Page No.# 1/27

GAHC010170602014

2024:GAU-AS:12166-DB

In the Gauhati High Court

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

(1) WRIT APPEAL NO.225 OF 2014

1. Father Marcus Lakra Parish Priest,

Son of Late Basil Lakra,

St. Josephs Catholic Church, Panbazar, Guwahati, District:

Kamrup (M), Assam, PIN – 781001.

2. Dr. Paul Petta, Secretary Diocese of North East under Church

of North India Cherist Church (CNI), Nehru Park, Panbazar,

Guwahati, District Kamrup (M), Assam, PIN – 781001 (Both are

authorized representatives of the Christian people of the

Catholic Church and the Church of North India residing in the

Guwahati City.

…… ..Appellants

-Versus-

1. The State of Assam, represented by the Chief Secretary to

the Government of Assam, Dispur, Guwahati, Assam, PIN –

781006.

2. The District Magistrate, Kamrup (M) District, Guwahati,

District: Kamrup (M), PIN – 781001.

3. Chenikuthi Happy Villa Unayan Samiti, Kushal Konwar Path,

Kamrup (M), Guwahati, Assam, PIN – 781003.

4. Pragati Mahila Samiti, Chenikuthi Hill side, Guwahati, Kamrup

(M), Assam, PIN – 781003.

Page No.# 1/27

GAHC010170602014

2024:GAU-AS:12166-DB

In the Gauhati High Court

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

(1) WRIT APPEAL NO.225 OF 2014

1. Father Marcus Lakra Parish Priest,

Son of Late Basil Lakra,

St. Josephs Catholic Church, Panbazar, Guwahati, District:

Kamrup (M), Assam, PIN – 781001.

2. Dr. Paul Petta, Secretary Diocese of North East under Church

of North India Cherist Church (CNI), Nehru Park, Panbazar,

Guwahati, District Kamrup (M), Assam, PIN – 781001 (Both are

authorized representatives of the Christian people of the

Catholic Church and the Church of North India residing in the

Guwahati City.

…… ..Appellants

-Versus-

1. The State of Assam, represented by the Chief Secretary to

the Government of Assam, Dispur, Guwahati, Assam, PIN –

781006.

2. The District Magistrate, Kamrup (M) District, Guwahati,

District: Kamrup (M), PIN – 781001.

3. Chenikuthi Happy Villa Unayan Samiti, Kushal Konwar Path,

Kamrup (M), Guwahati, Assam, PIN – 781003.

4. Pragati Mahila Samiti, Chenikuthi Hill side, Guwahati, Kamrup

(M), Assam, PIN – 781003.

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5. Dr. Nivedita Goswami,

Daughter of Late Krishna Sarma,

House No.13, Kushal Konwar Path, Chenikuthi, Guwahati-

781003, Assam.

6. Sri Pradip Kakoty,

Son of Late Satish Kakoty,

House No.1, Kushal Konwar Road, Chenikuthi, Guwahati-

781003, District: Kamrup (M), Assam.

7. Ramen Baruah,

Son of Late Binod Barua,

House No.2, Kushal Konwar Road, Chenikuthi, Guwahati-

781003, District: Kamrup (M), Assam.

8. Mukul Chandra Deka,

Son of Late Rajyamal Deka,

House No.4, Kushal Konwar Road, Chenikuthi, Guwahati-

781003, District: Kamrup (M), Assam.

9. Haren Gogoi,

Son of Late Bhudhar Gogoi,

House No.9, Kushal Konwar Road, Chenikuthi, Guwahati-

781003, District: Kamrup (M), Assam.

…… ..Respondents

(2) WP(C) NO. 6710 OF 2021

Fr. Vincent Xalxo,

Son of Late Marcus Xalxo,

The Parish Priest, St. Josephs Catholic Church, Don Bosco,

Panbazar and in-charge of Christian Cemetery at Kushal Konwar

Road, Chenikuthi, Guwahati, District-Kamrup (M), Assam, PIN-

781003.

…… ..Petitioner

Page No.# 3/27

-Versus-

1. The State of Assam, represented by the Chief Secretary to

the Government of Assam, Dispur, Guwahati - 781006.

2. The Commissioner & Secretary to the Government of Assam,

Revenue & Disaster Management Department, (Settlement

Branch), Dispur, Guwahati, PIN-781006.

3. The Deputy Commissioner, Kamrup (Metropolitan), (Land

Settlement Branch), Guwahati-781001, Assam.

4. The District Magistrate, Kamrup (Metropolitan) District,

Guwahati - 781001, Assam.

5. Bhagadatta Kr. Das,

Father’s name – not known,

Resident of Kushal Konwar Road, Chenikuthi Hillside, Guwahati-

781003 in the District of Kamrup (M), Assam.

