Gauhati High Court: The present appeal was filed against the impugned judgment and order dated 24-03-2014 passed by the Single Judge in a case, whereby the prayer of petitioners for setting aside the impugned declaration of the Christian Cemetery in question as a Heritage site was rejected. The Division Bench of Vijay Bishnoi, CJ., and Kaushik Goswami*, J., opined that there was no record to show that any enquiry was conducted by the Superintendent as to the antiquity and age of the Cemetery and procedures as laid down under Section 3 of the Assam Ancient Monuments and Records Act, 1959 (‘the 1959 Act’) read with Rules 3 and 4 of the Assam Ancient Monuments and Record Rules, 1964 (‘the 1964 Rules’) were not undertaken by the State Government. The Court held that the impugned declaration of the Christian Cemetery by the jurisdictional District Magistrate was ultra vires, per-se illegal, null and void. Therefore, the impugned judgment and order dated 24-03-2014 passed by the Single Judge and the impugned orders dated 25-10-2005 and 27-11-2006 issued by the District Magistrate, Kamrup (M) were set aside.
Background
The District Magistrate, Kamrup (M), by order dated 25-10-2005, declared 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 also directed that the vacant Government plot of land covered by Dag No.181 of Sahar Guwahati Part-VII would be kept as an open space in the interest of local people, to enable the public in the locality to use the land for community purposes. Thereafter, a complaint regarding the same graveyard was filed before the Assam Human Rights Commission (‘the AHRC’) by a few residents of the locality. The District Magistrate withdrew the Declaration Order dated 25-10-2005 and the AHRA, therefore, by order dated 22-02-2006, disposed of the complaint and held that the jurisdictional Deputy Commissioner, being the custodian of the Government land was the competent authority to pass necessary orders regarding the complaint lodged by the local residents alleging illegal and unauthorized extension of the cemetery.
By order dated 27-11-2006, the District Magistrate re-issued his earlier order dated 25-10-2005, for implementation. The authorized representative of St. Joseph Catholic Church and Church of North India Christ Church (CNI), being aggrieved by the said order, filed a petition under Article 226 of the Constitution before this Court, but the Single Judge, by its judgment and order dated 24-03-2014, rejected the prayer made in the petition. Therefore, the present appeal was preferred and this Court by order dated 04-08-2014 directed that the interim order dated 15-12-2006, passed by the Single Judge in the petition, staying the operation of the impugned order dated 27-11-2006, would be continued. During the pendency of the appeal, the Deputy Commissioner, Kamrup (M), by order dated 12-11-2021, observed that the Cemetery did not have right to initiate a fresh construction work in erecting boundary wall over the subject land and directed the Cemetery to remove all the fresh construction over the subject plot of land.
Analysis, Law, and Decision
The issue for consideration in the present case was “whether the impugned order dated 25-10-2005 and restoration order dated 27-11-2006 issued by the jurisdictional District Magistrate, whereby the Cemetery was declared as a Heritage site and thereafter, burial therein was prohibited, was legal and valid?”.
The Court noted that the District Magistrate’s order declaring the Cemetery as a Heritage site was not preceded with any notice to the members of the Christian community, who were using the land for burial from time immemorial and the declaration order did not reflect the reasons for declaration of the land as a Heritage site.
The Court referred to the 1959 Act and stated that the object of the 1959 Act was to provide for the preservation and protection of ancient and historical monuments and records in Assam other than those declared by all under law made by Parliament to be of national importance. Further, the 1959 Act laid down the provisions for the preservation and protection of ancient and historical monuments and records in Assam and the definition of ancient monument included place of tumulus amongst others. The word ‘tumulus’ means an ancient burial mound, that is, a mound of earth and stones raised over a grave or graves. The Court thus opined that the graveyard/cemetery could be construed to be an ancient monument if it was of historical, archaeological, or artistic interest and which had been in existence for not less than 100 years.
