Condition Precedent For Declaring Any Monument As Ancient Is That State Must First Cause Thorough Enquiry: Gauhati HC

The Gauhati High Court held that the condition precedent for declaring any monument as ancient is that the State Government must first cause a thorough enquiry as the antiquity and the age of the monument to be protected.

The Court was dealing with an Appeal filed against the Judgment of the Single Judge by which the prayer for setting aside the declaration of the Christian Cemetery as a Heritage site was rejected.

A Division Bench comprising 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 Bench said that under Assam Ancient Monuments and Records Act, 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.

Senior Advocate R.P. Kakoti, Advocates A.B. Dey, and A. Dhar appeared for the Appellants while Additional Senior Government Advocate R.K. Borah and Advocate S. Sarma appeared for the Respondents.

Brief Facts -

The District Magistrate, Kamrup (M), in 2005 had 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 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. In the meantime, a Complaint regarding the same graveyard was filed before the Assam Human Rights Commission (HRC) by few residents of the locality.

The jurisdictional District Magistrate, in terms of the pendency of the said Complaint, withdrew the Declaration Order and the Assam HRC disposed of the Complaint 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. Being aggrieved, the authorised representative of St. Josephs Catholic Church and Church of North India Cherist Church (CNI) filed a Petition before the High Court. The Single Judge rejected the prayer and resultantly, the Appeal was filed before the Division Bench.

The High Court in the above regard, noted, “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 added that under the Assam Ancient Monuments and Record Rules, 1964, it is the Superintendent, who is empowered to enquire the antiquity and age of the concerned monument and submit proposal thereof, however, in this case, the jurisdictional Circle Officer unilaterally proposed declaration of the Christian 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 as the case may be.

“It is apparent that under Section 4, 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 of the said Act of 2020. That being so, the subject Cemetery shall now be covered under the provisions of the said Act of 2020”, it emphasised.

Moreover, the Court 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 Assam Heritage (Tangible) Protection, Preservation, Conservation and Maintenance Act, 2020, as the case may be, however, the same has to be strictly done in accordance with law.

Accordingly, the High Court allowed the Appeal.

Cause Title- Father Marcus Lakra Parishy Priest and Anr. v. State of Assam and 3 Ors. (Neutral Citation: 2024:GAU-AS:12166-DB)

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