6. Dr. Nivedita Goswami,

Daughter of Late Krishna Sarma,

House No.13, Kushal Konwar Road, Chenikuthi, Guwahati-

781003 in the District of Kamrup (M), Assam.

7. Sri Haren Gogoi,

Son of Bhudhar Gogoi,

House No.11, Kushal Konwar Road, Chenikuthi, Guwahati-

781003 in the District of Kamrup (M), Assam.

8. Sri Pradip Kakoty,

Son of Late Satish Kakoty,

House No.1, Kushal Konwar Road, Chenikuthi, Guwahati-

781003 in the District of Kamrup (M), Assam.

…… ..Respondents

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– B E F O R E –

HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Appellants/Petitioner : Mr. R.P. Kakoti, Senior Advocate, assisted by Mr. A.B. Dey,

Advocate in Writ Appeal No.225/2014.

: Mr. A. Dhar, Advocate in WP(C) No.6170/2021.

For the Respondents : Mr. R.K. Borah, Additional Senior Government Advocate,

Assam for respondent Nos.1 & 2.

: Ms. S. Sarma, Advocate for respondent Nos. 6, 7 & 8.

Date of Hearing : 26.11.2024.

Date of Judgment : 03.12.2024.

J UDGMENT & O RDER (CAV)

(Kaushik Goswami, J)

Heard Mr. R.P. Kakoti, learned Senior Counsel, assisted by Mr. A.B. Dey,

learned counsel for the appellants in Writ Appeal No.225/2014 and Mr. A. Dhar,

learned counsel appearing for the petitioner in WP(C) No.6710/2021. Also heard

Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam

appearing for the State respondents and Ms. S. Sarma, learned counsel

appearing for the respondent Nos.6, 7 & 8.

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2. The present appeal is presented against the impugned judgment &

order dated 24.03.2014 passed by the learned Single Judge in WP(C)

No.6202/2006, 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.

3. The facts relevant in this appeal are that 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 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 by few residents of the locality.

4. The jurisdictional District Magistrate, in terms of the pendency of the

aforesaid complaint, withdrew the Declaration Order dated 25.10.2005.

Therefore, the Assam Human Rights Commission, by Order dated 22.02.2006,

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.

5. Pursuant to the aforesaid order of the Assam Human Rights

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Commission, the jurisdictional District Magistrate, by Order dated 27.11.2006,

re-issued his earlier order, i.e. Order dated 25.10.2005 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

petition under Article 226 of the Constitution of India before this Court being

WP(C) No.6202/2006, wherein by representing the entire Christian population

subjected to the above 2(two) Churches residing in inner Guwahati city assailed

the aforesaid orders dated 25.10.2005 and 27.11.2006 passed by the

respondent No.2.

6. In the aforesaid writ proceedings, the learned Single Judge, by

judgment & order dated 24.03.2014, rejected the said prayer of the petitioners.

Accordingly, the present appeal has been preferred. Pertinent that this Court,

while admitting the present appeal by order dated 04.08.2014, directed

continuing of the interim order passed by the learned Single Judge by order

dated 15.12.2006 in the said writ petition, staying the operation of the

impugned order dated 27.11.2006.

7. During the pendency of the said appeal, the respondent Nos.5 to 8

lodged a complaint before the Deputy Commissioner, Kamrup (M), alleging

illegal extension of subject Christian burial site in the land covered by Dag

No.181 and in pursuance of the same, the respondent authorities issued a

notice of hearing to the petitioners on 13.09.2021. Thereafter, the jurisdictional

Deputy Commissioner, Kamrup (M), after hearing both the concerned parties, by

order dated 12.11.2021, observed that the subject Cemetery does not have

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right to initiate a fresh construction work in the nature of erecting boundary wall

over the subject land and thereby directed the Cemetery in question to remove

all the fresh construction over the subject plot of land.

8. Being aggrieved with the said order, the petitioners filed WP(C)

No.6710/2021. Pertinent that this Court, by order dated 13.12.2021, directed

both the parties in that writ proceeding to maintain status quo with regard to

the subject plot of land and not to make any further construction. The issue

involved in the said writ petition being connected with the appeal, this Court by

its earlier order dated 01.08.2022, directed listing of the said writ petition

alongwith the present appeal. Accordingly, both the matters are taken up

together for final disposal by this common judgment & order.

9. Mr. Kakoti, learned Senior Counsel appearing for the appellants submits

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. He further submits that the decision

of the learned Single Judge by the impugned judgment & order dated

24.03.2014, whereby the prayer of the petitioners to set aside and quash the

said impugned declaration was rejected, is totally erroneous and accordingly,

warrants interference from this appellate Court.

