Repair and renovation of an existing structure do not constitute prohibited construction under the AMASR Act.

The applicant challenged, under Section 482 of the Code of Criminal Procedure, 1973, FIR C.R. No. II-3055/2018 dated 20 April 2018 registered at Khadiya Police Station, Ahmedabad, for an alleged offence under Section 30(B) of the Ancient Monuments and Archaeological Sites and Remains Act.

The prosecution alleged that the applicant had constructed a house within 100 metres of the protected monument, Rani Chippri Masjid, in an area where construction within 300 metres was restricted, without obtaining permission from the Archaeological Department, and continued the work despite notice.

The applicant contended that the premises were dilapidated and that he had undertaken only repairs, renovation and reconstruction of the existing structure pursuant to a notice issued under Section 264 of the Gujarat Provincial Municipal Corporations Act.

He further relied on his reply dated 17 January 2017 to the Archaeological Department, asserting that no new construction had been undertaken.

The Archaeological Department and the State opposed quashing, asserting that prior permission was required even for the work undertaken and that the applicant had falsely denied carrying out construction.

1. Whether the construction, repair and renovation allegedly undertaken by the applicant constituted “construction” under Section 2(dc) of the Ancient Monuments and Archaeological Sites and Remains Act so as to attract penal liability under Section 30(B).

2. Whether the FIR, even if its allegations were accepted at face value, disclosed the essential ingredients of an offence under Sections 30A/30B of the Act.

3. Whether the High Court should exercise its inherent jurisdiction under Section 482 Cr.P.C. to quash the FIR and consequential proceedings.

The Court applied Section 482 Cr.P.C., which permits quashing of criminal proceedings to prevent abuse of process or secure the ends of justice.

It relied on State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335, particularly the categories permitting quashing where the allegations do not disclose an offence, are inherently improbable, or where continuation of proceedings would constitute an abuse of process.

Section 2(dc) of the AMASR Act defines “construction” as erection of a structure or building, including vertical or horizontal additions or extensions, while excluding reconstruction, repair and renovation of an existing structure.

Section 2(m) defines “repair and renovation” as alterations to a pre-existing structure, excluding construction or reconstruction.

The Court also considered Section 20 of the AMASR Act concerning prior permission for activities in regulated areas and held that its requirement could not automatically convert emergency, non-structural repairs into a penal offence.

The Court further invoked Article 21 of the Constitution in recognising the right to protect life and safety from an unsafe and dilapidated structure.

The Court treated the applicant’s work as restoration and safety-related repair rather than “construction” because the material on record, including photographic evidence, allegedly showed no increase in floor area, alteration of the building line, change in height, expansion of the footprint, or addition to the load-bearing framework.

The municipal notice declaring the premises dilapidated and unsafe supported the applicant’s contention that the work was undertaken to prevent structural collapse and protect public safety.

The Court held that vague allegations of structural change, unsupported by technical assessment, could not justify criminal prosecution, particularly where the work remained within the existing structural framework.

It further rejected the respondents’ contention that failure to obtain prior permission necessarily constituted an offence, reasoning that emergency stabilisation and non-structural repairs did not automatically attract Sections 30A/30B.

Since the applicant’s statement that no “fresh construction” had been undertaken was consistent with the statutory distinction between construction and repair, the Court found no basis to infer deception or criminal intent.

The absence of mens rea, the municipal safety notice, and the failure of the authorities to conduct a technical assessment reinforced the conclusion that continuation of the prosecution would be arbitrary and an abuse of process.

Consequently, the allegations did not disclose the essential ingredients of an offence under Sections 30A/30B of the AMASR Act.

Exercising jurisdiction under Section 482 Cr.P.C., the Court allowed the application and quashed FIR C.R. No. II-3055/2018 dated 20 April 2018 registered at Khadiya Police Station, Ahmedabad, together with all consequential proceedings.

Rule was made absolute.