Staff Reporter
Guwahati: The Gauhati High Court, while disposing of a writ appeal, quashed a declaration issued by the District Magistrate, Kamrup (M), in 2005, declaring a Christian cemetery in the city as a heritage site. This was done on the ground that it was neither issued by the authority conferred under the Assam Ancient Monuments and Records Act, 1959, nor in the manner prescribed under the subsequent Rules of 1964 for making such a declaration.
The division bench comprising the Chief Justice Vijay Bishnoi and Justice Kaushik Goswami was hearing a writ appeal (WA/225/2014) against the impugned judgement and order dated March 24, 2014, passed by the single judge in the writ petition filed in 2006, whereby the prayer of the appellants for setting aside the impugned declaration of the Christian Cemetery in question as a heritage site was rejected.
The bench observed that the ‘condition precedent’ for declaring any monument, including a burial ground or cemetery, as an ancient monument is that the state government must first cause a thorough inquiry through the Superintendent as to the antiquity and the age of the monument to be protected. Based on the observations of the Superintendent and any recommendation of the Deputy Commissioner, the state government can issue a notification under Section 3 of the said Act of 1959, declaring such monument as a protected ancient monument.
In the instant case, the bench noted that there is nothing on record to show that any inquiry has been conducted by the Superintendent.
It is to be noted that, by the impugned order dated October 25, 2005, the District Magistrate, Kamrup (M), declared the Christian Cemetery located on Dag No.183 of Sahar Guwahati Part-VII as a Heritage site and directed that further burial shall not be allowed. It was further directed that the adjoining vacant government plot of land measuring 3 (three) kathas 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 the 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. The Assam Human Rights Commission (AHRC), therefore, by an order dated February 22, 2006, disposed of the complaint filed by a 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. Pursuant to the order of the AHRC, the jurisdictional District Magistrate, by order dated November 27, 2006, reissued his earlier order.
Being aggrieved by the re-issue of the order, the authorized representative of St. Joseph’s Catholic Church and Church of North India Christ Church (CNI) filed a writ petition under Article 226 of the Constitution of India before the High Court in the year 2006, assailing the two orders passed by the District Magistrate.
However, the HC, by judgement and order dated March 24, 2014, upheld the impugned orders issued by the District Magistrate. Hence, the present writ appeal was filed.
The appellants contended that the jurisdictional District Magistrate declared the said cemetery as a heritage site without following any procedure established by law and, as such, termed the impugned declaration as totally illegal.
The bench noted that the order of the District Magistrate is not preceded with any notice to the members of the Christian community, as they were using the subject land for burial from time immemorial.
It was observed by the bench that under the Assam Ancient Monuments and Records Rules, 1964, it is the Superintendent, who is empowered to enquire about the antiquity and age of the concerned monument and submit a proposal thereof. It was also held that under the Act of 1959, the District Magistrate does not have any power to declare the subject Christian cemetery as a heritage site, and therefore, the impugned declaration is without jurisdiction.
Accordingly, the Court set aside the impugned judgement and order passed by the single judge and also quashed the impugned orders passed by the District Magistrate.
Furthermore, the bench observed that all ancient monuments that have not been declared under the Act of 1959 as ancient monuments to be protected shall be deemed to be tangible heritages of Assam for the purpose of the 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 HC bench added.
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