Thorough Enquiry Is A “Condition Precedent” Before Declaring Any Monument As 'Ancient': Gauhati High Court

The Gauhati High Court on Tuesday (December 03), in a writ appeal, quashed a declaration issued by the District Magistrate, Kamrup (M) in 2005, declaring the Christian Cemetery located on Dag No.183 of Sahar Guwahati Part-VII as Heritage site on the ground that the impugned declaration was neither issued by the authority conferred under the Assam Ancient Monuments and Records Act, 1959, nor the manner prescribed under the subsequent Rules of 1964 for making such declaration was followed.

The division bench comprising the Chief Justice Vijay Bishnoi and Justice Kaushik Goswami observed:

“……..the condition precedent for declaring any monument including tumulus/burial ground/cemetery as an ancient monument, the State Government must first through the Superintendent cause a thorough enquiry as to the antiquity and the age of the monument to be protected. It is only after obtaining such evidences which the Superintendent consider sufficient for protection of a monument, he/she shall make proposal to the State Government thereof. Based on such proposal of the Superintendent and the recommendation of the Deputy Commissioner, if any, the State Government shall issue notification under Section 3 of the said Act of 1959, declaring such monument as protected ancient monument.”

The Court noted that in the instant case there is nothing on record to show that any enquiry has been conducted by the Superintendent as to the antiquity and age of the Christian Cemetery at Dag No.183.

The Court was hearing a writ appeal against the impugned judgment and order dated March 24, 2014, passed by the Single Judge in the writ petition filed in 2006, whereby the prayer of the appellants-writ petitioners for setting aside the impugned declaration of the Christian Cemetery in question as a Heritage site was rejected.

By the impugned order dated October 25, 2005, the District Magistrate, Kamrup (M), the Christian Cemetery located on Dag No.183 of Sahar Guwahati Part-VII as Heritage site and directed that further burial shall not be allowed. It was further directed that the vacant Government plot of land measuring 8.48 acre covered by Dag No.181 of Sahar Guwahati Part-VII be kept as an open space in the interest of local people, so as to enable public in the locality to use the land for community purposes.

The jurisdictional District Magistrate, in terms of the pendency of the aforesaid complaint, withdrew the Declaration Order dated October 25, 2005. Therefore, the Assam Human Rights Commission (AHRC), by Order dated February 22, 2006, disposed of the complaint filed by few residents of the locality, by holding that the jurisdictional Deputy Commissioner, being the custodian of the Government land is the competent authority to pass necessary orders as regards the complaint lodged by the local residents alleging illegal and unauthorized extension of the subject Cemetery.

Pursuant to the aforesaid order of the AHRC, the jurisdictional District Magistrate, by Order dated November 27, 2006, re-issued his earlier order, i.e. Order dated October 25, 2005 for implementation by the concerning parties.

Aggrieved by the above, the authorized representative of St. Josephs Catholic Church and Church of North India Cherist Church (CNI) filed a writ petition under Article 226 of the Constitution of India before the High Court in the year 2006, wherein by representing the entire Christian population subjected to the above two Churches residing in inner Guwahati city assailed the abovementioned two orders passed by the District Magistrate.

However, the High Court by judgment and order dated March 24, 2014, rejected the prayer of the petitioners and upheld the impugned orders issued by the District Magistrate.

Hence, the present writ appeal.

The appellants contended that the jurisdictional District Magistrate, without following any procedure established by law, declared the subject Cemetery as Heritage site and as such, the impugned declaration is totally illegal

The Court noted that the order of the District Magistrate declaring the subject Christian Cemetery as a Heritage site is not preceded with any notice to the members of the Christian community, who are using the subject land for burial from time immemorial.

It was further observed by the Court that the impugned declaration order does not reflect the reasons for declaration of the land in question as Heritage site.

“In the present case, there is nothing on record to show that any enquiry has been conducted by the Superintendent as to the antiquity and age of the Christian Cemetery at Dag No.183. In fact, neither the affidavit-in-opposition nor the impugned declaration indicates any such exercise undertaken by the State Government to determine the antiquity and the age of the subject Christian Cemetery. It is manifestly evident that no procedures whatsoever, as laid down under Section 3 of the Act of 1959 read with Rules 3 & 4 of the said Rules of 1964, have also been undertaken by the State Government,” the Court observed.

It was observed by the Court that under Assam Ancient Monuments and Records Rules, 1964, it is the Superintendent, who is empowered to enquire the antiquity and age of the concerned monument and submit proposal thereof. However, the Court noted that in the present case, the jurisdictional Circle Officer unilaterally proposed declaration of the Christian Cemetery in question as a Heritage site and the same was mechanically declared by the jurisdictional District Magistrate without both authorities having any power or jurisdiction for recommendation/declaration of Heritage site as the case may be.

Thus, the Court held that under the Act of 1959, the District Magistrate does not have any power to declare the subject Christian Cemetery as Heritage site and therefore, the impugned declaration is without jurisdiction.

“It is well settled law that any order passed without power and jurisdiction is non-est in the eye of law. That apart, the Act of 1959 having vested the power with the State Government to protect ancient monument and having laid down the manner in which such declaration is to be made, the same has to be made in that manner only and all other methods of declaration/protection are necessarily forbidden,” the Court said.

Accordingly, the Court set aside the impugned judgment and order passed by the single judge and subsequently quashed the impugned orders passed by the District Magistrate.

Furthermore, the Court observed that all ancient monuments which have not been declared under the Act of 1959 as ancient monument to be protected, shall be deemed to be tangible heritages of Assam for the purpose Assam Heritage (Tangible) Protection, Preservation, Conservation and Maintenance Act, 2020.

“In light of the above, it is clarified that the State Government is at liberty to protect and preserve the Christian Cemetery in question, if it falls within the definition of ancient monument under the Act of 1959 or under the Act of 2020, as the case may be, however, the same has to be strictly done in accordance with law,” the Court added.

Citation: 2024 LiveLaw (Gau) 90

Case Title: Father Marcus Lakra Parishy Priest and Anr. v. State of Assam & 3 Ors.

Case No.: WA/225/2014

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