Restrict Officers From Granting Permission To Put Up New Constructions In & Around Protected Monuments: Karnataka High Court Directs State Govt
The Karnataka High Court noted that the framers of Constitution were conscious of the need to shield the monuments and places of historic importance from spoilation and disfigurement and this is the soul of Article 49 of the Constitution of India.
Justice M. Nagaprasanna, Karnataka High Court
The Karnataka High Court has directed the State Government to restrict the officers from granting permission to put up new constructions in and around the protected monuments.
The Court was dealing with a Writ Petition preferred against an Order passed by the Regional Director, National Monuments Authority, Government of India, Bengaluru declining to grant permission and directing to stop construction of the residential house in the schedule property.
A Single Bench of Justice M. Nagaprasanna ordered, “I further deem it appropriate to direct the State Government in the Department of Urban Development, to issue a circular to restrict the officers from granting permission to put up new constructions, in and around the protected monuments, and if any permission is to be granted in tune with the statute, such permission shall precede a no objection from the Archeological Survey of India. The circular shall also indicate that permissions if granted by officers contrary to law, they would be doing so at their peril, making themselves open for initiation of a departmental enquiry.”
The Bench noted that the framers of Constitution were conscious of the need to shield the monuments and places of historic importance from spoilation and disfigurement and this is the soul of Article 49 of the Constitution of India.
Advocate Pundikai Ishwara Bhat represented the Petitioner while Central Government Panel Counsel (CGPC) Ajay Prabhu, High Court Government Pleader (HCGP) Shamanth Naik, and Advocate Harish Bhandary represented the Respondents.
Case Background
The Petitioner came in possession of the subject property pursuant to a Decree in a Partition Suit. The Judgment and Decree was challenged in a plea which was dismissed. Both the Judgments and Decrees of the Civil Court and the first Appellate Court were called in question and during the subsistence of Regular First Appeals (RFAs), the parties entered into a compromise. A coordinate Bench disposed of the RFAs based on the Compromise Petition filed before the Court. In terms of the Compromise Petition ‘A’ schedule property measuring 8.80 cents was allotted to the share of the Petitioner. The Petitioner then got the khata changed into his name and became the absolute owner in possession and enjoyment of the property. He applied for conversion of the land to residential purposes. The Deputy Commissioner granted conversion and after securing the same, the Petitioner applied for licence to the Mangalore City Corporation (MCC), which granted licence in his favour for construction of a house. The plan for construction was submitted to the MCC which was also approved.
In terms of the permission so granted, the Petitioner put up construction upto a certain level. When things stood thus, a stop notice was issued by the Conservative Assistant of Archaeological Survey of India (ASI), Karkala Sub-Circle intimating that the Petitioner was required to take a no objection from the ASI before commencement of the construction, as the construction was coming within the regulated area of 150 meters on north-east side of Mangala Devi Temple which was declared as a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 as amended in 2010. A spot inspection report was drawn and the appraisal was that construction was happening in the prohibited area, as it was within 64 meters from Mangala Devi Temple. The Petitioner also received another communication that no objection for construction of residential building near centrally protected monument is refused as it is within 64 meters and in the prohibited area. He represented for grant of NOC, which was rejected by the authority and hence, he approached the High Court.
Reasoning
The High Court in the above regard, observed, “In the light of unequivocal facts obtaining in the case at hand, as narrated hereinabove, and statutory mandate and judgment rendered by the Apex Court, the unmistakable inference is that the construction of the petitioner cannot be permitted to be completed.”
The Court emphasised that Article 49, a part of the Directive Principles of the State Policy (DPSP) mandates protection of monuments and places and objects of national importance and it is the obligation of the State to protect every monument of historic interest.
“If this is the mandate of the Constitution, in terms of law and when Mangala Devi Temple is declared to be a protected monument, it is ununderstandable as to how the Corporation has granted permission to put up a new construction, that too without keeping Archaeological Survey of India in the loop, is deeply perturbing. Permission is granted in blithe ignorance or indifference to the statutory embargo. Public functionaries are the custodians of the law, not its adversaries”, it added.
The Court further said that the Corporation officials have wantonly ignored the mandate of the law in permitting construction of the kind that is permitted in this case, which undoubtedly undermines statutory sanctity; and therefore, action should ensue against those erring officials who have permitted such construction.
“A departmental enquiry shall be initiated against those erring officials and appropriate action be taken, on identification of the role of such erring officers qua the permission granted for putting up the subject construction”, it also noted.
Moreover, the Court ordered that the departmental enquiry shall be held in strict consonance with the principles of natural justice and affording of adequate opportunity to such officials so identified.
Directions
The Court, therefore, issued the following directions –
• The Petitioner is restrained from proceeding with the construction which stands in breach of Section 20A and 20B of the Ancient Monuments and Archaeological Sites and Remains Act.
• A copy of this Order shall be transmitted to the Principal Secretary, Department of Urban Development for its compliance of issuance of a circular.
• A circular shall be issued within 8 weeks from the date of receipt of the copy of the Order and the same be placed before the Registry of the Court.
• Departmental enquiry against the erring officials be initiated and conducted strictly in consonance with principles of natural justice after identifying those officers who has/have granted permission to put up a new construction contrary to the Statute.
• Action taken report on the said departmental enquiry shall also be placed before the Registry of the Court within 3 months from the date of receipt of the copy of this Order.
Accordingly, the High Court dismissed the Writ Petition.
Cause Title- Denis Crasta v. The Union of India & Ors. [Case Number: WRIT PETITION No.9010 OF 2025 (GM – RES)]
