Thorough enquiry essential before declaring a monument as 'ancient': Gauhati High Court

The Gauhati High Court recently held that under the Assam Ancient Monuments and Records Act of 1959, the State government must conduct a comprehensive inquiry into the antiquity of a structure, such as a tumulus, burial ground, or cemetery, before declaring it an 'ancient monument'..A Bench comprising Chief Justice Vijay Bishnoi and Justice Kaushik Goswami observed that the Superintendent of Archaeology under the Act must first gather sufficient evidence to justify the protection of a monument and then submit a proposal to the State government.Based on this proposal and any recommendations from the Deputy Commissioner, the State Government may issue a notification under Section 3 of the 1959 Act to declare the monument as a protected ancient monument.“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,” the Court said..The Court made these observations while quashing a 2005 order passed by the District Magistrate, Kamrup (Metropolitan) declaring a Christian cemetery in Guwahati as a heritage site.The order had prohibited further burials at the site and designated an adjacent government land as an open space for community use. Subsequently, this order was reinstated in 2006 following its temporary withdrawal due to a complaint before the Assam Human Rights Commission (AHRC).Representatives of St. Joseph’s Catholic Church and the Church of North India challenged the heritage declaration, contending that it infringed upon their religious rights and was issued without lawful authority or due process.They argued that the District Magistrate had no jurisdiction under the 1959 Act to declare the cemetery as a heritage site. They contended that the decision was made unilaterally without prior notice or consultation with the Christian community which had been using the site for burials for generations..The Court observed that the Assam Ancient Monuments and Records Act vests the authority to declare a site as a protected monument with the State government and not the District Magistrate. The Court added that the law outlines a specific process involving a detailed inquiry by the Superintendent of Archaeology whose recommendations must form the basis of such declarations..The Bench further said Section 3 of the Act mandates a thorough inquiry into the antiquity and age of the site by the Superintendent. The Court found no evidence of such an inquiry in the present case. Instead, the declaration was based on unilateral recommendations by the Circle Officer which contravened the statutory requirements, it was concluded.Further, the declaration order did not adhere to the procedural safeguards under the Act, such as notifying stakeholders, allowing objections, or ensuring a transparent assessment of the site’s historical significance, the Court ruled.“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. 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,” the judgment said..Accordingly, the Court allowed the appeal and set aside October 2005 and November 2006 orders by which the cemetery was declared a heritage site. It also quashed the single-judge’s 2014 judgment upholding the declaration..[Read Judgment]