R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE29h DAY OF JUNE, 2020 PRESENT THE HON’BLE MRS. JUSTICE S.SUJATHA AND THE HON’BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR WRIT APPEAL No.100035/2020 (GM-RES) BETWEEN: SRI. LAKSHMI GOLDEN BEACH RESORT, A REGISTERED PARTNERSHIP FIRM, HAVING ITS REGISTERED OFFICE AT VIRUPAPUR GADDI, GANGAVATHI TALUK, KOPPAL DISTRICT-583203, REPRESENTED BY ITS MANAGING PARTNER, MR. D. PRASAD BABU. ... APPELLANT (BY SRI. K.N.PHANEENDRA, SENIOR COUNSEL FOR SRI. B.SHARANABASAVA, ADVOCATE) AND1 THE COMMISSIONER, HAMPI WORLD HERITAGE AREA, MANAGEMENT AUTHORITY, HOSPET, TQ. HOSPET, DIST. BALLARI-583201.
2. ANEGUNDI GRAM PANCHAYAT, ANEGUNDI VILLAGE, NOW SANAPUR GRAM PANCHAYAT, TQ. GANGAVATHI, DIST. KOPPAL-583203, 3. THE DEPUTY COMMISSIONER, KOPPAL, TQ. AND DIST. KOPPAL-583201. 2 .. RESPONDENTS (BY SRI RAGHAVENDRA S. SHREEVATSA, ADVOCATE FOR SRI. PRASHANT F. GOUDAR, ADV. FOR C/R1; SRI. ANAND ASHTEKAR, ADV. FOR R2; SRI. G.K.HIREGOUDAR, GOVT. ADV. FOR R3) THIS APPEAL IS FILED UNDER SECTION4OF KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON’BLE COURT TO SET ASIDE THE JUDGMENT
DATED1302.2020, PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.65875/2010, BY GRANTING THE RELIEFS SOUGHT BY THE APPELLANT IN THE WRIT PETITION. THIS APPEAL COMING ON FOR PRILIMINARY HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT
, THIS DAY, S.SUJATHA J., DELIVERED THE FOLLOWING: JUDGMENT
This intra-court appeal is filed by the petitioner under Section 4 of the Karnataka High Courts Act, 1961 challenging the order of the learned Single Judge dated 13.02.2020 passed in Writ Petition No.65875/2010.
2. The appellant/petitioner had filed the writ petition seeking for the following reliefs: a) Issue a writ in the nature of certiorari, quashing the endorsement dated 28.07.2010 bearing no HA Vi Pa Pra Ni Pa/Ho/4/2008-09/503 issued by the Respondent No.1, vide Annexure-AA and 3 b) Issue a writ of mandamus directing the Respondents No.1 & 2, to not to interfere in the running of the Sri Lakshmi Golden Beach Resort, i.e., petitioner, which has been put up after obtaining all the required permissions from all the concerned statutory authorities. And c) Issue a Writ of Mandamus directing the Respondent No 2, to renew the license for the Vegetarian, Non Vegetarian Restaurant including all other facilities as granted by the license in 1999. and d) Issue such other writ, orders or directions, as this Hon’ble Court may deem fit in the interest of justice and equity.
3. The learned Single Judge has rejected the writ petition by placing reliance on the Judgment of the Hon’ble Apex Court in the case of Sakkubai and Ors Vs. State of Karnataka and Ors. (Civil Appeal No.1443-1456/2020), dated 11.02.2020, holding that the notification dated 22.10.1988 issued under Section 19(3) of the Karnataka Ancient and Historical Monuments and Archeological Sites and Remains Act, 1961 ( ‘Act 1961’ for short) declares Virupapura Gaddi village as protected area which would restrict the development under Section 20(1) of the Act 1961 and Section 14 of Hampi World Heritage Area Management Authority Act, 2002 (‘HWHAMA Act’ for short). It is declared 4 that permissions/licenses obtained by the appellant/petitioner from the local panchayath to run hotel/restaurant in the area situated at Virupapura Gaddi were without any authority of law upholding the impugned endorsement dated 28.07.2010.
