# SAKKUBAI ETC. ETC v. STATE OF KARNATAKA & ORS. ETC. ETC

- **Citation:** [2020] 2 S.C.R. 763
- **Court:** Supreme Court of India
- **Decided:** 2020-02-11
- **Case number:** Civil Appeal Nos. 1443-1456 of 2020
- **Bench:** Mohan M. Shantanagoudar, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sakkubai-etc-etc-v-state-of-karnataka-ors-etc-etc-34361
- **Pages:** 26

## Headnote

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
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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 indic

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SAKKUBAI ETC. ETC.
v.
STATE OF KARNATAKA & ORS. ETC. ETC.
(Civil Appeal Nos. 1443-1456 of 2020)
FEBRUARY 11, 2020
[MOHAN M. SHANTANAGOUDAR AND
R. SUBHASH REDDY, JJ.]
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
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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
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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
SAKKUBAI v. STATE OF KARNATAKA & ORS.
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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,
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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]
SAKKUBAI v. STATE OF KARNATAKA & ORS.
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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
1443-1456 of 2020.
From the Judgment and Order dated 27.04.2015 of the High Court
of Karnataka at Bangalore in W.P. Nos. 60278, 60279, 60280, 60304,
60305, 60306, 60307, 60309, 60310, 60311, 60312, 60313, 60314, 60315
of 2011
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.,
Anand 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, Saurabh
Agrawal, Ms. Sindhoora VNL, T. V. Ratnam, M. Sowri Dev, H. Chandra
Sekhar, Ram Sankar, Ms. Rekha Chandra Sekhar, Karri Venkata Reddy,
V. 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.
2. The instant appeals arise out of the common final judgment and
order dated 27.04.2015 passed by the High Court of Karnataka at
Bengaluru in W.P. Nos. 60278, 60279, 60280, 60304-60315 of 2011. Vide
the impugned order, the High Court dismissed the writ petitions seeking
a direction to the Respondent-authorities to restrain them from demolishing
the restaurants and guest houses run by the writ petitioners in Virupapura
Gaddi, Koppal district, Karnataka.
3. The background to this appeal is as follows:
3.1 With the object of ensuring the preservation of ancient
monuments and archaeological sites and remains in the erstwhile State
of Mysore, the Mysore Ancient and Historical Monuments and
Archaeological Sites and Remains Act, 1961 (hereinafter 'the 1961
Act') was enacted. Under this statute, the State Government was
accorded the power to declare certain ancient monuments as 'protected
monuments' and certain archaeological sites and remains as 'protected
areas'. Accordingly, in exercise of its jurisdiction under Section 19(1) of
the 1961 Act, the State Government issued a (preliminary) notification
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on 19.05.1982 for declaration of certain archaeological sites and remains
specified in the schedule thereto as 'protected areas'. Subsequently, on
22.10.1988, a (final) notification was issued under Section 19(3) of the
1961 Act declaring ten villages, including Virupapura Gaddi, as 'protected
areas' (hereinafter 'the 1988 notification').
3.2 It is the case of the Appellants that they own land(s) in
Virupapura Gaddi, an oval islet formed by the Tungabhadra river, located
on the west of the Hampi World Heritage site. The Appellants claim that
during the period from 1990-2000, given the increasing number of tourists
visiting Virapupura Gaddi, they obtained hotel/restaurant licenses from
the village panchayat to cater to the needs of the tourists. In certain
instances, they also obtained diversion orders from the local authorities
for changing the land use from agricultural to non-agricultural, so that
they could run hotels, restaurants, and guest houses in their premises.
3.3 However, upon the introduction of the Hampi World Heritage
Area Management Authority Act, 2002 (hereinafter 'the Hampi Act'),
the authority constituted thereunder, the Hampi World Heritage Area
Management Authority (hereinafter 'HWHAMA'), Respondent No. 4
herein, directed the panchayats and local authorities not to renew any
licenses and not to grant permission for commercial activities within
Virupapura Gaddi. Later, in exercise of its powers under the Hampi Act,
the HWHAMA issued notices to the Appellants for demolishing the
structures constructed by them. To restrain them from doing so, the
Appellants herein filed writ petitions before the High Court, seeking the
identical relief of a direction to HWHAMA to forbear from carrying out
such demolition.
