Karnataka High Court Orders Authorities To Not Grant Permission For Construction Near Protected Monuments Without ASI's Consent

The Karnataka High Court has directed the State Urban Development Department to issue a circular restricting officers from granting permission allowing to put up new constructions, in and around the protected monuments, and if any permission is to be granted in tune with the statute, such permission shall precede a no objection from the Archeological Survey of India.

A single judge, Justice M Nagaprasanna added “The circular shall also indicate that permissions if granted by officers contrary to law, they would be doing so at their peril, making themselves open for initiation of a departmental enquiry.”

The direction was given while dismissing a petition filed by one Denis Crasta who had approached the court questioning an order dated 28-01-2025 passed by the Regional Director, National Monuments Authority, declining to grant him permission and directing to stop construction of the residential house, being carried out in regulated area of 150 meters on north-east side of Mangala Devi Temple which was declared as a protected monument.

Case Background:

The petitioner was allotted the property in partition. The petitioner then gets the khata changed into his name and becomes the absolute owner in possession and enjoyment of the scheduled property. Then he applied for conversion of the land to residential purposes. The Deputy Commissioner, in terms of his order dated 27-09-2023, grants conversion.

The petitioner then applies for licence to the Mangalore City Corporation and the Corporation in terms of its order dated 21-12-2023 grants licence in favour of the petitioner for construction of a house. The plan for construction was submitted to the Corporation which also came to be approved. In terms of the permission so granted, the petitioner puts up construction up to a certain level.

Subsequently the ASI issued the stop work notice and directed him to get a NOC from the authority. The petitioner then represents for grant of no objection certificate. It is rejected by the impugned order on 28-01-2025, following which he approached the court.

Petitioner argued that there is no impediment for grant of NOC and the petitioner to go ahead with the construction as the constructed site is neither in a prohibited area or protected area. It is in a regulated area. If it is in the regulated area, flexibility would exist and it can be regulated.

The google earth image that he has procured shows more than 151.1 meters between Mangala Devi Temple and his site. He would submit that the respondents have erroneously drawn google earth images to show that it is at 64 meters.

Finally it was said the petitioner is not putting up a new construction but has only brought down the earlier construction and started re-construction of the house. According to him the petitioner is not constructing anything new but only renovating the old one which is permissible under the Act.

The state opposed the plea stating that google earth images that are brought during the inspection clearly indicate that the property is at a distance of 64 meters from the protected monument where construction is completely prohibited. It would endanger the monument if the constructions of this kind are permitted.

Moreover, the Corporation could not have issued NOC or sanctioned the plan for construction without a NOC from Archaeological Survey of India.

Findings:

The bench referred to the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 and Ancient Monuments and Archeological Sites and Remains Act (Amendment and Validation) Act, 2010.

Then it noted provisions of the Act would clearly indicate that what is permitted around protected monuments is only a repair or renovation of an earlier existing building. The plan that is sought for, by the petitioner, is noted hereinabove. It is a ground floor and first floor and a new construction. Nowhere the permission is granted by the Corporation for renovation.

Rejecting the contention of petitioner that property is being constructed beyond 150 meters which is permissible. The learned counsel appearing for the 2nd respondent Archaeological Survey of India has produced the site inspection report. The site inspection report clearly indicates that it is within 64 meters from the prohibited area.

Noting that Article 49 (Constitution of India), a part of the directive principles of the State policy mandates protection of monuments and places and objects of national importance. It is the obligation of the State to protect every monument of historic interest.

The court said “When Mangala Devi Temple is declared to be a protected monument, it is ununderstandable as to how the Corporation has granted permission to put up a new construction, that too without keeping Archaeological Survey of India in the loop, is deeply perturbing. Permission is granted in blithe ignorance or indifference to the statutory embargo. Public functionaries are the custodians of the law, not its adversaries.”

Stating that “The Corporation officials have wantonly ignored the mandate of the law in permitting construction of the kind that is permitted in the case at hand, which undoubtedly undermines statutory sanctity.”

The court directed “Action should ensue against those erring officials who have permitted such construction. A departmental enquiry shall be initiated against those erring officials and appropriate action be taken, on identification of the role of such erring officers qua the permission granted for putting up the subject construction. The departmental enquiry shall be held in strict consonance with the principles of natural justice and affording of adequate opportunity to such officials so identified.”

Accordingly it dismissed the petition.

Appearance: Advocate Pundikai Ishwara Bhat for Petitioner.

CGC Ajay Prabhu, for Respondents 1 and 2

HCGP Shamanth Naik, for R3

Advocate Harish Bhandary, for R4

Citation No: 2025 LiveLaw (Kar) 197

Case Title: Denis Crasta AND Union of India & Others

Case No: WRIT PETITION No.9010 OF 2025

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