JUDGMENT
Anil Kumar, J.
Page 0405
1. The petitioners have prayed for issuance of a direction to Ministry of Art, Culture & Tourism, Archeological Survey of India and Mr. A.K. Sinha, respondents Nos. 1, 2 and 3 respectively for canceling/quashing/Page 0406 annulling/withdrawing the orders dated 17.10.2005 passed by respondent No. 3 and further restraining the respondents Nos. 1 to 4 from proceeding with the execution of orders dated 17.10.2005.
2. Brief facts of the case are that the petitioners have occupied the Christian Church Compound, Kishanganj, Delhi. It is the case of the petitioner that at the time of partition the Christians who were residing in Delhi were uprooted and one Mr. John Jacob who was also uprooted and displaced approached one, Mr. Alool, who was managing the Christian Church Compound at Kishanganj under the aegis of Armenian Association and he permitted Mr. Jacob and his family and relations to use and occupy the said Church Compound. Since then the family of Mr. John Jacob and his relations i.e. the petitioners’ were in the peaceful, uninterrupted and undisturbed possession of the Christian Church Compound at Kishangunj and that they continued residing their even after the death on 26/11/1956 of Mr. John Jacob.
3. According to the petitioners in December 1959, Mr. V. Stephen came from Calcutta on behalf of the Armenian Association and found Mr. Matthew Jacob, son of Mr. John Jacob, in possession of the Christian Church compound and advised him to remove himself from the church compound along with his relations, however, the petitioners along with others expressed their inability to shift on account of non availability of alternative accommodation and therefore the families of the petitioners have continued in occupation of a part of the Christian Church Compound.
4. The petitioners’ further contended that in July 1963 notices were issued under Section 4 of the Public Premises (Eviction of unauthorized Occupants) Act, 1958 however no proceedings were conducted there under. The petitioners’ also enumerated various proceedings which were being initiated by the respondent No. 5 for possession of the Church compound against the various occupants of the Christian Church Compound, however, no orders for their dispossession were passed. The petitioner further asserted that on 25/04/1967 respondent No. 5 instituted a suit, to which Union of India was also a party, bearing No. 139/1967 before the Sub-Judge Class I for possession against Mr. Mathew Jacob and the Union of India. However the said suit was dismissed. No appeal was preferred against the judgments/orders of the Court and that no suit or legal proceedings were initiated against the respective predecessors. Since 1968 the respondent have not initiated any proceeding for eviction and thus the petitioners have perfected their title against respondent No. 5 by adverse possession as they are being in uninterrupted, peaceful and long-settled possession of the property at Christian Church Compound at Kishanganj, Delhi.
5. The petitioners asserted that the respondents themselves had permitted extensive construction around the Christian Church Compound, by the government bodies as well as private persons, thus it has deemed to abandon the protected status for the Christian Church compound.
6. It is contended by the petitioner that on 1st April 2005 some officials of respondent number 2 under the aegis of Union of India, visited the property of Christian Church compound at Kishanganj and brought certain material Page 0407 for repair of the Chapel. They also threatened to dispossess the petitioners from the portion in their occupation. Thereafter, on 30th September 2005 show-cause notice was issued by the respondent No. 3 to about 40 occupants of the Christian compound purportedly under the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 and Rules, 1959. It is contended by the petitioner that the Notice was issued in a mechanical manner without application of mind as the same was couched in vague terms as it did not specify the exact nature of violations/construction and only bald and omnibus allegations were made. The petitioner further submitted that a reply dated 20th September 2005 was sent by Mr. Luice M. Jacob on behalf of all the Noticees which was duly received by the office of respondent No. 3, however the same was ignored and an order for eviction was issued by order dated 17.10.2005, which order has been impugned by the petitioner by way of the present petition on the ground that the same is void, ultra vires, without jurisdiction and non est in the eyes of law.
