K. Abraham Mathew J.

1. The answer to the question that arises for consideration in this appeal depends on the interpretation of Section 2(dc) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

2. Article 49 of the Constitution of India makes it the obligation of the State “ to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.”

3. Article 51A of the Constitution also is relevant. This provision has made it is the duty of every citizen of India to value and preserve the rich cultural heritage of our composite culture.

4. It is in conformity with the above constitutional provisions the Parliament enacted the Ancient Monuments and Archaeological Sites and Remains(Amendment and Validation) Act 2010 by which the Ancient Monuments and Archaeological Sites and Remains Act, 1958 has been amended. By the amendments various provisions in the Ordinance which preceded the Amendment Act have been strengthened and penal provisions have been made.

5. While interpreting the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter called the Act) the above constitutional obligation and duty should be borne in mind.

6. Under Section 20A of the Act every area beginning at the limit of the protected area or the protected monument, as the case may be, and extending to a distance of one hundred metres in all directions is a prohibited area in respect of such protected area or protected monument. Sub section (2) of the Section also is relevant: “Save as otherwise provided in Section 20C, no person other than an archaeological officer shall carry out any construction in any prohibited area”. Section 20C enables the owner of a building or structure which existed in a prohibited area before the 16th day of June, 1992 to submit an application to carryout any repair or renovation of such building or structure.

7. Thus there is a total prohibition for making any new constructions in the prohibited area; but repairs in an existing construction may be carried out with the permission of the competent authority concerned.

8. It is not in dispute that Tellicherry Fort is a protected monument under the Act. The first respondent is an owner of a three storied building situated in the prohibited area in respect of the Fort, its location being within 100 metres from the Fort. On the ground that the RCC roof of his building leaks and it cannot otherwise be prevented he applied for permission of the local body to put up aluminum roof (truss work) over the RCC slab. Ext P1 is a copy of the permit granted by the local body. On realizing that there are restrictions in the Act, he submitted Ext P2 application to the third respondent, Superintending Archaeologist of the Archaeological Survey of India, for permission to put up aluminum roof. On being told that his application would be forwarded to the first appellant, Director General of Archaeological Survey of India, he made Ext P3 representation to him to grant the permission sought for. Meanwhile, the 4th appellant, Senior Conservation Assistant of the Archaeological Survey of India, issued Ext P4 stop memo to him as he was about to start the work. But no order was passed on his application even after the issuance of the stop memo. He filed the writ petition praying for a writ of certiorari or such other writ, order or direction quashing Ext P4 stop memo and for a mandamus or such other writ, order or direction directing the appellants to grant the permission sought for. He also made a prayer for the alternative relief of a writ of mandamus or other appropriate orders directing appellants 1 to 4 to take positive actions on Ext P2 and Ext P3 applications submitted by him. The learned Single Judge took the view that the work proposed to be done by the first respondent