Sakkubai Etc. Etc. vs The State Of Karnataka on 11 February, 2020


Supreme Court of India

Sakkubai Etc. Etc. vs The State Of Karnataka on 11 February, 2020

Author: Mohan M. Shantanagoudar

Bench: Mohan M. Shantanagoudar, R. Subhash Reddy

                                                               REPORTABLE

                               IN THE SUPREME COURT OF INDIA

                                CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NOS. 1443-1456 OF 2020
                 (@ Special Leave to Appeal (Civil) Nos.13714-13727 of
                                        2015)


           Sakkubai Etc. Etc.                               ….Appellant(s)

                                               Versus

           State of Karnataka & Ors. Etc. Etc.              ….Respondent(s)


                                               WITH

                               CIVIL APPEAL NO. 1457 OF 2020
                      (@ Special Leave to Appeal (Civil) No.15203 of 2015)

                                               AND

                                 CIVIL APPEAL NO. 1459 OF 2020
                      (@ Special Leave to Appeal (Civil) No. 4080 OF 2020)
                             (Arising out of Diary No. 1942 of 2018)



                                           J UD G M E NT


           MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

Signature Not Verified

2. The instant appeals arise out of the common final
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2020.02.11
18:43:54 IST
Reason:

judgment and order dated 27.04.2015 passed by the High

1
Court of Karnataka at Bengaluru in W.P. Nos. 60278, 60279,

60280, 60304-60315 of 2011. Vide the impugned order, the

High Court dismissed the writ petitions seeking a direction to

the Respondent-authorities to restrain them from demolishing

the restaurants and guest houses run by the writ petitioners in

Virupapura Gaddi, Koppal district, Karnataka.

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

2
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 non-

agricultural, so that they could run hotels, restaurants, and

guest houses in their premises.

3.3 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

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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 demolition.

3.4 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

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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.

4. Heard learned Counsel for the parties.

5. Learned Senior Counsel Mr. Shekhar Naphade,

representing some of the Appellants, argued that the entire

village of Virupapura Gaddi cannot be construed as ‘protected

area’ under Section 19 of the 1961 Act. This is because the

scope of this provision is limited to archaeological site and

remains, and it does contemplate the declaration of entire

village(s) as protected area(s). Drawing our attention to the

definitions of the terms “ancient monuments” and

“archaeological site and remains” under Sections 2(1) and 2(3)

of the 1961 Act respectively, he submitted that the two terms

should be read in conjunction with each other, such that the

conception of “archaeological site and remains” cannot be

divorced from the existence of “ancient monuments”. In light of

this, stating that there are no monuments in Virupapura Gaddi,

5
he argued that there could not be any “archaeological remains”

as well, for it to be declared as ‘protected area’ under Section

19. Thus, the constructions in question were not hit by the 1988

notification.

In any case, even if the entire village was considered to be

‘protected area’ under the 1988 notification, he contended that

the HWHAMA did not have any authority to demolish the

structures raised by the Appellants for two reasons – first, the

HWHAMA was an authority established under the Hampi Act,

which is a legislation that is independent of the 1961 Act. Thus,

even if the constructions fell foul of Section 20(1) of the 1961

Act on account of the land being used for non-cultivable

purpose, Section 20(2), which gives the Deputy Commissioner

the power to order removal of such construction, should have

been resorted to. In the absence of such action by the

particular authority envisaged under the 1961 Act, i.e. the

Deputy Commissioner, it was contended that the HWHAMA

could not have proceeded with the demolition. Secondly, it was

submitted that since the construction was carried out by the

Appellants prior to the coming into force of the Hampi Act, the

HWHAMA could not have acted in relation to them, as its power

6
to control development in heritage areas under Section 14 is

prospective in nature. In any case, such powers could have

been exercised only upon the issuance of a notification under

Section 14(1), which was not done in the present case. Thus,

the Appellants submitted that their businesses were being run

legally after obtaining the relevant licenses from the local

bodies, and the construction in question was being wrongfully

demolished by the HWHAMA.

