Karnataka High Court rejects challenge to 100-metre construction ban around protected monuments, orders fresh site survey

The petitioner owned a site near Madhugiri Fort, a centrally protected monument.

He had constructed a house on part of the site in 1991 and sought permission to build on the remaining vacant portion.

The Archaeological Survey of India (ASI) refused permission on the basis that the proposed construction was 59 metres from the monument and within the prohibited area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, as amended in 2010.

The petitioner challenged Sections 20A, 20B and 20C as unconstitutional, sought permission to build, and requested directions concerning heritage bye-laws and site plans.

During the proceedings, the Court directed an inspection; the resulting report placed the proposed construction within the prohibited area but did not explain the basis for the distance measurement or resolve the petitioner’s claim that the relevant distance was about 200 metres.

1. Whether Sections 20A, 20B and 20C of the 1958 Act, as amended in 2010, were unconstitutional for violating the petitioner’s constitutional rights

2. Whether the Court should direct the respondents to prepare site plans and heritage bye-laws under the 2011 Rules

3. Whether the petitioner was entitled to a direction permitting construction on the vacant portion of his site

Sections 20A and 20B of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 establish, respectively, a prohibited area extending 100 metres from the limit of a protected monument or area and a regulated area extending a further 200 metres; Section 20A(2) generally bars construction in the prohibited area, subject to statutory exceptions, while Section 20C provides for specified repair or renovation in a prohibited area and applications for construction or related works in a regulated area.

In Archaeological Survey of India v. Narendra Anand, (2012) 2 SCC 562, the Supreme Court held that the restrictions must be interpreted in light of Article 49 of the Constitution and the object of preserving protected monuments, and that private construction cannot be permitted under the public-interest exception in Section 20A(3).

Under Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, a classification is valid where it rests on an intelligible differentia having a rational nexus to the statute’s object, and the challenger bears the burden of rebutting the presumption of constitutionality.

Article 300A permits deprivation of property only by authority of law; K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1, distinguishes deprivation or acquisition from regulation of property use and requires restrictions to be just, fair and reasonable.

Article 51A(f) recognises the citizen’s fundamental duty to value and preserve India’s composite cultural heritage.

The Court held that the 100-metre prohibited zone and the further regulated zone were rationally connected to the statutory purpose of protecting monuments and did not constitute an arbitrary classification.

The petitioner had not established that the restrictions were unconstitutional; the limits on use of his site regulated, but did not acquire or extinguish, his property rights, and the Act did not provide compensation for the vacant portion in the circumstances alleged.

Nor could the asserted absence of site plans or bye-laws justify striking down the substantive provisions or support the requested direction.

However, the inspection report did not adequately explain the stated 59-metre measurement, and the petitioner’s contrary distance claim remained unresolved.

The Court therefore found that the construction application required fresh factual assessment.

The Court rejected the challenges to Sections 20A, 20B and 20C and declined the request for directions to prepare site plans and heritage bye-laws.

It directed respondents 1 and 2 to conduct a fresh inspection or survey, determine the site’s distance from the notified monument and reconsider the petitioner’s representation, passing fresh orders and communicating them to him as expeditiously as possible.