4. Learned Senior Counsel Sri. K.N.Phaneendra appearing for the appellant addressed the arguments as under: It was submitted that the fore-fathers of Mr. D. Prasad Babu, Managing Partner of Sri. Lakshmi Golden Beach Resort –appellant/petitioner had been living in Virupapura Gaddi village from about last 48 years. The family owns more than 38 acres of land and have grown herbal, medicinal trees and plantations. The father of the appellant Sri. D.Shankar Rao has obtained the order of conversion from agricultural to non- agriculture/commercial purpose relating to an extent of 2 acres 20 guntas of land out of 6 acres 23 guntas situated in Survey No.41/A of Virupapura Gaddi village, Gangavati taluka on 17.02.1999. Thereafter, he has applied and 5 obtained the construction permission of the building on 25.02.1999 from the then Anegundi Gram Panchayat. The Panchayat has also granted license and NOC to run the Vegetarian, Non-Vegetarian Restaurant and Bar. The Karnataka State Tourism Department has also approved the project of the appellant by its letter dated 12.03.1999 (Annexure-E). Further on the clarification sought by the Indian Tourism Department, Government of India, the respondent No.3 after obtaining necessary reports from the Tahashildar, Assistant Commissioner and HWHAM Authority has clarified that the permission granted previously was valid, pursuant to which Tourism Department, Government of India after holding spot inspection and examining necessary records has validated the appellant’s resort and hotel.
5. The bone of contention of the learned Senior Counsel is that Tourism Department is part of Government machinery and approval granted by the said Department is nothing but an approval from the State Government. Inviting the attention of the Court to Section 20(1) of the Act, 1961, it was contended that there is no absolute bar to carryout the 6 developmental activities in the protected area. Thus, it was submitted that in view of the approval granted by the Department of Tourism, Government of Karnataka as per Annexure-E dated 12.03.1999, further approved by the Tourism Department, Government of India, Southern Regional Office as per Annexure-N dated 18.12.2006 there is due compliance of the rider clause contemplated in Section 20(1) of the Act, 1961. It was submitted that there is no prohibition to cultivate the lands situated in the protected area. However, the learned counsel fairly admitted that the subject property comes within the core zone area as declared in the notification dated 22.10.1988 issued by the State Government exercising the powers under Section 19(3) of the HWHAMA Act.
6. Nextly, it was contended that the Deputy Commissioner, Koppal is the Vice Chairman, of HWHAM Authority. The said officer has approved the development/construction carried out by the appellant in the subject land and has given a finding that the same is in compliance with the Government Orders and is legal. 7 In the wake of Annexure-E, the permission granted by the Department of Tourism, Government of Karnataka being approved by the Deputy Commissioner, Koppal, Vice Chairman of HWHAM Authority, endorsement impugned issued by the respondent No.1 without application of mind is illegal and unjustifiable. It was argued that the impugned endorsement is vague and does not assign any valid reasons for rejection of the renewal of resort license.
7. Placing reliance on the Master Plan of 2021 published for Hampi area by the Government of Karnataka, HWHAMA, Hospet, it was argued that the appellant’s land falls in urbanisable area. Under such circumstances, the respondent-authorities are bound to consider the request of the appellant for renewal of the license. As such, the perfunctory order passed by the respondent No.1 ought to have been set aside by the learned Single Judge. The learned Single Judge mainly relying on the Judgment of the Hon’ble Apex Court in Sakkubai and Others supra, has rejected the writ petition. The learned counsel made an attempt to distinguish the Judgment of the Hon’ble Apex Court in 8 Sakkubai and Others supra, contending that the demolition orders relating to the buildings coming within the protected area were the subject matter of the appeals before the Hon’ble Apex Court but the petitioner’s land comes under the Urbanisable Area as per the Master Plan 2021. Accordingly, the finding of the writ court requires to be set aside by allowing the writ appeal.