6. Supporting these contentions, learned Senior Counsels,

Mr. Basava Prabhu S. Patil and Mr. Guru Krishna Kumar

representing the other Appellants, drew our attention to a

challenge to the 1988 notification, which is currently pending

before the High Court of Karnataka. In light of this, they prayed

that the buildings of the Appellants not be demolished before

the final decision is rendered by the High Court. On merits, it

was argued that the impugned order was without reasons and

proceeded on unsubstantiated assumptions, especially with

respect to findings on illegality of conversion orders granted by

the local authorities.

7. Per contra, learned Senior Counsel Mr. P.S. Narasimha,

appearing for HWHAMA (Respondent No. 4 herein) argued that

7
the entire village of Virupapura Gaddi falls within the ‘protected

area’ declared by the State Government in the 1988

notification. To substantiate the same, he referred us to

Column 5 of the Schedule to this notification, and Map ‘A’

annexed thereto, both of which make it sufficiently clear that

the entire village of Virupapura Gaddi is included within the

boundaries of the protected area.

Further, he submitted that the scheme of the 1961 Act

is such that ‘protected areas’ constitute a category separate

from ‘protected monuments’. Therefore, 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. In light

of this, he drew upon materials indicating the archaeological

significance of Virupapura Gaddi, and submitted that the 1988

notification was justifiably made applicable to the entire village.

Based on this, he contended that the land in the area could

only be used for cultivation purposes as per the proviso to

Section 20(1) of the 1961 Act. Since the Appellants were

carrying out commercial activities there, the structures raised

by them were argued as being in violation of the 1961 Act.

8
As regards the jurisdiction of the HWHAMA to direct the

demolition of such constructions, learned Senior Counsel

argued that even though the HWHAMA is an authority under a

subsequent legislation, the regimes of the 1961 Act and the

Hampi Act should not be viewed as strictly separate

compartments. Drawing upon the context in which the Hampi

Act was introduced, he submitted that it should not be seen as

being divorced from the 1961 Act, but in furtherance of it. To

substantiate this, he indicated that the Hampi Act effectively

incorporates the 1988 notification issued under the 1961 Act by

denoting the protected area declared under the notification as

the ‘core area zone’ under it. Further, he alluded to the current

restrictions and prohibitions applicable to core area zones as

well as the Zonal Regulations framed under the Master Plan

2021 to argue that the restrictions on Virupapura Gaddi under

the Hampi Act are co-terminus with the restrictions imposed on

the area under the 1988 notification. In light of this, it was

contended that the regimes under the two statutes should not

be treated as silos and the HWHAMA had the authority to

enforce the 1988 notification issued under the 1961 Act.

9
Lastly, with regards to Section 14 of the Hampi Act, it

was submitted that it is only an overarching provision that

allows for the issuance of a further notification to control

development in the heritage area. In other words, the lack of a

notification under Section 14(1) does not render a prior

notification intended for the same purpose meaningless or

unenforceable by the HWHAMA. In fact, in view of the functions

delineated for the HWHAMA under Section 11 of the Hampi Act,

he argued that the authority was right in proceeding against

the illegal constructions as part of its duty to protect property

within the heritage area.

8. The contentions raised by Mr. Narasimha were

adopted by learned Senior Counsel, Mr. Devdatt Kamat,

representing the Government of Karnataka, Respondent No. 1

herein.

9. Upon perusing the material on record and in light of

the arguments advanced by the parties, the following issues

arise for our consideration in this appeal–

(i) Whether the construction raised by the Appellants was

lawful under the 1961 Act, in light of the 1988

notification?

10

(ii) If not, whether the HWHAMA had authority to demolish

the said constructions?

