The Gujarat High Court has set aside a First Information Report (FIR) lodged against an applicant for carrying out emergency repairs to a crumbling wall of his house situated within 100 metres of the Rani Chippri Masjid, a protected monument in the Khadiya area. The court held that initiating criminal prosecution for executing basic safety repairs, mandated by a municipal safety notice due to imminent threat to human life, is opposed to Article 21 of the Constitution of India.
The proceedings arose from allegations that the applicant had undertaken construction within the 300-metre regulated zone surrounding the protected monument without prior permission from the Archaeological Department, despite being served with a notice. The prosecution was initiated under Section 30(B) of the Ancient Monuments and Archaeological Sites and Remains Act, 2010 (AMSAR Act), which penalises the raising of any construction in a regulated area without the competent authority’s permission or in violation of granted permission, with imprisonment up to two years, a fine extending to one lakh rupees, or both.
Justice PM Raval, hearing the petition seeking quashing of the FIR, observed that the penal provisions of the AMSAR Act cannot be interpreted in a manner that compels a citizen into a state of structural peril. The court emphasized that when a statutory Municipal Safety Notice explicitly identifies a dilapidated wall posing a threat to human life, undertaking immediate safety restoration constitutes compliance with statutory safety obligations and an exercise of the fundamental right to safety guaranteed under Article 21 of the Constitution.
The court rejected the prosecution’s contention that the applicant had made a false statement by claiming no construction had been carried out. It held that this argument was legally flawed and based on a fundamental misunderstanding of statutory terminology. The court clarified that under Section 2(dc) of the AMSAR Act, “construction” mandates an addition, expansion of footprint, increase in height, or erection of a new structural framework. Merely repairing, renovating, or stabilizing an existing structure does not fall within this definition.
Relying on undisputed “before and after” photographs on record, the court found that the horizontal perimeter, structural boundary, and height of the premises remained completely unchanged. The work carried out—replacing worn-out wooden fittings, painting, and applying brick masonry within the existing framework to stabilize a crumbling wall—was held to constitute restoration, not construction. The court affirmed that the applicant’s reply to the department, stating that no fresh construction was undertaken, was factually and legally truthful, with no element of deception or mens rea present.
The court further criticized the responding authority for acting mechanically and violating administrative principles by lodging the FIR without considering the applicant’s reply, which had been submitted prior to the FIR along with the Municipal Corporation Notice. It noted that the investigating agency failed to verify whether any structural change had occurred or to conduct a technical assessment before invoking penal proceedings, rendering the criminal action arbitrary and an abuse of the process of law.
Even taking the allegations in the FIR at face value, the court found that they failed to disclose the essential ingredients of an offence under Section 30A or 30B of the AMSAR Act. The work executed was strictly confined to emergency stabilization, replastering, replacing wooden fittings, and masonry repair of an existing wall, without adding load-bearing pillars, raising height, or expanding the horizontal footprint. Such work falls under the category of renovation or repair and lies outside the statutory prohibition.
Accordingly, the Gujarat High Court quashed the FIR and directed that no further proceedings be taken against the applicant on the basis of the alleged offence. The judgment underscores the necessity of distinguishing between genuine construction and essential safety repairs, particularly when fundamental rights to life and safety are at stake.