SAKKUBAI ETC. ETC. versus STATE OF KARNATAKA & ORS. ETC. ETC. on 11 February 2020

[2020] 2 S.C.R. 763

SAKKUBAI ETC. ETC.

v.

STATE OF KARNATAKA & ORS. ETC. ETC.

(Civil Appeal Nos. 1443-1456 of 2020)

FEBRUARY 11, 2020

[MOHAN M. SHANTANAGOUDAR ANDR. SUBHASH REDDY, JJ.]

Mysore Ancient and Historical Monuments and ArchaeologicalSites and Remains Act, 1961 – ss. 19(1) & 19(3) – 1988 notificationdeclaring Virupapura Gaddi as ‘protected areas’ u/s. 19(3) of theAct, 1961 – Validity of – Held: The Archaeological Survey of India(ASI) had highlighted the archaeological importance of VirupapuraGaddi in its Statement of objections filed before the High Court –From the observations made by the ASI, a specialised bodyresponsible for archaeological research and conservation of culturalmonuments in India, there remains little doubt as to the historicalimportance of Virupapura Gaddi – The Government had consideredthe comprehensive geographical entity of the area, includingattributes like its landscape, prehistoric vestiges and water systems– Thus, the 1988 notification issued u/s. 19(3) of the 1961 Actdeclaring Virupapura Gaddi as a ‘protected area’ cannot be saidto be without basis – Further, s. 19(4) of the 1961 Act clarifies thatthe notification issued u/s. 19(3) conclusively establishes the statusof Virupapura Gaddi as a protected area under the said Act.

Mysore Ancient and Historical Monuments and ArchaeologicalSites and Remains Act, 1961 – s.20(1) – Validity of constructionraised by the appellants under the 1961 Act – Held: The entire areacomprising Virupapura Gaddi, where constructions were raised bythe appellants, had been declared as protected area vide the 1988notification, it follows that land owned by the Appellants could haveonly been used for the purpose of cultivation after issuance of suchnotification – However, the appellants had constructed huts andbuildings on their lands for the commercial purpose of runninghotels, restaurants and guest houses – From sub-section (1) of s.20,it is evident that owners/occupiers of protected areas cannotconstruct any building or utilize such areas in any manner other

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Athan 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 ArchaeologicalBSites and Remains Act, 1961 – Hampi World Heritage AreaManagement Authority (HWHAMA) power to demolish illegalconstructions under the 2002 Act – Appellants contended thatHWHAMA, which is a body set up under the Hampi Act, could nothave issued such orders for demolition as the illegality of theconstructions was rooted in 1961 Act – Held: The State GovernmentCenacted a specific legislation for the conservation of the culturalheritage of Hampi, i.e. the Hampi Act – The HWHAMA wasconstituted under s. 3 thereof – Both the 1961 Act and the HampiAct cannot be construed as isolated silos – They both seek to fulfila common object, they must be interpreted in a manner that seeks toDfurther such objective and not obstruct it – In the instant case,since it is established that the structures erected by the appellantswere in violation of the 1961 Act, given the common threadunderlying the 1961 Act and the Hampi Act, it cannot be said thatsuch illegality ceased to exist when the Hampi Act came into force –Thus, the HWHAMA was, and is entitled to proceed against theEdevelopment raised by the appellants, which had been renderedillegal under the prior legislation i.e. 1961 Act.

Dismissing the appeals, the Court

HELD: 1. Re: First Issue :FWhether the construction raised by the Appellants waslawful under the 1961 Act, in light of the 1988 notification?

In the instant case, exercising its powers under Section19(3) of the Mysore Ancient and Historical Monuments andArchaeological Sites and Remains Act, 1961, the StateGGovernment issued the 1988 notification declaring certain areasspecified in the Schedule thereto as protected areas. From aperusal 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 H

the entire village of Virupapura Gaddi was included within theboundaries of the protected areas. In fact, the specific SurveyNos. of lands where the Appellants are carrying on theirrestaurants and guesthouses are also mentioned in this Map.Thus, there is no doubt that the 1988 notification clearly indicatesthe 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 twodistinct categories for protected monuments (Sections 3 to 18)and protected areas (Section 19 onwards). While the former relatesto “ancient monuments”, the latter relates to “archaeologicalsite and remains”. Upon a close reading of the 1961 Act, thisCourt finds that there is nothing in the definitions under Sections2(1) and 2(3) or otherwise under the scheme of the 1961 Act,that indicates a link between the existence of “archaeologicalsite and remains” and “ancient monuments”. It cannot be saidthat the protection ascribed to archaeological site and remainsmust necessarily depend on the existence of a monument. It ispossible for certain areas to be protected independent of theexistence of monuments, if there is a reasonable belief that theycontain 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 specializedbody responsible for archaeological research and conservationof cultural monuments in India, there remains little doubt as tothe historical importance of Virupapura Gaddi. It appears thatthe Government had considered the comprehensive geographicalentity of the area, including attributes like its landscape,prehistoric vestiges and water systems. Thus, the 1988notification issued under Section 19(3) of the 1961 Act declaringVirupapura Gaddi as a protected area cannot be said to be withoutbasis. Further, Section 19(4) of the 1961 Act clarifies that thenotification issued under Section 19(3) conclusively establishesthe status of Virupapura Gaddi as protected area under the saidAct. [Para 14.3][779-C-E]

4. From a reading of sub-section (1) of Section 20, it isevident that owners/occupiers of protected areas cannot AB

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Aconstruct any building or utilize such areas in any manner otherthan cultivation, without the permission of the State Government.Here, since the entire area comprising Virupapura Gaddi had beendeclared as protected area vide the 1988 notification, it followsthat the land owned by the Appellants could have only been usedfor the purpose of cultivation after the issuance of suchBnotification. However, as mentioned supra, the Appellants hadconstructed huts and buildings on their lands for the commercialpurpose of running hotels, restaurants, and guest houses. Clearlythen, these constructions were in violation of Section 20(1) ofthe 1961 Act. [Paras 15 and 16][780-B-D]C5. Re: Second Issue:If not, whether the Hampi World Heritage AreaManagement Authority (HWHAMA) had authority to demolishthe said construction?

