Respondent’s submission and argument:
1. On 16.6.2023 representation of the petitioner was considered and rejected by the respondents. In 1921, said site was declared as protected monument u/s 3 of the Ancient Monuments Preservation Act, 1904 by British Government. Government of Independent India carried over it as protected monument under Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951. Any monument declared as protected monument under 1951 Act was deemed to be of national importance under AMASR Act. British declared this site as protected monument even after more than two centuries.
2. According to the respondents, the monument is a mere cemetery and only on the pretext that it contains the interments of the son of the then Governor of the East India Company, the same has been brought within the ambit of protected monument only to satisfy the thirst of the East India Company.
3. Rather than speaking about the historical and archaeological value of the tomb, the respondents have merely placed their claim on the fact that the tomb, even pre-independence, was declared as a protected monument under Act, 1904 and, therefore, it would partake the character of a protected monument under Act, 1951 and follow suit in Act, 1958 as well.
4. After order of High Court on 12.4.2023, to elaborate the historical, archaeological, value of the said tomb, following details were submitted:
Construction style of the tomb:
The tomb consists of an obelisk built over a chamber. The either sides of the wall of chamber hold stone tablets of David Elihu Yale and Joseph Hymner. The tomb is built of brick-and-lime mortar. The superstructure has risen in five levels to get a tapering shape. Each of the four top corners of the chamber is holding stone balls.
Interpretation of statutory provisions done by court:
Section 2(a) and 2(j) of AMASR Act:
Court observed that the “Sub-section (a) to Section 2 spells out that such of those structures, inscriptions, place of interment, rock-sculpture, cave, etc., which is of historical, archaeological or artistic interest and which has been in existence of not less than one hundred years would be construed to be an ancient monument and such of those monuments would fall within the purview of protected monument under sub-section (j) of Section 2.”
Court again said that, “Merely because the tomb has been in existence for more than 100 years, that alone cannot be a ground to declare the monument as a protected monument, thereby bringing it under the cover of ancient monument as provided for under Section 2 (a) of the Act.”
Section 3 of AMASR Act:
Court observed that, “A careful perusal of Section 3 of the Act clearly shows that such of those monuments, which are ancient and historical monuments and archaeological sites, deemed to be ancient and historical monument or archaeological sites and remains shall be deemed to be of national importance.”
Section 20F of AMASR Act:
Section 20-F of the Act speaks about the constitution of National Monuments Authority, which shall include a Chairperson and such number of members, not exceeding five whole-time members and five part-time members who shall have the necessary expertise in the field of archaeology, country and town planning, architecture, heritage and conservation – architecture or law.
The formation of the Authority is not for a matter of formality, but for the purpose of discharging the duties and functions in a proper manner as envisaged under the Act.
Section 20-I of AMASR Act:
The functions and powers of the Authority are provided for u/s 20-I, which include making recommendations to the Central Government for grading and classifying protected monuments and protected areas declared as of national importance u/s 3 and 4.
Sub-section (e) to Section 20-I clearly mandates the authority to consider the impact of large-scale developmental projects including public project and projects essential to the public which may be proposed in the regulated areas and make recommendations in respect thereof to the competent authority. Therefore, necessarily, it is for the Authority to look into all the archaeological and historical structures, which have been declared as protected monuments, time and again, keeping in mind its archaeological and historical value vis-a-vis the developmental projects which are in the interest of the public and make recommendations to the competent authority, so that the Central Government may invoke its powers u/s 35 of the Act.
It is the duty of the respondents to have revisited the monuments, which were declared as protected monuments having historical or archaeological value in line with its duty under sub-section (e) of Section 20-I.
Section 35 of AMASR Act:
Section 35 of the Act provides power to the Central Government to denotify any ancient monument, which has ceased to be of national importance, which had hitherto fore been declared as an ancient or historical monument or archaeological site. For exercising the power u/s 35, necessarily the Authority ought to exercise its powers u/s 20-I by making necessary recommendations to the Central government for grading and classifying protected monuments and protected areas declared as of national importance u/s 3 and 4.
Article 49 of the Constitution:
The Article 49 of the Constitution of India specifies that it shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.”
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