Dr.shakeel Ahmed Khan Vs. Zonal Commissioner - Court Judgment

® 1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE27H DAY OF FEBRUARY, 2020 PRESENT THE HON’BLE MR.JUSTICE G.NARENDAR AND THE HON’BLE MR.JUSTICE M.NAGAPRASANNA CCC NO.200245/2019 BETWEEN: Dr. Shakeel Ahmed Khan Age:

46. Years Occ: Paediatrician R/o: H.No.6-26, Muslim Chowk, Mominpur Kalaburagi-585 103. … Complainant (By Smt. Geeta Sajjanshetty, Advocate) AND: Dr. Vinod Kumar Zonal Commissioner City Corporation Division No.3, Kalaburagi-585 103. … Accused (By Sri P.S. Malipatil., Advocate) 2 This CCC is filed under Sections 10 and 12 of Contempt of Court Act, praying to initiate contempt proceedings and punish the accused under the Contempt Act for not complying the order passed in Misc. Appeal No.24/2017 by the III Additional District Court at Kalaburagi under Annexure-G in the interest of justice and equity. This petition coming on for Orders this day, Nagaprasanna J., made the following: ORDER

The complainant herein has approached this Court invoking its contempt jurisdiction alleging disobedience of an order dated 20.7.2018 passed by the Court of the III Additional District Judge, Kalaburagi, in Miscellaneous Appeal No.24 of 2017.

2. The complainant, who claims to be in possession of a building at Muslim Chowk bearing House No.6/26, Mominpura, Kalaburagi, had, in the year 2014, applied for permission to construct a building and the accused-Corporation accorded permission for construction of a building in the year 2014 itself. It is the case of the complainant that, while 3 constructing the building, he faced certain difficulties and applied for modification of the plan and sought for its approval on 1.10.2016. It is claimed by the complainant that he was asked to submit another application along with the modified plan, which was also complied with by the complainant on 14.3.2017.

3. It transpires that, on 11.5.2017, a notice was issued by the accused-Corporation to the complainant to demolish the shops in the area shown in the parking space within 24 hours and if not, the accused- Corporation would demolish and recover the expenses from the complainant. The complainant appears to have replied to the said notice on 15.5.2017 and, the same not being heeded, approached the III Additional District Judge, Kalaburagi in Miscellaneous Appeal No.24/2017 challenging the notice dated 11.5.2017.

4. The appeal filed by the complainant was allowed by the trial Court, by its judgment dated 4 20.7.2018 and a direction was issued to the accused- Corporation for granting permission to the complainant, apart from quashing the notice dated 11.5.2017. The complainant claims that after having communicated the judgment dated 20.7.2018, the accused-Corporation has not complied with the directions issued in the said judgment. In that circumstance, the complainant filed the instant contempt petition alleging willful disobedience on the part of the accused-Corporation in not according permission for construction of the building as directed by the trial Court.

5. We have heard Smt. Geetha Sajjan Shetty, learned Counsel appearing for the complainant and Sri P.S. Malipatil, learned Counsel appearing for the accused.

6. Learned Counsel for the complainant would contend that despite the order passed by the trial Court 5 quashing the notice dated 11.5.2017 and directing the Corporation to accord permission to the complainant in terms of the application given by him for construction of the building in the aforementioned address, the accused-Corporation has not chosen to implement the order passed by the trial Court.

7. Though the order complained of disobedience is not a decree of the civil Court, nonetheless is an order of a trial Court that is executable in terms of Section 36 of the Code of Civil Procedure, 1908. But when the matter the matter came up for its consideration and on looking into the original file pertaining to the building construction of the complainant, we sensed some foul play on the part of both the complainant and the accused Corporation as it appeared to us that a new construction was being permitted in a prohibited area and in those circumstances on 16.1.2020, this Court heard the learned Counsel for the Complainant and the 6 learned Counsel for the accused, at length, and passed the following order: “ We have perused the records. The records indicate some foul play. By an order dated 09.03.2018 the application for modification of plan is rejected but the same has not been placed before the court below. The further alarming fact is that a legal opinion is rendered stating that in view of the order passed by the trial court, the same ought to be implemented by the Zonal Commissioner, who is present before this Court. On the above facts being pointed out to the Zonal Commissioner who is present before this Court, he prays time to enquire and submit a report by 27.01.2020. Report shall indicate the persons who are responsible for not bringing the fact of rejection order to the notice of the Court below and also as to who and why the fees is received on 02.01.2020. One copy of the records be retained in the file. List on 29.01.2020. ” 7 The mater was directed to be listed on 29.1.2020, on which date, time was sought and the case was directed to be re-listed on 7.2.2020.