DThere is no merit in the Appellants’ argument that HampiWorld Heritage Area Management Authority Act, 2002 is purelyprospective in nature and that the HWHAMA, which has beenestablished under such Act, cannot enforce prior notifications.In the considered opinion of this Court, the 1961 Act and theHampi Act cannot be viewed as separate, watertightEcompartments that operate independent of each other. Such anunderstanding would not only defeat their underlying commonobjective, but also belie the events leading up to the enactmentof the Hampi Act, all of which clearly reflect that the Hampi Actwas a culmination of continuing attempts by the State GovernmentFto preserve and protect the cultural heritage of Hampi. Therefore,the 1961 Act and the Hampi Act must not be construed as isolatedsilos. Since they both seek to fulfill a common object, they mustbe interpreted in a manner that seeks to further such objective,and not obstruct it. [Para 21][785-C-E]

G6. In the present case, since it is established that thestructures erected by the Appellants were in violation of the 1961Act, given the common thread underlying the 1961 Act and theHampi Act, it cannot be said that such illegality ceased to existwhen the Hampi Act came into force. Thus, the HWHAMA was, and is entitled to proceed against the development raised by theAppellants, which had been rendered illegal under the priorlegislation. [Para 22][785-F-G]

7. It may also be useful to appreciate the background inwhich the HWHAMA had proceeded to take action against theAppellants. As mentioned, the Hampi World Heritage propertieshad been included in the ‘in danger’ list by UNESCO in 1999.However, owing to serious efforts by the State Government andthe HWHAMA, this classification was dropped in 2006. The threatto the various monuments and the integrity of the landscape ofHampi, however, continued. [Para 23][785-G-H; 786-A]

8. It was in the context of these developments that theHWHAMA had directed the local authorities to not renew thetrade licenses issued to the Appellants, and later proceeded toissue notices for demolishing the constructions raised by theAppellants. In view of the broad-ranging functions envisaged forthe HWHAMA under Section 11 of the Hampi Act, this Courtfinds that its actions were lawful, as it was incumbent upon theauthority to act and not turn a blind eye to the illegality beingperpetrated by the Appellants. [Para 24][786-E-G]

9. In any case, this Court finds that the notification dated10.07.2008 regarding the implementation of the Master Plan 2021and the Zonal Regulations fulfils the requirement of Section 14(1)in the present case, as they clearly specify the restrictions as toland use and the prohibited types of development. Thus, theAppellants cannot use the absence of regulation of VirupapuraGaddi 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 concludesthat the construction of rooms, thatched-roof huts, temporarystructures, and buildings by the Appellants to carry on thebusiness of hotels, restaurants, or guesthouses in VirupapuraGaddi was in violation of the 1961 Act. Further, it is held that theHWHAMA had the authority to proceed with the demolition ofsuch illegal constructions. Thus, there is no reason to interferewith the impugned final judgment and order dated 27.04.2015passed by the High Court of Karnataka. [Para 26][788-C-E]

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ACIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1443-1456 of 2020.

From the Judgment and Order dated 27.04.2015 of the High Courtof Karnataka at Bangalore in W.P. Nos. 60278, 60279, 60280, 60304,60305, 60306, 60307, 60309, 60310, 60311, 60312, 60313, 60314, 60315of 2011B

With

Civil Appeal Nos. 1457 and 1459 of 2020.

Basava Prabhu Patil, Shekhar Naphade, S. Guru Krishna Kumar,Mallikarjun S. My Lar, P.S. Narasimha, Devadatt Kamat, Sr. Advs.,CAnand Sanjay M. Nuli, Chinmay Deshpande, Geet Ahuja, K. Malla Rao,Dharm Singh, Suraj Kaushik, M/s. Nuli & Nuli, Rajesh Mahale, V. Dattar,Ms. S. Lakshmi Iyer, Ms. Aishwarya Dash, Ashok Bannidinni, Mrs. S.Usha Reddy, Raghavendra S. Srivatsa, Ms. Komal Mundhra, SaurabhAgrawal, Ms. Sindhoora VNL, T. V. Ratnam, M. Sowri Dev, H. ChandraSekhar, Ram Sankar, Ms. Rekha Chandra Sekhar, Karri Venkata Reddy,DV. N. Raghupathy, Aditya Bhat, Md. Apzal Ansari, Ali Asghar Rahim,Manendra Pal Gupta, Advs. for the appearing parties.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

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2. The instant appeals arise out of the common final judgment andorder dated 27.04.2015 passed by the High Court of Karnataka atBengaluru in W.P. Nos. 60278, 60279, 60280, 60304-60315 of 2011. Videthe impugned order, the High Court dismissed the writ petitions seekinga direction to the Respondent-authorities to restrain them from demolishingFthe restaurants and guest houses run by the writ petitioners in VirupapuraGaddi, Koppal district, Karnataka.

3. The background to this appeal is as follows:

3.1 With the object of ensuring the preservation of ancientmonuments and archaeological sites and remains in the erstwhile Stateof Mysore, the Mysore Ancient and Historical Monuments andGArchaeological Sites and Remains Act, 1961 (hereinafter ‘the 1961Act’) was enacted. Under this statute, the State Government wasaccorded the power to declare certain ancient monuments as ‘protectedmonuments’ and certain archaeological sites and remains as ‘protectedareas’. Accordingly, in exercise of its jurisdiction under Section 19(1) ofHthe 1961 Act, the State Government issued a (preliminary) notification on 19.05.1982 for declaration of certain archaeological sites and remainsspecified in the schedule thereto as ‘protected areas’. Subsequently, on22.10.1988, a (final) notification was issued under Section 19(3) of the1961 Act declaring ten villages, including Virupapura Gaddi, as ‘protectedareas’ (hereinafter ‘the 1988 notification’).

