Case Note & Summary
The petitioner, who acquired a property of 8.80 cents in Mangalore Thota Village through a compromise decree in a partition suit, obtained conversion of the land to residential use from the Deputy Commissioner. Thereafter, the Mangalore City Corporation granted a building licence and approved the construction plan for a residential house. After construction commenced, a stop notice was issued by the Archaeological Survey of India (ASI) claiming that the construction site fell within the prohibited area (64 meters) of the centrally protected Mangaladevi Temple, requiring a no-objection certificate (NOC). The petitioner replied, furnishing details and asserting that the site was in the regulated area (151.1 meters) and that he was merely reconstructing an old house, which is permissible as repair/renovation. The competent authority under the National Monuments Authority, after an inspection and relying on Google Earth imagery, recorded the distance as 64 meters and refused the NOC by order dated 28-01-2025. The petitioner challenged this order in the High Court under Articles 226 and 227 of the Constitution. The primary legal issues were whether reliance on Google Earth imagery without physical measurement was sufficient to determine the prohibited area, and whether the construction qualified as repair/renovation under Section 20B(2) proviso of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The court examined Sections 20A, 20B, and 20C of the Act, noting that construction in the prohibited area is impermissible except for repair/renovation of existing structures, whereas construction in the regulated area may be permitted with NOC. The court found that the authority had not conducted any physical measurement of the distance using modern equipment and had solely relied on Google Earth images, which were disputed by the petitioner. It held that such determination requires physical verification by a competent team using DGPS or similar equipment. The court further observed that the authority had failed to consider whether the construction was indeed a repair/renovation of an old house as claimed. Consequently, the impugned order was quashed, and the matter was remitted to the competent authority for fresh consideration with a direction to physically measure the distance and decide the NOC application expeditiously. The petitioner was permitted to continue construction at his own risk and subject to the final decision; if the site is ultimately found within the prohibited area, no further construction (except repair/renovation) would be allowed. The writ petition was partly allowed.
Headnote
A) Ancient Monuments Law - Prohibition of Construction in Prohibited Area - Section 20B, Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Requirement of Physical Measurement - The authority's determination that construction site was within prohibited area of 64 meters from a protected monument was based solely on Google Earth imagery without physical measurement - Court held that such determination must be based on physical measurement using DGPS or modern equipment, and matter remitted for fresh consideration (Paras 12-21). B) Ancient Monuments Law - Repair/Renovation Exception - Section 20B(2) proviso, Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Consideration of Petitioner's Claim - Petitioner contended that construction was reconstruction of an old house, falling under repair/renovation exception - Authority failed to examine this claim - Court directed authority to consider whether construction qualifies as repair/renovation of existing structure and, if site falls within prohibited area, only such repair/renovation may be permitted (Paras 12-14, 20). C) Constitutional Law - Writ Jurisdiction - Article 226, Constitution of India - Judicial Review of Administrative Order - Order passed by National Monuments Authority declining NOC was quashed for non-application of mind and reliance on insufficient evidence - Held that writ court can intervene where authority acts without proper basis, and direct fresh determination with specific directions (Paras 21-23).
Issue of Consideration
Whether the order of the Regional Director, National Monuments Authority, refusing permission for construction of a residential house near a protected monument on the basis of Google Earth imagery without physical measurement is sustainable; and whether the petitioner's construction qualifies as repair/renovation under the Ancient Monuments Act.
Final Decision
Writ petition partly allowed; impugned order dated 28.01.2025 quashed; matter remitted to respondent No.3 for fresh consideration; directed to constitute a team to physically measure distance using DGPS or modern equipment; also to consider whether construction is repair/renovation of an existing structure; until final decision, petitioner permitted to continue construction at his own risk, subject to NOC from authority; if found in prohibited area, no further construction except repair/renovation; all directions issued.
Law Points
- Prohibition of construction in prohibited area under Section 20B of the Ancient Monuments and Archaeological Sites and Remains Act
- 1958
- Requirement of physical measurement to determine distance from protected monument
- Repair/renovation exception under Section 20B(2) proviso
- No construction can be permitted without NOC from competent authority under Section 20C
- Google Earth imagery alone insufficient for determination of distance
