Case: Sakkubai and others Vs. State of Karnataka &amp; Ors.

3. The background to this appeal is as follows:3.1 With the object of ensuring the preservation of ancient monuments and archaeological sites and remains in the erstwhile State of Mysore, the Mysore Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 (hereinafter the 1961 Act) was enacted. Under this statute, the State Government was accorded the power to declare certain ancient monuments as protected monuments and certain archaeological sites and remains as protected areas. Accordingly, in exercise of its jurisdiction under Section 19(1) of the 1961 Act, the State Government issued a (preliminary) notification on 19.05.1982 for declaration of certain archaeological sites and remains specified in the schedule thereto as protected areas. Subsequently, on 22.10.1988, a (final) notification was issued under Section 19(3) of the 1961 Act declaring ten villages, including Virupapura Gaddi, as protected areas (hereinafter the 1988 notification)3.2 It is the case of the Appellants that they own land(s) in Virupapura Gaddi, an oval islet formed by the Tungabhadra river, located on the west of the Hampi World Heritage site. The Appellants claim that during the period from 1990-2000, given the increasing number of tourists visiting Virapupura Gaddi, they obtained hotel/restaurant licenses from the village panchayat to cater to the needs of the tourists. In certain instances, they also obtained diversion orders from the local authorities for changing the land use from agricultural to nonagricultural, so that they could run hotels, restaurants, and guest houses in their premises3.3 However, upon the introduction of the Hampi World Heritage Area Management Authority Act, 2002 (hereinafter the Hampi Act), the authority constituted thereunder, the Hampi World Heritage Area Management Authority (hereinafter HWHAMA), Respondent No. 4 herein, directed the panchayats and local authorities not to renew any licenses and not to grant permission for commercial activities within Virupapura Gaddi. Later, in exercise of its powers under the Hampi Act, the HWHAMA issued notices to the Appellants for demolishing the structures constructed by them. To restrain them from doing so, the Appellants herein filed writ petitions before the High Court, seeking the identical relief of a direction to HWHAMA to forbear from carrying out such demolition3.4 Vide the impugned judgment dated 27.04.2015, the High Court of Karnataka dismissed these writ petitions. The High Court found that the 1988 notification declared the entire village of Virupapura Gaddi as protected area. As a result, Section 20(1) of the 1961 Act came into operation, rendering the land there usable for the purposes of cultivation only, unless otherwise approved by the State Government. Thus, given that the writ petitioners had constructed rooms, thatched roof huts, temporary structures, and buildings to carry on the business of hotels, restaurants, or guesthouses in Virupapura Gaddi, it was held that such construction was in violation of the 1961 Act. It was also observed that the panchayats did not have any authority to accord sanction to the building plans, as such power was solely vested with the State Government under Section 20(1) of the 1961 Act. Furthermore, it was noted that Virupapura Gaddi fell in the core zone of the heritage area specified under the Hampi Act, and was therefore subject to the authority of the HWHAMA. Hence, in light of the illegality of the constructions under the 1988 notification, the HWHAMA could demolish the structures erected by the Appellants. It is against this common judgment and order that the Appellants have come in appeal before this Court.