3.2 It is the case of the Appellants that they own land(s) inVirupapura Gaddi, an oval islet formed by the Tungabhadra river, locatedon the west of the Hampi World Heritage site. The Appellants claim thatduring the period from 1990-2000, given the increasing number of touristsvisiting Virapupura Gaddi, they obtained hotel/restaurant licenses fromthe village panchayat to cater to the needs of the tourists. In certaininstances, they also obtained diversion orders from the local authoritiesfor changing the land use from agricultural to non-agricultural, so thatthey could run hotels, restaurants, and guest houses in their premises.

3.3 However, upon the introduction of the Hampi World HeritageArea Management Authority Act, 2002 (hereinafter ‘the Hampi Act’),the authority constituted thereunder, the Hampi World Heritage AreaManagement Authority (hereinafter ‘HWHAMA’), Respondent No. 4herein, directed the panchayats and local authorities not to renew anylicenses and not to grant permission for commercial activities withinVirupapura Gaddi. Later, in exercise of its powers under the Hampi Act,the HWHAMA issued notices to the Appellants for demolishing thestructures constructed by them. To restrain them from doing so, theAppellants herein filed writ petitions before the High Court, seeking theidentical relief of a direction to HWHAMA to forbear from carrying outsuch demolition.

3.4 Vide the impugned judgment dated 27.04.2015, the High Courtof Karnataka dismissed these writ petitions. The High Court found thatthe 1988 notification declared the entire village of Virupapura Gaddi asprotected area. As a result, Section 20(1) of the 1961 Act came intooperation, rendering the land there usable for the purposes of cultivationonly, unless otherwise approved by the State Government. Thus, giventhat the writ petitioners had constructed rooms, thatched roof huts,temporary structures, and buildings to carry on the business of hotels,restaurants, or guesthouses in Virupapura Gaddi, it was held that suchconstruction was in violation of the 1961 Act. It was also observed thatthe panchayats did not have any authority to accord sanction to thebuilding plans, as such power was solely vested with the State Government A

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Aunder Section 20(1) of the 1961 Act. Furthermore, it was noted thatVirupapura Gaddi fell in the ‘core zone’ of the heritage area specifiedunder the Hampi Act, and was therefore subject to the authority of theHWHAMA. Hence, in light of the illegality of the constructions underthe 1988 notification, the HWHAMA could demolish the structureserected by the Appellants. It is against this common judgment and orderBthat the Appellants have come in appeal before this Court.

4. Heard learned Counsel for the parties.

5. Learned Senior Counsel Mr. Shekhar Naphade, representingsome of the Appellants, argued that the entire village of Virupapura GaddiCcannot be construed as ‘protected area’ under Section 19 of the 1961Act. This is because the scope of this provision is limited to archaeologicalsite and remains, and it does contemplate the declaration of entirevillage(s) as protected area(s). Drawing our attention to the definitionsof the terms “ancient monuments” and “archaeological site and remains”under Sections 2(1) and 2(3) of the 1961 Act respectively, he submittedDthat the two terms should be read in conjunction with each other, suchthat the conception of “archaeological site and remains” cannot bedivorced from the existence of “ancient monuments”. In light of this,stating that there are no monuments in Virupapura Gaddi, he argued thatthere could not be any “archaeological remains” as well, for it to beEdeclared as ‘protected area’ under Section 19. Thus, the constructionsin question were not hit by the 1988 notification.

In any case, even if the entire village was considered to be‘protected area’ under the 1988 notification, he contended that theHWHAMA did not have any authority to demolish the structures raisedFby the Appellants for two reasons – first, the HWHAMA was anauthority established under the Hampi Act, which is a legislation that isindependent of the 1961 Act. Thus, even if the constructions fell foul ofSection 20(1) of the 1961 Act on account of the land being used for non-cultivable purpose, Section 20(2), which gives the Deputy Commissionerthe power to order removal of such construction, should have beenGresorted to. In the absence of such action by the particular authorityenvisaged under the 1961 Act, i.e. the Deputy Commissioner, it wascontended that the HWHAMA could not have proceeded with thedemolition. Secondly, it was submitted that since the construction wascarried out by the Appellants prior to the coming into force of the HampiHAct, the HWHAMA could not have acted in relation to them, as its power to control development in heritage areas under Section 14 isprospective in nature. In any case, such powers could have been exercisedonly upon the issuance of a notification under Section 14(1), which wasnot done in the present case. Thus, the Appellants submitted that theirbusinesses were being run legally after obtaining the relevant licensesfrom the local bodies, and the construction in question was beingwrongfully demolished by the HWHAMA.

6. Supporting these contentions, learned Senior Counsels,Mr. Basava Prabhu S. Patil and Mr. Guru Krishna Kumar representingthe other Appellants, drew our attention to a challenge to the 1988notification, which is currently pending before the High Court ofKarnataka. In light of this, they prayed that the buildings of the Appellantsnot be demolished before the final decision is rendered by the High Court.On merits, it was argued that the impugned order was without reasonsand proceeded on unsubstantiated assumptions, especially with respectto findings on illegality of conversion orders granted by the localauthorities.

7. Per contra, learned Senior Counsel Mr. P.S. Narasimha,appearing for HWHAMA (Respondent No. 4 herein) argued that theentire village of Virupapura Gaddi falls within the ‘protected area’declared by the State Government in the 1988 notification. To substantiatethe same, he referred us to Column 5 of the Schedule to this notification,and Map ‘A’ annexed thereto, both of which make it sufficiently clearthat the entire village of Virupapura Gaddi is included within the boundariesof the protected area.

Further, he submitted that the scheme of the 1961 Act is such that‘protected areas’ constitute a category separate from ‘protectedmonuments’. Therefore, it is possible for certain areas to be protectedindependent of the existence of monuments, if there is a reasonablebelief that they contain ruins or relics of historical or archaeologicalimportance. In light of this, he drew upon materials indicating thearchaeological significance of Virupapura Gaddi, and submitted that the1988 notification was justifiably made applicable to the entire village.Based on this, he contended that the land in the area could only be usedfor cultivation purposes as per the proviso to Section 20(1) of the 1961Act. Since the Appellants were carrying out commercial activities there,the structures raised by them were argued as being in violation of the1961 Act.