3.4 Vide the impugned judgment dated 27.04.2015, the High Court
of Karnataka dismissed these writ petitions. The High Court found that
the 1988 notification declared the entire village of Virupapura Gaddi as
protected area. As a result, Section 20(1) of the 1961 Act came into
operation, rendering the land there usable for the purposes of cultivation
only, unless otherwise approved by the State Government. Thus, given
that 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 such
construction was in violation of the 1961 Act. It was also observed that
the panchayats did not have any authority to accord sanction to the
building plans, as such power was solely vested with the State Government
SAKKUBAI v. STATE OF KARNATAKA & ORS.
 [MOHAN M. SHANTANAGOUDAR, J.]
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under Section 20(1) of the 1961 Act. Furthermore, it was noted that
Virupapura Gaddi fell in the 'core zone' of the heritage area specified
under the Hampi Act, and was therefore subject to the authority of the
HWHAMA. Hence, in light of the illegality of the constructions under
the 1988 notification, the HWHAMA could demolish the structures
erected by the Appellants. It is against this common judgment and order
that the Appellants have come in appeal before this Court.
4. Heard learned Counsel for the parties.
5. Learned Senior Counsel Mr. Shekhar Naphade, representing
some of the Appellants, argued that the entire village of Virupapura Gaddi
cannot be construed as 'protected area' under Section 19 of the 1961
Act. This is because the scope of this provision is limited to archaeological
site and remains, and it does contemplate the declaration of entire
village(s) as protected area(s). Drawing our attention to the definitions
of the terms "ancient monuments" and "archaeological site and remains"
under Sections 2(1) and 2(3) of the 1961 Act respectively, he submitted
that the two terms should be read in conjunction with each other, such
that the conception of "archaeological site and remains" cannot be
divorced from the existence of "ancient monuments". In light of this,
stating that there are no monuments in Virupapura Gaddi, he argued that
there could not be any "archaeological remains" as well, for it to be
declared as 'protected area' under Section 19. Thus, the constructions
in 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 the
HWHAMA did not have any authority to demolish the structures raised
by the Appellants for two reasons - first, the HWHAMA was an
authority established under the Hampi Act, which is a legislation that is
independent of the 1961 Act. Thus, even if the constructions fell foul of
Section 20(1) of the 1961 Act on account of the land being used for noncultivable purpose, Section 20(2), which gives the Deputy Commissioner
the power to order removal of such construction, should have been
resorted to. In the absence of such action by the particular authority
envisaged under the 1961 Act, i.e. the Deputy Commissioner, it was
contended that the HWHAMA could not have proceeded with the
demolition. Secondly, it was submitted that since the construction was
carried out by the Appellants prior to the coming into force of the Hampi
Act, the HWHAMA could not have acted in relation to them, as its
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power to control development in heritage areas under Section 14 is
prospective in nature. In any case, such powers could have been exercised
only upon the issuance of a notification under Section 14(1), which was
not done in the present case. Thus, the Appellants submitted that their
businesses were being run legally after obtaining the relevant licenses
from the local bodies, and the construction in question was being
wrongfully demolished by the HWHAMA.
6. Supporting these contentions, learned Senior Counsels,
Mr. Basava Prabhu S. Patil and Mr. Guru Krishna Kumar representing
the other Appellants, drew our attention to a challenge to the 1988
notification, which is currently pending before the High Court of
Karnataka. In light of this, they prayed that the buildings of the Appellants
not be demolished before the final decision is rendered by the High Court.
On merits, it was argued that the impugned order was without reasons
and proceeded on unsubstantiated assumptions, especially with respect
to findings on illegality of conversion orders granted by the local
authorities.
7. Per contra, learned Senior Counsel Mr. P.S. Narasimha,
appearing for HWHAMA (Respondent No. 4 herein) argued that the
entire village of Virupapura Gaddi falls within the 'protected area'
declared by the State Government in the 1988 notification. To substantiate
the same, he referred us to Column 5 of the Schedule to this notification,
and Map 'A' annexed thereto, both of which make it sufficiently clear
that the entire village of Virupapura Gaddi is included within the boundaries
of the protected area.
Further, he submitted that the scheme of the 1961 Act is such that
'protected areas' constitute a category separate from 'protected
monuments'. Therefore, 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. In light of this, he drew upon materials indicating the
archaeological significance of Virupapura Gaddi, and submitted that the
1988 notification was justifiably made applicable to the entire village.
