The Gujarat High Court has held restoring the crumbling wall of a house or making emergency repairs to stablize a structure located in the 300-metre range of a protected monument amounts to restoration, and cannot be termed as construction which is prohibited under  Ancient Monuments and Archaeological Sites and Remains Act. 

[2026 LiveLaw (Guj) 245]

In doing so the court held that initiating criminal prosecution against an occupant for executing basic safety repairs mandated by a local authority under threat of public hazard is 'opposed to Article 21'. 

The court was hearing a man's plea seeking quashing of an FIR for offence under Section 30(B) AMSAR Act. 

The provision punishes raising of any construction in a regulated area without the prior permission of the competent authority or violating permission granted by the authority on or after the date on which 2010 Act receives Presidential assent, shall be punished with imprisonment not more than 2 years or with fine which may extend to Rs. 1 Lakh or with both.

It was alleged that despite there being a specific embargo on construction within a 300-metre range of the protected monuments in the Khadiya area, the applicant had commenced construction of a house within 100 metres of the protected monument–Rani Chippri Masjid, without obtaining any permission from the Archaeological Department.

Despite notice having been served upon him, the applicant completed the construction and thereby committed the alleged offence. 

Justice PM Raval observed that the penal provisions of the AMSAR Act cannot be read in isolation to "compel a citizen into a state of structural peril".

"When a statutory Municipal Safety Notice explicitly identifies a dilapidated wall posing a threat to human life, carrying out 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 of India. The argument that the applicant made a "false statement" by stating no construction had been carried out is legally flawed and proceeds on a basic misconstruction of statutory terms. The prosecution has equated "repair/renovation" with "construction." Under Section 2(dc) of the AMASR Act, "construction" mandates an addition, expansion of footprint, increase in height, or erection of a new structural framework," the court said. 

The court observed that the Petitioner's reply to the department—stating that no fresh construction was undertaken—was fully substantiated by the undisputed "before and after" photographs on record, which confirm that the horizontal perimeter, structural boundary, and height of the premises remain completely unchanged.

It said that replacing worn-out wooden fittings, painting, and applying brick masonry within the existing framework to stabilize a crumbling wall constitutes "restoration," not "construction." 

The court said that the Petitioner's reply was factually and legally truthful, and no element of deception or mens rea existed. It further observed that the Respondent-Authority acted mechanically, violating administrative principles by lodging FIR without considering the Petitioner's reply which was submitted prior to the FIR along with the Municipal Corporation Notice.

Further investigating agency failed to verify whether any structural change occurred or to conduct a technical assessment before invoking penal machinery, making the criminal proceedings arbitrary and an abuse of the process of law.

"The allegations in the FIR, even if taken at face value, fail to disclose the essential ingredients of an offense under Section 30A/30B of the AMASR 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. The work constitutes 'renovation/repair' and falls outside the statutory definition of 'construction' under Section 2(dc) of the Act. Consequently, no penal offense is made out on the face of the record," the court added. 

The court further said that Ahmedabad Municipal Corporation had issued an official notice declaring the premises dilapidated and unsafe and thus the Petitioner acted in compliance with statutory safety obligations to prevent structural collapse.

"Prosecuting an occupant for executing basic safety repairs mandated by a local authority under threat of public hazard would be opposed to the constitutional guarantees under Article 21," the court added.

The applicant argued that he was served a notice under the Gujarat Provincial Municipal Corporations Act, wherein he was required to repair a house in a dilapidated condition and that the applicant was accordingly required to carry out necessary repairs for the purpose of security and safety.

With a view to getting the property in question enlisted again in the new list of heritage properties of the Ahmedabad Municipal Corporation, the applicant carried out renovation, repairs and/or reconstruction of the existing structures and has not raised any new construction on the site.

He argued that he repair and renovation work undertaken by the applicant does not fall within the definition of “construction” under Section 2(dc) of the Act and, therefore, invocation of Section 30(B) of the Act is wholly erroneous. 

Referring to the Act, the court said that the law was well-settled that "repair" or "maintenance" implies restoration of a structure to its existing state without altering its load-bearing framework, footprint, or cubic content.

"The undisputed photographic evidence on record establishes that the Petitioner did not add any floor area, alter the building line, or raise the height of the building. The work executed falls squarely within the scope of permissible maintenance and restoration," the court said. 

It also said that vague assertions of "structural change" in an FIR, without technical foundation, cannot form the basis of criminal prosecution. Where the material on record conclusively demonstrates mere restoration within the existing framework, subjecting the Petitioner to a criminal trial after nearly nine years serves no legitimate legal purpose, the court added.

The plea was allowed. 

Case title: KAUSHIK NANUBHAI MAJITHIA v/s STATE OF GUJARAT & ORS.

R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 8473 of 2018

Citation: 2026 LiveLaw (Guj) 245

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