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AAs regards the jurisdiction of the HWHAMA to direct thedemolition of such constructions, learned Senior Counsel argued thateven though the HWHAMA is an authority under a subsequentlegislation, the regimes of the 1961 Act and the Hampi Act should not beviewed as strictly separate compartments. Drawing upon the context inBwhich the Hampi Act was introduced, he submitted that it should not beseen as being divorced from the 1961 Act, but in furtherance of it. Tosubstantiate this, he indicated that the Hampi Act effectively incorporatesthe 1988 notification issued under the 1961 Act by denoting the protectedarea declared under the notification as the ‘core area zone’ under it.Further, he alluded to the current restrictions and prohibitions applicableCto core area zones as well as the Zonal Regulations framed under theMaster Plan 2021 to argue that the restrictions on Virupapura Gaddiunder the Hampi Act are co-terminus with the restrictions imposed onthe area under the 1988 notification. In light of this, it was contendedthat the regimes under the two statutes should not be treated as silos andDthe HWHAMA had the authority to enforce the 1988 notification issuedunder the 1961 Act.

Lastly, with regards to Section 14 of the Hampi Act, it wassubmitted that it is only an overarching provision that allows for theissuance of a further notification to control development in the heritageEarea. In other words, the lack of a notification under Section 14(1) doesnot render a prior notification intended for the same purpose meaninglessor unenforceable by the HWHAMA. In fact, in view of the functionsdelineated for the HWHAMA under Section 11 of the Hampi Act, heargued that the authority was right in proceeding against the illegalconstructions as part of its duty to protect property within the heritageFarea.

8. The contentions raised by Mr. Narasimha were adopted bylearned Senior Counsel, Mr. Devdatt Kamat, representing theGovernment of Karnataka, Respondent No. 1 herein.

G9. Upon perusing the material on record and in light of thearguments advanced by the parties, the following issues arise for ourconsideration in this appeal–

(i) Whether the construction raised by the Appellants was lawfulunder the 1961 Act, in light of the 1988 notification?

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(ii) If not, whether the HWHAMA had authority to demolish thesaid constructions?

10. Before we delve into these issues, it would be appropriate toconsider the preliminary objection raised by the Appellants with respectto hearing of the instant appeal, in light of a pending challenge to theHampi Act and the 1988 notification.

10.1 The Hampi Act is said to be under challenge before the HighCourt. Vide I.A. No. 58525 of 2017 filed in the underlying SLP, theAppellants sought permission to amend the SLP seeking a declarationthat the 1988 notification is ultra vires the provisions of the AncientMonuments and Historical Sites and Remains Act, 1958, the 1961 Act,as well as the Hampi Act. While disposing off the said application, thisCourt observed thus:

“It may be pertinent to mention here that the petitionershave already filed a writ petition before the Karnataka High Courtbeing Writ Petition Nos. 65940-65949 of 2011 in which thepetitioners submit that the Hampi World Heritage ManagementAuthority Act 2002 is arbitrary, illegal, ultra vires andunconstitutional as stated supra. There is conflict of provisions ofdifferent Acts viz., Karnataka Ancient and Historical Monumentsand Archaeological Sites and Remains Act, 1961, the AncientMonuments and Archaeological Sites and Remains Act, 1958 andHampi World Heritage Authority Management Act 2002 and alsoMaster plan 2012. Thus, it is necessary to stay the operation ofthe Hampi World Heritage Authority Management Act, 2002 andMaster Plan 2021 pending disposal of the writ petition. If the Actis not stayed, there will be multiplicity of litigations.

As the matter is still pending before the Karnataka HighCourt, we, therefore, do not find it proper to allow the applicationfor amendment of SLP. It is hereby rejected.

However, if the petitioners want to challenge the saidNotification, they may do it either by amending the petition pendingbefore the Karnataka High Court or by filing a fresh petition beforethe High Court as per law.”

10.2 From the above, it is clear that though the petition challengingthe Hampi Act was filed in the year 2011, the same has not been pursued A

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Aby the Appellant before the High Court. Be that as it may, nothing hasbeen placed on record by the Appellants to show that operation of the1988 notification or the Hampi Act has been stayed. In the absence ofany such interim order staying the operation of the said notification orthe Hampi Act, it is not open for the Appellants to use the same to arguefor a deferral of the hearing of the instant appeals till the disposal ofBW.P. Nos. 65940-65949 of 2011 by the High Court. Accordingly, wereject the prayer made by the Appellants for deferring the matter till thedisposal of the writ petitions pending before the High Court.

11. In light of this, we now proceed to examine the issues arisingfor our consideration in the instant appeals.

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Re: First Issue

12. The first issue pertains to the validity of the developmentundertaken by the Appellants under the 1961 Act. In this context, itwould be useful to refer to certain relevant provisions of the Act:

D“Section 2. Definitions.—

(1) “ancient monument” means any structure, erection ormonument, or any tumulus or place of interment, or any cave,rock-sculpture, inscription or monolith which is of historical,archaeological or artistic interest and which has been in existenceEfor not less than one hundred years, and includes –

(i) the remains of an ancient monument,

(ii) the site of an ancient monument,

(iii) such portion of land adjoining the site of an ancientFmonument as may be required for fencing or covering in orotherwise preserving such monument, and

(iv) the means of access to, and convenient inspection of, anancient monument; but shall not include ancient and historical monuments declaredGby or under law made by Parliament to be of national importance; x x x

(3) “archaeological site and remains” means any area whichcontains or is reasonably believed to contain ruins or relics ofhistorical or archaeological importance which have been inHexistence for not less than one hundred years, and includes—

(i) such portion of land adjoining the area as may be requiredfor fencing or covering in or otherwise preserving it, and

(ii) the means of access to, and convenient inspection of thearea; x x x

(9) “protected area” means any archaeological site and remainswhich is declared to be protected under this Act; x x x Section 4: Power of Government to declare ancientmonuments to be protected monuments.—

(1) Where the Government is of opinion that any ancient monumentshould be declared as a protected monument, it may, by notificationin the official Gazette, give two months’ notice of its intention todeclare such ancient monument to be a protected monument anda copy of every such notification shall be affixed in a conspicuousplace near the monument.