10. Mr. A. Dhar, learned counsel appearing for the petitioner in WP(C)

No.6710/2021 submits that the orders of the District Magistrate impugned in the

writ proceedings, whereby further construction activities in the impugned writ

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petition has been stopped is illegal, as the land in question has been reserved

for the subject Cemetery as per the Revenue records.

11. Per contra, Ms. S. Sarma, learned counsel appearing for the

respondent Nos.6, 7 & 8, i.e., residents of the locality in question, submits that

Dag No.181 has been reserved for way to the subject Cemetery located at Dag

No.183 and hence, the same cannot be used for any other purpose except for

the purpose reserved. She further submits that the appellants/petitioner by

erecting a boundary wall in the said subject land has obstructed the open space,

thereby violating the purpose reserved for the use of the subject land and

hence, the order of the jurisdictional Deputy Commissioner warrants no

interference from this Court.

12. Mr. R.K. Borah, learned Additional Senior Government Advocate

appearing for the State respondents submits that the original records indicates

that the land in question has been reserved for the subject Cemetery. He further

submits that the affidavit filed on behalf of the State respondents does not

indicate the power of the jurisdictional District Magistrate to declare a plot of

land as Heritage site. He further submits that the writ appeal can be disposed of

by remanding the matter to the State Government to take up the matter afresh

as regards declaration of the subject Cemetery as Heritage site, in accordance

with law.

13. We have given our prudent consideration to the arguments made by

the learned counsel appearing for the contesting parties and have also perused

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the materials available on record.

14. The issue involved is the legality and validity of the impugned order

dated 25.10.2005 and restoration order dated 27.11.2006 issued by the

jurisdictional District Magistrate, whereby the subject Christian Cemetery was

declared as a Heritage site and also further burial therein was prohibited.

15. Apt to refer to the declaration order dated 25.10.2005, which is

reproduced hereunder for ready reference:-

“ORDER

In the greater interest of public, the Christian Cemetery located on Dag No.

183 of Sahar Guwahati is hereby kept as Heritage Site and farther burial shall

not be allowed forthwith. The vacant Government plot of land measuring 8.48

Are covered by Dag No. 181 of Sahar Guwahati Part-VII is also hereby kept as

an open space in the interest of focal people so as to enable public in the locality

to use the land for community purposes.

Inform all concerned accordingly.

Sd/- Samir Kr. Sinha, IAS

District Magistrate,

Kamrup (Metropolitan) District

-Guwahati-”

16. Apt also to refer to the restoration order dated 27.11.2006, which is

reproduced hereunder for ready reference:-

“ORDER

Seen and perused order dated 22/02/06 passed by the Hon'ble Assam

Human Rights Commission in AHRC Case No. 4315/2002 referring the matter

to the undersigned to decide the matter. The order stated that "The order dated

25/10/05 of the Deputy Commissioner cannot be faulted".

Accordingly order dated 25/10/05 is hereby re-issued for implementation

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by the concerning parties/ departments.

Inform all concerned enclosing a copy of the said order dated 25.10.05.

District Magistrate,

Kamrup Metropolitan District

Guwahati”

17. It appears that the jurisdictional District Magistrate, by order dated

25.10.2005 in the garb of greater interest of public, declared the subject

Christian Cemetery located in the said Dag No.183 as ‘Heritage site’ and

directed that no further burial shall be allowed in the said subject land.

18. It further appears that in respect of the adjacent land, i.e. Dag No.181,

the jurisdictional District Magistrate further directed that the same shall be kept

as an open space in the interest of local people, so as to enable the public in

the locality to use the land for community purpose.

19. It further appears that the aforesaid declaration was withdrawn by the

jurisdictional District Magistrate in view of pendency of a complaint before the

Assam Human Rights Commission and after the said complaint was decided by

the Commission, the jurisdictional District Magistrate re-issued/restored the

earlier order of declaration dated 25.10.2005 by order dated 27.11.2006.

20. During the pendency of the appeal, the learned State Counsel had

placed a letter dated 28.02.2024 issued by the Additional District Commissioner,

Kamrup (M) District, Guwahati, enclosing the draft chitha copies for the period

(1951-55) and (1975-86) for the Dag Nos.181 and 183 to the Additional Senior

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Government Advocate, Assam, wherefrom it appears that the land covered

under the said 2(two) Dags were reserved for the Christian Cemetery and Kabar

Khana.

21. It appears 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. Further, it appears that the impugned declaration

order does not reflect the reasons for declaration of the land in question as

Heritage site.

22. As a corollary to the above, the question that falls for determination is

under what power and jurisdiction the District Magistrate had issued the

impugned declaration of the land in question as Heritage site.