8. On 7.2.2020, the Zonal Commissioner was present before the Court and undertook to report to the Court the action taken pursuant to the observations made by this Court in the afore-extracted order dated 16.1.2020. The order dated 7.2.2020, reads thus: “ The Zonal Commissioner who is present before the Court shall report to this Court on the next date of hearing the action taken pursuant to the observations of this Court. List on 19.2.2020.” Again, the matter was directed to be re-listed on 19.2.2020.

9. On 19.2.2020, the Zonal Commissioner placed before us the entire record pertaining to the application 8 given by the complainant and the records pertaining to the present case. What is seen from the documents produced is that the permission sought to construct a building by the complainant, within the prohibited distance from a monument as declared by the Department of Archeological Survey of India, coming under the Ministry of Culture, National Monuments Authority, Government of India. The complainant wanted to put up construction in the area by name ‘Haft Gumbaz’, Gulbarga, which had been declared to be a monument of national importance, under the Ancient Archaeological Sites and Remains Act, 1958 (hereinafter referred to as ‘the Act’). The legal opinion given by the learned Counsel for the Corporation also did not focus on any other fact except giving approval for the grant of permission. In the circumstances, this Court is of the view that the approval granted to the complainant way back in the year 2014, was without obtaining prior approval from the National Monuments Authority to put 9 up any construction in the regulated area and hence, was contrary to law.

10. The complainant had also made an application to the National Monuments Authority, wherein, approval was sought for reconstruction of a partly residential and partly commercial building on the existing foundation. Prior to this, the accused- Corporation had already granted permission for new construction, which was completely contrary to law, as it was without prior approval of the National Monuments Authority. Under the Act, the protection prohibition and regulation of construction activities is regulated under the Act. Section 2(da) of the Act defines “Authority”, Section (db) defines “competent authority”, 2(ha) defines “prohibited area”, Section 2(i) defines “protected area”, Section 2(j) defines “protected monument”, Section 2(k) defines “re-construction”, Section 2(l) defines “regulated area” and Section 2(m) 10 defines “repair and renovation”, all of which read as follows: “Section 2(da) – “Authority” means the National Monuments Authority constituted under section 20F Section 2(db) – “Competent Authority” means an officer not below the rank of Director of archaeology or Commissioner of archaeology of the Central or State Government or equivalent rank, specified, by notification in the Official Gazette, as the competent authority by the Central Government to perform functions under this Act: Provided that the Central Government may, by notification in the Official Gazette, specify different competent authorities for the purpose of sections 20C, 20D and 20E. Section 2(h) - “prescribed” means prescribed by rules made under this Act; Section 2(ha) - “prohibited area” means prescribed by rules made under this Act; 11 Section 2(i) - “protected area” means any archaeological site and remains which is declared to be of national importance by or under this Act; Section 2(j) - “protected monument” means any ancient monument which is declared to be of national importance by or under this Act. Section 2(k) - “re-construction” means any erection of a structure or building to its pre- existing structure, having the same horizontal and vertical limits; Section 2(l) - “regulated area” means any area specified or declared under section 20B; Section 2(m) - “repair and renovation” means alterations to a pre-existing structure or building, but shall not include construction or re-construction.” Prohibited area and regulated area are as found in Sections 20A and 20B of the Act, which read as follows:

12. “Section 20A.-. Declaration of prohibited area and carrying out public work or other works in prohibited area.-- Every area, beginning at the limit of the protected area or the protected monument, as the case may be, and extending to a distance of one hundred metres in all directions shall be the prohibited area in respect of such protected area or protected monument: Provided that the Central Government may, on the recommendation of the Authority, by notification in the Official Gazette, specify an area more than one hundred metres to be the prohibited area having regard to the classification of any protected monument or protected area, as the case may be, under section 4A. (2) Save as otherwise provided in section 20C, no person, other than an archaeological officer, shall carry out any construction in any prohibited area. (3) In a case where the Central Government or the Director-General, as the case may be, is satisfied that-- 13 (a) it is necessary or expedient for carrying out such public work or any project essential to the public; or (b) such other work or project, in its opinion; shall not have any substantial adverse impact on the preservation, safety, security of, or, access to, the monument or its immediate surrounding, it or he may, notwithstanding anything contained in sub-section (2), in exceptional cases and having regard to the public interest, by order and for reasons to be recorded in writing, permit, such public work or project essential to the public or other constructions, to be carried out in a prohibited area: Provided that any area near any protected monument or its adjoining area declared, during the period beginning on or after the 16th day of June, 1992 but ending before the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010, receives the assent of the President, as a prohibited area in respect of 14 such protected monument, shall be deemed to be the prohibited area declared in respect of that protected monument in accordance with the provisions of this Act and any permission or licence granted by the Central Government or the Director-General, as the case may be, for the construction within the prohibited area on the basis of the recommendation of the Expert Advisory Committee, shall be deemed to have been validly granted in accordance with the provisions of this Act, as if this section had been in force at all material times: Provided further that nothing contained in the first proviso shall apply to any permission granted, subsequent to the completion of construction or re-construction of any building or structure in any prohibited area in pursuance of the notification of the Government of India in the Department of Culture (Archaeological Survey of India) number S.O. 1764, dated the 16th June, 1992 issued under rule 34 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, or, without having obtained the recommendations of the Committee constituted in pursuance of the order of the Government of India number 24/22/2006-M, 15 dated the 20th July, 2006 (subsequently referred to as the Expert Advisory Committee in orders dated the 27th August, 2008 and the 5th May, 2009). (4) No permission, referred to in sub- section (3), including carrying out any public work or project essential to the public or other constructions, shall be granted in any prohibited area on and after the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010 receives the assent of the President.]. Section 20B - Declaration of regulated area in respect of every protected monument.- Every area, beginning at the limit of prohibited area in respect of every ancient monument and archaeological site and remains, declared as of national importance under sections 3 and 4 and extending to a distance of two hundred metres in all directions shall be the regulated area in respect of every ancient monument and archaeological site and remains: Provided that the Central Government may, by notification in the Official Gazette, 16 specify an area more than two hundred metres to be the regulated area having regard to the classification of any protected monument or protected area, as the case may be, under section 4A: Provided further that any area near any protected monument or its adjoining area declared, during the period beginning on or after the 16th day of June, 1992 but ending before the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010, receives the assent of the President, as a regulated area in respect of such protected monument, shall be deemed to be the regulated area declared in respect of that protected monument in accordance with the provisions of this Act and any permission or licence granted for construction in such regulated area shall, be deemed to have been validly granted in accordance with the provisions of this Act, as if this section had been in force at all material times.” 17 An application for renovation in the prohibited area, construction or re-construction or repair or renovation in the regulated area is dealt with Section 20C and grant of permission by competent authority within regulated area is dealt with Section 20D of the Act, which read as under: “Section 20C - Application for repair or renovation in prohibited area, or construction or re-construction or repair or renovation in regulated area.— (1) Any person, who owns any building or structure, which existed in a prohibited area before the 16th day of June, 1992, or, which had been subsequently constructed with the approval of the Director-General and desires to carry out any repair or renovation of such building or structure, may make an application to the competent authority for carrying out such repair or renovation, as the case may be. 18 (2) Any person, who owns or possesses any building or structure or land in any regulated area, and desires to carry out any construction or re- construction or repair or renovation of such building or structure on such land, as the case may be, may make an application to the competent authority for carrying out construction or re-construction or repair or renovation, as the case may be. Section 20D - Grant of permission by competent authority within regulated area.— (1) Every application for grant of permission under section 20C of this Act shall be made to the competent authority in such manner as may be prescribed. (2) The competent authority shall, within fifteen days of the receipt of the application, forward the same to the 19 Authority to consider and intimate impact of such construction (including the impact of large-scale development project, public project and project essential to the public) having regard to the heritage bye- laws relating to the concerned protected monument or protected area, as the case may be: Provided that the Central Government may prescribe the category of applications in respect of which the permission may be granted under this sub-section and the application which shall be referred to the Authority for its recommendations. (3) The Authority shall, within two months from the date of receipt of application under sub-section (2), intimate to the competent authority impact of such construction (including the impact of large-scale 20 development project, public project and project essential to the public). (4) The competent authority shall, within one month of the receipt of intimation from the Authority under sub- section (3), either grant permission or refuse the same as so recommended by the Authority. (5) The recommendations of the Authority shall be final. (6) In case the competent authority refuses to grant permission under this section, it shall, by order in writing, after giving an opportunity to the concerned person, intimate such refusal within three months from the date of receipt of the application to the applicant, the Central Government and the Authority. (7) If the competent authority, after grant of the permission under sub- section (4) and during the carrying 21 out of the repair or renovation work or re-construction of building or construction referred to in that sub- section, is of the opinion (on the basis of material in his possession or otherwise) that such repair or renovation work or re-construction of building or construction is likely to have an adverse impact on the preservation, safety, security or access to the monument considerably, it may refer the same to the Authority for its recommendations and if so recommended, withdraw the permission granted under sub- section (4) if so required: Provided that the competent authority may, in exceptional cases, with the approval of the Authority grant permission to the applicant referred to in sub-section (2) of section 20C until the heritage bye- laws have been prepared under sub- 22 section (1) of section 20E and published under sub-section (7) of that section. (8) The Central Government, or the Director-General, as the case may be, shall exhibit, on their website, all the permissions granted or refused under this Act.” The case of the complainant ought to have been considered under the afore extracted provisions of law, which clearly mandate that there can be no construction activities in the prohibited and regulated areas of a site which has been declared to be monument of national importance except in terms of the afore extracted provisions of law. As Section 20C of the Act clearly mandates that what is permissible is only repair or renovation of an earlier existing building. A new construction in the prohibited and regulated areas are clearly barred under Sections 20A and 20B of the Act. 23