Reasoning:
10.2 From the above, it is clear that though the petition challenging the Hampi Act was filed in the year 2011, the same has not been pursued by the Appellant before the High Court. Be that as it may, nothing has been placed on record by the Appellants to show that operation of the 1988 notification or the Hampi Act has been stayed. In the absence of any such interim order staying the operation of the said notification or the Hampi Act, it is not open for the Appellants to use the same to argue for a deferral of the hearing of the instant appeals till the disposal of W.P. Nos. 65940-65949 of 2011 by the High Court. Accordingly, we reject the prayer made by the Appellants for deferring the matter till the disposal of the writ petitions pending before the High Court13. In the instant case, exercising its powers under Section 19(3) of the 1961 Act, the State Government issued the 1988 notification declaring certain areas specified in the Schedule thereto as protected areas. From a perusal of this Schedule, it is amply clear that Virupapura Gaddi had been indicated in Column 5 as a covered area. Further, Map A which is annexed to this Schedule also makes it evident that the entire village of Virupapura Gaddi was included within the boundaries of the protected areas. In fact, the specific Survey Nos. of lands where the Appellants are carrying on their restaurants and guesthouses are also mentioned in this Map. Thus, there is no doubt that the 1988 notification clearly indicates the entire village of Virupapura Gaddi as a protected zone14. As to whether the entire village could be declared as protected area by the 1988 notification, we do not find merit in the Appellants argument that a notification under Section 19 of the 1961 Act only contemplates protection for archaeological site and remains that are linked to the existence of monuments14.1 In our opinion, the 1961 Act makes two distinct categories for protected monuments (see Sections 3 to 18) and protected areas (see Section 19 onwards). While the former relates to ancient monuments, the latter relates to archaeological site and remains. Upon a close reading of the 1961 Act, we find that there is nothing in the definitions under Sections 2(1) and 2(3) or otherwise under the scheme of the 1961 Act, that indicates a link between the existence of archaeological site and remains and ancient monuments. It cannot be said that the protection ascribed to archaeological site and remains must necessarily depend on the existence of a monument. It is possible for certain areas to be protected independent of the existence of monuments, if there is a reasonable belief that they contain ruins or relics of historical or archaeological importance [see Section 2(3) supra]14.2 In light of this, when we look to the village of Virupapura Gaddi specifically, there appears to be sufficient material to establish its archaeological significance14.3 From these observations by the ASI, a specialized body responsible for archaeological research and conservation of cultural monuments in India, there remains little doubt as to the historical importance of Virupapura Gaddi. It appears that the Government had considered the comprehensive geographical entity of the area, including attributes like its landscape, prehistoric vestiges and water systems. Thus, the 1988 notification issued under Section 19(3) of the 1961 Act declaring Virupapura Gaddi as a protected area cannot be said to be without basis. Further, Section 19(4) of the 1961 Act clarifies that the notification issued under Section 19(3) conclusively establishes the status of Virupapura Gaddi as protected area under the said ActFrom a reading of sub-section (1) of Section 20, it is evident that owners/occupiers of protected areas cannot construct any building or utilize such areas in any manner other than cultivation, without the permission of the State Government16. Here, since the entire area comprising Virupapura Gaddi had been declared as protected area vide the 1988 notification, it follows that the land owned by the Appellants could have only been used for the purpose of cultivation after the issuance of such notification. However, as mentioned supra, the Appellants had constructed huts and buildings on their lands for the commercial purpose of running hotels, restaurants, and guest houses. Clearly then, these constructions were in violation of Section 20(1) of the 1961 Act17. Furthermore, the permissions/licenses obtained by the Appellants from the local panchayat were issued without any authority, as Section 20(1) of the 1961 Act makes the State Government the appropriate authority for granting permissions for non-cultivable use of protected areas. Thus, the licenses issued by the panchayat cannot but be said to be illegal18. In view of the foregoing discussion, we find that by virtue of the 1988 notification declaring the entire village of Virupapura Gaddi as a protected area, the restrictions on construction and use under Section 20(1) came into operation with effect from 22.10.1988 itself. Thus, the construction carried out by the Appellants on their lands at Virupapura Gaddi for commercial purposes was in violation of the 1961 ActFrom the above, it is evident that the recognition of Hampi as a World Heritage site was a testament to its immense historical importance. It was also a crucial milestone in the efforts to preserve and protect the Hampi monuments, as it paved way for India to access the annual World Heritage Fund of US$ 4 million earmarked by the UNESCO for the upkeep of World Heritage sites20.3 Soon after such recognition, as the number of tourists visiting Hampi increased, concerns began being raised about uncontrolled construction, haphazard development, and other illegal activities carried out in the garb of catering to tourists. In light of these developments, the UNESCO classified the Hampi World Heritage properties as being in danger in 1999. This classification was significant inasmuch as it reflected the deteriorating condition of the area. Notably, the Hampi World Heritage