Usha Balakrishnan and P. M. Vijayalakshmi v. The Director, Directorate of Archaeology, Government of Kerala, and The Senior Conservation Assistant Archaeological Survey of India, Thrissur Sub Circle

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936** ## **WP(C).No. 20782 of 2013 (W)** **---------------------------------------** **PETITIONER(S): --------------------------** **1. USHA BALAKRISHNAN AGED 60 YEARS W/O. LATE BALAKRISHNAN, RESIDING AT MALIYEKKAL HOUSE POST CHEMMANTHATTA, KACHERI, THRISSUR.** **2. P.M.VIJAYALAKSHMI AGED 52 YEARS W/O. ACHUTHAN NAIR, RESIDING AT MALIYEKKAL HOUSE POST CHEMMANTHATTA, KACHERI, THRISSUR.** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT(S):** - **----------------------------** ## **1. THE DIRECTOR** - **DIRECTORATE OF ARCHAEOLOGY, DEPARTMENT ARCHAEOLOGY GOVERNMENT OF KERALA, SREEPADAM PALACE, FORT POST THIRUVANANTHAPURAM-695023.** **2. THE SENIOR CONSERVATION ASSISTANT ARCHAEOLOGICAL SURVEY OF INDIA, THRISSUR SUB CIRCLE IYYANATH LANE, CHEMBUKAVU, THRISSUR-680020.** **R1,R2 BY ADV. SRI.DINESH R.SHENOY,SC,** ## **ARCHAEOLOGICAL SURVEY OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 20782 of 2013 (W)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE CERTIFICATE DATED 07.01.2013 ISSUED BY THE SECRETARY, OF THE PANCHAYATH.** - **EXHIBIT P2. A TRUE COPY OF THE APPLICATION DATED 06.12.2012 SUBMITTED BY THE PETITIONERS TO THE 1ST RESPONDENT IN THE FORM PRESCRIBED UNDER THE ACT.** - **EXHIBIT P3. A TRUE COPY OF THE REPRESENTATION MADE BY THE 1ST PETITIONER TO THE 1ST RESPONDENT DATED 05.12.2012 WITH THE ENDORSEMENT OF THE HONOURABLE MINISTER.** - **EXHIBIT P4. A TRUE COPY OF THE NOTICE DATED 21.05.2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS.** - **EXHIBIT P5. A TRUE COPY OF THE NOTICE DATED 25.05.2013 OF THE SECRETARY OF GRAMA PANCHAYATH.** - **EXHIBIT P6. TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C) 15180/13 DATED 26.06.2013.** - **EXHIBIT P7. A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DT.20.08.13.** - **EXHIBIT P8. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN COCO 998/13 WITHOUT ANNEXURES.** - **EXHIBIT P9. TRUE COPY OF THE PARTITION DEED DOCUMENT NO.2304/00 OF SRO KUNNAMKULAM.** ## **RESPONDENT(S)' EXHIBITS** **ANNEXURE R1(a) TRUE COPY OF THE LETTER DATED 10.04.2013 ISSUED TO THE PETITIONERS.** - **ANNEXURE R1(b) TRUE COPY OF FORM 1 AND APPLICATION BY PETITIONERS, RECEIVED ON 08.07.13.** - **ANNEXURE R1(c) TRUE COPY OF LETTER DATED 15.07.2013 ISSUED TO THE PETITIONERS.** **ANNEXURE R1(d) TRUE COPY OF PLANS SUBMITTED BY THE PETITIONERS ON 31.07.2013, WITH ENDORSEMENTS BY THE TECHNICAL STAFF OF THE RESPONDENT.** **ANNEXURE R1(e) TRUE COPY OF LETTER DATED 20.08.2013 ISSUED BY THE RESPONDENT.** - **ANNEXURE R1(f) TRUE COPY OF DESPATCH-CUM-STAMP ACCOUNT REGISTER.** // True copy // PA to Judge das ## **P.R. RAMACHANDRA MENON,J.** ================================= **W.P.(C). No. 20782 of 2013** ==================================== **Dated this the 11[th] day of July, 2014** ## **JUDGMENT** Rejection of the application submitted by the petitioners for permission to effect repairs to an existing building within the prohibited distance of an Ancient Monument, by passing Ext.P7 order dated 20.08.2013, is under challenge in this writ petition. 2. The petitioners own land and a building bearing No.6/3 in Sy.No.104/9 of Chemmanthitta Village of Chowwannur Grama Panchayath of Thrissur District. It is stated that there is a 'Siva temple' nearby, which is declared as an Ancient Monument under the Ancient Monuments and Archaeological Sites and Remains Act 1958 (hereinafter referred to as “the Act”). In view of the dilapidated condition of the building as on date, the petitioners wanted to effect extensive repairs to strengthen the walls and roof. It was accordingly, that the petitioners, who had bought the rights -:2:- W.P.(C). No. 20782 of 2013 and interest over the building and premises by virtue of Ext.P9 partition deed dated 26.10.2000, sought for and obtained Ext.P1 certification in this regard from the concerned local authority, showing the nature and condition of the building. Because of the close proximity to the temple, an ancient monument, the petitioners approached the respondent, Department by filing Ext.P3 representation on 05.12.2012 before the concerned Minister, which was straight away forwarded to the first respondent. In the course of further proceedings, the petitioners were required to submit a proper application in the prescribed form. In compliance with this, the petitioners submitted Ext.P2 application before the first respondent. But since no action was forthcoming for quite long, the petitioners under the firm belief that there was no objection from the part of the respondents in this regard, started the construction/repairs. 