Preliminary information:
Case Name: B. Manoharan vs The Ministry Of Culture
Court: Madras High Court
Bench Strength: Single Judge Bench.
Coram: M. Dhandapani
Author: M. Dhandapani
Date of Judgment: Pronounced on 27.06.2023
Case Number: W.P. No.32163/2022
Details of Parties:
Petitioner: B. Manoharan and is represented by Mr. S. Sivashanmugam
Respondents: Following are the respondents:
1. The Ministry of Culture Rep. by its Secretary Government of India New Delhi. Impleaded Sou-moto.
2. The Director General of Archaeology, Archaeological Survey of India, Dharohar Bhavan, 24, Tilak Marg, New Delhi 110 001.
3. The Superintending Archaeologist, Archaeological Survey of India, Secretariat, Fort St. George, Chennai 600 009.
4. National Monument Authority, Ministry of Culture, No.24, Tilak Marg, Bhagwan Das Lane, Mandi House, New Delhi 110 001. Impleaded Sou-moto.
5. Regional Director (South) ASI & Competent Authority, National Monument Authority, Fort St. George, Chennai 600 009.
Respondents are represented by Mr. R. Rajesh Vivekananthan, Dy. SG
Issues decided by the Court:
1. Writ petition u/A 226 is praying the Court to issue a writ of Declaration to declare that the Tomb of David Yale and Joseph Hymners situated in the compound of Law College within the Madras High Court campus is not an ancient monument and consequently direct the respondents to remove/relocate the same from the existing place to any other place nearby within the time fixed by this Hon’ble Court.
2. Whether the Tomb of David Yale and Joseph Hynmer would fall within the meaning of ancient monument u/s 2 (a) and would get the status of protected monument u/s 2 (j) of the Act so as to be declared as an ancient monument of national importance.
Type of Site: The case involves a Protected Monument i.e. Tomb of David Yale situated in the complex of the High Court of Madras. Also it is related to the construction activities within the 100 mts. wide protected area around the said protected monument. The protected monument is comprising of the carnal remains of the person close to the then Governor of East India Company for Madras City.
Type of Violation:
Construction permission to High Court Administration was denied by the respondent within the 100 mts. of said monument, which was not having any cultural or historical significance. On the other hand permission for construction of metro railway station was granted by the same authority. Claim of violation of equality was done amid the bias and dual stand of the respondent.
Details of any other issues if other statute are discussed: The matter is related for the construction of multi-layer parking in High Court premises and related to the infrastructural development, which was delayed due to ASI’s rejection for construction of the same.
Brief History of the site involved
Elihu Yale was a high-ranking official of the British East India Company who served as the Governor and President of Madras (Fort St. George) from 1687 to 1692. Tomb of his son David Yale and his friend Joseph Hymners were situated within the premises of the Law College within the campus of the High Court.
The High Court of Madras was one of the three chartered High Courts established in the three Presidency Towns of Madras, Bombay and Calcutta by virtue of the Letters Patent granted by Queen Victoria dated 26.6.1862. The Court building was constructed and handed over on 12.7.1982. Within the High Court complex covering about 107 acres, High Court, the City Civil Courts, Small Causes Courts, various Tribunals, etc. and old law college are situated within it. As the place is having heavy traffic of people related to litigations, court staff, ministerial personnel etc. it is densely crowded during the peak hours of working. There was no parking facility in the complex which was creating havoc amid such crowd. Hence the High Court administration had come out with a plan for conversion of the old law college building into court halls and to construct a multi-level parking lot in the available open space.
In 1700s city was under the rule of East India Company. During that time a Guava garden was situated next to the Fort St. George. This garden was used as burial ground and a Church was constructed. the cemetery had extended upto the present law college. In 1758, after the French attack, all the cemeteries were demolished to make the wall for Fort St. George. But two monuments were barred one is the Yale Obelisk where tomb of David Tale and Joseph Hynmers are present and the other one is a circular vault enclosed with railing containing the remains of six members of the Powney family. Elihu Yale constructed these two tombs before he was relieved of his post.
Joseph Hynmer who was friend Elihu Yale, was senior member in council of Fort St. George, died in 1680 and buried at the location under the question. After death of Joseph Hynmer, his widow Catherine married to Elihu Yale and was mother of David Yale. Elihu Yale was the founder of famous Yale University. David died and buried beside Joseph. Tomb of Joseph and David was constructed between 1684 and 1688.
Details of Pre-litigation Proceedings:
Petitioner made a representation to respondents for relocation of the tomb to another place. On 16.6.2023 representation of the petitioner was considered and rejected by the respondents by passing an order. In this order respondent mentioned the history of construction of the said tomb. In the said order of the respondent there was nothing to prove that the said site is having any historical, archaeological and/or artistic value.
Pleadings done by parties:
Petitioner’s submission and argument:
Following are the submissions and arguments of petitioner
1. Under Section 2(j) of the AMASR Act, respondents declared the said tomb and circular vault as ancient monument merely on account of its existence for more than 100 years. The said site does not fulfill any criteria of an ancient monument, as it contains only the remains of close person of the then former Governor. This site does not have any historical, archaeological or artistic significance which need to be protected as ancient monument by respondents on government spending.
2. The High Court administration was taking steps for creation of a car parking facility in the old law college buildings adjacent to the High Court campus and due to the presence of the tomb, the said project could not be implemented. As no construction can be carried out within 100 mts. around the protected monument and Archaeological Survey of India (ASI) put a naught to the development activity initiated by the High Court Administration.
3. Article 49 of the Constitution provides for the protection of monuments and places and object of national importance, but the said site is not at all having any national importance.
4. Permission for construction of new Metro Railway Station, situated within 100 mts. was granted by the Respondents, but no permission is granted for the parking lot in the High Court Complex shows the the dual stand adopted by the respondent while granting exemption. Both of these developments are for public interest.
5. Section 2(a) defines the ancient monument and the site in the question does not fulfill any of the parameters contained in the definition. Declaration on the basis that said tomb is existing more than 100 years is erroneous.
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