8. Learned counsel appearing for the respondent No.1 refuting the arguments advanced by the learned counsel for the petitioner submitted that the State Government in exercise of its powers under Section 19(3) of the Act, 1961 has issued notification dated 22.10.1988, declaring 10 villages including Virupapura Gaddi village as “Protected Area”. This aspect is clear from the Schedule appended thereto. The Virupapura Gaddi village is reflected in column No.5 as “Protected Area”. The appellant had put up the construction in violation of the provisions of Section 20 of the Act, 1961. In view of the notification dated 22.10.1988 issued under Section 19(3) of the Act, 1961, no land or area in the said zone can be utilized for the commercial purposes and the 9 construction carried out by the appellant on the subject land for commercial purpose is in clear violation of the Act, 1961 and the same is illegal. Any permissions/licenses issued from the Revenue Authorities/local panchayat in contravention of the Act, 1961 and HWHAMA without authority are illegal. No right has accrued to the appellants to claim renewal of the license granted contrary to the provisions of the relevant statutes; No estoppel lies against a statute. Reference was made to Sections 4, 19, 20, 26 & 32 of the Act, 1961. It was argued that Survey No.41/A being declared as the protected area, permission of the government is mandatory to construct any building within the protected area. The sanction/permission granted by the Tourism Department cannot be construed as the permission of the Government granted under Section 20(1) of the Act. Referring to Clause (3) of the letter of the Deputy Commissioner, Koppal, dated 03.02.2005, learned counsel invited the attention of this Court to the letter dated 22.12.2003 issued by the HWHAMA, which reads thus:
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98. 99 ¢£ÁAPÀ 25/02/1999 gÀAzÀÄ ¥ÀgÀªÁ¤UÉAiÀÄ£ÀÄß ¤ÃrzÀÄÝ ¸À¢æ ¥ÀgÀªÁ¤UÉAiÀÄÄ ¢£ÁAPÀ 31/03/2003 gÀ ªÀgÉUÉ £À«ÃPÀj¸À¯ÁVgÀÄvÀÛzÉ. vÀªÀÄä «±Áé¹, ¸À»/- DAiÀÄÄPÀÛgÀÄ, ºÀA¦ «±Àé ¥ÀgÀA¥ÀgÉ ¥Àzæ ÉñÀ, ¤ªÀðºÀuÁ ¥Áæ¢PüÁgÀ ºÉƸÀ¥ÉÃmÉ.
9. Similarly, referring to Annexure-J dated 22.12.2003, the letter of the Commissioner of HWHAMA, it 11 was contended that Survey No.41/A of Virupapura Gaddi comes within the Core Zone. In view of the aforesaid communications, no credence can be attached to the letter of Deputy Commissioner at Annexure-M which runs contrary to the provisions of the Act, 1961 and HWHAMA Act.
10. Learned counsel argued that the prayer sought in the writ petition to legalize the illegal license issued in excess of authority of local panchayat has been rightly rejected by the writ Court. In support of his contentions, the learned counsel has relied upon the following Judgments : (i) State of West Bengal Vs. Subhas Kumar Chatterjee and others [ (2010) 11 SCC694]. (ii) K.Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi & others [ 1974 (2) SCC506].
11. It was further argued that the Judgment of Hon’ble Apex Court in Sakkubai and others (supra) is squarely applicable to the facts of the present case. The issue involved herein has been addressed and a finding has been 12 given to demolish the structures existing in the Virupapura Gaddi village.
12. Learned AGA appearing for the State supporting the arguments of the learned counsel for the respondent No.1 submitted that the appellant is not entitled for the reliefs claimed in the writ petition in view of the categorical finding of the Hon’ble Apex Court in Sakkubai and others, supra and accordingly the order of the writ Court requires to be approved.
13. We have carefully considered the submissions of the learned counsel appearing for the parties and perused the materials on record.
14. The first contention of the learned Senior Counsel appearing for the appellant/petitioner that the approval granted by the Tourism Department, Government of Karnataka, in terms of the letter dated 12.03.1999 would establish the due compliance of the conditions made by the appellant as enumerated in Section 20 (1) and (2) of the Act, cannot be countenanced for the reason that the said approval 13 is not under Section 20(1) of the Act, 1961. At this juncture, it is apt to refer to Section 20(1) and (2) of the Act, which reads as under:
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 utilize 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.
15. As per Section 2(5), ‘Government’ means the State Government. It is not in dispute that the property in question comes within the core zone in terms of the notification dated 22.10.1988 issued by the Government of Karnataka under Section 19(3) of the HWHAMA Act. Thus the land in question indisputably comes in the protected area. Restrictions imposed on enjoyment of property rights in protected area as 14 per Section 20 no doubt gives some relaxation for the use of any such area or part there of for the purpose of cultivation, if such cultivation does not involve digging of not more than one foot of soil from the surface. However, there is total prohibition as far as construction of any building within the protected area or carrying on any mining, quarrying, excavating, blasting or any operation of a like nature in such area, or utilize such area or any part thereof in any other manner without the permission of the Government. It is clear that the permission of the State Government is mandatory in terms of Section 20(1). Any permission granted by the Tourism Department or the Deputy Commissioner, Koppal in general, would not partake the character of permission granted by the Government under Section 20(1) of the Act. Such permission of the Government should be specific as enumerated in Section 20(1) of the Act, 1961. It is well settled that, to err is human, no human is infallible. Any license granted by the Anegundi village Panchayat for the construction of the building in the protected area contrary to Section 20(1) of the Act is certainly without jurisdiction or 15 exceeding the jurisdiction without authority of law, to continue such error is not heroism. Noticing the flaws, HWHAMA, has rightly rejected the renewal of license in the protected area. Hence, the shelter taken under the approval said to have been granted by the Tourism Department would not exonerate the appellant from compliance of Section 20(1) of the Act.