23. The affidavit-in-opposition which has been filed by the State

respondents in the writ petition is silent as regards the power under which the

jurisdictional District Magistrate has issued the impugned declaration.

24. Paragraph Nos.3 to 15 of the said affidavit-in-opposition are

reproduced hereunder for ready reference:-

“3. That some residents of Chenikuthi Hill Side submitted a petition

dated 10.3.1992 to the then Chief Minister, Assam and Revenue Minister

Assam requesting that the open space measuring 3(three) kathas covered by

Dag No.181 of Ulubari Mouza, Village Sahar, Guwahati Part II adjacent to

the Christian Cemetery Hill Side be reserved for public purpose as an open

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space. Following that enquiries were made but the outcome is not known.

4. That a report dated 6.4.99 was submitted by the Commissioner

appointed by the Civil judge of Division No.1. Guwahati in Title suit

No.225/96 which inter-alia indicated that as per revenue record Dag No.181

is a Govt. land reserved for Christian Cemetery and the same is approach

road to Dag No.181 which is actual Christian Cemetery.

5. That Guwahati Development Authority (GDA) issued No Objection

Certificate for construction of boundary wall on Dag No.181 vide No.GDA/

BP/150/92/9 dated 17.3.92 to the Parish priest St. Joseph's Church,

Christian Cemetery against their application dated 10.3.92. However vide

letter No. GDA/BP/150/92/16 dated 21.3.92 the GMDA directed the

petitioner not to construct boundary wall as the petitioner is not the actual

owner of the said land.

6. That the enquiry was conducted by the Circle Officer Guwahati

Revenue Circle vide No. 92 dated 27.3.92 in which it is state Dag No. 183

having an area of 5 (five) bighas 1 (one) katha land measuring 3 (three)

lechas on Dag No.181 is an open space adjacent to the actual burial ground.

The report of the Circle Officer was duly forwarded to the Government to the

Revenue Department by the then Deputy Commissioner.

7. That the then Deputy Commissioner, Kamrup vide under Memo No.

KMJ 28/2001/50 dated 23.2.01 ordered that the area in dispute to be kept

as an open space without disturbing the sanctity of the cemetery.

8. That the dispute over the land at Dag No. 181 continued with the

Parish priest trying to occupy the land under Dag No. 181 by constructing

wall and a gate. In this regard a letter was sent to the then Chief Minister of

Assam in the year 2001. On the contrary prominent citizen like Sri Satish

Chandra Kakati and others opposed the move construct wall over

the property.

9. That Assam Human Rights Commission registered a case bearing

AHRC Case No. 7315/2002 called for a report from the Deputy

Commissioner, Kamrup.

10. That in the year 2004 local women's organization also submitted a

prayer before the Deputy Commissioner, Kamrup requesting to keep the said

plot of land in dag No. 181 as open space for public use.

11. That the Govt. of Assam vide letter No. GDD 47/2001/56 dated

30.6.03 directed by the Deputy Commissioner, Kamrup (M) should sort out

the matter in the consultation with all concerned.

12. That in the year 2003, the Circle Officer, (A) Guwahati Revenue Circle

submitted a report to the then Deputy Commissioner Kamrup vide No. CC---

24/2002/492 dated 11.3.03 indicating inter-alia that the Christian

Cemetery was situated over land in dag No. 183 and the land Dag No.

181 was an open space. This open space in Dag No. 181 is noted as

Government land with the remarks, reserved for Christian Cemetery. In the

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said report, the Circle Officer suggested that the Christian Cemetery on Dag

No 183 be observed as a Heritage site and no further burial should be

allowed there and area under Dag No. 181 be reserved as an open space.

Following the report District Magistrate, Kamrup (M) ordered that the

Christian Cemetery in Dag no 183 is preserved as heritage site and

no further burial be allowed there and Dag No. 181 with an area of 8.48

acre be kept as open space for public use vide order No. KMJ/28/201/201

dated 28.10.05.

Thereafter following representation from the Christian Cemetery that

the matter was pending in Assam Human Rights Commission,

District Magistrate withdrew the order mentioned above dated vide his order

dated 10.11.2005 vide memo No. KMJ/28/2001.

13. That the Assam Human Rights Commission passed a judgment and

order dated 2.2.2006 passed in AHRC Case No. 4315/02 referred the

matter to the Deputy Commissioner to decide the matter and also held that

order dated 25.10.2005 passed by the Deputy Commissioner, Kamrup

cannot be faulted with.

