the case of similarly situated applicants. A perusal of Exts.P14 to P20 except P19 in all the cases, the construction have already been completed or partially completed without obtaining a No Objection Certificate as contemplated under the Act, 1958. These recommendations of the competent authority was considered by the 3rd respondent, the authority under the Act, 1958 and on a perusal of Exts.P1 to P27 would show that the grant of permissions for undertaking construction in a regulated area were issued by the 6th respondent based on the recommendation of the 3 rd respondent which is the authority under the Act, 1958. So a perusal of Exts.P21 to P27 would reveal that in cases of similarly situated applicants even when the construction of the building was started without obtaining a No Objection Certificate, the 3 rd respondent has recommended and on the basis of the recommendations, permissions were granted for undertaking construction in a regulated area. In the light of Exts.P14 to P27, wherein in the case of similarly situated applicants a different stand has been taken by WP(C) No. 21809 of 2021 - 12 - 2025:KER:53566 respondent Nos.3, the reason stated for rejecting the request of the petitioners, i.e, they have completed the construction without obtaining an NOC from the 3rd respondent, cannot be accepted.
11. In the light of the above, I am of the view that the matter requires reconsideration at the hands of the 3 rd and 6th respondents. To facilitate reconsideration of the matter, Exts.P8 and P12 communications are set aside, and the following directions are issued:-
1. The petitioner shall submit copies of Exts.P14 to P27 proceedings before the 6th respondent along with a petition within a period of three weeks from the date of receipt of a copy of the judgment, who shall forward the same to the 3 rd respondent within a period of two weeks thereafter.
2. The 3rd respondent on receipt of Exts.P14 to P27 as directed above shall reconsider Ext.P4 proposal and recommendation and Ext.P11 communication issued by the 6 th respondent and take a decision on the same without any delay at any rate within an outer limit of three months thereafter.
3. If in fact Exts.P14 to P27 has been issued in cases where construction activity has been undertaken without obtaining NOC, the 3rd respondent shall issue necessary recommendations, recommending the case of the petitioners WP(C) No. 21809 of 2021 - 13 - 2025:KER:53566 also as is done in Exts.P14 to P27 and shall immediately intimate the 6th respondent about the same.
4. The 6th respondent competent authority on receipt of the recommendations from the 3rd respondent shall take steps for grant of permission as provided under the Act, 1958 within a period of three weeks thereafter.
With the above said directions, the writ petition is disposed of.
Sd/-
VIJU ABRAHAM JUDGE sbk/-
WP(C) No. 21809 of 2021 - 14 -
2025:KER:53566 APPENDIX OF WP(C) 21809/2021 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE BUILDING PERMIT ISSUED BY THIRUVANANTHAPURAM CORPORATION DATED 15.05.2014 TO THE PETITIONERS.
Exhibit P2 A TRUE COPY OF THE NOTICE NO. 183 DATED 25.02.2015 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONERS.
Exhibit P3 A TRUE COPY OF THE NOTICE FILE NO.
4/192/TSR/VIOLATION /2014-M-2267 DATED 15.07.2015 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONERS.
Exhibit P4 A TRUE COPY OF THE COMMUNICATION NO.
3434/15/CA/AMASR ISSUED BY 6TH RESPONDENT TO THE 3RD RESPONDENT DATED 25.01.2017.
Exhibit P4(A) A TRUE COPY OF THE SITE INSPECTION REPORT BY 6TH RESPONDENT DATED NIL.
Exhibit P4(B) A TRUE COPY OF THE PROPOSAL DATED 25.01.2017 ISSUED BY 6TH RESPONDENT.
Exhibit P4(C) A TRUE COPY OF THE RECOMMENDATION DATED 25.01.2017 ISSUED BY 6TH RESPONDENT.
Exhibit P5 A TRUE COPY OF THE COMMUNICATION F. NO.
4/218/TSR/VIOLATION/2016-M-1569 ISSUED BY 7TH RESPONDENT TO THE 6TH RESPONDENT DATED 02.05.2017.
Exhibit P6 A TRUE COPY OF THE COMMUNICATION F. NO. 2-
23/719/2017-NOC/NMA DATED 18.04.2017
ISSUED BY 3RD RESPONDENT TO THE 6TH
RESPONDENT.
Exhibit P7 A TRUE COPY OF THE COMMUNICATION NO.
3434/15/CA/AMASR ISSUED BY 6TH RESPONDENT TO THE 3RD RESPONDENT DATED 15.05.2017.
Exhibit P8 A TRUE COPY OF THE ORDER IN F.NO. 2-
23/719/2017-NOC/NMA DATED 21.07.2017
ISSUED BY 3RD RESPONDENT TO THE 6TH
RESPONDENT.
Exhibit P9 A TRUE COPY OF THE REPREESENTATION DATED
17.08.2017 SUBMITTED BY THE PETITIONERS TO THE 4TH RESPONDENT.
Exhibit P10 A TRUE COPY OF THE REPRESENTATION DATED 17.08.2017 SUBMITTED BY THE PETITIONERS T THE 6TH RESPONDENT.
