Karnataka High Court
Kum.Sakkubai D/O Parimalabai, vs Commissioner, on 13 February, 2020
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G. PANDIT
WRIT PETITION No.61244/2011 (GM-RES)
C/W
WRIT PETITION NO.61243/2011, 61242/2011, 61241/2011
IN WP No.61244/2011
BETWEEN:
KAVALA RAMARAO S/O VENKATNAIDU
AGE:65 YEARS, OCC:BUSINESS,
R/O VIRUPAPURA GADDE, TQ:GANGAVATHI,
DISTRICT:KOPPAL.
....PETITIONER
(BY SRI. VINAY S KOUJALAGI, ADV. FOR SRI. V.M.
SHEELAVANT, ADV.)
AND:
1. THE COMMISSIONER
THE HAMPI WORLD HERITAGE AREA MANAGEMENT
AUTHORITY, HAMPI, TQ:HOSPET,
DIST:BELLARY.
2. ANEGUNDI GRAM PANCHAYAT
ANEGUNDI, TALUKA-GANGAVATHI,
DIST:KOPPAL, BY ITS PRESIDENT.
...RESPONDENTS
(BY SMT. VEENA HEGDE, AGA FOR R1
(SRI. PRASHANT F GOUDAR, ADV. FOR R1
(SRI. SANJAY S KATAGERI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSMENT DATED 15.04.2010 ISSUED BY THE
2
RESPONDENT NO.2 PRODUCED AT ANNEXURE-G AND DIRECT
THE RESPONDENTS TO RENEW THE LICENSE TO THE
PETITIONER TO RUN "SHANTI GUEST HOUSE AND
RESTAURANT" IN SY.NO.40 OF VIRUPAPURA GADDE OF KOPPAL
DISTRICT.
IN WP NO.61243/2011
BETWEEN:
N. VENKATARAMAN S/O SUBBARAO
AGE:45 YEARS, OCC:BUSINESS,
R/O VIRUPAPURA GADDE, TQ:GANGAVATHI,
DISTRICT:KOPPAL.
...PETITIONER
(BY SRI. VINAY S KOUJALAGI, ADV. FOR SRI. V.M.
SHEELAVANT, ADV.)
AND:
1. THE COMMISSIONER
THE HAMPI WORLD HERITAGE AREA MANAGEMENT
AUTHORITY, HAMPI, TQ:HOSPET,
DIST:BELLARY.
2. ANEGUNDI GRAM PANCHAYAT
ANEGUNDI, TALUKA-GANGAVATHI,
DIST:KOPPAL, BY ITS PRESIDENT.
...RESPONDENTS
(BY SMT. VEENA HEGDE, AGA FOR R1
(SRI. PRASHANT F GOUDAR, ADV. FOR R1
(SRI. SANJAY S KATAGERI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSMENT DATED 15.04.2010 ISSUED BY THE
RESPONDENT NO.2 PRODUCED ALONG AT ANNEXURE-F AND
DIRECT THE RESPONDENTS TO RENEW THE LICENSE TO THE
PETITIONER TO RUN "BOBY GUEST HOUSE AND RESTAURANT"
3
IN SY.NO.44/A AND 47/B OF VIRUPAPURA GADDE OF KOPPAL
DISTRICT.
IN WP NO.61242/2011
BETWEEN:
N. GOPALSWAMY S/O RAMAMURTHY
AGE:57 YEARS, OCC:BUSINESS,
R/O VIRUPAPURA GADDE, TQ:GANGAVATHI,
DIST:KOPPAL.
...PETITIONER
(BY SRI. VINAY S KOUJALAGI, ADV. FOR SRI. V.M.
SHEELAVANT, ADV.)
AND:
1. THE COMMISSIONER
THE HAMPI WORLD HERITAGE AREA MANAGEMENT
AUTHORITY, HAMPI, TQ:HOSPET,
DIST:BELLARY.
2. ANEGUNDI GRAM PANCHAYAT
ANEGUNDI, TALUKA-GANGAVATHI,
DIST:KOPPAL, BY ITS PRESIDENT.
...RESPONDENTS
(BY SMT. VEENA HEGDE, AGA FOR R1
(SRI. PRASHANT F GOUDAR, ADV. FOR R1
(SRI. SANJAY S KATAGERI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSMENT DATED 15.04.2010 ISSUED BY THE
RESPONDENT NO.2 PRODUCED ALONG AT ANNEXURE-G AND
DIRECT THE RESPONDENTS TO RENEW THE LICENSE TO THE
PETITIONER TO RUN "MOWGLI GUEST HOUSE AND
RESTAURANT" IN SY.NO.40 OF VIRUPAPURA GADDE OF KOPPAL
DISTRICT.
4
IN WP NO.61241/2011
BETWEEN:
SAKKUBAI D/O PARIMALABAI
AGE:25 YEARS, OCC:BUSINESS,
R/O VIRUPAPURA GADDE, GQ:GANGAVATHI,
DIST:KOPPAL.
...PETITIONER
(BY SRI. VINAY S KOUJALAGI, ADV. FOR SRI. V.M.
SHEELAVANT, ADV.)
