ASN 1 WP-1840.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1840 OF 2011 Dr. Kshitij M. Kulkarni. ..Petitioner. Vs. Union of India and ors. ..Respondents. Mr.D.V.Sutar for the Petitioner. Mr. S.R.Ganbavale for Respondent Nos. 1 to 5. CORAM : MOHIT S. SHAH, C. J. AND ANOOP V. MOHTA, J. DATE : 30 th June, 2011 PC: Rule, returnable forthwith. Mr. S.R.Ganbavale waives service of Rule . In the facts and circumstances of the case, the petition is taken up for final disposal. 2 The petitioner is a retired officer of the Central Government. After retirement the petitioner is settling down in his native place and wishes to construct his house at CTS No.102 situated in Panhala, Taluka Panhala, District Kolhapur. For the purpose of putting up the residential house on the above land, the petitioner submitted the building plans along with his application dated 24 February, 2010. The application was submitted to respondent No.6 Municipal Council, Panhala Hill Station, District Kolhapur. ASN 2 WP-1840.sxw 3 Since the land in question is within the distance of 300 meters from the heritage monument protected under the provisions of the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010, the Municipal Council forwarded the petitioner’s application to the Archaeological Survey of India, Mumbai Circle, Sion Fort, Sion (E), Mumbai (respondent No.3 herein). It appears that however, the Archaeological Survey of India for the first time appointed the competent authority to consider such applications under Section 20C of the above Act only on 29 November, 2010. 4 The petitioner therefore, submitted another application for permission under Section 20C of the Act on 20 January, 2011. Section 20C (2) provides that 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, may make an application to the competent authority for carrying out construction or re-construction or repair or renovation, as the case may be. 5 Section 20D of the Act lays down procedure for processing such application. As per the scheme of Section 20D, such application is required to be considered within 90 days from the date of receipt of the application. In other words, within a period of 90 days the competent authority has to either grant permission or refuse permission as recommended by the authority referred to in Section 20D. In case the permission is refused, such refusal must be communicated to the ASN 3 WP-1840.sxw applicant within three months from the date of the receipt of the application. In case the competent authority grants permission, if during the carrying out of the construction or reconstruction, the competent authority is of the opinion that such construction or re-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 recommendation and if so recommended, the competent authority may withdraw the permission granted earlier. Proviso to sub section-(7) of Section 20D further provides 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. Proviso to sub section (7) of Section 20D thus provides that the competent authority may, in exceptional cases consider the application for permission in light of the heritage bye laws. 6 Having regard to the fact that the petitioner had his old residential house on the land in question, which construction has about 270.9 sq. meters and the petitioner now desires to re-construct the building to the extent of 139.36sq. meters on the ground floor and 84.02 sq. meters on the first floor i. e. total construction of 223.37sq. meters and that the site in question is at a distance of 250 sq. meters from the protected monument, we are of the view that the petitioner cannot be ASN 4 WP-1840.sxw made to wait indefinitely for getting such permission for re- construction/construction of his residential house. 7 The petitioner had already made application on 24 February, 2010, but the competent authority was not appointed and therefore, the same was not considered. Even after the appointment of the competent authority on 29 November, 2010, the petitioner’s application dated 20 January, 2011 is not considered (as stated by learned counsel for respondent Nos. 1 to 5- authorities) on the ground that heritage bye laws are not framed. As indicated above, the proviso to sub section 7 of Section 20D permits consideration of such application for construction of the building in regulated area in exceptional circumstances. 8 In the peculiar facts and circumstances of the case including the fact that the petitioner is a retired officer and that, the petitioner has proposed to re-construct his residential house of the dimensions as indicated above, we are of the view that interests of justice will be served if the petition is disposed of with a direction to respondent No.3 to consider the petitioner’s application dated 20 January, 2011 as forwarded by the Municipal Council, Panhala as expeditiously as possible and in any case within 90 days from the date of the receipt of this order. This time limit is provided in Section 20D of the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation )Act 2010. ASN 5 WP-1840.sxw In case no decision is taken on the said application within the aforesaid period of 90 days, the petitioner will be at liberty to proceed to construct his residential house on the ground floor i.e. to the extent of 139.36 sq. meters on CTS No.102 in Panhala, and if no decision is taken on the said application within a further period of 90 days (i.e. within 180 days from the date of receipt of this order), the petitioner will be at liberty to proceed to construct the first floor of the building on the above land. It is directed accordingly. 9 In order to enable respondent No.3 to process the petitioner’s application dated 20 January, 2011 expeditiously, the petitioner will forward the copy of the said application to respondent No. 3 along with copy of this order within two weeks from today which is permitted to be served by respondent No.3 by hamdast service. 10 We make it clear that we have given the above directions in the peculiar facts and circumstances of this petition already high lighted above. Even after the petitioner commences the construction as permitted by this order, the authorities are not deprived of their powers under sub section (6) of Section 20D of the said Act. 11 It is further clarified that this order does not dispense with the legal requirements which the petitioner may have to comply with in order to obtain the sanction of the Municipal Council as may be required ASN 6 WP-1840.sxw by any building regulations which might have been framed by the Municipal Council, Panhala. 12 Rule is made absolute in the aforesaid terms. All the parties to act on a copy of this order duly authenticated by the Associate/Registry of this Court. CHIEF JUSTICE ANOOP V. MOHTA, J.