properties continued to be classified as such till 200620.6 A close reading of the Preamble to the Hampi Act reveals an underlying common object between the 1961 Act and the Hampi Act– providing for the preservation of the respective monuments and areas protected under these legislations. The difference is that the 1961 Act was enacted as a broader legislation covering the entire State of Karnataka, while the Hampi Act was enacted with a specific focus on the heritage site of Hampi, keeping in mind the international recognition that had been accorded to it20.7 In addition to such common object, certain other provisions of the Hampi Act also indicate a continuity between the legal regimes of the 1961 Act and the Hampi Act. For instance, the Hampi Act directly incorporates the 1988 notification issued under Section 19(3) of the 1961 Act, while demarcating the Hampi heritage area in its ScheduleParts A, B, and C of Schedule I to the Hampi Act respectively indicate the extent of the core area zone, buffer zone and peripheral zone forming part of the Hampi heritage area. Under Part A, which indicates the extent of the core area zone, there is a clear reference to the area of 41.80 sq kms declared to be protected area under the 1988 notification20.8 Furthermore, even the applicable restrictions under the Master Plan 2021 prepared under the Hampi Act are similar to those imposed by virtue of the 1988 notification, inasmuch as no development of Virupapura Gaddi is permissible. The Master Plan 2021 came into force on 10.07.2008. It stipulates the formation of development schemes for towns and villages included within the Hampi local planning area. Though it did not provide for a specific development plan for Virupapura Gaddi, it provides Zonal Regulations for areas under special control, which include river islands, tank beds et alIn light of this, given that Virupapura Gaddi is a river island, it is evident that no development is permissible there even per the Master Plan 2021 prepared under the Hampi Act. When juxtaposed with the restrictions under Section 20(1) of the 1961 Act, this also indicates a continuity between the 1961 Act and the Hampi Act21. In view of the foregoing factors, we do not find merit in the Appellants argument that the Hampi Act is purely prospective in nature and that the HWHAMA, which has been established under such Act, cannot enforce prior notifications. In our considered opinion, the 1961 Act and the Hampi Act cannot be viewed as separate, watertight compartments that operate independent of each other. Such an understanding would not only defeat their underlying common objective, but also belie the events leading up to the enactment of the Hampi Act, all of which clearly reflect that the Hampi Act was a culmination of continuing attempts by the State Government to preserve and protect the cultural heritage of Hampi. Therefore, the 1961 Act and the Hampi Act must not be construed as isolated silos. Since they both seek to fulfill a common object, they must be interpreted in a manner that seeks to further such objective, and not obstruct it22. In the present case, since it is established that the structures erected by the Appellants were in violation of the 1961 Act, given the common thread underlying the 1961 Act and the Hampi Act, it cannot be said that such illegality ceased to exist when the Hampi Act came into force. Thus, the HWHAMA was, and is entitled to proceed against the development raised by the Appellants, which had been rendered illegal under the prior legislationAs mentioned supra, the Hampi World Heritage properties had been included in the in danger list by UNESCO in 1999. However, owing to serious efforts by the State Government and the HWHAMA, this classification was dropped in 2006. The threat to the various monuments and the integrity of the landscape of Hampi, however, continued. This is well reflected in the resolution of the 33rd meeting of the World Heritage Committee of UNESCO in 2009,In view of the broad ranging functions envisaged for the HWHAMA under Section 11 of the Hampi Act, we find that its actions were lawful, as it was incumbent upon the authority to act and not turn a blind eye to the illegality being perpetrated by the AppellantsEvidently, under Section 14(1), the HWHAMA is made the sole authority for undertaking development in the heritage area of such types as it may specify by a notification25.1 Though the Appellants have contended that such a notification under Section 14(1) is a pre-condition for the HWHAMA to exercise its powers to order demolition under Section 14(6), we are not inclined to accept such an argument. In view of the co-terminus legislative scheme of the 1961 Act and the Hampi Act, we find that Section 14 of the Hampi Act acts as an overarching provision that enables the issuance of a further notification to control development in the Hampi heritage area. This, however, does not mean that the lack of a notification under Section 14(1) renders a prior notification intended for the same purpose unenforceable, as is the case with the 1988 notification here25.2 In any case, we find that the notification dated 10.07.2008 regarding the implementation of the Master Plan 2021 and the Zonal Regulations fulfils the requirement of Section 14(1) in the present case, as they clearly specify the restrictions as to land use and the prohibited types of development. Thus, the Appellants cannot use the absence of regulation of Virupapura Gaddi as a ground to justify the illegal construction on their land26. In light of the foregoing discussion, we conclude that the construction of rooms, thatched roof huts, temporary structures, and buildings by the Appellants to carry on the business of hotels, restaurants, or guesthouses in Virupapura Gaddi was in violation of the 1961 Act. Further, it is held that the HWHAMA had the authority to proceed with the demolition of such illegal constructions. Thus, we do not find any reason to interfere with the impugned final judgment and order dated 27.04.2015 passed by the High Court of Karnataka.