(2) Any person interested in any such ancient monument maywithin two months after the issue of the notification, object to thedeclaration of the monument to be a protected monument.

(3) On the expiry of the said period of two months, the Governmentmay, after considering the objections, if any, received by it, declareby notification in the Official Gazette the ancient monument to bea protected monument.

(4) A notification published under sub-section (3) shall, unless anduntil it is withdrawn, be conclusive evidence of the fact that theancient monument to which it relates is a protected monument forthe purposes of this Act.

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Section 19: Power of Government to declare archaeologicalsite and remains to be protected area.—

(1) Where the Government is of opinion that any archaeologicalsite and remains should be declared as a protected area, it may,by notification in the Official Gazette, give two months’ notice ofits intention to declare such archaeological site and remains to be A

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a protected area, and a copy of every such notification shall beaffixed in a conspicuous place near the site and remains.

(2) Any person interested in any such archaeological site andremains may, within two months after the issue of the notification,object to the declaration of the archaeological site and remains tobe protected area.

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(3) On the expiry of the said period of two months, the Governmentmay, after considering the objections, if any, received by it, declareby notification in the Official Gazette, the archaeological site andremains to be a protected area.

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(4) A notification published under sub-section (3) shall, unless anduntil it is withdrawn, be conclusive evidence of the fact that thearchaeological site and remains to which it relates is a protectedarea for the purposes of this Act.”

13. In the instant case, exercising its powers under Section 19(3)Dof the 1961 Act, the State Government issued the 1988 notificationdeclaring certain areas specified in the Schedule thereto as protectedareas. From a perusal of this Schedule, it is amply clear that “VirupapuraGaddi” had been indicated in Column 5 as a covered area. Further, Map‘A’ which is annexed to this Schedule also makes it evident that theEentire village of Virupapura Gaddi was included within the boundaries ofthe protected areas. In fact, the specific Survey Nos. of lands where theAppellants are carrying on their restaurants and guesthouses are alsomentioned in this Map. Thus, there is no doubt that the 1988 notificationclearly indicates the entire village of Virupapura Gaddi as a protectedzone.F

14. As to whether the entire village could be declared as protectedarea by the 1988 notification, we do not find merit in the Appellants’argument that a notification under Section 19 of the 1961 Act onlycontemplates protection for archaeological site and remains that are linkedto the existence of monuments.G

14.1 In our opinion, the 1961 Act makes two distinct categoriesfor protected monuments (see Sections 3 to 18) and protected areas(see Section 19 onwards). While the former relates to “ancientmonuments”, the latter relates to “archaeological site and remains”. Upona close reading of the 1961 Act, we find that there is nothing in theHdefinitions 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 cannotbe said that the protection ascribed to archaeological site and remainsmust necessarily depend on the existence of a monument. It is possiblefor certain areas to be protected independent of the existence ofmonuments, if there is a reasonable belief that they contain ruins orrelics of historical or archaeological importance [see Section 2(3) supra].

14.2 In light of this, when we look to the village of VirupapuraGaddi specifically, there appears to be sufficient material to establish itsarchaeological significance. The Archaeological Survey of India (ASI),Respondent No.5 herein, has in fact highlighted the archaeologicalimportance of Virupapura Gaddi in its Statement of Objections filed beforethe High Court as under:

“2. LOCATION OF VIRUPAPURA GUDDA AND ITSIMPORTANCE

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2.1 Virupapura Gudda is an oval islet formed by the riverTungahbhadra flowing towards the northern perimeter of HampiWorld Heritage site. The river flowing in east-west direction hasmany small islets of which the above is the largest measuringnearly 2,600 mtrs east-west and 1,300 mtrs north-south. The isletin the centre throughout its east-west length is characterized byundulated low hillock of granite and the highest altitude is 1,570feet. The southern, western and northern part is put to cultivation.

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3. Important Archaeological remains close to VirupapuraGadda

1. Sri Virupaksha Temple and the Hampi ruins: This isin Regulated zone and 200 mtrs; from the south eastern extremeof Virupapuragadda to the fort wall to the north of VirupakshaTemple complex.

2. Kodandarama Temple: This is in Regulated zone and165.68 mtrs from State protected; from the south eastern extremeof Virupapuragadda to the Temple.

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3. Varaha Temple: This is centrally protected monumentand 249.00 mtrs; from the south eastern extreme ofVirupapuragadda to the Temple.

4. Koti Linga: This is a State protected monument and190.58 mtrs from the southern extreme of Virupapuragadda tothe parent rock formation where the Kotilinga is situated.

5. Western fort wall – Vithala Temple Complex: Thisis centrally protected monument and 229.40 mtrs from Regulatedzone to the island.

6. Purandara mandapa: This is State protected monumentand 150.59 mtrs from Regulated zone to the island.

7. Ancient path: This is nearly 121 mtrs; State protectedmonument and this is a Regulated zone.

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Pre and proto-history of the Place-Virupapura Gadda

4. The hillock of Virupapura Gudda is identified traditionally asthe kishkinda of Ramayana fame and has the attachment of thesentiment as the sacred site of Sri Ramachandra.

4.1 The heaps of granite boulders are the home of many naturalrock shelters, which have proven to be the safe habitation of Protohistoric man who as a wander used these shelters to start withbefore settling down into the hutments of makeshift shelters hebuilt or him…The geomorphology of the place even today breathesa prehistoric atmosphere. This is so because of the natural habitat,the meandering river Tungabhadra offering little open grass landswith scrubby jungle harboring games for sustenance and buildinghutments for living during condusive climate. The huge rockshelters offered resting place perhaps during rainy season. Theslope of the hillocks of the swarm of dyke formation at VirupapuraGudda offered requisite glade for the pre historic man. Thisremarkable integration of man-made and natural setting, vivid inthe myriad facets, viz. art and architecture, socio-cultural,economical, administrative, defence organization and naturalresource management, together enabled the establishment of thisgrand metropolis.