AND:
1. THE COMMISSIONER
THE HAMPI WORLD HERITAGE AREA MANAGEMENT
AUTHORITY, HAMPI, TQ:HOSPET,
DIST:BELLARY.
2. ANEGUNDI GRAM PANCHAYAT
ANEGUNDI, TALUKA-GANGAVATHI,
DIST:KOPPAL, BY ITS PRESIDENT.
...RESPONDENTS
(BY SMT. VEENA HEGDE, AGA FOR R1
(SRI. PRASHANT F GOUDAR, ADV. FOR R1
(SRI. SANJAY S KATAGERI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO RENEW THE LICENSE TO THE PETITIONER
TO RUN "GOUTHAM GUEST HOUSE AND RESTAURANT" IN
PANCHAYAT PROPERTY NO.47, Sy.No.41/A, 41/P1 AND
PANCHAYAT NO.48 OF VIRUPAPURA GADDE OF KOPPAL
DISTRICT.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
5
ORDER
The petitioner in WP No.61244/2011 is before this Court praying to quash the endorsement dated 15.4.2010 issued by the respondent No.2-Gram Panchayath and for writ of mandamus directing the respondents to renew the license of the petitioner to run "Shanti Guest House and Restaurant" in Sy.No.40 of Virupapura Gadde of Koppal District, vide Annexure-G. Under Annexure-G, the petitioner's request for grant of hotel license is rejected on the ground that the land in question would fall under Core Zone of Hampi World Heritage Area Management Authority.
2. The petitioner in WP No.61243/2011 is before this Court praying to quash the endorsement dated 15.4.2010 issued by the respondent No.2-Gram Panchayath and for writ of mandamus directing the respondents to renew the license to the petitioner to run "Boby Guest House and Restaurant" in Sy.No.44/A and 6 47/B of Virupapura Gadde of Koppal District, vide Annexure-F. Under Annexure-F, the petitioner's request for grant of hotel license is rejected on the ground that the land in question would fall under Core Zone of Hampi World Heritage Area Management Authority.
3. The petitioner in WP No.61242/2011 is before this Court praying to quash the endorsement dated 15.4.2010 issued by the respondent No.2-Gram Panchayath and for writ of mandamus directing the respondents to renew the license to the petitioner to run "Mowgli Guest House and Restaurant" in Sy.No.40 of Virupapura Gadde of Koppal District, vide Annexure-G. Under Annexure-G, the petitioner's request for grant of hotel license is rejected on the ground that the land in question would fall under Core Zone of Hampi World Heritage Area Management Authority. 7
4. The petitioner in WP No.61241/2011 is before this Court praying for writ of mandamus directing the respondents to renew the license to the petitioner to run "Gowtham Guest House and Restaurant" in Panchayat Property No.47, Sy.No.41/A, 41/P1 and Panchayat No.48 of Virupapura Gadde of Koppal District, by which the petitioner's request for grant of hotel license is rejected on the ground that the land in question would fall under Core Zone of Hampi World Heritage Area Management Authority.
5. All the above four petitioners had approached this Court in WP No.60278/2011 and connected matters seeking for direction to the respondents therein to restrain from demolition of the petitioners' guest houses and restaurants. The Division Bench of this Court by its order 27.04.2015 at paras-37 and 39 held as follows:
37. In view of the aforesaid Master Plan 2021 providing for no development in the river island, 8 there is no merit in the submission of the learned senior counsel that in the absence of a regulation over development in Virupapura Gaddi, the constructions put up by the petitioners are saved and the petitioners be permitted to make application to the HWHAM Authority for permission for development under Section 14 of the HWHAMA Act.
38. ..............
39. The submission of the learned senior counsel that parties may be permitted to file applications to the HWHAM Authority for permission to put up construction and carry on business of hotel/restaurant/guest house in Virupapura Gaddi in accordance with the Master Plan 2021, in the facts, circumstances and the law noticed supra, is a futile effort. All the more reason to deny such permission is:
i) that Virupapura Gaddi is incorporated in the 'core zone' of the world heritage property because of its importance and significance as an archaeological area demonstrating medieval agricultural practices and;
ii) existence of remnants of aqueducts as channel constructed to bring water from Anegundi to Virupapura Gaddi, a river island despite surrounded by river being of archaeological significance.
as stated in the statement of objections of the 4th respondent which aspects are not in dispute."
6. Against the said order, all the petitioners in the above writ petitions had approached the Hon'ble 9 Supreme Court in Civil Appeal Nos.1443-1456/2020. The Hon'ble Supreme Court from paras-22 to 27 in its judgment held as follows:
"22. In the present case, since it is established that the structures erected by the Appellants were in violation of the1961 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.
23. 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 10
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 villages, which 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.-(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 11 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), 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 12 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 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.
27. In view of these findings, the Respondents shall proceed with the demolition of the illegal structures erected by the Appellants in Virupapura Gaddi within a period of one month from the date of this order. With such observations, the instant appeals stand dismissed. Ordered accordingly."
7. As the Hon'ble Supreme Court has rendered the above decision in respect of the very same petitioners and in respect of the very same properties, 13 nothing survives for consideration in these writ petitions. Accordingly, following the above decision of the Hon'ble Supreme Court, all these writ petitions are rejected.
Sd/-
JUDGE JTR