The court affirmed that new constructions within prohibited areas near protected monuments violate statutory provisions, emphasizing the need for preservation of historical sites over individual construction rights.

ORDER :

M. NAGAPRASANNA, J.

The petitioner calls in question an order dated 28-01-2025 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.

2. Heard Sri Pundikai Ishwara Bhat, learned counsel appearing for the petitioner, Sri Ajay Prabhu, learned Central Government Panel Counsel appearing for respondents 1 and 2, Sri Shamanth Naik, learned High Court Government Pleader appearing for respondent No.3 and Sri Harish Bhandary, learned counsel appearing for respondent No.4.

3. Facts in brief, germane, are as follows:

The petitioner comes in possession of the subject property pursuant to a decree in a partition suit - O.S.No.901 of 1993. It appears that the judgment and decree in O.S.No.901 of 1993 was challenged in R.A. Nos. 66 and 67 of 2009, which come to be dismissed on 21-02-2011. Both the judgments and decrees of the civil Court and the first Appellate Court were called in question in R.S.A.Nos.1413 and 1414 of 2011. During the subsistence of regular first appeals, the parties enter into a compromise and a coordinate Bench of this Court disposed of regular first appeals in terms of its order dated 22-04-2021 based on the said 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. Final decree, in terms of the compromise petition, was drawn in F.D.P.No.18 of 2018 on 11-08-2022.

4. The petitioner then gets the khata changed into his name and becomes the absolute owner in possession and enjoyment of the schedule property of 8.80 cents in Mangalore Thota Village, Mangalore Taluk and applied for conversion of the land to residential purposes. The Deputy Commissioner, in terms of his order dated 27-09-2023, grants conversion. After securing conversion for residential purposes, the petitioner applies for licence to the Mangalore City Corporation (‘the Corporation’ for short) and the Corporation in terms of its order dated 21-12-2023 grants licence in favour of the petitioner for construction of a house. The plan for construction was submitted to the Corporation which also comes to be approved. In terms of the permission so granted, the petitioner puts up construction up to a certain level.

5. When things stood thus, a stop notice comes to be issued by the Conservative Assistant of Archaeological Survey of India, Karkala Sub-Circle intimating that the petitioner was required to take a no objection from the Archaeological Survey of India 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 (hereinafter referred to as the ‘Act’ for short). The petitioner then replies to the said notice furnishing all the necessary details including licence obtained from the Corporation and submitted that construction has been put up to a particular level. The petitioner also sought for inspection of the site for a review of the stop notice and a no objection with regard to construction. A spot inspection report was drawn and the appraisal was that construction was happening in the prohibited area, as it was within 64 mete