Case: Moideenkutty Haji Vs. Director General & Others

1. Leave granted.2. Heard the learned counsel appearing for the parties.3. In a Writ Petition filed before the Kerala High Court, the learned Single Judge decided the Writ Petition in favour of the petitioner stating as follows:"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 are 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."4. Against this, an appeal was carried, which was allowed. According to the Division Bench, the aluminium roof that was put up by the petitioner was not a temporary structure and would therefore fall foul of the Ancient Monuments and Archaeological Sites and Remains (Amendment & Validation) Act, 2010. When the matter came up before us, by an order dated 07.07.2017, we had asked for a Report from a Chartered Engineer. The Report dated 28.08.2017 has since been submitted to this Court. The Report is a short one consisting of 12 paragraphs and is set out hereinbelow:"1. The building is not structurally sound due to bad climatic conditions. The building is very close to the sea. My prediction is that, during the construction time they didnt take any remedy regarding the salty sea water, wind etc. due to this the roof slab of the building is fully damaged, this causes dampness of the roof slab. In this condition the building will not withstand more than 10 years.2. They have partially constructed a roof with an angle section and roofing sheet. It is also a temporary arrangement for the protection of building dampness.3. The additional construction on the roof slab is not at all habitable because the roof slab surface is not in level and it contains number of sunken area (14.48sq.m sunken area). They have partially completed the roofing works. (Total area to be covered 560.62sq.m in that 331.92sq.m already covered). Height between slab top to truss tie member is 1.9 m to 2.5m only. (Ridge height is 2.2m from tie to ridge tap).4. The roofing works are fully temporary ones because mild steel work is not suitable in sea shore constructions because it is easily corrodes.5. Distance between fort and building is 40m.6. Height of the existing building is 19.1m (Including head room cum OH tank).7. The existing building, the height head room cum over head water tank is almost same level as concerned with roofing sheets work. It means building height doesnt change even after construction of roofing sheets work.8. The buildings height is more than fort height.9. The building is finished with emulsion paint over cement plastering.10. In between the building and fort, number of small buildings are there with same finish and have used the same materials.11. NH 17 is in between the fort and building.12. We can only see a small area of the fort from the ground floor. From the roof slab one fourth is visible."5. It can be seen that the roof slab of the building is fully damaged and therefore, requires repair. It is obvious that the roofing works that have been undertaken, are, as has been held by the Report, not "construction" within the meaning of the Act, but repairs.

Decision reasoning: 1[ds]5. It can be seen that the roof slab of the building is fully damaged and therefore, requires repair. It is obvious that the roofing works that have been undertaken, are, as has been held by the Report, not "construction" within the meaning of the Act, but repairs.