Exhibit P11 A TRUE COPY OF THE COMMUNICATION NO. WP(C) No. 21809 of 2021 - 15 -
2025:KER:53566 3434/15/CA/AMASR ISSUED BY 6TH RESPONDENT TO THE 3RD RESPONDENT DATED 19.09.2017.
Exhibit P12 A TRUE COPY OF THE COMMUNICATION IN F. NO.
2-23/719/2017-NOC/NMA ISSUED BY 3RD
RESPONDENT TO THE 6TH RESPONDENT DATED
17.10.2017.
Exhibit P13 A TRUE COPY OF THE REPRESENTATION DATED
27.12.2017 SUBMITTED BY THE PETITIONERS TO THE 3RD RESPONDENT.
Exhibit P14 THE TRUE COPY OF THE RECOMMENDATION OF THE COMPETENT AUTHORITY DATED 30.08.2016 IN THE APPLICATION OF ONE MR. SUMAL KUMAR, RECEIVED BY THE PETITIONER THROUGH RTI Exhibit P15 THE TRUE COPY OF THE RECOMMENDATION OF THE COMPETENT AUTHORITY DATED 14.06.2017 IN THE APPLICATION OF ONE MR. MANOHARAN & BINDHU, RECEIVED BY THE PETITIONER THROUGH RTI Exhibit P16 THE TRUE COPY OF THE RECOMMENDATION OF THE COMPETENT AUTHORITY DATED 17.12.2019 IN THE APPLICATION OF ONE MR. AJMAL, RECEIVED BY THE PETITIONER THROUGH RTI Exhibit P17 THE TRUE COPY OF THE RECOMMENDATION OF THE COMPETENT AUTHORITY DATED NIL IN THE APPLICATION OF ONE LATHIKA, RECEIVED BY THE PETITIONER THROUGH RTI Exhibit P18 THE TRUE COPY OF THE RECOMMENDATION OF THE COMPETENT AUTHORITY DATED 20.10.2014 IN THE APPLICATION OF ONE KHADHEEJA, RECEIVED BY THE PETITIONER THROUGH RTI Exhibit P19 THE TRUE COPY OF THE RECOMMENDATION OF THE COMPETENT AUTHORITY DATED 20.09.2013 IN THE APPLICATION OF ONE MR. RAJIN K J, RECEIVED BY THE PETITIONER THROUGH RTI Exhibit P20 THE TRUE COPY OF THE RECOMMENDATION OF THE COMPETENT AUTHORITY DATED 22.06.2015 IN THE APPLICATION OF ONE THANKAMMA, RECEIVED BY THE PETITIONER THROUGH RTI Exhibit P21 THE TRUE COPY OF THE FORM IV, IE, THE FORM RELATED TO GRANT OF PERMISSION FOR UNDERTAKING CONSTRUCTION TO ONE MR. SUMAL KUMAR DATED 25.01.2017 ISSUED BY THE 6TH RESPONDENT Exhibit P22 THE TRUE COPY OF THE FORM IV, IE, THE FORM RELATED TO GRANT OF PERMISSION FOR UNDERTAKING CONSTRUCTION TO ONE MR.
WP(C) No. 21809 of 2021 - 16 -
2025:KER:53566 MANOHARAN & BINDHU DATED 23.10.2017 ISSUED BY THE 6TH RESPONDENT Exhibit P23 THE TRUE COPY OF THE FORM IV, IE, THE FORM RELATED TO THE GRANT OF PERMISSION FOR UNDERTAKING CONSTRUCTION TO ONE MR. AJMAL DATED 04.10.2021 ISSUED BY THE 6TH RESPONDENT Exhibit P24 THE TRUE COPY OF THE FORM IV, IE, THE FORM RELATED TO GRANT OF PERMISSION FOR UNDERTAKING CONSTRUCTION TO ONE MRS. T M LATHIKA DATED 10.08.2021 ISSUED BY THE 6TH RESPONDENT Exhibit P25 THE TRUE COPY OF THE FORM IV, IE, THE FORM RELATED TO GRANT OF PERMISSION FOR UNDERTAKING CONSTRUCTION TO ONE MRS.
KADHEEJA DATED 08.07.2015 ISSUED BY THE 6TH RESPONDENT Exhibit P26 THE TRUE COPY OF THE FORM IV, IE, THE FORM RELATED TO THE GRANT OF PERMISSION FOR UNDERTAKING CONSTRUCTION TO ONE MR. RAJIN K J DATED 08.07.2016 ISSUED BY THE 6TH RESPONDENT Exhibit P27 THE TRUE COPY OF THE FORM IV, IE, THE FORM RELATED TO GRANT OF PERMISSION FOR UNDERTAKING CONSTRUCTION TO ONE MR. JOSE DATED 03.03.2016 ISSUED BY THE 6TH RESPONDENT