Karnataka High Court upholds validity of law restricting construction around ancient, protected monuments

The Karnataka High Court recently upheld the constitutional validity of amendments made in 2010 to the Ancient Monuments and Archaeological Sites and Remains Act, 1958, that regulate constructions in areas surrounding centrally protected monuments [BR Ramakrishna v. Union of India & others].

By an October 9 ruling, Justice MGS Kamal rejected a challenge to Sections 20A, 20B and 20C of the Act by Tumkur resident BR Ramakrishna, who contended that the restrictions on construction within prohibited areas were arbitrary and unconstitutional.

“Considering the object and purport of the Act and the constitutional mandate of Article 49 (protecting monuments) of the Constitution of India said classification cannot be found to be unreasonable, ambiguous or vague and unconnected as sought to be contended by the counsel for the petitioner. In any event, the reason and logic behind such classification falls within the expert domain of concerned competent authority under the Act, 1958," the Court held.

Ramakrishna had challenged these provisions after he was refused permission to build a residential building on a plot of land he owned near Madhugiri Fort.

In 2016, the Archaeological Survey of India (ASI) refused to grant permission for the construction, stating that the site was 59 metres away from the monument which was inside a prohibited 100 metre zone where no construction is allowed. 

This prompted Ramakrishna to challenge the validity of the law prescribing such restrictions on constructions near monuments. He contended that they violated his constitutional rights and that there was no scientific basis for the manner in which the no-construction zones were prescribed.

In a report filed before the Court, the ASI expressed concern that the proposed construction could adversely affect the fort's aesthetic view and cultural landscape. It also apprehended that granting permission could prompt similar requests from other property owners in the vicinity.

The Court eventually ruled that Ramakrishna had not discharged the burden cast on him to prove his claim that the provisions he challenged were unconstitutional.

“Rejection of permission to put up construction in furtherance of a statute, which is regulatory in nature, cannot be the ground to quash, set aside, and declare the statute unconstitutional, particularly when the party seeking such annulment has not discharged the burden cast on him," it held.

The Court also referred to Article 51A(f) of the Constitution, which casts a fundamental duty on every citizen to value and preserve India's rich cultural heritage.

The Court accordingly rejected the prayer to declare Sections 20A, 20B and 20C unconstitutional.

Ramakrishna had also argued that the restrictions under these provisions amounted to deprivation of property without compensation, since his vacant plot had become virtually useless, while Section 27 of the Act coverred compensation only for loss, damage or diminution of profits.

The Court, however, held that the Act does not acquire land or extinguish title, and only regulates its use. Reduced utilisation of land cannot be equated with expropriation, the Court held.

It also rejected his prayer for directions to prepare site plans and heritage bye-laws under Rules of 2011. This was a matter of administrative implementation and legislative prerogative and could not be a ground to strike down substantive provisions of the Act, the Court held.

The Court, however, took note of Ramakrishna's argument that the authorities had incorrectly stated that the land on which he proposed to construct the residential building was in a prohibited zone. He argued that the site was actually around 200 metres away from the Madhugiri Fort's southern wall.

The Court found that the survey report submitted by the authorities did not explain the basis for arriving at the measurement of 59 metres.

The Court, therefore, directed the authorities to conduct a fresh survey of Ramakrishna's property to determine its precise distance from the protected monument and reconsider his request for construction permission.

The authorities have been directed to complete the exercise within three months of receiving a certified copy of the order and communicate their decision to the petitioner in writing.

Senior Advocate Dhananjay Joshi, assisted by advocate Kashyap N Naik, appeared for the petitioner.

Additional Solicitor General K Arvind Kamath appeared for the Union government. Additional Government Advocate Mahantesh Shettar represented the State.

[Read Judgment]