Reasoning of Court:
1. Mere developmental necessity should not shield the eyes of this Court when a particular monument is archaeologically important. However, to maintain a monument as one of archaeological importance, the relevant yardsticks, which have been mandated in the provisions of the Act requires to be satisfied so as to approve the stand of the respondents that the present monument has archaeological value and is of historical importance.
2. Reading Section 3 along with Section 2 (a) and (j), it is evident that such of those structures, erection, sculpture, inscription, place of interment, etc., which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years could be declared as a monument of national importance.
3. Two conditions have to be fulfilled for an ancient structure to be branded as an ancient monument of national importance and to be declared as a protected structure of archaeological importance. The first of the condition is that the structures, erection, sculpture, inscription, place of interment, etc., should be of historical, archaeological or artistic interest and secondly that the said structure, erection, sculpture, inscription, place of interment, etc., should have been in existence for not less than one hundred years. Without satisfying the twin conditions, the said ancient structure cannot be declared as a structure of national importance to be treated as a protected monument.
4. Court observed that the construction of the said tomb is a normal construction without any artistic value. Even the photograph of the tomb shows no artistic value.
5. Court further held that “So long as there is no historical or archaeological value and artistic value attached to the said tomb, the mere fact that the tomb has been in existence for more than 100 years cannot prevail upon the respondents to declare the monument as a protected monument, merely because during the British regime, the said monument was declared as a protected monument under Act, 1904.”
6. In the case on hand, but for the monument built in the year 1684-1688, which is more than three centuries old, there is no historical or archaeological value or artistic value attached to it. Further, the tomb also does not carry the interment of any person, who had such historical significance based on his contribution to the society so as to preserve the said tomb as a protected monument.
Administrative failure of Respondent authorities observed by the Court:
1. Since 1921, when the British regime had declared the tomb, which is the subject matter herein, as a protected monument, no worthwhile steps have been taken by the Authority to find out the historical or archaeological value or the artistic value attached to the tomb so as to retain the tomb as an ancient monument and a protected monument under the relevant provisions of the Act.
2. An order passed by the British regime in the year 1921 has been allowed to continue for more than a century, unmindful of its monument’s value archaeologically or historically. Merely because the British rulers, then, had passed an order declaring the tomb as a protected monument, upon Independence, it is not necessary that independent India should continue what the British regime had thought fit to do then. May be, the slavery attitude, which marked the colonial era during the British regime, has not faded from the memory of the authority, which is evident from the fact that no application of mind had gone into the representation given by the petitioner for the removal and relocation of the tomb, by citing the fact that the said tomb has no historical or archaeological value and it also does not have any artistic value attached to it.
3. Authority had not done any exercise to revisit the protected monument and recommend the requisite to the Central Government under Section 20-I.
4. Section 20-I has been made available in the statute but has been made to appear as if it is for the purpose of its availability rather than for its enforceability. This clearly shows that citizens of India, who form part of the Authority still feel the blood of slaves in their body, which prevents them from taking any action on any act, which had been imposed upon us during the British regime.
5. It is the duty of the Authority to apply its mind individually to each and every historical or archaeological remains to decide to retain its position as a protected monument or an ancient monument. Merely carrying its protection irrespective of the fact that it has archaeological or historical or artistic value is a clear indication of abdication of duty and power vested on the authority, which clearly makes the authority an entity on paper.
6. This Court, even for a second is not ridiculing the superstructures put up by the East India Company as having no archaeological value, as the High Court premises stands testimony for the artistic and historical value of the buildings put up during the said period. But that cannot be the basis to bring all the buildings constructed during the said period within the ambit of an architectural marvel having artistic and historical value as such interpretation would be against the tenets of the statutory provisions of the Act, when there is a clear prescription that in line with the developmental needs of the public at large, it is necessary for the Authority to make appropriate recommendations to the Central Government.
Operative part of the Court order:
1. This Court is of the considered opinion that not only the respondents have not discharged their responsibility as provided for under the Act, but the present order, in and by which the tomb, which is held to be a protected monument does not satisfy the requirements provided for u/s 2 (a) and 2 (j) r/w Section 3 of the Act and, therefore, necessarily, not only the order passed by the respondents deserve to be set aside, but as a consequence thereof, necessary orders have to be passed for relocating the tomb, which is put in issue in the present petition.
2. The writ petition is allowed by setting aside the communication dated 9.6.2023 of the respondents to the petitioner and also the consequential order dated 16.6.2023 passed by the respondents in and by which the tomb has been held to be a protected monument, as the same does not satisfy the requirements of protected monument under Sections 2 (a) and (j) r/w Section 3 of the Act. In view of the above, the respondents are directed to take steps to relocate the tomb to any appropriate place, which they deem fit and proper, within a period of four weeks from the date of receipt of a copy of this order.
No Conclusion only questions:
Although Court set aside the order of respondents, this case raised many issues such as
Whether protecting remains of persons near to a British Governor on tax payers money and denying development in the name of protecting such things which are not having any cultural, historical, artistic, archaeological significance is injustice to the public welfare?
Why the Archaeological Survey of India having duel stand of exemption in one or the other matters related to the protected sites?
As the said site was declared as protected monument u/s 3 of the Ancient Monuments Preservation Act, 1904, in 1921, do we really bound to carry over such declaration by the British Government under AMASR Act without any value assessment on the grounds of cultural, historical, artistic, national pride, etc.? Before such assessment we should take a note that British people were only here to loot this nation and we should not glorify any of such person in any way.
There are more than 3,000 across the Bharat which are protected by ASI and NMA, if these authorities do not act as per the requirements of present time, then for each and other side citizen or other town planning bodies have to approach the Court, burdening the Judiciary. Hence the government authorities shall be made liable of not working even as statutory provisions.
Thank you for reading this Article till the end, please read other parts also. Bookmark this site for legal knowledge in simple words. Visit and revisit to gain it for free.