14. That upon the representation of the Christian community that there is

no alternative burial ground for them in Guwahati the matter was enquired

into through the Circle Officer (A), Guwahati Revenue Circle and he

submitted his report vide No. GC 14/06/1648 dated 11.8.06 that 3(three)

Dag in Sahar Sarania Part-I were already allotted as burial ground for

Christian in Silpukhuri Nabagraha area.

15. That the considering the above enquiry report the District Magistrate

(M) vide order under memo No. KMJ 28/2001/212-A dated 27.11.2006 re-

issued the order passed on 25.10.2005.”

25. What transpires from the above affidavit-in-opposition is that pursuant

to a representation filed by the residents of the neighbourhood of the subject

Christian Cemetery on 10.03.1992, for reserving the Dag No.181 adjacent to the

Christian Cemetery (Dag No.183) for public purpose as an open space, enquiries

were initiated. It further appears that in the year 2003, the jurisdictional Circle

Officer submitted a report to the jurisdictional Deputy Commissioner, wherein he

suggested that the Christian Cemetery on Dag No.183 be observed as Heritage

site and to prohibit further burial therein and that the Dag No.181 be reserved

as an open space. It appears that pursuant to the said observation of the Circle

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Officer, the impugned declaration was made by the jurisdictional District

Magistrate.

26. It is thus evident from the aforesaid that the entire dispute started

after a representation was made by the residents of the subject locality in

respect of Dag No.181, which is alleged to be reserved for the way to Dag

No.183, i.e. the burial ground. However, it appears that the jurisdictional Circle

Officer unilaterally recommended declaration of Dag No.183 in respect of which

there was no complaint from the residents of the locality in question as a

Heritage site. Curiously, the jurisdictional District Magistrate, at the stroke of a

pen, declared the subject Christian Cemetery at Dag No.183 as a Heritage site

and further prohibited burial therein. Despite pointed query being posed to the

learned State Counsel, he could not assist the Court as regards the source of

power under which such declaration was issued by the jurisdictional District

Magistrate.

27. However, Mr. R.P. Kakoti, learned Senior Counsel for the appellants

draws our attention to the Assam Ancient Monuments and Records Act, 1959

(hereinafter to be referred as the “Act of 1959”). A perusal of the said Act of

1959 indicates that the object of the said Act is 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.

28. It appears that the said Act of 1959 lays down the provisions for the

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preservation and protection of ancient and historical monuments and records in

Assam. Ancient monument is defined under Section 2(a) of the said Act of 1959,

which is reproduced hereunder for ready reference:-

“2. Definitions

In this Act unless there is anything repugnant in the subject or context,-

(a) ‘Ancient Monument’ means any structure, erection or monument or any

tumulus or place of internment, or any cave, rock sculpture, inscription or

monolith, which is of historical, archaeological or artistic interest and which

has been in existence for not less than one hundred years and includes.

(i) the remains of ancient monument;

(ii) the site of an ancient monument;

(iii) such portion of land adjoining the site of an ancient monument as

may be required for fencing or covering in or otherwise preserving

such monument, and

(iv) the means of access to, and convenient inspection of any ancient

monument;”

29. The definition of ancient monument includes place of tumulus amongst

others. Apt to refer to Concise Oxford English Dictionary, 12

th

Edition, which

defines tumulus as “An ancient burial mound; a barrow”. In common parlance,

tumulus is a mound of earth and stones raised over a grave or graves.

30. It is thus apparent that graveyard/cemetery can be construed to be

ancient monument if the same is of historical, archaeological or artistic interest

and which has been in existence for not less than 100 (One Hundred) years.

31. Apt also to refer to Sections 3, 4 & 5 of the said Act of 1959, which are

reproduced hereunder for ready reference:-

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“3. Protected Monument

(1) The State Government may, by notification in the official Gazette,

declare an ancient monument to be a protected monument within the

meaning of this Act.

(2) A copy of every notification published under sub-section (1) shall be

fixed up in a conspicuous place on or near the monument, together with an

intimidation that any objections to the issue of the notification received by

the State Government within one month form the date when it is so fixed up

will be taken into consideration.

(3) On the expiry of the said period of one month the Government after

considering the objection, if any, shall confirm or withdraw the notification.

(4) A notification published under this Act shall, unless and until it is

withdrawn, be conclusive evidence of the fact that the monument to which it

is related is an ancient monument within the meaning of this Act.

NOTES

This section is also similar to section 3 of the Central Act and empowers the

State Government under the Assam Act to declare an ancient monument to

be a protected monument within the meaning of this Act.

4. Acquisition of Right in or Guardianship of an Ancient Monument

(1) The Superintendent with the sanction of the State Government, may

purchase, or take a lease of, or accept a gift or bequest of any protected

monument.

