Calcutta High Court (Appellete Side)
Akb Aparna Adhikary vs State Of West Bengal & Ors on 27 August, 2018
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
1
4 27.8.18 W.P. 11626 (W) of 2017
akb Aparna Adhikary
-Versus-
State of West Bengal & Ors.
Mr. Sambhu Nath Roy
Ms. Amrita Tewari
Mr. M.M. Bhattacharya ...For the Petitioner
Mr. Rudrajyoti Bhattacharjee ...For Union of India
This writ petition has been filed complaining
that despite the petitioner being the undisputed owner of the
land in question, has not been allowed to raise any
construction in the site on the sole ground that the said plot
of land is within the regulated area of 300 mtrs. limit that is
within 200 mtrs. from the prohibited area of 100 mtrs. of the
Tamluk Rajbati which has been declared a National
Monument. Admittedly, the petitioner has no grievance
against the declaration of Tamluk Rajbati as National
Monument.
That being the position, it is submitted by the
learned Advocate for the respondents, Archaeological
Department that the writ petitioner has to make an application before the concerned Authority of the Archeological Department to obtain 'no objection certificate' and/or permission in order to continue with the construction of the site in question which according to the writ petitioner is within the limit of 275 mtrs. from the National Monument and beyond the prohibited area of 100 2 metres.
Learned Advocate for the respondents further submits that according to the provisions of Section 20A of the Ancient Monuments and Archaeological Sites and Remains (AMASR) Act, 1958, there is a prohibited area which is declared to be 100 mtrs. beginning of the limit of the protected monument and according to him, Tamluk Rajbati has been declared to be a protected monument. According to the learned Advocate, since, Tamluk Rajbati has been declared to be a protected monument having National Importance where according to the said proviso, 100 mtrs. from the said monument is to be considered as the prohibited area.
He further submits that according to the provisions of Section 20B the Authority can declare a regulated area beyond the limit of protected area of 100 mtrs. According to him, the Authority has declared further 200 mtrs. from the periphery of the declared protected area of 100 mtrs. as the 'regulated area'. Therefore, according to him, within an area of 300 mtrs. from all sides the restrictions are applicable and the petitioner has been rightly prevented from making construction contrary to the provisions of the said Act.
The learned Counsel further submits, if any such 3 construction is proposed to be made that can be done only with the previous sanction of the Authority. Previously, the petitioner was granted leave to make a representation. In pursuance whereof she addressed letter to the Officer-in- Charge, Archaeological Survey of India, Government of India, on which the Authority held on 1st March 2014 that the application was not made to the appropriate Authority and according to the said Authority, the Concerned Authority is to be the Superintending Archaeologist, A.S.I., Kolkata Circle, Kolkata, C.G.O. Complex, 4th Floor, Salt Lake City, Sector-I, Kolkata - 700 064.
Having regard to the submission made by the learned Advocate appearing for the respondents as also the affidavit-in-oppositions used by the said respondents and the materials disclosed thereat, this Court holds that at this stage no mandatory order can be passed. The only order which can be passed on this writ petition is to direct the Superintending Archaeologist, A.S.I., Kolkata Circle, Kolkata, C.G.O. Complex, 4th Floor, Salt Lake City, Sector- I, Kolkata - 700 064, respondent No. 10, to consider the grievance of the petitioner as to whether the site where the petitioner has been intending to make the construction falls within the prohibited and/or regulated area within the meaning of Section 20A and 20B of the Ancient Monuments and Archaeological Sites and Remains (AMASR) Act, 1958 and for this purpose the petitioner is granted leave to make 4 appropriate application before the said Authority within a fortnight from date and if such application is made within the time stipulated, the Authority shall dispose of the same within a period of four weeks thereafter and communicate the decision thereof to the petitioner forthwith. This direction is peremptory and mandatory in nature.
The Authority shall dispose of the application if the same is made by the petitioner after giving an opportunity of hearing and by passing a reasoned order. While taking such decision the Authority is directed to consider the provisions of Section 20A with that of provisions of Section 20B of the Ancient Monuments and Archaeological Sites and Remains (AMASR) Act, 1958 in as much as the proviso under Section 20A is in respect of a further specification of a prohibited area beyond 100 mtrs. whether is there any such notification made by the Authority declaring any area as a regulated area beyond 100 mtrs. as per provisions of Section 20A or not because no such notification has been annexed to the affidavit-in-opposition. At the same time if the Authority has declared beyond 100 mtrs. from the prohibited area or any further area as a regulated area whether such declaration of regulated area has been notified in the Official Gazette or not.
With these observations, the writ petition is disposed of.
5There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.
( Sahidullah Munshi, J.)