Karnataka High Court
Sri. K N Rama Rao vs Union Of India on 3 March, 2016
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2016
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.11063/2011 (GM-RES)
BETWEEN:
SRI. K N RAMA RAO
S/O VENKATESH RAO
AGED ABOUT 68 YEARS
R/AT KELADI VILLAGE
SAGAR TALUK
SHIMOGA DISTRICT
... PETITIONER
(BY SRI. S G HEGDE, ADV.)
AND:
1. UNION OF INDIA
REP. BY ITS SECRETARY MINISTRY OF
CULTURE NORTH BLOCK
RASHTRAPATI BHAVAN
NEW DELHI-110001
2. STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF KANNADA & CULTURE
VIKASA SOUDHA, VIDHANA VEEDHI
BANGALORE-560001
3. SUPERINTENDING ARCHAEOLOGIST
ARCHAEOLOGICAL SURVEY OF INDIA
GOVERNMENT OF INDIA,
KENDRIYA SADANA, 5TH FLOOR
F WING, KORAMANGALA
BANGALORE-560034
4. ARCHAEOLOGICAL SURVEY OF INDIA
KENDRIYA SADANA 4TH FLOOR
F WING, KORAMANAGALA
BANGALORE-560034
2
5. THE SR. CONSERVATION ASSISTANT
ARCGEOLOGICAL SURVEY OF INDIA
SUB CIRCLE, NO,42, VASUKI 2ND CROSS
JAYANAGAR, SHIMOGA
6. THE TAHSILDAR
SAGAR TALUK
SHIMOGA DISTRICT
7. THE SUB-INSPECTOR OF POLICE
LAW & ORDER
SAAGAR TALUK, SHIMOGA.
... RESPONDENTS
(BY SRI. KRISHNA S DIXIT, ASG FOR R1, R3-R5
SRI. R B SATHYANARAYANA SINGH, AGA. FOR R2, 6 & 7)
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DATED 29.12.2010 VIDE ANNEX.G; DECLARE THAT
RULES 31 TO 33 OF THE ANCIENT MONUMENT &
ARCHAEOLOGICAL REMAINS RULES 1959 ARE ULTRAVIRUS
THE PROVISIONS OF THE ANCIENT MONUMENT &
ARCHAEOLOGICAL REMAINS ACT 1958 AND OR OTHERWISE
ILLEGAL VOID AND ETC.
THIS PETITION COMING ON FOR PRELIMANARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court assailing the order dated 29.12.2010 impugned at Annexure-G to the petition. The petitioner has also sought that the Rules 31 to 33 of the Ancient Monument and Archeological Remains Rules 1959 ('the Rules' for short) be declared ultra-vires the provisions of Ancient Monument and 3 Archeological Remains Act, 1958 ('the Act' for short). The provisions of the Act are also assailed in the petition.
2. The petitioner claims to be the owner of the property bearing Kaneshumari No.4 of Keladi Mandal Panchayat, Sagar Taluk, Shimoga measuring 22 guntas. The manner in which the petitioner has acquired ownership over the property through the partition deed dated 25.07.1958 is referred to in the petition. In that light, the petitioner has secured the building license from the Local Mandal Panchayat on 17.02.1992 and the construction is commenced on the property. When the construction was at the stage of completion, the impugned notice dated 29.12.2010 at Annexure-G was issued. It is in that circumstance the petitioner is before this Court.
3. Though the provisions of the Act and the Rules have been assailed in this petition, the primary contention 4 on behalf of the petitioner is that even if the provisions of the Act are kept in view, the permission obtained by the petitioner and the construction commenced are much earlier to the provisions of the Act coming into force. In that view, the same cannot be imposed on the petitioner to prevent the enjoyment of the construction that had already commenced and was at the stage of completion is the contention. It is also contended that the notice dated 29.12.2010 is without material particulars with regard to the location of the property by indicating the actual distance from the protected monument and the violation in that regard. In that view, it is contended that the impugned notice dated 29.12.2010 is not sustainable.
4. Having noticed the contentions, the aspect which is also to be kept in view before considering the instant facts is that this Court on 31.03.2011 having referred to the contentions in the petition has permitted the petitioner to complete the construction of the building. 5 Though it is stated that it would be subject to result of this petition, what is necessary to be taken into consideration is that notwithstanding the challenge made to the provisions, firstly the factual aspect relating to the violation if any, even if the provisions are held to be valid is what requires consideration.
5. In that regard, a perusal of the notice dated 29.12.2010 in fact does not even indicate the details of the property wherein the construction is being put up to indicate the manner in which it violates the provisions of the Act and the distance between the protected monument and the construction being put up by the petitioner.
6. In such circumstance, when the construction is almost complete even as on the date the petitioner approached this Court, such loosely issued notice cannot be sustained. If at all any action is required, the same is to 6 be indicated in specific terms and the specific violation, if any and only thereafter on providing opportunity to the petitioner, a considered order is to be made and appropriate action is to be taken. Therefore since the present notice does not indicate such consideration, the notice dated 29.12.2010 at Annexure-G stands quashed. However, liberty is reserved to the respondents to proceed in accordance with law if the position still exists. The challenge to the provisions are left open, if the same is required to be considered at a later stage.
The petition stands disposed of accordingly.
Sd/-
JUDGE akc/bms