16. Section 14 of HWHAMA Act makes it clear that no other Authority or person can undertake the development without permission of the Authority. In terms of Sub-section (1) of Section 14, 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. Sub-section (2) provides that 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. ‘Heritage Area’ is defined under Section 2(1)(l) of the HWHAMA Act, which means the whole of the area 16 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. The ‘Core Area Zone’ as defined under Section 2(1)(h) means, the area specified in Part-A of the schedule. Survey No.41/A of the Virupapura gaddi being declared as the Core Zone in terms of Part-A of the Schedule as per notification dated 22.10.1988, the previous permission of the Authority i.e. Hampi World Heritage Area Management Authority established under Section 3 of the HWHAMA Act is sine-qua-non to undertake development within the Heritage Area. The ‘development’ as contemplated under Section 2(1)(j) with its grammatical variations means the carrying out of building, engineering or other operations in or over or under any land or the making of any material change in any building or land or in the use of any building, or land and includes redevelopment and forming of layouts and sub- division of any land including amenities.
17. It is not in dispute that no such permission has been granted by the Authority established under Section 3 of 17 HWHAMA Act to undertake development/construction of the building-Beach Resort of the appellant in the protected area. It is further strengthened by Sub-Section (2) of Section 14 that no power is vested under any local authority to grant permission to any development referred to any Sub-Section (1) within the Heritage Area, unless the Authority has granted permission for such development. Thus, reliance placed on the permission granted by the Tourism Department, at any stretch of imagination cannot be construed as the permission granted under Section 20(1) of the Act, 1961 or under Section 14(1) of the HWHAMA Act.
18. The next submission of the learned Senior Counsel inasmuch as the approval by the Deputy Commissioner, Koppal who is the Vice-Chairman of HWHAM Authority also falls to ground since Sub-section (3) of Section 3 specifies that the ‘Authority’ shall consist of the following members namely; (a) The Deputy Commissioner, Bellary District-Chairperson, (b) The Deputy Commissioner, Koppal District – Vice Chairperson, (c)…… 18 (d)…… (e)…… (f)….. (g)…… (h)…… (i)….. (j)……. (k)…… (l)…… (m)…. (n)…… (o)…… (p)…… (q)….. (r)…… (s)….. (t)……….Member Secretary.
19. As could be seen, there are about 20 members who constitute the Authority. Any approval given by the Deputy Commissioner, Koppal District in its individual capacity is not the decision of the Authority comprising of various members. Merely for the reason that the Deputy Commissioner, Koppal District is the Vice-Chair person of the 19 Authority constituted under Section 3 of the HWHAMA Act, it cannot be held that the Authority exercising the power under Section 14(1) of the HWHAMA Act has granted the permission for development of subject lands in the protected area.
20. The arguments canvassed inasmuch as the Master Plan, 2021 also would not come to the assistance of the petitioner for the reason that the entire Virupapura Gaddi has been declared as the protected area and if a small bit of land is shown as urbanisable in the Master Plan, it has to satisfy the conditions imposed under Section 20(1) of the Act, 1961 and 14(1) of HWHAMA Act. The Master Plan, 2021 cannot annul the notification dated 22.10.1988 or the intent of the legislature. In other words, compliance of the mandate of the Act 1961 and HWHAMA Act is sine qua non even in respect of the Master Plan, 2021. To fortify this view, it would be beneficial to refer to Section 32 of HWHAMA Act which contemplates that the provisions of HWHAMA Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The 20 HWHAMA Act has overriding effect qua the other laws for the time being in force.
21. The Division Bench of this Court in the case of Sakkubai and others in paragraph No.30 & 31 has observed as under: “30. If regard is had to the legal position supra, over the construction of thatched roof huts and buildings on cultivable land, the question of legality of issue of licences to carry on business of hotel/restaurant/guest house by the Village Panchayat, Anegundi, allegedly in favour of petitioners or others, exfacie must be answered in the negative holding that the licences are illegal. Yet again on facts what is palpably noticeable is that the licences issued for the period from 2001 to 2003 except in W.P.60279/2011 for a period upto 31.3.2011, are neither renewed nor in force as on date. It is useful to observe that the request of the Secretary, Gram Panchayat, Anegundi based upon the representations of the petitioners for renewal of the trade licence and in some cases for permission to repair the buildings in Virupapura Gaddi, when considered by ‘HWHAM Authority ’ was deferred.
