8. wp 8344­11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8344 OF 2011 Kedar Arun Doifode .. Petitioner Vs Union of India & Ors .. Respondents Mr. D.V. Sutar for the Petitioner Mr. R.V. Govilkar i/b Ms. Rutuja Ambekar for Respondents 1 to 5 Mr. N.J. Patil for Respondent No. 6 CORAM : S.A. BOBDE & SMT. V.K. TAHILRAMANI, JJ DATE : 12th DECEMBER, 2011. P.C.: 1. Rule, returnable forthwith. Heard finally by consent of the parties. 2. The petitioner has approached this Court against the order of Competent Authority under the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010, by which the petitioner has been directed to remove the construction which has been made in the regulated area as defined by the said Act without permission of the appropriate authority. 1 8. wp 8344­11.doc 3. Apparently, the petitioner on acting as a power of attorney holder of some other person, made an application to the Municipal Council, Karad on 6th July, 2010 for permission to construct a residential complex in the area in question where according to the petitioner, a dilapidated cinema theater stood earlier. Though the Municipal Council, Karad did not grant or refuse permission, the petitioner, considering himself entitled to make a construction by virtue of deemed grant of permission under Section 54 of the M.R.T.P. Act, started the construction. The Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 came into force on various dates in the year 2010. We are not concerned with the precise date on which the particular provision came into force. Suffice it to say for the purpose of this case that the Act came into force between January and March 2010. After coming into force the said Act, the petitioner made an application to the Competent Authority under the Ancient Monuments on 27th January, 2011. This permission has not yet been granted or refused to him by the Competent Authority. In the meanwhile, the petitioner has started construction on the basis of deemed permission which he has allegedly got under Section 54 of the M.R.T.P. Act. 4. Mr. Govilkar, learned counsel for respondent nos. 1 to 5 has pointed out that the petitioner cannot be said to have got due permission because the original application for permission was 2 8. wp 8344­11.doc made on behalf of some other person and the petitioner acquired ownership of the property sometime after 24th August, 2010 i.e after the application for construction was made. Be that as it may, this is a matter for the Municipal Council, Karad to consider and take appropriate action. Mr. Patil, learned counsel for Municipal Council, Karad states that the Municipal Council, Karad will proceed to take action in this behalf in accordance with law. The statement is accepted. 5. In the meanwhile, the Ancient Monuments Authority has issued show cause notice dated 13th July, 2011 to the petitioner calling upon him why the construction he has made, should not be demolished. A reply was given on 27th July, 2011. However, the Ancient Monuments Authority has by the impugned communication directed the petitioner to remove the construction. We have considered the matter. It seems that though at prima facie consideration, the order of the Ancient Monuments Authority is not vitiated by any error of law apparent on the face of record, admittedly, no decision has yet been taken by the Competent Authority under the the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 on the application of the petitioner which has been made on 27th January, 2011. There is no provision for deemed grant of permission under the Ancient Monuments and Archaeological Sites and Remains 3 8. wp 8344­11.doc (Amendment and Validation) Act, 2010, it is therefore necessary that if such an application is made, the same should be decided by the Ancient Monument Authority within the time prescribed. Since, this has not been done, we find that if the Ancient Monument Authority considers the petitioner entitled for permission, it would not be appropriate to allow the petitioner's structure to be demolished in the meanwhile. On the other hand, the structure can be directed to be demolished if it is found to be illegal upon refusal of the permission and also subject to the orders that may be passed by the Municipal Council, Karad in the meanwhile. In the circumstances, we are of the view that decision of the Ancient Monuments Authority is necessary on the petitioner's application for permission to construct in view of the special consideration which has to be taken into account before such structure within the regulated area of the the Ancient Monuments is permitted to be constructed. 6. Having regard to the circumstances of the case, particularly without recording the findings that the impugned order is erroneous in law, in the circumstances of this case, particularly since the petitioner's application for construction is neither granted nor refused by the Competent Authority under the Ancient Monuments, we are of the view that the impugned order should be set aside and is accordingly set aside. The 4 8. wp 8344­11.doc Municipal Council, Karad shall also be at liberty to take such action with regard to the petitioner's case as may be advised in accordance with law. The Competent Authoirty under the Ancient Monuments is directed to decide the petitioner's application for construction within a period of three months from today. Till the application is decided, the petitioner who has stopped the construction, shall not commence any construction unless he received due permission from all the appropriate authorities in law. 7. Rule is disposed of in above terms. [ SMT. V.K. TAHILRAMANI, J ] [ S.A. BOBDE, J ] 5 8. wp 8344­11.doc 6