Based on this, he contended that the land in the area could only be used
for cultivation purposes as per the proviso to Section 20(1) of the 1961
Act. Since the Appellants were carrying out commercial activities there,
the structures raised by them were argued as being in violation of the
1961 Act.
SAKKUBAI v. STATE OF KARNATAKA & ORS.
 [MOHAN M. SHANTANAGOUDAR, J.]
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As regards the jurisdiction of the HWHAMA to direct the
demolition of such constructions, learned Senior Counsel argued that
even though the HWHAMA is an authority under a subsequent
legislation, the regimes of the 1961 Act and the Hampi Act should not be
viewed as strictly separate compartments. Drawing upon the context in
which the Hampi Act was introduced, he submitted that it should not be
seen as being divorced from the 1961 Act, but in furtherance of it. To
substantiate this, he indicated that the Hampi Act effectively incorporates
the 1988 notification issued under the 1961 Act by denoting the protected
area declared under the notification as the 'core area zone' under it.
Further, he alluded to the current restrictions and prohibitions applicable
to core area zones as well as the Zonal Regulations framed under the
Master Plan 2021 to argue that the restrictions on Virupapura Gaddi
under the Hampi Act are co-terminus with the restrictions imposed on
the area under the 1988 notification. In light of this, it was contended
that the regimes under the two statutes should not be treated as silos and
the HWHAMA had the authority to enforce the 1988 notification issued
under the 1961 Act.
Lastly, with regards to Section 14 of the Hampi Act, it was
submitted that it is only an overarching provision that allows for the
issuance of a further notification to control development in the heritage
area. In other words, the lack of a notification under Section 14(1) does
not render a prior notification intended for the same purpose meaningless
or unenforceable by the HWHAMA. In fact, in view of the functions
delineated for the HWHAMA under Section 11 of the Hampi Act, he
argued that the authority was right in proceeding against the illegal
constructions as part of its duty to protect property within the heritage
area.
8. The contentions raised by Mr. Narasimha were adopted by
learned Senior Counsel, Mr. Devdatt Kamat, representing the
Government of Karnataka, Respondent No. 1 herein.
9. Upon perusing the material on record and in light of the
arguments advanced by the parties, the following issues arise for our
consideration in this appeal-
(i)
Whether the construction raised by the Appellants was lawful
under the 1961 Act, in light of the 1988 notification?
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(ii) If not, whether the HWHAMA had authority to demolish the
said constructions?
10. Before we delve into these issues, it would be appropriate to
consider the preliminary objection raised by the Appellants with respect
to hearing of the instant appeal, in light of a pending challenge to the
Hampi Act and the 1988 notification.
10.1 The Hampi Act is said to be under challenge before the High
Court. Vide I.A. No. 58525 of 2017 filed in the underlying SLP, the
Appellants sought permission to amend the SLP seeking a declaration
that the 1988 notification is ultra vires the provisions of the Ancient
Monuments and Historical Sites and Remains Act, 1958, the 1961 Act,
as well as the Hampi Act. While disposing off the said application, this
Court observed thus:
"It may be pertinent to mention here that the petitioners
have already filed a writ petition before the Karnataka High Court
being Writ Petition Nos. 65940-65949 of 2011 in which the
petitioners submit that the Hampi World Heritage Management
Authority Act 2002 is arbitrary, illegal, ultra vires and
unconstitutional as stated supra. There is conflict of provisions of
different Acts viz., Karnataka Ancient and Historical Monuments
and Archaeological Sites and Remains Act, 1961, the Ancient
Monuments and Archaeological Sites and Remains Act, 1958 and
Hampi World Heritage Authority Management Act 2002 and also
Master plan 2012. Thus, it is necessary to stay the operation of
the Hampi World Heritage Authority Management Act, 2002 and
Master Plan 2021 pending disposal of the writ petition. If the Act
is not stayed, there will be multiplicity of litigations.
As the matter is still pending before the Karnataka High
Court, we, therefore, do not find it proper to allow the application
for amendment of SLP. It is hereby rejected.
However, if the petitioners want to challenge the said
Notification, they may do it either by amending the petition pending
before the Karnataka High Court or by filing a fresh petition before
the High Court as per law."