11. On a perusal of the records, finding that permission was granted by the Corporation for a new construction on the application submitted by the complainant without obtaining prior approval of the National Monuments Authority before whom an application was made by the complainant only for re- construction. This Court, passed an order on 19.02.2020, which reads as follows: “Heard the learned counsel for the petitioner and the learned counsel for the respondent Palike files a memo into Court enclosing therewith, the resignation letter submitted by the erstwhile Legal Advisor on 30.01.2020 and also a communication / approval by the Government of India, Ministry of Culture, National Monuments Authority, thereby has granted NOC to the complainant to put up a construction in the regulated area of ‘Haft Gumbaj’, Gulbarga which has been declared as a Monument of national importance, under the Ancient Archaeological Sites and Remains Act, 1958. 24 On perusal of the same, on page 2 column No.8 which reads as under:

8. Nature of the work Re-construction proposed: of partly (Repair/renovation/ residential & construction/recons partly truction) commercial purpose on the existing foundation From the record, we see that the plan for construction has been sanctioned on 22.03.2014 and on perusal of the copy of the plan which is placed before the Court, it is seen it is a new construction and not reconstruction on the existing foundation. That apart it is seen that the plan has been sanctioned without obtaining NOC from Archaeological Authorities. The counsel for the respondent-corporation would submit that the sanction is accorded by the earlier incumbent. The present incumbent Zonal Commissioner is present. The Zonal Commissioner is directed to place before the 25 Court, the details of the officers who have sanctioned the plan and such of those case workers who have processed the file. The details to be furnished by way of an affidavit by 24.02.2020. List on 24.02.2020.” and, the matter was directed to be re-listed on 24.2.2020.

12. On 24.2.2020, in terms of the order of this Court dated 19.2.2020, the Zonal Commissioner filed his affidavit as to the officers who were present, during the year 2013-14, when the plan was sanctioned in favour of the complainant, without there being no objection from the National Monuments Authority for a new construction in the area of ‘Haft Gumbaj’, Gulbarga, which was long ago declared as a monument of national importance.