(2) When a protected monument is without an owner, the Superintendent

may, by notification in the official Gazette, assume the guardianship of the

monument.

(3) The owner of any accepted monument may, by written instrument,

constitute the Superintendent the guardian of the monument, and the

Superintendent may, with the sanction of the State Government, accept such

guardianship.

(4) When the Superintendent has accepted the guardianship of a

monument under sub-section (3), the owner shall except as expressly

provided in this Act have the same state, right, title and interest in and to

the monument as if the superintendent had not been constituted guardian

thereof.

(5) When the Superintendent has accepted the guardianship of a

monument under sub-section (3) the provisions of this Act relating to

agreements executed under section 5, shall apply to the instrument

executed under the said sub-section.

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NOTES

This section is also similar to section 4 of the Central Act and empowers the

Superintendent of Archaeology and any Officer authorized by the State

Government to perform the duties of the Superintendent, to purchase or take

a lease of or accept a gift or the bequest of any protected monument with the

sanction of the State Government and such officer is empowered under sub-

section (2) thereof to assume the guardianship of the monument when such

a monument is without an owner.

5. Preservation of Ancient Monument by Agreement

(1) The Deputy Commissioner, when so directed by the State Government

shall 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.

(2) An agreement under this section may provide for all or any of the

following matters, namely:

(a) The maintenance of the monument;

(b) The custody of the monument and the duties of any person who

may be employed to watch it;

(c) The restriction of the owner's rights-

(i) To the monument for any purpose;

(ii) To charge any fee for entry into, or inspection of the

monument;

(iii) To destroy, remove, alter or deface the monument: or

(iv) To build on or near the site of the monument;

(d) The facilities of access to be permitted to the public or any section

thereof and to persons deputed by the owner or the Deputy

Commissioner to inspect or maintain the monument;

(e) The notice to be given to the State Government in case the land

on which the monument is situated or any adjoining land is offered for

sale by the owner, and the right to be reserved to the State Government

to purchase such land, or any specified portion of such land, at its

market value;

(f) The payment of any expenses incurred by the owner or by the

State Government in connection with the maintenance of the

monument:

(g) The proprietary or other rights which are to vest in the State

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Government in respect of the monument when any expenses are

incurred by the State Government in connection with the maintenance

of the monument;

(h) The appointment of an authority to decide any dispute arising out

of the agreement; and

(i) Any matter connected with the preservation of the monument

which is a proper subject of agreement between the owner and the

State Government.

(3) The State Government or the owner may at any time after the expiration

of three years from the date of execution of an agreement under this section

terminate it on giving six months' notice in writing to the other party:

Provided that where the agreement is terminate by the owner, he shall

pay to the State Government the expenses, if any, incurred by it on the

maintenance of the monument, during the five years immediately preceding

the termination of the agreement or, if the agreement has been in force for

shorter period, during the period the agreement was in force.

(4) Any agreement under this section shall be binding on any person

claiming to be the owner of the monument to which it relates, through or

under a party by whom or on whose behalf the agreement was executed.

NOTES

The provisions as contained in this section are also being provided in

section 5 of the Central Act. Under this section, an ancient monument can be

preserved by the State Government by entering into an agreement with the

owner of a protected monument and detailed procedure thereof has

been provided in this section.”

32. Reading the above, it is apparent that the Act of 1959 provides

provision for the preservation and protection of ancient and historical

monuments in Assam. Under Section 3 of the said Act, the State Government is

empowered to declare an ancient monument to be a protected monument by

publication of notification in the Official Gazette and such notification is 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

the said period and after consideration of the objection, if any, the State

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Government shall confirm or withdraw the notification, as the case may be.

Further, under Section 4 of the Act of 1959, the Superintendent of Archaeology,

with the sanction of the State Government, is 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 as the case

may be. Furthermore, under Section 5 of the Act of 1959, the Deputy

Commissioner, when so directed by the State Government, shall 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 shall

enter into an agreement, wherein the conditions for

maintenance/custody/restriction or use, etc., of the monument shall be agreed

upon.

33. Apt also to refer to the Assam Ancient Monuments and Record Rules,

1964, (hereinafter to be referred as the “Rules of 1964”), whereunder Chapter-

II provides the manner of declaration of protected monuments. Rules 3, 4, 5 &

6 of the said Rules of 1964 are reproduced hereunder for ready reference:-

“3. Manner of enquiry before an Ancient Monuments may be declared to be

protected

(1) The Superintendent shall, before a notification under Section 3

is issued, cause a thorough enquiry as to the antiquity of the monument to

be protected, and shall determine as accurately as possible the age of the

Monument on such evidences as may be available to him.