10. Before we delve into these issues, it would be

appropriate to consider the preliminary objection raised by the

Appellants with respect to hearing of the instant appeal, in light

of a pending challenge to the Hampi Act and the 1988

notification.

10.1 The Hampi Act is said to be under challenge before the

High Court. Vide I.A. No. 58525 of 2017 filed in the underlying

SLP, the Appellants sought permission to amend the SLP

seeking a declaration that the 1988 notification is ultra vires

the provisions of the Ancient Monuments and Historical Sites

and Remains Act, 1958, the 1961 Act, as well as the Hampi Act.

While disposing off the said application, this Court observed

thus:

“It may be pertinent to mention here that the
petitioners have already filed a writ petition before
the Karnataka High Court being Writ Petition Nos.

65940-65949 of 2011 in which the petitioners submit
that the Hampi World Heritage Management
Authority Act 2002 is arbitrary, illegal, ultra vires and
unconstitutional as stated supra. There is conflict of
provisions of different Acts viz., Karnataka Ancient
and Historical Monuments and Archaeological Sites
and Remains Act, 1961, the Ancient Monuments and

11
Archaeological Sites and Remains Act, 1958 and
Hampi World Heritage Authority Management Act
2002 and also Master plan 2012. Thus, it is necessary
to stay the operation of the Hampi World Heritage
Authority Management Act, 2002 and Master Plan
2021 pending disposal of the writ petition. If the Act
is not stayed, there will be multiplicity of litigations.

As the matter is still pending before the
Karnataka High Court, we, therefore, do not find it
proper to allow the application for amendment of
SLP. It is hereby rejected.

However, if the petitioners want to challenge
the said Notification, they may do it either by
amending the petition pending before the Karnataka
High Court or by filing a fresh petition before the High
Court as per law.”

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

12
Appellants for deferring the matter till the disposal of the writ

petitions pending before the High Court.

11. In light of this, we now proceed to examine the issues

arising for our consideration in the instant appeals.

Re: First Issue

12. The first issue pertains to the validity of the

development undertaken by the Appellants under the 1961 Act.

In this context, it would be useful to refer to certain relevant

provisions of the Act:

“Section 2. Definitions.—
(1) “ancient monument” means any structure,
erection or monument, or any tumulus or place of
interment, or any cave, rock-sculpture, inscription or
monolith which is of historical, archaeological or
artistic interest and which has been in existence for
not less than one hundred years, and includes –

(i) the remains of an ancient monument,

(ii) the site of an ancient monument,

(iii) such portion of land adjoining the site of an
ancient monument as may be required for
fencing or covering in or otherwise preserving
such monument, and

(iv) the means of access to, and convenient
inspection of, an ancient monument;
but shall not include ancient and historical
monuments declared by or under law made by
Parliament to be of national importance;

xxx

13
(3) “archaeological site and remains” means any
area which contains or is reasonably believed to
contain ruins or relics of historical or archaeological
importance which have been in existence for not less
than one hundred years, and includes—

(i) such portion of land adjoining the area as
may be required for fencing or covering in or
otherwise preserving it, and

(ii) the means of access to, and convenient
inspection of the area;

xxx

(9) “protected area” means any archaeological site
and remains which is declared to be protected under
this Act;

xxx

Section 4: Power of Government to declare
ancient monuments to be protected
monuments.—
(1) Where the Government is of opinion that any
ancient monument should be declared as a protected
monument, it may, by notification in the official
Gazette, give two months’ notice of its intention to
declare such ancient monument to be a protected
monument and a copy of every such notification shall
be affixed in a conspicuous place near the
monument.

(2) Any person interested in any such ancient
monument may within two months after the issue of
the notification, object to the declaration of the
monument to be a protected monument.

(3) On the expiry of the said period of two months,
the Government may, after considering the

14
objections, if any, received by it, declare by
notification in the Official Gazette the ancient
monument to be a protected monument.

