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2020 Supreme(Ker) 625
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.G.ARUN, J.
G.Balakrishna Pillai – Appellant
Versus
The Director (Cons.), National Monuments Authority – Respondent
WP(C).No.41714 of 2018(L)
Decided on : 07-07-2020
Advocate Appeared:
For the Appellant : SRI.JOSEPH JERARD SAMSON RODRIGUES, SRI.ROVIN RODRIGUES
For the Respondent: SRI.B.PREM KUMAR, SHRI.P.VIJAYAKUMAR, Adv
IMPORTANT POINT
While considering the permission for construction in a regulated area should be granted or not, the concerned authorities should assess the impact which the construction would have on the protected monument, on the basis of the heritage bye-laws.
Headnote:
Constitution of India, Article 49 ;; The Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Section 20A, 20C ;;The Ancient Monuments and Archaeological Sites and Remains (Framing of Heritage Bye-laws And Other Functions Of The Competent Authority) Rules, 2011 – The paramount consideration in deciding as to whether permission for construction of building in a regulated area should be granted or not should be on the impact that the construction would have on the protected monument. Such impact should be assessed, after having regard to the heritage bye-laws.
Statement of facts:
The petitioners, an aged couple, are in the process of completing the construction of a three storied residential-cum-commercial building situated near the Mattancherry Palace. The Mattancherry Palace is declared to be an ancient monument of national importance under Section 3 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The proposed construction of the petitioners is within a distance of 208 metres from the Mattancherry Palace and therefore within the regulated area. They submitted an application for grant of permission under Section 20D. The application was processed and the petitioners were issued with Ext.P1, permitting the construction, but restricting the total height of the building to 9 metres- The CA therefore recommended for favorable consideration of the application. But, by Ext.P5, the NMA returned the application to the CA finding that the petitioners had completed their construction without obtaining prior permission. Further, the CA was required to direct the Statutory Authority of the Archaeological Survey of India to take appropriate action under the Act against the unauthorised construction at the earliest. Aggrieved, the writ petition is filed seeking to quash Ext.P5 and for ancillary reliefs.
Finding of the Court:
No reference to the heritage bye-laws is made either by the CA or NMA in any of its communications issued in connection with the application submitted by the petitioners. The CA had stated in its recommendation that the proposed construction does not affect the safety, security, visibility, accessibility or stability of the monument- The NMA having issued Ext.P1 recommendation and the CA having failed to issue permission in the prescribed form, the petitioners cannot be faulted for constructing the building on the strength of Ext.P1. Therefore, the finding in Ext.P5 that construction was carried out by the petitioners without permission is wrong. Consequently, rejection of the application is liable to be interfered with.
Result: Writ petition is allowed.
JUDGMENT :
The petitioners, an aged couple, are in the process of completing the construction of a three storied residential-cum-commercial building in their property situated in Mattancherry Village of Kochi Taluk. The property of the petitioners is situated near the Mattancherry Palace; an ancient monument dating back to the year 1557. The palace was constructed by the Portuguese in the year 1545 and presented to Veera Kerala Varma Raja, the then ruler of Cochin State. The palace being in close proximity to the sea was ravaged over the years by inclement weather and sea borne attacks from enemies. The palace was rebuilt by the Dutch in the year 1663 and the later renovations were carried out by the Rajas themselves. As a result, the Mattancherry Palace is resplendent of Portuguese and Dutch Architecture and portrays the grandeur of the Cochin royal family.
2. Article 49 of the Constitution of India casts an obligation on the State to protect every monument or palace or object of artistic or historic interest, declared by or under law made by the Parliament to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be. To give effect to this directive principle, the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short 'the Act') was enacted. The Mattancherry Palace is declared to be an ancient monument of national importance under Section 3 of the Act. The areas lying contiguous with, and in close proximity to, ancient monuments are categorised as prohibited and regulated areas. As per Section 20A, 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 shall be the prohibited area in respect of such protected area or protected monument. Section 20B provides for declaration of regulated area, which shall extend to a distance of 200 metres in all directions beginning at the limit of the prohibited area. In other words, the regulated area extends up to 300 metres of the protected monument. While activities within the prohibited area are restricted to repair or renovation of existing buildings, Section 20D provides for grant of permission for construction and reconstruction or repair or renovation within the regulated area. Under the Act, the function of processing applications, recommending and granting permission for such construction is vested with two authorities; the Competent Authority (CA) defined under Section 2(db) and the National Monuments Authority (NMA)under Section 20(da).
3. The proposed construction of the petitioners being within a distance of 208 metres from the Mattancherry Palace and therefore within the regulated area, they submitted an application for grant of permission under Section 20D. The application was processed and forwarded to the NMA by the CA and the petitioners were issued with Ext.P1, permitting the construction, but restricting the total height of the building to 9 metres. Accordingly, petitioners completed the construction by restricting the height to 9 metres and submitted a belated request for grant of completion certificate along with a revised plan.
The CA forwarded the request and accompanying documents to the NMA under Annexure 2 letter dated 06.06.2018 and as per Annexure 3, the NMA directed a fresh application to be submitted as on date with all enclosures and to report about the present status of the construction. Petitioners submitted the fresh application as directed, as is evident from Annexure 4 dated 15.08.2018, and thereafter approached this Court in W.P.(C) No.29388 of 2018 alleging delay in consideration of their application. The writ petition was disposed of under Ext.P3 judgment directing the CA to take up, consider and pass appropriate orders on the applications preferred by the petitioners within six weeks.
4. Accordingly, the CA had forwarded the application to the NMA along with