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8. PROVISIONS IN THE INTEGRATED MANAGEMENTPLAN

1. This island is an important archaeological site, which formedan access point from the North, i.e. from Virupaksha Temple andTungabhadra River Bank. The ancient access path from the mainland to the island leading from the northern point can be observedwhen the water level is low in the river and during the months ofsummer, the same path way is in use. Otherwise when the riverflows with full of water, to have the access the same route is usedby the boatmen to take the people to the island. Hence, the site isof great archaeological importance…”

14.3 From these observations by the ASI, a specialized bodyresponsible for archaeological research and conservation of culturalmonuments in India, there remains little doubt as to the historicalimportance of Virupapura Gaddi. It appears that the Government hadconsidered the comprehensive geographical entity of the area, includingattributes like its landscape, prehistoric vestiges and water systems. Thus,the 1988 notification issued under Section 19(3) of the 1961 Act declaringVirupapura Gaddi as a protected area cannot be said to be without basis.Further, Section 19(4) of the 1961 Act clarifies that the notification issuedunder Section 19(3) conclusively establishes the status of VirupapuraGaddi as protected area under the said Act.

15. In light of this, we now proceed to consider the effect of the1988 notification on the constructions raised by the Appellants duringthe period between 1991-2000. In this regard, Section 20 of the 1961Act is relevant:

“Section 20: Restrictions on enjoyment of property rightsin protected areas.—

(1) No person, including the owner or occupier of a protectedarea, shall construct any building within the protected area or carryon any mining, quarrying, excavating, blasting or any operation ofa like nature in such area, or utilise such area or any part thereofin any other manner without the permission of the Government:

Provided that nothing in this sub-section shall be deemed to prohibitthe use of any such area or part thereof for purposes of cultivationif such cultivation does not involve the digging of not more thanone foot of soil from the surface.

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A(2) The Government may, by order, direct that any buildingconstructed by any person within a protected area in contraventionof the provisions of sub-section (1) shall be removed within aspecified period and, if the person refuses or fails to comply withthe order, the Deputy Commissioner may cause the building to beremoved and the person shall be liable to pay the cost of suchBremoval.”

From a reading of sub-section (1) of Section 20, it is evident thatowners/occupiers of protected areas cannot construct any building orutilize such areas in any manner other than cultivation, without thepermission of the State Government.C

16. Here, since the entire area comprising Virupapura Gaddi hadbeen declared as protected area vide the 1988 notification, it followsthat the land owned by the Appellants could have only been used for thepurpose of cultivation after the issuance of such notification. However,as mentioned supra, the Appellants had constructed huts and buildingsDon their lands for the commercial purpose of running hotels, restaurants,and guest houses. Clearly then, these constructions were in violation ofSection 20(1) of the 1961 Act.

17. Furthermore, the permissions/licenses obtained by theAppellants from the local panchayat were issued without any authority,Eas Section 20(1) of the 1961 Act makes the State Government theappropriate authority for granting permissions for non-cultivable use ofprotected areas. Thus, the licenses issued by the panchayat cannot butbe said to be illegal.

18. In view of the foregoing discussion, we find that by virtue ofFthe 1988 notification declaring the entire village of Virupapura Gaddi asa protected area, the restrictions on construction and use under Section20(1) came into operation with effect from 22.10.1988 itself. Thus, theconstruction carried out by the Appellants on their lands at VirupapuraGaddi for commercial purposes was in violation of the 1961 Act.

GRe: Second Issue

19. The second issue pertains to whether the HWHAMA couldhave proceeded to demolish these illegal constructions.

20. In this regard, as mentioned supra, the Appellants have arguedthat the HWHAMA, which is a body set up under the Hampi Act, couldHnot have issued such orders for demolition as the illegality of the constructions (if any) was rooted in the 1961 Act. At its very core, wefind that this issue relates to the interplay between the 1961 Act and theHampi Act. Thus, before delving into the relevant legal provisions, wedeem it fit to appreciate the objects underlying these statutes and thecontexts in which they were enacted.

20.1 As mentioned supra, the 1961 Act was introduced with theobject of ensuring the preservation of ancient monuments andarchaeological sites and remains in Karnataka. In pursuance of the same,the 1988 notification was issued under Section 19(3) declaring certainareas in Hampi as ‘protected areas’.

20.2 Notably, in 1989, the group of monuments at Hampi wereinscribed in the list of “World Heritage sites” declared by the UnitedNations Educational, Scientific, and Cultural Organisation (hereinafter‘UNESCO’). The UNESCO is a specialized agency of the UnitedNations and inter alia its objective is to encourage the identification,protection, and preservation of cultural and natural heritage around theworld considered to be of outstanding value to humanity. In pursuanceof the same, the UNESCO Conference adopted the Conventionconcerning the Protection of the World Cultural and NaturalHeritage in 1972,[1] emphasizing the obligation of State parties to takenecessary measures for the conservation and protection of world heritageproperties.

Specifically, the recognition of the monuments at Hampi as a WorldHeritage site was based on the fulfilment of the following points of the10-point criteria stipulated by UNESCO:

Criterion (i)- to represent a masterpiece of human creativegenius: The remarkable integration between the planned anddefended city of Hampi with its exemplary temple architectureand its spectacular natural setting represent a unique artisticcreation.

Criterion (iii)- to bear unique or at least exceptionaltestimony to a cultural tradition or to a civilization which isliving or which has disappeared: The city bears exceptionaltestimony to the vanished civilization of the kingdom ofVijayanagara, which reached its apogee under the reign of KrishnaDeva Raya (1509-1530).