(4) A notification published under sub-section (3)
shall, unless and until it is withdrawn, be conclusive
evidence of the fact that the ancient monument to
which it relates is a protected monument for the
purposes of this Act.

xxx

Section 19: Power of Government to declare
archaeological site and remains to be protected
area.—
(1) Where the Government is of opinion that any
archaeological site and remains should be declared
as a protected area, it may, by notification in the
Official Gazette, give two months’ notice of its
intention to declare such archaeological site and
remains to be a protected area, and a copy of every
such notification shall be affixed in a conspicuous
place near the site and remains.

(2) Any person interested in any such archaeological
site and remains may, within two months after the
issue of the notification, object to the declaration of
the archaeological site and remains to be protected
area.

(3) On the expiry of the said period of two months,
the Government may, after considering the
objections, if any, received by it, declare by
notification in the Official Gazette, the archaeological
site and remains to be a protected area.

(4) A notification published under sub-section (3)
shall, unless and until it is withdrawn, be conclusive
evidence of the fact that the archaeological site and
remains to which it relates is a protected area for the
purposes of this Act.”

15

13. 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

zone.

14. 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

monuments.

16
14.1 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 significance. The

Archaeological Survey of India (ASI), Respondent No.5 herein,

has in fact highlighted the archaeological importance of

17
Virupapura Gaddi in its Statement of Objections filed before the

High Court as under:

“2. LOCATION OF VIRUPAPURA GUDDA AND ITS
IMPORTANCE
xxx
2.1 Virupapura Gudda is an oval islet formed by the
river Tungahbhadra flowing towards the northern
perimeter of Hampi World Heritage site. The river
flowing in east-west direction has many small islets
of which the above is the largest measuring nearly
2,600 mtrs east-west and 1,300 mtrs north-south.
The islet in the centre throughout its east-west length
is characterized by undulated low hillock of granite
and the highest altitude is 1,570 feet. The southern,
western and northern part is put to cultivation.

xxx

3. Important Archaeological remains close to
Virupapura Gadda

1. Sri Virupaksha Temple and the Hampi
ruins: This is in Regulated zone and 200 mtrs; from
the south eastern extreme of Virupapuragadda to the
fort wall to the north of Virupaksha Temple complex.

2. Kodandarama Temple: This is in Regulated
zone and 165.68 mtrs from State protected; from the
south eastern extreme of Virupapuragadda to the
Temple.

3. Varaha Temple: This is centrally protected
monument and 249.00 mtrs; from the south eastern
extreme of Virupapuragadda to the Temple.

4. Koti Linga: This is a State protected
monument and 190.58 mtrs from the southern
extreme of Virupapuragadda to the parent rock
formation where the Kotilinga is situated.

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5. Western fort wall – Vithala Temple
Complex: This is centrally protected monument and
229.40 mtrs from Regulated zone to the island.

6. Purandara mandapa: This is State
protected monument and 150.59 mtrs from
Regulated zone to the island.

7. Ancient path: This is nearly 121 mtrs; State
protected monument and this is a Regulated zone.

xxx

Pre and proto-history of the Place-Virupapura
Gadda

4. The hillock of Virupapura Gudda is identified
traditionally as the kishkinda of Ramayana fame and
has the attachment of the sentiment as the sacred
site of Sri Ramachandra.

4.1 The heaps of granite boulders are the home of
many natural rock shelters, which have proven to be
the safe habitation of Proto historic man who as a
wander used these shelters to start with before
settling down into the hutments of makeshift shelters
he built or him…The geomorphology of the place
even today breathes a prehistoric atmosphere. This
is so because of the natural habitat, the meandering
river Tungabhadra offering little open grass lands
with scrubby jungle harboring games for sustenance
and building hutments for living during condusive
climate. The huge rock shelters offered resting place
perhaps during rainy season. The slope of the hillocks
of the swarm of dyke formation at Virupapura Gudda
offered requisite glade for the pre historic man. This
remarkable integration of man-made and natural
setting, vivid in the myriad facets, viz. art and
architecture, socio-cultural, economical,
administrative, defence organization and natural

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resource management, together enabled the
establishment of this grand metropolis.