10.2 From the above, it is clear that though the petition challenging
the Hampi Act was filed in the year 2011, the same has not been pursued
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by the Appellant before the High Court. Be that as it may, nothing has
been placed on record by the Appellants to show that operation of the
1988 notification or the Hampi Act has been stayed. In the absence of
any such interim order staying the operation of the said notification or
the Hampi Act, it is not open for the Appellants to use the same to argue
for a deferral of the hearing of the instant appeals till the disposal of
W.P. Nos. 65940-65949 of 2011 by the High Court. Accordingly, we
reject the prayer made by the Appellants for deferring the matter till the
disposal of the writ petitions pending before the High Court.
11. In light of this, we now proceed to examine the issues arising
for our consideration in the instant appeals.
Re: First Issue
12. The first issue pertains to the validity of the development
undertaken by the Appellants under the 1961 Act. In this context, it
would be useful to refer to certain relevant provisions of the Act:
"Section 2. Definitions.-
(1) "ancient monument" means any structure, erection or
monument, 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 existence
for 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 ancient
monument as may be required for fencing or covering in or
otherwise preserving such monument, and
(iv) the means of access to, and convenient inspection of, an
ancient monument;
but shall not include ancient and historical monuments declared
by or under law made by Parliament to be of national importance;
x x x
(3) "archaeological site and remains" means any area which
contains or is reasonably believed to contain ruins or relics of
historical or archaeological importance which have been in
existence for not less than one hundred years, and includes-
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(i) such portion of land adjoining the area as may be required
for fencing or covering in or otherwise preserving it, and
(ii) the means of access to, and convenient inspection of the
area;
x x x
(9) "protected area" means any archaeological site and remains
which is declared to be protected under this Act;
x x x
Section 4: Power of Government to declare ancient
monuments to be protected monuments.-
(1) Where the Government is of opinion that any ancient monument
should be declared as a protected monument, it may, by notification
in the official Gazette, give two months' notice of its intention to
declare such ancient monument to be a protected monument and
a copy of every such notification shall be affixed in a conspicuous
place near the monument.
(2) Any person interested in any such ancient monument may
within two months after the issue of the notification, object to the
declaration of the monument to be a protected monument.
(3) On the expiry of the said period of two months, the Government
may, after considering the objections, if any, received by it, declare
by notification in the Official Gazette the ancient monument to be
a protected monument.
(4) A notification published under sub-section (3) shall, unless and
until it is withdrawn, be conclusive evidence of the fact that the
ancient monument to which it relates is a protected monument for
the purposes of this Act.
x x x
Section 19: Power of Government to declare archaeological
site and remains to be protected area.-
(1) Where the Government is of opinion that any archaeological
site and remains should be declared as a protected area, it may,
by notification in the Official Gazette, give two months' notice of
its intention to declare such archaeological site and remains to be
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a protected area, and a copy of every such notification shall be
affixed in a conspicuous place near the site and remains.
(2) Any person interested in any such archaeological site and
remains may, within two months after the issue of the notification,
object to the declaration of the archaeological site and remains to
be protected area.
(3) On the expiry of the said period of two months, the Government
may, after considering the objections, if any, received by it, declare
by notification in the Official Gazette, the archaeological site and
remains to be a protected area.
(4) A notification published under sub-section (3) shall, unless and
until it is withdrawn, be conclusive evidence of the fact that the
archaeological site and remains to which it relates is a protected
area for the purposes of this Act."
13. In the instant case, exercising its powers under Section 19(3)
of the 1961 Act, 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.
14. As to whether the entire village could be declared as protected
area by the 1988 notification, we do not find merit in the Appellants'
argument that a notification under Section 19 of the 1961 Act only
contemplates protection for archaeological site and remains that are linked
to the existence of monuments.
14.1 In our opinion, the 1961 Act makes two distinct categories
for protected monuments (see Sections 3 to 18) and protected areas
(see 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, we find that there is nothing in the
definitions under Sections 2(1) and 2(3) or otherwise under the scheme
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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 [see Section 2(3) supra].