3. On coming across the work being carried out by the petitioners, the second respondent issued Ext.P4 notice dated 21.05.2013 alleging violation of the statutory provisions. The -:3:- W.P.(C). No. 20782 of 2013 respondents informed the concerned local authority as well, who issued Ext.P5 stop memo dated 02.05.2013 to the petitioners. Pursuant to the said notice, the petitioners stopped the construction and approached this Court by filing W.P.(C) 15180/2013. After hearing both the sides, this Court directed the first respondent to consider the application, after giving an opportunity of hearing to the petitioners vide Ext.P6 judgment dated 26.06.2013. The petitioners were let known that Ext.P2 application preferred by them was not in proper form and they were required to submit a fresh application, which was done. But still, no action was taken, which made the petitioners to approach this Court by way of Contempt of Court case bearing No.998/2013. Pursuant to the said proceeding, the petitioners were served with Ext.P7 order dated 20.08.2013, whereby the application was rejected stating that the proposed repairs sought to be effected by the petitioners were not in conformity with the statute and that, it amounted to 'reconstruction' and not repair. It was also stated that the building plan produced by the petitioners was a forged one and that there was violation of Rule 8(1) of the -:4:- ## W.P.(C). No. 20782 of 2013 relevant Rules as well. Ext.P7 however, pointed out that, if any new application for 'repair' was submitted, the same would be considered in accordance with law. Ext.P7 order is under challenge in this writ petition. 4. The respondents have filed a counter affidavit seeking to sustain the impugned proceedings, asserting that Ext.P2 was never received by the concerned respondents. It is asserted that the work proposed by the petitioners was a pucca construction and not a 'repair'. The factual possession is sought to be asserted also with reference to the plan of the proposed building submitted by the petitioners, produced along with the counter affidavit as Ext.R1(d); wherein, the change in structure is very much discernible, insofaras construction of the roof is also being effected as 'RCC roof' along with various other changes. It is asserted that many of notice was issued to the petitioners at different points of time, to submit the plan and documents, which was never acceded to and that the plan was submitted only on 25.07.2013, that is, after passing the judgment dated 26.06.2013. Still, the -:5:- W.P.(C). No. 20782 of 2013 original plan of the existing building was never submitted by the petitioners as required earlier. 5. With regard to the apprehension expressed from the part of the petitioners that, the contents of Ext.P7 suggested that the repairs were to be effected using the very same/type of the building materials, the position has been clarified by the respondents by filing an additional counter affidavit dated 17.12.2013, making it clear that, it was never the intent. The requirement was only to meet the requirements of the statute, in the manner as prescribed therein, and to the requisite extent. Some suggestions are also given therein, so as to accommodate the petitioners to the permissible extent. 6. Heard the learned counsel for the petitioners as well as the learned Standing Counsel appearing for the respondents at length. During the course of hearing, it is brought to the notice of this Court that insofaras the work is to be effected in proximity to the ancient monument declared -:6:- W.P.