(2) On obtaining evidences which the Superintendent considers sufficient

for protection of a Monument, he shall submit necessary2 proposals to the

State Government for protection of the same under intimation to the Deputy

Commissioner concerned.

(3) In submitting a proposal to the State Government the Superintendent

shall specify the exact area of the land that is required for the purpose of

preserving the Monument in proper manner, with facilities for approach

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road, reaction of any structures and for laying out of gardens.

4. Recommendations of the Deputy Commissioner

The Deputy Commissioner shall within one month from the date of the

receipt of the report from the Superintendent, submit to the State

Government his objection if any against the proposal of the Superintendent

together with alternative suggestions. The State Government may issue a

Notification under Section 3, notwithstanding the fact that no report has

been received from the Deputy Commissioner in this behalf.

5. Demarcation of site

As soon as a notification has been confirmed under sub-section (3) of Section

3, the Superintendent shall cause necessary pillars and fencings to be fixed

demarcating the area appearing in the notification and required for

preservation of the protected Monument.

6. Restriction of Public entry into a Monument during repairs

(1) Superintendent may, by an order to be fixed up in a conspicuous place

near the Monument, prevent entry into the site of the protected Monument of

any person not specifically authorized by him to do so, during such

periods of time when the Monument is under repairs or when an excavation

is carried on in the site or when entry of unauthorized persons is deemed by

the Superintendent to be detrimental in the interest of work of preservation.

(2) In the Case of a protected Monument which, or part of which, is used

for religious worship or observances by any community, the person or

persons whose entry into the Monument is required for the purpose of

religious observances, shall be deemed to be persons authorized by the

Superintendent for such entry under sub-rule (1).3.”

34. It is apparent reading of the aforesaid Rules of 1964 that a

Superintendent which means under sub-section (f) of Section 2 of the Act of

1959, the Superintendent of Archaeology and include any officer authorized by

the State Government to perform the duties of the Superintendent, is

empowered to undertake a thorough enquiry as to the antiquity of the

monument to be protected and shall determine as accurately as possible the

age of the monument on such evidences as may be available to him. The Rules

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of 1964 further provides how the enquiry shall be made by the Superintendent

and also the manner of submitting the proposal thereof to the State

Government with intimation to the Deputy Commissioner concerned. The Rules

of 1964 further empowers the concerned Deputy Commissioner to make

recommendations thereof to the State Government within the specified time

period. It is only after the proposal of the Superintendent and the

recommendations of the Deputy Commissioner concerned, if any, the State

Government may issue the notification of declaration of protection of ancient

monuments.

35. Thus, 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. 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 &

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4 of the said Rules of 1964, have also been undertaken by the State

Government. Pertinent that under the said Rules of 1964 it is the

Superintendent, who is empowered to enquire the antiquity and age of the

concerned monument and submit proposal thereof. However, 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. There is, therefore, no doubt in our mind that

under the Act of 1959, the District Magistrate does not have any power to

declare the subject Christian Cemetery as Heritage site. Therefore, the

impugned declaration is without jurisdiction.

36. 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. Reference in this regard is

made to the decision of the Privy Council in the case of Nazir Ahmed Vs. The

King Emperor reported in 1936 AIR (PC) 253. Undoubtedly, in the present

case, neither the authority conferred under the Act of 1959 has issued the

impugned declaration of the subject Cemetery as Heritage site nor the manner

prescribed under the Rules of 1964 for making such declaration has been

followed. As such, the impugned declaration of the subject Christian Cemetery

by the jurisdictional District Magistrate is totally ultra vires, per-se illegal and

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null and void. We are, therefore, of the firm view that mandamus in the present

case lies.

37. In view of the above, we are unable to accept the findings of the

learned Single Judge in not interfering with the impugned declaration, which on

the face of the record, is illegal and null and void. Accordingly, the impugned

judgment & order dated 24.03.2014 passed by the learned Single Judge is set

aside.

38. Resultantly, the impugned orders dated 25.10.2005 and 27.11.2006

issued by the District Magistrate, Kamrup (M) are also hereby set aside and

quashed.

39. Before parting with the records, pertinent that Mr. A. Dhar, learned

counsel appearing for the petitioner in WP(C) No.6710/2021 has brought to our

notice that the State Government has, in the meantime, also enacted the Assam

Heritage (Tangible) Protection, Preservation, Conservation and Maintenance Act,

2020 (hereinafter to be referred as the “Act of 2020”) to provide for the

protection, preservation, conservation, maintenance and restoration of tangible

heritage of the State of Assam other than those declared by or under the law

made by the Parliament to be of national importance or those covered under the

Act of 1959 and to develop and promote these heritages and matters connected

therewith and incidental thereto. Tangible Heritage as defined under sub-section

(l) of Section 2 of the Act of 2020 means any material or physical heritage like

buildings, structures, artifacts, sculptures, handloom and handicrafts, fabrics,

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paintings, traditional music instrument, etc., as dealt with in Section 3.