                               xxx

       8.     PROVISIONS         IN     THE     INTEGRATED
       MANAGEMENT PLAN

1. This island is an important archaeological site,
which formed an access point from the North, i.e.
from Virupaksha Temple and Tungabhadra River
Bank. The ancient access path from the main land to
the island leading from the northern point can be
observed when the water level is low in the river and
during the months of summer, the same path way is
in use. Otherwise when the river flows with full of
water, to have the access the same route is used by
the boatmen to take the people to the island. Hence,
the site is of great archaeological importance…”

14.3 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

20
clarifies that the notification issued under Section 19(3)

conclusively establishes the status of Virupapura Gaddi as

protected area under the said Act.

15. In light of this, we now proceed to consider the effect

of the 1988 notification on the constructions raised by the

Appellants during the period between 1991-2000. In this

regard, Section 20 of the 1961 Act is relevant:

“Section 20: Restrictions on enjoyment of
property rights in protected areas.—
(1) No person, including the owner or occupier of a
protected area, shall construct any building within
the protected area or carry on any mining, quarrying,
excavating, blasting or any operation of a like nature
in such area, or utilise such area or any part thereof
in any other manner without the permission of the
Government:

Provided that nothing in this sub-section shall be
deemed to prohibit the use of any such area or part
thereof for purposes of cultivation if such cultivation
does not involve the digging of not more than one
foot of soil from the surface.

(2) The Government may, by order, direct that any
building constructed by any person within a
protected area in contravention of the provisions of
sub-section (1) shall be removed within a specified
period and, if the person refuses or fails to comply
with the order, the Deputy Commissioner may cause
the building to be removed and the person shall be
liable to pay the cost of such removal.”

21
From 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

Government.

16. 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 Act.

17. 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 illegal.

22

18. 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 Act.

Re: Second Issue

19. The second issue pertains to whether the HWHAMA

could have proceeded to demolish these illegal constructions.

20. In this regard, as mentioned supra, the Appellants

have argued that the HWHAMA, which is a body set up under

the Hampi Act, could not have issued such orders for

demolition as the illegality of the constructions (if any) was

rooted in the 1961 Act. At its very core, we find that this issue

relates to the interplay between the 1961 Act and the Hampi

Act. Thus, before delving into the relevant legal provisions, we

deem it fit to appreciate the objects underlying these statutes

and the contexts in which they were enacted.

20.1 As mentioned supra, the 1961 Act was introduced

with the object of ensuring the preservation of ancient

23
monuments and archaeological sites and remains in Karnataka.

In pursuance of the same, the 1988 notification was issued

under Section 19(3) declaring certain areas in Hampi as

‘protected areas’.

20.2 Notably, in 1989, the group of monuments at Hampi

were inscribed in the list of “World Heritage sites” declared by

the United Nations Educational, Scientific, and Cultural

Organisation (hereinafter ‘UNESCO’). The UNESCO is a

specialized agency of the United Nations and inter alia its

objective is to encourage the identification, protection, and

preservation of cultural and natural heritage around the world

considered to be of outstanding value to humanity. In

pursuance of the same, the UNESCO Conference adopted the

Convention concerning the Protection of the World Cultural and

Natural Heritage in 1972,1 emphasizing the obligation of State

parties to take necessary measures for the conservation and

protection of world heritage properties.

Specifically, the recognition of the monuments at

Hampi as a World Heritage site was based on the fulfilment of

the following points of the 10-point criteria stipulated by

UNESCO:

1

India ratified this Convention in the year 1977.

24
Criterion (i)- to represent a masterpiece of
human creative genius: The remarkable
integration between the planned and defended city
of Hampi with its exemplary temple architecture and
its spectacular natural setting represent a unique
artistic creation.