(C). No. 20782 of 2013 under the Act, various requirements have to be satisfied. No 'construction' or 're-construction' as defined under section 2 (d), (c) and 2(k) respectively could be effected, if the site is within the prohibited area of 100 metres from the ancient monument and only 'repairs', to the permissible extent, can be effected in such area. If it is construction or re-construction, to be effected in a 'regulated area',it shall be subject to the parameters prescribed. It is also brought to the notice of this Court that, the petitioners are having sufficient land/space, which will enable them to effect the construction from changing the existing location within 'prohibited area' to be within the 'regulated area' which fact is however, sought to be rebutted from the part of the petitioners. Coming to the case on hand, the site/location is within the 'prohibited area' and as such, only repairs/renovation as envisaged under Section 2(m) of the Act alone is possible. 7. With reference to the position revealed from Ext.R1 (d) plan of the proposed building produced by the petitioners, the learned standing counsel submits that, admittedly the ## -:7:- ## W.P.(C). No. 20782 of 2013 petitioners are proposing to effect change in roof, by constructing 'RCC roof' which is not permissible and it forms the main basis for rejection of the application. Reliance is also sought to be placed on the decision rendered by a Division Bench of this Court, reported in **Archaeological Survey of India v. Moideenkutty Haji** ( **2014(1) KLT 712)** . The learned Standing Counsel points out that the respondents do not have any objection at all, if the petitioners actually wanted to effect 'repairs' of the building within the permitted parameters, so far as they confine to the specification in Ext.P7. The position is clarified further, in the additional counter affidavit dated 17.12.2013; Paragraph 3 of which reads as follows: “The averments that the Act does not contemplate that repair and renovation shall be made using the same materials and the same archaeological style is misleading. The Act says that he appropriate authority shall take an appropriate decision for maintaining the ambiance of the locality of the monument. This necessarily requires and can only being interpreted to mean that, to the extent possible, traditional building materials should be used to maintain the architectural pattern and the period of architecture of the surrounding structures. This alone is what was meant by using the words “using the same materials, in the same architectural style”. The counter affidavit never insists that the very same materials should be used in every case, but that the style and period of architecture in the locality shall be preserved. Changes such as using metal frame work, instead of the beams and rafters in traditional tiled roofs, use of identical -:8:- W.P.(C). No. 20782 of 2013 looking prefabricated aluminum corrugated roofing etc are allowed. But a total change in the style of construction, changing the appearance of the structure itself into a modern building, as attempted in the case of Annexure R1(d) is not allowed. Subject to these restrictions, the petitioners can make fresh alternative suggestions and these can be considered as per archaeological standards and norms.” 8. After hearing both sides, this Court finds that the rejection of the application with regard to the proposed construction as per Ext.R1(d) plan, cannot be held as arbitrary or illegal in any manner and the challenge raised against Ext.P7 is repelled. However, if the petitioners desire to effect 'repairs', without any infringement to the statutory prescription, it is always open for them to submit a 'fresh plan' along with an application in tune with the requirements pointed out in Ext.P7 and as clarified by the respondents in paragraph 3 of the additional counter affidavit dated 17.12.2013. On such an event, it requires to be considered, if there is no violation of the statutory provision. It goes without saying, that the petitioners shall comply with the requirements by submitting the relevant documents as sought for vide Ext.R1(c) along with such application. If the petitioners -:9:- W.P.(C). No. 20782 of 2013 submit an application as aforesaid, along with a 'fresh plan' along with the plan of the existing building within three months, the same shall be processed and forwarded to the competent authority by the first respondent within one month thereafter and the same shall be finalised by the competent authority in accordance with law, within 'three months' from the date of receipt of the proceedings as above. The writ petition stands disposed of. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** das