40. Apt to refer to sub-section (p) of Section 2 of the said Act of 2020,

which defines monument, as reads hereunder:-

“2.(p) ‘Monument’ means any ancient monument and sites which is not

declared as such by the State Government by notification in the Official

Gazette, to be a protected monument under the Assam Ancient Monuments

and Records Act, 1959 and by the Central Government under the Ancient

Monuments and Archaeological Sites and Remains Act, 1958.”

41. Apparent that any ancient monument, which is not declared under the

Act of 1959, is covered under the definition of monument.

42. Apt also to refer to Sections 3 & 4 of the said Act of 2020, which are

reproduced hereunder for ready reference:-

“3. For the purposes of this Act, the tangible heritage of Assam shall be, -

(a) Built heritage which includes,-

(i) Monuments, architectural works, works with monumental

sculpture, and painting, elements or structure of an

archaeological nature, inscription, cave dwellings, combinations of

features, which are of outstanding value for the heritage of Assam

from the point of view of history, art or science;

ii) tanks, ramparts, buildings, precincts, sites, areas, cultural and

religious institutions of people of Assam like Sattras, Monasteries,

Stupas, Namghars, Mosques, Dargah, Church and religious

institutions of different ethnic groups having historical legacy,

social institutions etc.;

(iii) groups of separate or connected buildings which because of their

architecture, their homogeneity or their place in the landscape are

of outstanding value for the heritage of Assam:

(iv)vernacular heritage ie. traditional and historical way by which the

communities or individuals shelter themselves over a period of

time in the state of Assam;

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(b) Movable Heritage which includes, -

(i) antiquities such as any coin, sculpture, manuscript, maps,

epigraphs, other works of art or craftsmanship or any such object:

(ii) any article, object or thing detached from building cane, on walls,

fossils, geological, and geomorphic formations;

(iii) any article, object or thing illustrative of science, art, crafts,

handlooms, handicrafts, fabrics, film, photography, documents,

literature, religion, customs etc.,

(iv)any article, object or machinery, equipment, recordings, or things

that having heritage value as may be notified by the Government

to be an antiquity for the purposes of this Act;

4. All ancient monuments and all archaeological sites and remains which

have not been declared by or under law made by Parliament to be of

national importance and which have not been declared by the State

Government by notification in the Official Gazette as ancient Monuments to

be protected under the Assam Ancient Monuments and Records Act, 1959,

shall be deemed to be tangible heritages of Assam for the purposes of this

Act.”

43. 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.

44. 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.

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45. With the aforesaid observation and direction, the Writ Appeal

No.225/2014 stands allowed.

46. As far as WP(C) No.6710/2021 is concerned, it appears that the

jurisdictional District Commissioner, pursuant to representations filed by

residents of the locality in question, conducted hearing, wherein both the

residents and representatives of the Church in question appeared. It further

appears that the jurisdictional Deputy Commissioner, upon hearing both the

parties and examining land records and upon observing that the subject Dag

No.181 was reserved for Christian Cemetery, restrained the petitioner from

initiating fresh construction work in the nature of erecting boundary and

accordingly, directed the Cemetery authorities to remove all the fresh

construction over the subject Dag No.181.

47. During the course of hearing, Mr. A. Dhar, learned counsel for the

petitioner produced a certified copy of the chitha in question, wherefrom it

appears that in the year 1992, Dag No.181 was corrected and reserved for way

to the burial ground located at Dag No.183 instead for Christian Cemetery.

However, the said chitha was not taken into account by the District

Commissioner while passing the impugned restrained order dated 12.11.2021. It

further appears that it is not clear from the restrained order as to how the

Church authorities have claimed ownership and title over the subject Dag

No.181. Therefore, it appears that the entire material were not taken into

consideration while passing the impugned restraining order. That being so, we

are of the opinion that this writ petition can be disposed of with a direction to

Order downloaded on 24-12-2024 06:00:25 PMPage No.# 27/27

the competent authority to decide the complaint as regard Dag No.181, afresh

after taking into account all the relevant material and by giving full opportunity

to all the affected parties to prove their respective claims within a period of 3

(three) months from the date of receipt of a certified copy of this order and till

then, the status quo order as directed by this Court earlier by order dated

13.12.2021 be maintained with regard to the Dag No.181.

48. Ordered accordingly.

49. Accordingly, WP(C) No.6710/2021 stands disposed of.

JUDGE CHIEF JUSTICE

Comparing Assistant