IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 13212 of 2011(B) ----------------------- PETITIONER : --------------------- MOIDEENKUTTY HAJI, S/O KUNHAPPU, PATTUVATHIL HOUSE, THEKKIL P.O., KASARGOD DISTRICT. BY ADV. SRI.M.A.ABDUL HAKHIM RESPONDENT(S): ------------------------- 1. THE DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA, JANPATH, NEW DELHI-110011. 2. NATIONAL MONUMENTS AUTHORITY, 24, TILAK MARG, NEWDELHI-110001. 3. THE SUPERINTENDENT & ARCHAEOLOGIST, ARCHAEOLOGICAL SURVEY OF INDIA, P.O.PULLAZAI, TRICHUR DISTRICT, PIN 680 012. 4. SENIOR CONSERVATION ASSISTANT, OFFICE OF THE SENIOR CONSERVATION ASSISTANT, ARCHAEOLOGICAL SURVEY OF INDIA, KANNUR SUB CIRCLE, PIN - 670 001. 5. THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY. *ADDL. R6 IMPLEADED *6. DIRECTOR OF ARCHAEOLOGY, DEPARTMENT OF ARCHAEOLOGY, GOVERNMENT OF KERALA, SRIPADAM PALACE, FORT P.O., THIRUVANANTHAPURAM - 695 023. *ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 8.7.2011 IN I.A. NO. 10289/11. R1 TO R4 BY ADV. SRI. P. PARAMESWARAN NAIR, ASG R5 BY ADV. SRI. I.V. PRAMOD R6 BY GOVT. PLEADER SRI. JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 13212 of 2011(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PERMIT ISSUED BY THE THALASSERY MUNICIPALITY. EXT.P2 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P3 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4 : COPY OF THE STOP MEMO ISSUED BY THE 4TH RESPONDENT. EXT.P4(a) TO (d) : PHOTOGRAPHS SHOWING TELLICHERY FORT & PETITIONER'S BUILDING. RESPONDENT'S EXHIBITS : EXT.R1(a) : COPY OF THE NOTIFICATION NO. 77 DATED 28.02.1921. EXT.R1(b) : COPY OF THE CIRCULAR DATED 27.01.2010. EXT.R1(c) : COPY OF THE ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES AND REMAINS (AMENDMENT AND VALIDATION) ACT 2010. EXT.R1(d) COPY OF THE NOTIFICATION DATED 29.10.2010. //TRUE COPY// P.S. TO JUDGE Mn ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) No. 13212 OF 2011 ----------------------------------------------------- Dated this the 18th day of October, 2011 J U D G M E N T Petitioner owns a three storied commercial complex by name “Chattanchal Commercial complex” bearing building Nos.12/223, 224, 225 and 218 situated in Ward No.5 of Thalassery Municipality. According to the petitioner the building was constructed 25 years back and has been let out to different tenants. It is stated that due to leakage in the roof, the petitioner obtained a permit from the Municipality to put up an Aluminum sheet roof over the building, as done in the case of several other buildings in the area. 2. It is stated that the building is situated within the prohibited area from the Thalassery Fort and therefore on the basis that the first respondent is the competent authority to permit such works, petitioner made Exts.P2 W.P.(C) No. 13212 OF 2011 :2 : and P3 applications to the said authority. In the meanwhile, the 4th respondent has also issued a stop memo to the petitioner. Orders were not passed and therefore this writ petition is filed. 3. A counter affidavit has been filed by respondents 1, 3 and 4. According to the respondents, in view of the provisions contained in Ancient Monuments and Archaeological Sites and Remains(Amendment And Validation) Act, 2010, the building in question is situated within the prohibited area. It is stated that rules under the Act have not been framed so far and therefore they are not able to consider the application at this stage. 4. The Act referred to above, a copy of which has been produced as Ext.R1(c) defines construction which is as follows. “Construction” means any erection of a structure or a building, including any addition or extension thereto either vertically or horizontally, but does not include any re-construction, repair and renovation of an existing structure or W.P.(C) No. 13212 OF 2011 :3 : building, or, construction, maintenance and cleansing of drains and drainage works and of public latrines, urinals and similar conveniences, or, the construction and maintenance of works meant for providing supply of water for public, or, the construction or maintenance, extension, management for supply and distribution of electricity to the public or provision for similar facilities for public.” 5. A reading of the above definition of the expression, construction, shows that it does not include any reconstruction or renovation of existing buildings. As already seen the work proposed to be undertaken by the petitioner is only to put up an Aluminum sheet roof over the existing building. It at best is only a repair of an existing building in question. As already seen repair does not amount to construction and if that be so, the restriction imposed as per S.19 of the above Act, cannot be of any application to the activity proposed by the petitioner. W.P.(C) No. 13212 OF 2011 :4 : 6. According to the counter affidavit filed by the respondent the competent authority to consider the application is the Additional 6th respondent. Counsel for the petitioner submits that orders have not been passed by the first respondent. If the applications made by the petitioner is pending before the additional 6th respondent I direct the said officer to pass orders on the applications and communicate the same to the 2nd respondent as expeditiously as possible at any rate within eight weeks from the date of receipt of a copy of this judgment. Sd/- ANTONY DOMINIC, JUDGE ul/- [true copy] P.S. to Judge