31. The faint submission of the learned senior counsel that issue of trade licences by the Gram Panchayat, Anegundi coupled with the building plan approval though without mentioning the date on the plan, the collection of licence fee and land tax, payment of income-tax, excise duty, prima-facie constitute legal sanction for the petitioners to put 21 up construction of thatched roof huts, buildings, etc., on agricultural lands and to carry on commercial activity in Virupapura Gaddi is noticed only to be rejected.
22. On further appeal before the Hon’ble Apex Court, the issues considered are: (i) Whether the construction raised by the appellants (therein) were lawful under the 1961 Act, in the light of 1988 notification?. (ii) If not, whether HWHAM Authority had authority to demolish the said constructions?. Inter-play of the two Acts (1961 Act and HWHAMA Act) has been extensively dealt with, by the Hon’ble Apex Court. At paragraph No.13, it is observed thus:
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 22 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.
23. Thus, it is ex-facie evident that the entire village of Virupapura Gaddi is protected zone. Again considering Sub- section (1) of Section 20, it is held that, the owners/occupants of protected area cannot construct any building or utilize any building in any manner other than cultivation, without the permission of the State Government. Permissions/licenses obtained from the local panchayat for the construction of Hotels/Restaurants/Huts and buildings in the protected area is held to be without any authority. Such licenses issued by the Panchayat is said to be illegal. To sum up, in paragraph No.26, it has been held that constructions of thatched roof huts, buildings, etc., by the appellants (therein) to carry on the business of Hotels/Restaurants/guest house in Virupapura Gaddi was in violation of 1961 Act. Further, HWHAM had authority to proceed with demolition of such illegal constructions. The respondents are directed to proceed with the demolition of the 23 illegal structures erected by the appellants (therein) in Virupapura Gaddi within a period of one month from the date of the said order. The Hon’ble Apex Court vide order dated 03.02.2020, on the prayer sought for extension of time to vacate the premises by the appellants (therein), observed that despite the orders of the Hon’ble Apex Court directing the appellants (therein) to vacate the premises within one month, they had approached the learned Single Judge of the High Court, who had initially granted interim order of stay in favour of the appellants. Subsequently, the order of stay is stated to have been vacated. It is clarified that neither the High Court or any other Court shall entertain any matter pertaining to the subject matter therein for granting extension of time or any other relief in favour of the appellants therein. The said authoritative pronouncement of the Hon’ble Apex Court is binding on this Court in view of the similarity of the subject matter involved.
24. Learned counsel Sri. B.Sharanabasava though made an endeavor to contend that the requisitions made by the Deputy Commissioner for reserving rooms in the appellant’s resort at the time of celebration of Hampi Utsav 24 and the construction of Information Centre of the Forest Department situated at 15 meters from the appellant’s resort, etc., would entitle the petitioner for the renewal of license, the same cannot be countenanced. Even if any Information Centre of the Forest Department is constructed after obtaining the necessary permission of the Authority, it cannot be a ground to legalize the development made in the protected area dehorse the specific prohibition contemplated as discussed above.
25. It is beneficial to refer to the case of State of West Bengal Vs. Subhas Kumar Chatterjee and others reported in (2010) 11 SCC694 wherein, the Hon’ble Apex Court while considering the issue of writ of mandamus compelling the State, has held that the State Government is under an obligation to follow the statutory rules and give only such pay scales as are prescribed under the statutory provisions. Neither the Government can act contrary to the rules nor the court can direct the Government to act contrary to rules. No mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No Court can issue 25 mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law. Such directions issued by the Tribunals as well as the High Court/s suffers from incurable infirmities and liable to be set aside. In the light of the said Judgment, we have no hesitation to hold that the prayer sought in the writ petition exfacie goes contrary to the relevant Acts as discussed above. The impugned endorsement issued by the Authority to enforce a provision of law cannot be interfered with, moreover the Court cannot compel the Authorities to violate law by issuing directions against the Rule of law.
26. The Hon’ble Apex Court in K.Ramadas Shenoy, supra has observed that an excess of statutory power cannot be violated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. 26
27. The Writ Court having profusely analyzed the relevant aspects from all angles, has rightly rejected the writ petition.
28. We do not find any jurisdictional error in the order impugned.
29. In the result, writ appeal stands dismissed. Sd/- JUDGE Sd/- JUDGE *Svh/-