1 India ratified this Convention in the year 1977.

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ACriterion (iv)- to be an outstanding example of a type ofbuilding, architectural or technological ensemble orlandscape which illustrates (a) significant stage(s) in humanhistory: This capital offers an outstanding example of a type ofstructure which illustrates a significant historical situation: that ofthe destruction of the Vijayanagara kingdom at the Battle ofBTalikota (1565 CE) which left behind an ensemble of living temples,magnificent archaeological remains in the form of elaborate sacred,royal, civil and military structures as well as traces of its richlifestyle, all integrated within its natural setting.[2]

From the above, it is evident that the recognition of Hampi as aCWorld Heritage site was a testament to its immense historical importance.It was also a crucial milestone in the efforts to preserve and protect theHampi monuments, as it paved way for India to access the annual WorldHeritage Fund of US$ 4 million earmarked by the UNESCO for theupkeep of World Heritage sites.D

20.3 Soon after such recognition, as the number of tourists visitingHampi increased, concerns began being raised about uncontrolledconstruction, haphazard development, and other illegal activities carriedout in the garb of catering to tourists. In light of these developments, theUNESCO classified the Hampi World Heritage properties as being ‘inEdanger’ in 1999. This classification was significant inasmuch as itreflected the deteriorating condition of the area. Notably, the HampiWorld Heritage properties continued to be classified as such till 2006.

20.4 In view of such changes and its obligations under internationalconventions, the Government of Karnataka felt it necessary to create aFbody that would streamline the development in the Hampi region.However, till the time that a specific statute was enacted for such purpose,the HWHAMA was constituted as an interim authority vide aGovernment Order dated 21.03.2002. The Preamble to this order isnotable:

G“Preamble: Hampi has been declared as a World Heritage Siteby the UNESCO and the Government of India has recently

2 The Criteria for Selection to be included on the World Heritage List, available athttps://whc.unesco.org/en/criteria/; The Description of Group of Monuments atHampi, UNESCO World Heritage List, available at https://whc.unesco.org/en/list/H241.

announced that Hampi would be developed as an internationaldestination centre. There is a need for proper management anddevelopment of Hampi World Heritage Area in order to conserveand preserve the rich heritage in this area and at the same timedevelop the area for providing good facilities for both national andinternational tourists. Thus all the activities in the Hampi WorldHeritage Area need to be regulated and coordinated in order toprovide facilities and at the same time ensure proper conservationof the heritage. There is a need for a statutory body regulating onthe issues pertaining to the management and development aspectsin the Hampi World Heritage Area. The Government iscontemplating a legislation constituting Hampi World Heritage AreaManagement Authority. In the interregnum, there is an immediateneed to have an interim body to promote coordinated developmentof the heritage area. Thus the Hampi World Heritage AreaManagement Authority and the State Level Advisory Committeeare being constituted through an executive order to manage theaffairs of Hampi till the statutory bodies come into effect.”

20.5 Subsequently, the State Government enacted a specificlegislation for the conservation of the cultural heritage of Hampi, i.e. theHampi Act. This Act was brought into force with effect from 27.01.2005,and the HWHAMA was constituted under Section 3 thereof. Until suchtime, the interim authority constituted vide Government Order dated21.03.2002, mentioned supra, continued. The overall object of the HampiAct can be gleaned from its Preamble, which reads as follows:

“An Act to provide for conservation of the cultural heritageof Hampi with all its archeological remains and natural environs;to preserve its cultural identity and to ensure sustainabledevelopment of the Hampi World Heritage Area, in the State ofKarnataka and to constitute Hampi World Heritage AreaManagement Authority.

Whereas it is expedient to provide for,- (a) the conservation of the Cultural Heritage and naturalenvirons of Hampi and its surroundings; (b) the preservation of the historical and cultural identity ofHampi as a World Heritage Centre;

(c) preventing uncontrolled development and commercialexploitation of the area; AB

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A(d) sustained development of the area which is conducive tothe above objectives, and (e) for matters incidental thereto…”

20.6 A close reading of the Preamble to the Hampi Act reveals anunderlying common object between the 1961 Act and the Hampi Act–Bproviding for the preservation of the respective monuments and areasprotected under these legislations. The difference is that the 1961 Actwas enacted as a broader legislation covering the entire State ofKarnataka, while the Hampi Act was enacted with a specific focus onthe heritage site of Hampi, keeping in mind the international recognitionCthat had been accorded to it.

20.7 In addition to such common object, certain other provisionsof the Hampi Act also indicate a continuity between the legal regimes ofthe 1961 Act and the Hampi Act. For instance, the Hampi Act directlyincorporates the 1988 notification issued under Section 19(3) of the 1961DAct, while demarcating the Hampi heritage area in its Schedule. “Heritagearea” has been defined as follows under the Hampi Act:

“Section 2: Definitions.- (1) In this Act unless the contextotherwise requires,-…

…(l) “Heritage Area” means the whole of the area comprisingEthe Core Area Zone, Buffer Zone and Peripheral Zones, butexcluding the area referred to as protected area under the AncientMonuments and Historical sites and Remains Act, 1958 (CentralAct 24 of 1958);”

Parts A, B, and C of Schedule I to the Hampi Act respectivelyFindicate the extent of the core area zone, buffer zone and peripheralzone forming part of the Hampi heritage area. Under Part A, whichindicates the extent of the core area zone, there is a clear reference tothe area of 41.80 sq kms declared to be protected area under the 1988notification.

G20.8 Furthermore, even the applicable restrictions under theMaster Plan 2021 prepared under the Hampi Act are similar to thoseimposed by virtue of the 1988 notification, inasmuch as no developmentof Virupapura Gaddi is permissible. The Master Plan 2021 came intoforce on 10.07.2008. It stipulates the formation of development schemesfor towns and villages included within the Hampi local planning area.H

Though it did not provide for a specific development plan for VirupapuraGaddi, it provides Zonal Regulations for areas under special control,which include river islands, tank beds et al. Regulation 2(f) of theseZonal regulations, which deals with such areas of special control isrelevant here:

“(f) No development is permitted in eco-sensitive areas like riverislands, tank bed areas, rocky outcrop, hillocks, and forest areas.”