Criterion (iii)- to bear unique or at least
exceptional testimony to a cultural tradition or
to a civilization which is living or which has
disappeared: The city bears exceptional testimony
to the vanished civilization of the kingdom of
Vijayanagara, which reached its apogee under the
reign of Krishna Deva Raya (1509-1530).

Criterion (iv)- to be an outstanding example of
a type of building, architectural or
technological ensemble or landscape which
illustrates (a) significant stage(s) in human
history: This capital offers an outstanding example
of a type of structure which illustrates a significant
historical situation: that of the destruction of the
Vijayanagara kingdom at the Battle of Talikota (1565
CE) which left behind an ensemble of living temples,
magnificent archaeological remains in the form of
elaborate sacred, royal, civil and military structures
as well as traces of its rich lifestyle, all integrated
within its natural setting.2

From the above, it is evident that the recognition of

Hampi as a World Heritage site was a testament to its immense

2
The Criteria for Selection to be included on the World
Heritage List, available at https://whc.unesco.org/en/criteria/; The
Description of Group of Monuments at Hampi, UNESCO World Heritage
List, available at https://whc.unesco.org/en/list/241.

25
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 sites.

20.3 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

2006.

20.4 In view of such changes and its obligations under

international conventions, the Government of Karnataka felt it

necessary to create a body that would streamline the

development in the Hampi region. However, till the time that a

specific statute was enacted for such purpose, the HWHAMA

26
was constituted as an interim authority vide a Government

Order dated 21.03.2002. The Preamble to this order is notable:

“Preamble: Hampi has been declared as a World
Heritage Site by the UNESCO and the Government of
India has recently announced that Hampi would be
developed as an international destination centre.

There is a need for proper management and
development of Hampi World Heritage Area in order
to conserve and preserve the rich heritage in this
area and at the same time develop the area for
providing good facilities for both national and
international tourists. Thus all the activities in the
Hampi World Heritage Area need to be regulated and
coordinated in order to provide facilities and at the
same time ensure proper conservation of the
heritage. There is a need for a statutory body
regulating on the issues pertaining to the
management and development aspects in the Hampi
World Heritage Area. The Government is
contemplating a legislation constituting Hampi World
Heritage Area Management Authority. In the
interregnum, there is an immediate need to have an
interim body to promote coordinated development of
the heritage area. Thus the Hampi World Heritage
Area Management Authority and the State Level
Advisory Committee are being constituted through an
executive order to manage the affairs of Hampi till
the statutory bodies come into effect.”

20.5 Subsequently, the State Government enacted a

specific legislation for the conservation of the cultural heritage

of Hampi, i.e. the Hampi Act. This Act was brought into force

with effect from 27.01.2005, and the HWHAMA was constituted

27
under Section 3 thereof. Until such time, the interim authority

constituted vide Government Order dated 21.03.2002,

mentioned supra, continued. The overall object of the Hampi

Act can be gleaned from its Preamble, which reads as follows:

“An Act to provide for conservation of the
cultural heritage of Hampi with all its archeological
remains and natural environs; to preserve its cultural
identity and to ensure sustainable development of
the Hampi World Heritage Area, in the State of
Karnataka and to constitute Hampi World Heritage
Area Management Authority.

Whereas it is expedient to provide for,-

(a) the conservation of the Cultural Heritage and
natural environs of Hampi and its surroundings;

(b) the preservation of the historical and cultural
identity of Hampi as a World Heritage Centre;

(c) preventing uncontrolled development and
commercial exploitation of the area;

(d) sustained development of the area which is
conducive to the above objectives, and

(e) for matters incidental thereto…”

20.6 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

28
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 it.

