Mysore Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 – ss. 19(1) & 19(3) – 1988 notification declaring Virupapura Gaddi as ‘protected areas’ u/s. 19(3) of the Act, 1961 – Validity of – Held: The Archaeological Survey of India (ASI) had highlighted the archaeological importance of Virupapura Gaddi in its Statement of objections filed before the High Court – From the observations made by the ASI, a specialised body responsible for archaeological research and conservation of cultural monuments in India, there remains little doubt as to the historical importance of Virupapura Gaddi – The Government had considered the comprehensive geographical entity of the area, including attributes like its landscape, prehistoric vestiges and water systems – Thus, the 1988 notification issued u/s. 19(3) of the 1961 Act declaring Virupapura Gaddi as a ‘protected area’ cannot be said to be without basis – Further, s. 19(4) of the 1961 Act clarifies that the notification issued u/s. 19(3) conclusively establishes the status of Virupapura Gaddi as a protected area under the said Act. Mysore Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 – s.20(1) – Validity of construction raised by the appellants under the 1961 Act – Held: The entire area comprising Virupapura Gaddi, where constructions were raised by the appellants, had been declared as protected area vide the 1988 notification, it follows that land owned by the Appellants could have only been used for the purpose of cultivation after issuance of such notification – However, the appellants had constructed huts and buildings on their lands for the commercial purpose of running hotels, restaurants and guest houses – From sub-section (1) of s.20, it is evident that owners/occupiers of protected areas cannot construct any building or utilize such areas in any manner other than cultivation, without the permission of the State Government – These constructions, in the instant case, were in violation of s. 20(1) of the 1961 Act.
Hampi World Heritage Area Management Authority Act, 2002 – Mysore Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 – Hampi World Heritage Area Management Authority (HWHAMA) power to demolish illegal constructions under the 2002 Act – Appellants contended that HWHAMA, which is a body set up under the Hampi Act, could not have issued such orders for demolition as the illegality of the constructions was rooted in 1961 Act – Held: The State Government enacted a specific legislation for the conservation of the cultural heritage of Hampi, i.e. the Hampi Act – The HWHAMA was constituted under s. 3 thereof – Both the 1961 Act and the Hampi Act cannot be construed as isolated silos – They both seek to fulfil a common object, they must be interpreted in a manner that seeks to further such objective and not obstruct it – In the instant case, since it is established that the structures erected by the appellants were in violation of the 1961 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 i.e. 1961 Act. Dismissing the appeals, the Court
HELD: 1. Re: First Issue :
Whether the construction raised by the Appellants was lawful under the 1961 Act, in light of the 1988 notification? In the instant case, exercising its powers under Section 19(3) of the Mysore Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961, 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. In fact, the specific Survey Nos. of lands where the Appellants are carrying on their restaurants and guesthouses are also mentioned in this Map. Thus, there is no doubt that the 1988 notification clearly indicates the entire village of Virupapura Gaddi as a protected zone. [Para 13][776-D-F]
2. In the opinion of this Court, the 1961 Act makes two distinct categories for protected monuments (Sections 3 to 18) and protected areas (Section 19 onwards). While the former relates to “ancient monuments”, the latter relates to “archaeological site and remains”. Upon a close reading of the 1961 Act, this Court finds that there is nothing in the definitions under Sections 2(1) and 2(3) or otherwise under the scheme of the 1961 Act, that indicates a link between the existence of “archaeological site and remains” and “ancient monuments”. It cannot be said that the protection ascribed to archaeological site and remains must necessarily depend on the existence of a monument. It is possible for certain areas to be protected independent of the existence of monuments, if there is a reasonable belief that they contain ruins or relics of historical or archaeological importance [Section 2(3)]. [Para 14.1][776-G-H]
3. From the observations made by the ASI, a specialized body responsible for archaeological research and conservation of cultural monuments in India, there remains little doubt as to the historical importance of Virupapura Gaddi. It appears that the Government had considered the comprehensive geographical entity of the area, including attributes like its landscape, prehistoric vestiges and water systems. Thus, the 1988 notification issued under Section 19(3) of the 1961 Act declaring Virupapura Gaddi as a protected area cannot be said to be without basis. Further, Section 19(4) of the 1961 Act clarifies that the notification issued under Section 19(3) conclusively establishes the status of Virupapura Gaddi as protected area under the said Act. [Para 14.3][779-C-E]
4. From a reading of sub-section (1) of Section 20, it is evident that owners/occupiers of protected areas cannot construct any building or utilize such areas in any manner other than cultivation, without the permission of the State Government. Here, 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. However, as mentioned supra, the Appellants had constructed huts and buildings on their lands for the commercial purpose of running hotels, restaurants, and guest houses. Clearly then, these constructions were in violation of Section 20(1) of the 1961 Act. [Paras 15 and 16][780-B-D]
5. Re: Second Issue:
If not, whether the Hampi World Heritage Area Management Authority (HWHAMA) had authority to demolish the said construction?
There is no merit in the Appellants’ argument that Hampi World Heritage Area Management Authority Act, 2002 is purely prospective in nature and that the HWHAMA, which has been established under such Act, cannot enforce prior notifications. In the considered opinion of this Court, the 1961 Act and the Hampi Act cannot be viewed as separate, watertight compartments that operate independent of each other. Such an understanding would not only defeat their underlying common objective, but also belie the events leading up to the enactment of the Hampi Act, all of which clearly reflect that the Hampi Act was a culmination of continuing attempts by the State Government to preserve and protect the cultural heritage of Hampi. Therefore, the 1961 Act and the Hampi Act must not be construed as isolated silos. Since they both seek to fulfill a common object, they must be interpreted in a manner that seeks to further such objective, and not obstruct it. [Para 21][785-C-E]
6. In the present case, since it is established that the structures erected by the Appellants were in violation of the 1961 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. [Para 22][785-F-G]
7. It may also be useful to appreciate the background in which the HWHAMA had proceeded to take action against the Appellants. As mentioned, 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. [Para 23][785-G-H; 786-A]
8. 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, this Court finds 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. [Para 24][786-E-G]
9. In any case, this Court finds 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. [Para 25.2][788-B-C]
10. In light of the foregoing discussion, this Court concludes 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, there is no reason to interfere with the impugned final judgment and order dated 27.04.2015 passed by the High Court of Karnataka. [Para 26][788-C-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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