Kumbhalgarh Villagers Cannot Be Barred From Repairing Homes Over Archaeological Site Tag, Rules Rajasthan HC

Rajasthan High Court disposes of a PIL by 60 Bheel villagers of Village Gawar, Kumbhalgarh, holding that families living on khatedari land since settlement may repair and extend existing houses despite proximity to Kumbhalgarh Fort, while drawing a clear line against any fresh foundations.

A Division Bench of the Rajasthan High Court at Jodhpur, comprising Acting Chief Justice Sanjeev Prakash Sharma and Justice Sanjeet Purohit, has disposed of a public interest litigation filed on behalf of sixty Bheel residents of Village Gawar, Kumbhalgarh, Tehsil Kelwara, District Rajsamand. The villagers had approached the court because both the Archaeological Survey of India and State authorities were preventing them from repairing their homes or constructing additional rooms to accommodate growing families. The court held that persons who have lived on khatedari land for generations cannot be turned away from basic residential repairs simply because their houses sit near an archaeological site, and it drew a firm distinction between repair or extension of an existing structure and fresh construction on a new foundation.

The Dispute Before the Court

The sixty petitioners, all members of the Bheel community, are residents of Village Gawar in Kumbhalgarh, Tehsil Kelwara, District Rajsamand. They hold khatedari rights over their land — rights that trace back to settlement records. As their families grew, they sought to repair deteriorating structures and add rooms. Both the Archaeological Survey of India and State authorities refused to permit any such work.

The Archaeological department took the position that the villagers' properties fall on the edge of the Kumbhalgarh Fort archaeological site. On that basis, notices were issued to the villagers under Sections 3 and 4 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The Act empowers authorities to prohibit or regulate construction within the vicinity of a protected monument. The villagers maintained that their houses lie within the residential Abadi area of the village, not within the archaeological site itself.

The PIL had been pending since 2021. As of the date of the order, the respondents had not filed a reply despite the passage of over four years.

The Legal Tension

The core tension was between the State's obligation to protect a protected archaeological site and the constitutional entitlement of long-settled residents to inhabit and maintain their homes. The respondents — the Union of India through the Archaeological Survey of India, the State of Rajasthan, the District Collector Rajsamand, the Block Development Officer of Panchayat Samiti Kumbhalgarh, and the Gram Panchayat Gawar — had deployed the AMASR Act, 1958 to halt all construction activity, including straightforward repair work.

The petitioners' position was that blanket prohibition on repair and extension, even within the residential Abadi area, went well beyond what the Act required and left families unable to maintain habitable shelter.

How the Bench Reasoned

The bench opened its reasoning by placing the Kumbhalgarh situation in a broader factual context. It observed that residential occupation within and around forts in Rajasthan is not an exceptional phenomenon. The court pointed to Jaisalmer, Chittorgarh, the walled cities of Jaipur and Bikaner, and parts of the walled city of Jodhpur as places where people live alongside or within fortified heritage structures and are provided civic facilities.

From that premise, the bench addressed the core question directly: “Persons who have been residing there for generations and even centuries cannot be ousted merely in the name of protecting archaeological sites.” The court was careful to add that this did not mean archaeological protection was unimportant. Where separate houses exist adjacent to or appurtenant to an archaeological site, those houses “need to be given due protection” and their occupants must be allowed to carry out repairs and make additional constructions over existing structures.

The bench drew a precise line at the question of new foundations. It held that any construction involving a new foundation would not be allowed. This qualification was deliberate: the concern was that permitting unrestricted new construction could lead to encroachment upon the archaeological site itself. Existing houses with old foundations, on the other hand, were a different matter. Those could be repaired, and further construction on those existing foundations would also be permitted.

The bench also placed a procedural safeguard on the villagers' side. Any additional construction must be preceded by obtaining the requisite permissions in accordance with applicable building norms. The court made it explicit that its directions would not, in any manner, permit encroachment upon the existing archaeological site.

The reasoning treats the AMASR Act notices as having been applied in a manner that swept up legitimate residential activity within the Abadi area. By confining its permission to existing foundations and tying it to applicable building norms, the bench sought to preserve the archaeological site from fresh encroachment while preventing the Act from being used to deny settled residents basic repair rights.

Outcome

The Division Bench disposed of D.B. Civil Writ Petition (PIL) No. 10991/2021 on 4 August 2026. Its directions, in brief, are:

• Villagers holding khatedari land in Village Gawar, Kumbhalgarh with existing houses standing on old foundations may repair those houses and undertake further construction over the existing structures.
• No new construction involving a new foundation shall be permitted in the area.
• Before any additional construction, the concerned person must obtain the requisite permissions in accordance with applicable building norms.
• Nothing in the order permits any encroachment upon the existing Kumbhalgarh Fort archaeological site.

The court kept the matter open for clarification. It stated that parties may seek clarification if required, and that in any individual case a party may approach the court if the need arises.