Merely Because A Tomb Has Been In Existence For More Than 100 Years Not A Ground To Declare It As Protected Monument: Madras High Court

While ordering relocation of the tomb of David Yale and Joseph Hymners from the Madras Law College compound, located within the court premises, to any other appropriate place, the Madras High Court noted that merely because the tomb has been in existence for more than 100 years can not be the sole reason to declare it as a protected monument under Ancient Monuments and Archaeological Sites and Remains Act 1958.

“Merely because the tomb has been in existence for more than 100 years, that alone cannot be a ground to declare the monument as a protected monument, thereby bringing it under the cover of ancient monument as provided for under Section 2 (a) of the Act,” the court observed.

Justice M Dhandapani was dealing with a plea seeking removal or relocation of the Tomb of David Yale and Joseph Hymners situated in the compound of Law College within the Madras High Court campus.

The petitioner, B Manoharan, submitted that the tomb, which was the burial spot of the son and friend of then Governor of Madras Elihu Yale, had no archaeological value and does not fall within the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. He added that though the High Court administration has come up with a plan to convert the old Law College into court halls and to construct a multi-level parking spot in the open space, the project could not be implemented due to the presence of the tomb.

Manoharan submitted that since the tomb has been declared as a protected monument by the Archaeological Survey of India, no construction activity could be carried out within 100 meters of the tomb which has halted the developmental activities intended to be carried out by the High Court.

Manoharan contended that though protection of monuments and places of national importance is provided for under Article 49 of the constitution, the larger question of public necessity also has to be taken into account. He also informed the court that lands abutting the tomb have been given for the purpose of formation of Metro Rail and similarly, in the interest of the public, the land in which the tomb exists could be used for creation of a parking facility. He added that the developmental activity could not be restricted merely because the tomb was declared to be a protected monument even when it did not fulfil any of the criteria therein. He added that though a representation was submitted to the respondent authorities, it had not seen the light of day.

Deputy Solicitor General R. Rajesh Vivekananthan, on the other hand, informed the court that the petitioner’s representation was rejected. He submitted that the tomb was declared as a protected monument in 1921 u/s 3 of the Ancient Monuments Preservation Act, 1904, which, after independence, was carried over as a protected monument under Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951. He added that the monuments which were covered under the 1951 Act were deemed to be of national importance and were recognised as protected monuments after the enactment of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

The court noted that for a monument to be of national importance two conditions are to be fulfilled – firstly, the structure should be of historical, archaeological or artistic interest and secondly that the said structure should have been in existence for not less than 100 years.

“From the above provision of law, it transpires that two conditions have to be fulfilled for an ancient structure to be branded as an ancient monument of national importance and to be declared as a protected structure of archaeological importance. The first of the condition is that the structures, erection, sculpture, inscription, place of interment, etc., should be of historical, archaeological or artistic interest and secondly that the said structure, erection, sculpture, inscription, place of interment, etc., should have been in existence for not less than one hundred years. Without satisfying the twin conditions, the said ancient structure cannot be declared as a structure of national importance to be treated as a protected monument,” the court said.

Looking into the history of the tomb, the court noted that the Tomb continues to exist as a protected monument merely under the umbrage of definitions under the Act and the fact that it had been declared protected in 1921 during the British regime. The court observed that there was nothing in the order of rejection to show that the monument satisfied the pre-requisite of historical, archaeological and artistic value.

The court observed that an order passed by the British regime in 1921 was merely being allowed to continue with no regard to the archaeological or historical value of the monument.

The interment of David Yale and Joseph Hynmer has been declared as a protected monument in the year 1921, even though it was alleged to have been built way back in the year 1684-1688, noted the court, adding that even at the time when it was declared as a protected monument it was more than two centuries old but never ever the British regime had thought to declare it as a protected monument till 1921.

“The authority has to first divest its slavish mindset carried on from the colonial era which alone would mark the attainment of independence by our country. Independence on paper without it reflecting in the mind of the individuals is a clear aberration from what the freedom fighters had in mind, while they fought for independence,” said the court.

The court noted that merely carrying the protection was an indication of abdication of duty and power vested on the authority which clearly made the authority an entity on paper. Observing that it was the duty of the respondents to revisit the monuments as per Section 20 (I) of the Act, the authorities had not carried out their responsibility in this case.

Thus, the court set aside the rejection order of the authorities and allowed the petition directing the respondents to take steps for relocating the tomb to any appropriate place.

Case Title: B Manoharan v The Ministry of Culture