The Court referred to Section 3 of the 1959 Act, which empowered the State Government to declare an ancient monument to be a protected monument by publication of notification in the Official Gazette and such notification was required to be fixed up in a conspicuous place on or near the monument, together with an intimidation for filing objections, if any, within one month and upon expiry of one month period and after consideration of the objection, if any, the State Government should confirm or withdraw the notification.
Further, under Section 4 of the 1959 Act, the Superintendent of Archaeology, with the sanction of the State Government, was empowered to purchase or take a lease of, or accept a gift or bequest of any protected monument by entering into agreement either with the owner or the guardian of such monument and under Section 5 of the 1959 Act, the Deputy Commissioner, when so directed by the State Government, should propose to the owner of a protected monument to enter into an agreement with the State Government, within a specified period for the maintenance of the monument in his District and for the said purpose of preservation of such monument, he should enter into an agreement, wherein the conditions for maintenance/custody/restriction or use, etc., of the monument should be agreed upon.
The Court noted that the Superintendent of Archaeology was empowered to undertake a thorough enquiry as to the antiquity of the monument to be protected and should determine as accurately as possible the age of the monument on such evidence as might be available to him. The Court stated that the 1964 Rules provided how the enquiry should be made by the Superintendent and the manner of submitting the proposal to the State Government with intimation to the Deputy Commissioner concerned. The Court further stated that only after the proposal of the Superintendent and the recommendations of the Deputy Commissioner concerned, if any, the State Government might issue the notification of declaration of protection of ancient monuments.
The Court thus opined that before 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 and only after obtaining such evidence which the Superintendent considered sufficient for protection of a monument, he/she should make proposal to the State Government. Thereafter, based on such proposal of the Superintendent and the recommendation of the Deputy Commissioner, if any, the State Government should issue notification under Section 3 of the 1959 Act, declaring such monument as protected ancient monument.
The Court opined that in the present case, there was no record to show that any enquiry was conducted by the Superintendent as to the antiquity and age of the Cemetery and procedures as laid down under Section 3 of the 1959 Act read with Rules 3 and 4 of the 1964 Rules were not undertaken by the State Government.
The Court further stated that under the 1964 Rules, the Superintendent was empowered to enquire the antiquity and age of the monument concerned and submit the proposal, however, in the present case, the jurisdictional Circle Officer unilaterally proposed declaration of the Cemetery 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. Therefore, the Court opined that as per the 1959 Act, the District Magistrate did not have any power to declare the Cemetery as Heritage site and thus, the impugned declaration was without jurisdiction.
The Court held that the impugned declaration of the Cemetery by the jurisdictional District Magistrate was ultra vires, per-se illegal, null and void. Therefore, the impugned judgment and order dated 24-03-2014 passed by the Single Judge and the impugned orders dated 25-10-2005 and 27-11-2006 issued by the District Magistrate, Kamrup (M) were set aside.
The Court opined that under Section 4 of the 1959 Act, all ancient monuments which have not been declared as ancient monument to be protected, should be deemed to be tangible heritages of Assam for the purpose of the Assam Heritage (Tangible) Protection, Preservation, Conservation and Maintenance Act, 2020 (‘the 2020 Act’). Therefore, the Court stated that the Cemetery should now be covered under the provisions of the 2020 Act. The Court clarified that the State Government was at liberty to protect and preserve the Cemetery if it falls within the definition of ancient monument under the 1959 Act or under the 2020 Act, however, the same must be strictly done in accordance with law.
[Marcus Lakra v. State of Assam, 2024 SCC OnLine Gau 1969, decided on 03-12-2024]
*Judgment authored by: Justice Kaushik Goswami
Advocates who appeared in this case:
For the Petitioners: R Sagar, AK Dutta, RP Kakoti, B Purkayastha, Anna K P
For the Respondents: C Sharmar-4, S Dutta(R-4), GA, Assam, N Modi(R-4)
Buy Constitution of India HERE
