Karnataka High Court : Construction Within 100 Metres Of Protected Monument Is Prohibited | Permission Granted Falls Foul Of The Mandate Of The Statute
Isabella Mariam
The High Court of Karnataka Single Bench of Justice M. Nagaprasanna has held that construction undertaken within 100 meters of a protected monument is statutorily prohibited, and the permission granted for such construction is contrary to law. The Court dismissed the petition seeking to quash the Archaeological Survey of India’s refusal to issue a No Objection Certificate, upheld the impugned order dated 28.01.2025, and directed immediate cessation of construction on the site. The Court further ordered initiation of departmental inquiry against officials responsible for granting construction permission and directed the Urban Development Department to issue a compliance circular to prevent similar violations.
The petitioner, aged 68 years and residing at Mangaluru, was allotted 8.80 cents of land in Survey No. 639(P), Padil Village, Mangaluru Taluk, Dakshina Kannada District, by virtue of a final decree in O.S.No.163/2018 on the file of the III Additional Senior Civil Judge, Mangaluru, dated 22.04.2021. Pursuant to the decree, a mutation was effected in his name, and conversion of the land from agricultural to residential was granted by the Deputy Commissioner, Dakshina Kannada, on 27.09.2023.
Thereafter, the petitioner applied for construction permission, and on 21.12.2023, the Mangalore City Corporation sanctioned a residential building plan. Construction was undertaken accordingly. On 04.05.2024, the Archaeological Survey of India (ASI) issued a stop work notice, asserting that the construction was within 100 meters of the protected monument “Mangala Devi Temple,” which was declared a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
In response, the petitioner submitted documentation indicating that the plan had been approved by the Corporation, and claimed the site was situated within the regulated area, beyond 100 meters but within 200 meters. He included a Google Earth image purporting to show the distance to be 151.01 meters. Despite this, an inspection conducted by ASI on 28.12.2024 found the distance from the monument to the construction site to be only 64 meters. The Competent Authority, acting on this report, issued an order on 28.01.2025 declining to issue a No Objection Certificate under the provisions of the 1958 Act.
The petitioner then filed the present writ petition challenging the said order dated 28.01.2025. He contended that the construction was a renovation of an existing house and not new construction. He submitted that prior permission was not required as the area fell under the regulated zone and not the prohibited area. He also disputed the accuracy of the ASI’s distance measurement and asserted that the denial of permission was arbitrary.
In response, the respondents—the Union of India, Archaeological Survey of India, Deputy Commissioner, and Mangalore City Corporation—filed objections. The ASI submitted that the Mangala Devi Temple was notified as a protected monument under the Act and that construction within 100 meters is absolutely barred. They further asserted that the petitioner’s building was entirely new and had replaced an older structure which had been demolished. The spot inspection revealed the construction was clearly within the prohibited area, and therefore, the Competent Authority was justified in declining the NOC.
The Mangalore City Corporation stated that permission had been granted in good faith, based on standard documentation, and without knowledge of the precise location of the protected monument in relation to the site. The Deputy Commissioner and Urban Development authorities took a similar position, while acknowledging the existence of the ASI stop work notice.
The Court began its reasoning by setting out the applicable legal framework under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and the amendments brought in by Act 10 of 2010. It observed: “The protection, prohibition and regulation of construction activities is regulated under the Act. Section 20A of the Act clearly mandates that what is permissible is only repair or renovation of an earlier existing building.”
Regarding the nature of the petitioner’s construction, the Court stated: “Nowhere the permission is granted by the Corporation for renovation. Photographs of construction that are appended to the petition would clearly demonstrate that it is a new construction after razing the old construction to the ground.”
On the location and measurement dispute, the Court recorded: “The site inspection report clearly indicates that it is within 64 meters from the protected monument.”
In response to the petitioner’s reliance on Google Earth imagery, the Court noted: “According to the petitioner, the Google Earth image taken shows the distance as 151.01 meter. It is deliberately shot from a different angle and enlarged so that the distance would change.”
Referring to the scope of permissible construction, the Court stated: “Around the protected monument, as observed hereinabove, the statute clearly bars any kind of new construction, but permits only repair and minor renovation of an old structure.”
In assessing the conduct of the authorities, the Court observed: “Therefore, the permission granted falls foul of the mandate of the statute, so does the construction.”
The Court invoked precedent from the Supreme Court in Archaeological Survey of India v. Narender Anand, stating: “The Apex Court has delineated entire spectrum of the statute, considering every one of the provisions. In the garb of renovation, the owner of a building cannot demolish the existing structure and raise a new one.”
On constitutional and policy underpinnings, the Court recorded: “The Framers of the Constitution were very much conscious of the need of protecting the monuments and places/objects of artistic and historic importance. In furtherance of that object, Article 49 was incorporated.”
With regard to the role of local authorities, the Court noted: “It is unfortunate that the Corporation, though notified of the existence of a protected monument, has granted permission to the petitioner for new construction.”
Addressing the petitioner’s plea for equitable relief, the Court stated: “Construction having now come to the stage of completion cannot be a consideration for this Court to hold in favour of the petitioner.”
The Court concluded with the finding that the denial of permission by the Competent Authority was legally valid and required no interference. It also noted: “The protection of monuments has to supersede individual commercial interests, however compelling they may appear to be.”
The High Court issued a detailed set of directions concluding the matter. It first held that the writ petition was without merit and accordingly dismissed it. The order dated 28 January 2025 issued by the Regional Director of the National Monuments Authority was affirmed in its entirety.
The petitioner was restrained from continuing with the construction activity, which the Court found to be in violation of Sections 20A and 20B of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
To ensure compliance with statutory provisions by public authorities, the Court directed that a copy of the judgment be transmitted to the Principal Secretary of the Department of Urban Development. The Secretary was instructed to ensure the issuance of a circular to relevant authorities. The circular, once issued, was to be filed before the Registry of the Court within eight weeks from the date of receiving the order.
Further, the Court ordered that a departmental enquiry be initiated against the officials involved in granting permission for the construction, which had been found to contravene statutory restrictions. The enquiry was to be conducted in accordance with principles of natural justice and was to identify the officers responsible for authorising the construction.
Lastly, the Court directed that a report detailing the actions taken pursuant to the departmental enquiry be submitted to the Registry within three months from the date of receipt of the judgment.
Advocates Representing the Parties
For the Petitioner: Sri Pundikai Ishwara Bhat, Advocate
For the Respondents: Sri Ajay Prabhu, Central Government Panel Counsel, Sri Shamanth Naik, High Court Government Pleader; Sri Harish Bhandary, Advocate
Case Title: Sri Denis Crasta v. Union of India & Others
Neutral Citation: 2025:KHC:2898
Case Number: W.P. No. 9010 of 2025
Bench: Justice M. Nagaprasanna
[Read/Download order]