In light of this, given that Virupapura Gaddi is a river island, it isevident that no development is permissible there even per the MasterPlan 2021 prepared under the Hampi Act. When juxtaposed with therestrictions under Section 20(1) of the 1961 Act, this also indicates acontinuity between the 1961 Act and the Hampi Act.

21. In view of the foregoing factors, we do not find merit in theAppellants’ argument that the Hampi Act is purely prospective in natureand that the HWHAMA, which has been established under such Act,cannot enforce prior notifications. In our considered opinion, the 1961Act and the Hampi Act cannot be viewed as separate, watertightcompartments that operate independent of each other. Such anunderstanding 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 ofcontinuing attempts by the State Government to preserve and protectthe cultural heritage of Hampi. Therefore, the 1961 Act and the HampiAct must not be construed as isolated silos. Since they both seek tofulfill a common object, they must be interpreted in a manner that seeksto further such objective, and not obstruct it.

22. In the present case, since it is established that the structureserected by the Appellants were in violation of the 1961 Act, given thecommon thread underlying the 1961 Act and the Hampi Act, it cannot besaid that such illegality ceased to exist when the Hampi Act came intoforce. Thus, the HWHAMA was, and is entitled to proceed against thedevelopment raised by the Appellants, which had been rendered illegalunder the prior legislation.

23. It may also be useful to appreciate the background in whichthe HWHAMA had proceeded to take action against the Appellants. Asmentioned supra, the Hampi World Heritage properties had been includedin the ‘in danger’ list by UNESCO in 1999. However, owing to serious A

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Aefforts by the State Government and the HWHAMA, this classificationwas dropped in 2006. The threat to the various monuments and theintegrity of the landscape of Hampi, however, continued. This is wellreflected in the resolution of the 33[rd] meeting of the World HeritageCommittee of UNESCO in 2009, wherein rampant illegal constructionsin the village of Virupapura Gaddi, found a specific mention:B

“…The World Heritage Committee,

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D7. Expresses its concern over illegal constructions and otherdevelopments, such as social housing projects, within the extendedboundaries which are being considered for the possible extensionof the property, particularly in Virupapura Gada island and Hampivilllages, which appear to have a negative impact on the integrityof the landscape….”

ESimilar concerns were also raised at the 34[th ]meeting of theUNESCO World Heritage Committee in 2010.

24. It was in the context of these developments that theHWHAMA had directed the local authorities to not renew the tradelicenses issued to the Appellants, and later proceeded to issue noticesFfor demolishing the constructions raised by the Appellants. In view ofthe broad ranging functions envisaged for the HWHAMA under Section11 of the Hampi Act, we find that its actions were lawful, as it wasincumbent upon the authority to act and not turn a blind eye to the illegalitybeing perpetrated by the Appellants.G

25. Finally, we advert to the claim of the Appellants that the lackof a notification under Section 14(1) of the Hampi Act fettered the powersof the HWHAMA to take action against them. It may be useful to referto Section 14 in this regard:

“Section 14: No other authority or person to undertakeHdevelopment without permission of the Authority.-

(1) Notwithstanding anything contained in any law for the timebeing in force, except with the previous permission of the Authority,no other authority or person shall undertake any development withinthe Heritage Area, of the types as the Authority may from time totime specify by notification published in the Official Gazette.

(2) No local authority shall grant permission for any developmentreferred to in sub-section (1), within the Heritage Area, unlessthe Authority has granted permission for such development.

(3) Any authority or person desiring to undertake developmentreferred to in sub-section (1) shall apply in writing to the Authorityfor permission to undertake such development.

(4) The Authority may, after making such inquiry as it deemsnecessary grant such permission without or with such conditions,as it may deem fit, to impose or refuse to grant such permission.

(5) Any authority or person aggrieved by the decision of theAuthority under sub-section (4) may, within thirty days from thedate of the decision appeal against such decision to the StateGovernment, whose decision thereon shall be final:

Provided that, where the aggrieved authority submitting such appealis under the administrative control of the Central Government, theappeal shall be decided by the State Government, after consultationwith the Central Government.

(6) In case any person or authority does anything contrary to thedecision given under sub-section (4) as modified in sub-section(5), the Authority shall have power to pull down, demolish or removeany development under taken contrary to such decision and recoverthe cost of such pulling down, demolition or removal from theperson or authority concerned.”

Evidently, under Section 14(1), the HWHAMA is made the soleauthority for undertaking development in the heritage area of such typesas it may specify by a notification.

25.1 Though the Appellants have contended that such a notificationunder Section 14(1) is a pre-condition for the HWHAMA to exercise itspowers to order demolition under Section 14(6), we are not inclined toaccept such an argument. In view of the co-terminus legislative schemeof the 1961 Act and the Hampi Act, we find that Section 14 of the A

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AHampi Act acts as an overarching provision that enables the issuance ofa further notification to control development in the Hampi heritage area.This, however, does not mean that the lack of a notification under Section14(1) renders a prior notification intended for the same purposeunenforceable, as is the case with the 1988 notification here.

B25.2 In any case, we find that the notification dated 10.07.2008regarding the implementation of the Master Plan 2021 and the ZonalRegulations fulfils the requirement of Section 14(1) in the present case,as they clearly specify the restrictions as to land use and the prohibitedtypes of development. Thus, the Appellants cannot use the absence ofregulation of Virupapura Gaddi as a ground to justify the illegal constructionCon their land.

26. In light of the foregoing discussion, we conclude that theconstruction of rooms, thatched roof huts, temporary structures, andbuildings by the Appellants to carry on the business of hotels, restaurants,or guesthouses in Virupapura Gaddi was in violation of the 1961 Act.DFurther, it is held that the HWHAMA had the authority to proceed withthe demolition of such illegal constructions. Thus, we do not find anyreason to interfere with the impugned final judgment and order dated27.04.2015 passed by the High Court of Karnataka.

27. In view of these findings, the Respondents shall proceed withEthe demolition of the illegal structures erected by the Appellants inVirupapura Gaddi within a period of one month from the date of thisorder. With such observations, the instant appeals stand dismissed.Ordered accordingly.

F

Ankit Gyan

Appeals dismissed.

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