13. The affidavit of the Zonal Commissioner, dated 24.2.2020, reads thus:

26. “ AFFIDAVIT I, Dr. Vinod Kumar S.H., the Zonal Commissioner, Zone No.3, Kalburugi Mahanagara Palike, Kalburugi do hereby solemnly affirm and state as follows:

1. I state that I am the Accused / Respondent in the above contempt petition and I am swearing to this affidavit on the basis of the records.

2. I state that this Hon’ble Court by order dated 19.02.2020 directed the Zonal Commissioner to place before the Court the details of officers who have sanctioned the plan and such of those case workers who have processed the file by way of affidavit.

3. I state that the following officers who were present during the year 2013-14 at the time of sanctioning of plan in favour of the Complainant: (a) Commissioner - 2013-14 Sri. Sreekanth Kattiman - (Retd). (b) Zonal Commissioner- 2013-14 Sri. Vijay Kumar AEE - (Working) 27 (c) Section Officer - 2013-14 Sri. Arif Hussain A.E - (Dead) (d) Manager - 2013-14 Sri. Bandeppa Hullimani - (Retd.) (e) Case Worker - 2013-14 Sri. Rajendra Patankar - (Working) I state that the above details of the officers working during the year 2013-14 are furnished on the basis of the records available with the Corporation.

14. In terms of the aforementioned facts and the order passed, we notice that there has been illegality right from the year 2014 and has been perpetuated through out by the accused-Corporation. Firstly, in not taking prior approval in terms of the Act from the Government of India, Ministry of Culture, National Monuments Authority before according sanction to the building construction plan submitted by the complainant. Secondly, in not providing information to the trial Court with regard to the order dated 9.3.2018, 28 whereby the application of the complainant for sanction of the plan/modified plan was rejected. The competent authority is required to grant permission for re- construction in terms of Section 20D of the Act (supra). The competent authority is the Director of Archeology or Commissioner of Archeology or the Officer of the Central or State Government specified by an notification in the Official Gazette, as the competent authority by the Central Government to perform functions under the Act. The accused - Corporation before according the sanction for a new construction of the complainant was duty bound to verify whether there were any objections by the competent authority to sanction the building plan. It is to be seen that the application made before the competent authority under the Act was for renovation / reconstruction, but the sanction is accorded by the Corporation to the plan submitted by the complainant for new construction which is blatantly contrary to the law. It is trite that no construction 29 activities can take place in a site, which has been declared as the monument of national importance 15. Merely, because it is a contempt petition, this Court cannot turn a blind eye to the gross illegalities that have been committed by the accused–Corporation right from the year 2014 in permitting construction in a monument of national importance. Haft Gumbaz has been declared to be a monument of national importance and the construction activities in all the three precincts, namely, protected, prohibited and regulated areas under the Act is prohibited. Perusing the file and noticing the fact, a new construction has been permitted by the accused Corporation in collusion with the complainant, which is a clear case of fraud played by both the complainant and the accused Corporation by suppressing facts before the trial Court. We cannot hold our hands and permit constructions of this nature to come up surrounding ‘Haft Gumbaz’ which would 30 result in mushrooming of unauthorised construction activities.

16. In the facts and circumstances and for the aforementioned reasons, an enquiry needs to be conducted against the officers named by the Zonal Commissioner in his affidavit dated 24.2.2020. It is seen that the Section Officer, who handled the file is no more. Two of the officers are working and other two are retired. Therefore, the Government shall conduct an enquiry against the Commissioner and the Zonal Commissioner named in the affidavit dated 24.2.2020, and the Corporation shall conduct enquiry against the Manager and case worker named in the said affidavit, in accordance with law, after affording an all opportunity to them, and report back to this Court with regard to the action taken against the officers aforementioned within six months from the date of receipt of a copy of this order. A copy of this order shall be made available 31 to the Principal Secretary, Urban Development Department, Bengaluru and to the Commissioner, Kalaburagi City Corporation, Kalaburagi. With the aforementioned directions, the contempt petition is dismissed. Sd/- JUDGE Sd/- JUDGE Cs/-