20.7 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 Schedule. “Heritage

area” has been defined as follows under the Hampi Act:

“Section 2: Definitions.- (1) In this Act unless the
context otherwise requires,-…
…(l) “Heritage Area” means the whole of the area
comprising the Core Area Zone, Buffer Zone and
Peripheral Zones, but excluding the area referred to
as protected area under the Ancient Monuments and
Historical sites and Remains Act, 1958 (Central Act
24 of 1958);”

Parts 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

29
zone, there is a clear reference to the area of 41.80 sq kms

declared to be protected area under the 1988 notification.

20.8 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 al. Regulation 2(f) of

these Zonal regulations, which deals with such areas of special

control is relevant here:

“(f) No development is permitted in eco-sensitive
areas like river islands, tank bed areas, rocky
outcrop, hillocks, and forest areas.”

In 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

30
the 1961 Act, this also indicates a continuity between the 1961

Act and the Hampi Act.

21. 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 it.

22. 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

31
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 legislation.

23. It may also be useful to appreciate the background in

which the HWHAMA had proceeded to take action against the

Appellants. As 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, wherein rampant

illegal constructions in the village of Virupapura Gaddi, found a

specific mention:

“…The World Heritage Committee,

1. xxx

2. xxx

3. xxx

4. xxx

5. xxx

6. xxx

32

7. Expresses its concern over illegal constructions
and other developments, such as social housing
projects, within the extended boundaries which are
being considered for the possible extension of the
property, particularly in Virupapura Gada island and
Hampi villlages, which appear to have a negative
impact on the integrity of the landscape….”

Similar concerns were also raised at the 34 th meeting of

the UNESCO World Heritage Committee in 2010.

24. It was in the context of these developments that the

HWHAMA had directed the local authorities to not renew the

trade licenses issued to the Appellants, and later proceeded to

issue notices for demolishing the constructions raised by the

Appellants. 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 Appellants.

25. Finally, we advert to the claim of the Appellants that

the lack of a notification under Section 14(1) of the Hampi Act

fettered the powers of the HWHAMA to take action against

them. It may be useful to refer to Section 14 in this regard:

33
“Section 14: No other authority or person to
undertake development without permission of
the Authority.-

(1) Notwithstanding anything contained in any law for
the time being in force, except with the previous
permission of the Authority, no other authority or
person shall undertake any development within the
Heritage Area, of the types as the Authority may
from time to time specify by notification published in
the Official Gazette.

(2) No local authority shall grant permission for any
development referred to in sub-section (1), within the
Heritage Area, unless the Authority has granted
permission for such development.

(3) Any authority or person desiring to undertake
development referred to in sub-section (1) shall apply
in writing to the Authority for permission to
undertake such development.

(4) The Authority may, after making such inquiry as it
deems necessary grant such permission without or
with such conditions, as it may deem fit, to impose or
refuse to grant such permission.

(5) Any authority or person aggrieved by the decision
of the Authority under sub-section (4) may, within
thirty days from the date of the decision appeal
against such decision to the State Government,
whose decision thereon shall be final:

Provided that, where the aggrieved authority
submitting such appeal is under the administrative
control of the Central Government, the appeal shall
be decided by the State Government, after
consultation with the Central Government.
(6) In case any person or authority does anything
contrary to the decision given under sub-section (4)
as modified in sub-section (5), the Authority shall
have power to pull down, demolish or remove any
development under taken contrary to such decision
and recover the cost of such pulling down, demolition
or removal from the person or authority concerned.”

34
Evidently, 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 notification.

25.1 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 here.

25.2 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

35
regulation of Virupapura Gaddi as a ground to justify the illegal

construction on their land.

26. 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.

27. In view of these findings, the Respondents shall

proceed with the demolition of the illegal structures erected by

the Appellants in Virupapura Gaddi within a period of one

month from the date of this order. With such observations, the

instant appeals stand dismissed. Ordered accordingly.

…..……………………………………..J.
(MOHAN M. SHANTANAGOUDAR)

.…………………………………………J.

(R. SUBHASH REDDY)
New Delhi;

February 11, 2020

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