14.2 In light of this, when we look to the village of Virupapura
Gaddi specifically, there appears to be sufficient material to establish its
archaeological significance. The Archaeological Survey of India (ASI),
Respondent No.5 herein, has in fact highlighted the archaeological
importance of Virupapura Gaddi in its Statement of Objections filed before
the High Court as under:
"2. LOCATION OF VIRUPAPURA GUDDA AND ITS
IMPORTANCE
x x x
2.1 Virupapura Gudda is an oval islet formed by the river
Tungahbhadra flowing towards the northern perimeter of Hampi
World Heritage site. The river flowing in east-west direction has
many small islets of which the above is the largest measuring
nearly 2,600 mtrs east-west and 1,300 mtrs north-south. The islet
in the centre throughout its east-west length is characterized by
undulated low hillock of granite and the highest altitude is 1,570
feet. The southern, western and northern part is put to cultivation.
x x x
3. Important Archaeological remains close to Virupapura
Gadda
1. Sri Virupaksha Temple and the Hampi ruins: This is
in Regulated zone and 200 mtrs; from the south eastern extreme
of Virupapuragadda to the fort wall to the north of Virupaksha
Temple complex.
2. Kodandarama Temple: This is in Regulated zone and
165.68 mtrs from State protected; from the south eastern extreme
of Virupapuragadda to the Temple.
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3. Varaha Temple: This is centrally protected monument
and 249.00 mtrs; from the south eastern extreme of
Virupapuragadda to the Temple.
4. Koti Linga: This is a State protected monument and
190.58 mtrs from the southern extreme of Virupapuragadda to
the parent rock formation where the Kotilinga is situated.
5. Western fort wall - Vithala Temple Complex: This
is centrally protected monument and 229.40 mtrs from Regulated
zone to the island.
6. Purandara mandapa: This is State protected monument
and 150.59 mtrs from Regulated zone to the island.
7. Ancient path: This is nearly 121 mtrs; State protected
monument and this is a Regulated zone.
x x x
Pre and proto-history of the Place-Virupapura Gadda
4. The hillock of Virupapura Gudda is identified traditionally as
the kishkinda of Ramayana fame and has the attachment of the
sentiment as the sacred site of Sri Ramachandra.
4.1 The heaps of granite boulders are the home of many natural
rock shelters, which have proven to be the safe habitation of Proto
historic man who as a wander used these shelters to start with
before settling down into the hutments of makeshift shelters he
built or him...The geomorphology of the place even today breathes
a prehistoric atmosphere. This is so because of the natural habitat,
the meandering river Tungabhadra offering little open grass lands
with scrubby jungle harboring games for sustenance and building
hutments for living during condusive climate. The huge rock
shelters offered resting place perhaps during rainy season. The
slope of the hillocks of the swarm of dyke formation at Virupapura
Gudda offered requisite glade for the pre historic man. This
remarkable integration of man-made and natural setting, vivid in
the myriad facets, viz. art and architecture, socio-cultural,
economical, administrative, defence organization and natural
resource management, together enabled the establishment of this
grand metropolis.
x x x
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8. PROVISIONS IN THE INTEGRATED MANAGEMENT
PLAN
1. This island is an important archaeological site, which formed
an access point from the North, i.e. from Virupaksha Temple and
Tungabhadra River Bank. The ancient access path from the main
land to the island leading from the northern point can be observed
when the water level is low in the river and during the months of
summer, the same path way is in use. Otherwise when the river
flows with full of water, to have the access the same route is used
by the boatmen to take the people to the island. Hence, the site is
of great archaeological importance..."
14.3 From these observations 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.
15. In light of this, we now proceed to consider the effect of the
1988 notification on the constructions raised by the Appellants during
the period between 1991-2000. In this regard, Section 20 of the 1961
Act is relevant:
"Section 20: Restrictions on enjoyment of property rights
in protected areas.-
(1) No person, including the owner or occupier of a protected
area, shall construct any building within the protected area or carry
on any mining, quarrying, excavating, blasting or any operation of
a like nature in such area, or utilise such area or any part thereof
in any other manner without the permission of the Government:
Provided that nothing in this sub-section shall be deemed to prohibit
the use of any such area or part thereof for purposes of cultivation
if such cultivation does not involve the digging of not more than
one foot of soil from the surface.
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(2) The Government may, by order, direct that any building
constructed by any person within a protected area in contravention
of the provisions of sub-section (1) shall be removed within a
specified period and, if the person refuses or fails to comply with
the order, the Deputy Commissioner may cause the building to be
removed and the person shall be liable to pay the cost of such
removal."
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.
16. 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.
17. Furthermore, the permissions/licenses obtained by the
Appellants from the local panchayat were issued without any authority,
as Section 20(1) of the 1961 Act makes the State Government the
appropriate authority for granting permissions for non-cultivable use of
protected areas. Thus, the licenses issued by the panchayat cannot but
be said to be illegal.
18.