The absence of regulation of Virupapura Gaddi cannot be used as a ground to justify the illegal cons

Sakkubai Etc. Etc. Vs State of Karnataka & Ors. Etc. Etc. CIVIL APPEAL NOS. 1443-1456 OF 2020 –  FEBRARURY 11, 2020

The bench comprising of Hon’ble Justice MOHAN M. SHANTANAGOUDAR and R. SUBHASH REDDY pronounced the judgment.

Fact

The appellant own land in Virupapura Gaddi protected area under Mysore Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961(hereinafter “1961 Act”).  The appellant was carrying on hotels, restaurants and guest house business in the Virupapura Gaddi.  However, upon the introduction of the Hampi World Heritage Area Management Authority Act, 2002 (hereinafter ‘the Hampi Act’), the authority constituted thereunder, the Hampi World Heritage Area Management Authority (hereinafter ‘HWHAMA’), Respondent No. 4 herein, directed the panchayats and local authorities not to renew any licenses and not to grant permission for commercial activities within Virupapura Gaddi. Later, in exercise of its powers under the Hampi Act, the HWHAMA issued notices to the Appellants for demolishing the structures constructed by them. To restrain them from doing so, the Appellants herein filed writ petitions before the High Court, seeking the identical relief of a direction to HWHAMA to forbear from carrying out such demolition. The High Court of Karnataka dismissed these writ petitions. The appellants file civil appeal in Supreme Court.

The contention of the petitioner is that, the entire village of Virupapura Gaddi cannot be construed as ‘protected area’ under Section 19 of the 1961 Act. This is because the scope of this provision is limited to archaeological site and remains, and it does contemplate the declaration of entire village(s) as protected area(s). Thus, the constructions in question were not hit by the 1988 notification. He also contended that the HWHAMA did not have any authority to demolish the structures raised by the Appellants.

Respondent argued that, the entire village of Virupapura Gaddi falls within the ‘protected area’ declared by the State Government in the 1988 notification. To substantiate the same, he referred us to Column 5 of the Schedule to this notification, and Map ‘A’ annexed thereto, both of which make it sufficiently clear that the entire village of Virupapura Gaddi is included within the boundaries of the protected area. He drew upon materials indicating the archaeological significance of Virupapura Gaddi, and submitted that the 1988 notification was justifiably made applicable to the entire village. Based on this, he contended that the land in the area could only be used for cultivation purposes as per the proviso to Section 20(1) of the 1961 Act. Since the Appellants were carrying out commercial activities there, the structures raised by them were argued as being in violation of the 1961 Act.

After hearing the arguments of both sides the Court farmed two issues

Whether the construction raised by the Appellants was lawful under the 1961 Act, in light of the 1988 notification?

If not, whether the HWHAMA had authority to demolish the said constructions?

In regard to first issue the court refers to section 2 definitions section 4: Power of Government to declare ancient monuments to be protected monuments Section 19: Power of Government to declare archaeological site and remains to be protected area under 1961 Act.

The court observed that in the instant case, exercising its powers under Section 19(3) of the 1961 Act, the State Government issued the 1988 notification declaring certain areas specified in the Schedule thereto as protected areas. From a perusal of this Schedule, it is amply clear that “Virupapura Gaddi” had been indicated in Column 5 as a covered area. Further, Map ‘A’ which is annexed to this Schedule also makes it evident that the entire village of Virupapura Gaddi was included within the boundaries of the protected areas. When we look to the village of Virupapura Gaddi specifically, there appears to be sufficient material to establish its archaeological significance.

The Archaeological Survey of India (ASI), Respondent No.5 herein, has in fact highlighted the archaeological importance of Virupapura Gaddi by referring to location of Virupapura Gudda and its importance. Important archaeological remains close to Virupapura Gadda. Pre and proto-history of the place-Virupapura Gadda. In light of this, we now proceed to consider the effect of the 1988 notification on the constructions raised by the Appellants during the period between 1991-2000. In this regard, Section 20 of the 1961 Act is relevant. “Section 20: Restrictions on enjoyment of property rights in protected areas. — No person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining, quarrying, excavating, blasting or any operation of a like nature in such area, or utilize such area or any part thereof in any other manner without the permission of the Government.

Since the entire area comprising Virupapura Gaddi had been declared as protected area vide the 1988 notification, it follows that the land owned by the Appellants could have only been used for the purpose of cultivation after the issuance of such notification.   Thus, the construction carried out by the Appellants on their lands at Virupapura Gaddi for commercial purposes was in violation of the 1961 Act.

The second issue pertains to whether the HWHAMA could have proceeded to demolish these illegal constructions. The court observed 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. 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.”

The Court observed that;

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. 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. 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 passed by the High Court of Karnataka.

The Court held that, 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.

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Aarthy K

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