7. The petitioners’ further contended that Christian Church Compound is not an ancient and historical monuments or an archaeological site within the meaning of Section 3 and has also not been declared so, by the Central government under Section 4 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Relying on both the provisions the petitioners contended that Section 4 envisages an express act to be performed by the Central government to include a monument in the array of “National Importance”. Thus, as a logical corollary, a monument declared as an ancient monument or protected monument under the Ancient Monuments Preservation Act, 1904 or any other Act could not ipso facto be treated as a monument of national importance under the aforesaid Act. The petitioner further contended that had that been the intention of the legislature it would have included the Act of 1904 in Section 3 of the AMASR Act, 1958 and therefore an ancient monument etc. can be so held as of ‘National Importance’ by virtue of the notification as envisaged under Section 4 of the AMASR Act, 1958 compliance of which is mandatory.
8. The petitioner further contended that AMASR Act, 1958, has no application to the Kishanganj Christian Church compound as it neither falls under the definition of ancient monuments or archaeological sites and remains as given under Section 3 of the AMASR Act, 1958 nor the notification for its inclusion has been issued by the Central government under Section 4 of the said Act. Thus the notices of eviction are ultra vires and beyond the jurisdiction of respondent No. 3.
9. The petitioners have further challenged the AMASR Act, 1958 and the rules framed their under as harsh, unfair and unreasonable as there is no provision for appeal in case of any order being made under Rule 38. They also contended that under the rules respondent No. 3 has not been invested with powers to issue such orders. Therefore, the order of eviction issued by respondent No. 3 is not sustainable.
10. The petitioners further contended that Kishanganj Church Compound was ostensibly declared a protected monuments under the Ancient Monuments Act 1904 the same had been repealed by respondent Nos. 1, 2 Page 0408 & 3 and since 1947 till 2005 no claim were being staked by the government nor anything has been done for its maintenance and renovation. and that the area around the Christian Church Compound has witnessed mushrooming construction and vast inhabitation, mostly at the behest of the Government and therefore the respondents were deemed to have abandoned, relinquished and foregone their claim over the Christian Church Compound.
11. The petitioners further contended that as per certain rules framed by the Government the area of 100 meters around the ‘protected monument’ is prohibited area, up to 200 meters beyond the 100 meters is ‘regulated area’ and no construction or mining activity can be carried out therein. But the rules were being flouted by the respondent No. 1 and its instrumentalities who have carried out the construction within the prohibited and regulated area. The petitioners have, therefore impugned the action of the respondents on the ground that the same is arbitrary, illegal and against all the canone of equity, justice and fairplay and is also violative of the basic fundamental rights of the petitioners and that they will be rendered homeless if the respondents are permitted to have their way.
12. The respondent Nos. 2 & 3 have contested the petition and have filed the counter affidavit of A.K. Sinha, Supretending Archeologist, refuting the averments made in the petition. The respondents have contended that vide notification dated 13.12.1922 bearing No. 7331 published in the Gazette of India on 23.12.1922, the monument known as the D’ Eremao cemetery, located in Kishangunj area of Delhi was declared to be a protected monument under the provisions of the Ancient Monuments Act, 1904. The respondents contended that in 1951 the AMASR Act, 1951 was enacted in which certain monuments were declared to be the monuments of National importance and deemed to be protected under the 1904 Act. Thereafter States Reorganization Act, 1956 came into being and Section 126 of the Act provided for continued protection to those monuments that had been declared to be protected under the provisions of Act of 1904. Then AMASR Act, 1958 came into being and Section 3 of this Act declared all the monuments which had been declared as monuments of national importance under Section 126 of the States Reorganization Act, 1956 were deemed to be ancient and historical monuments or archeological sites and remains declared to be of national importance for the purposes of this Act and thus the respondents asserted that the D’ Eremao cemetery became the monument of national importance and the same is protected by the provisions of the AMASR Act, 1958. The respondents further submitted that vide a Gazette notification dated 16.6.1992 published under Rule 31 of the AMASR Rules 1959, a prohibited area is defined as an area of 100 meters around the protected limits of the monuments and the regulated Area covers a further distance of 200 meters.
13. Therefore the D’ Emerao Cemetery is a protected monument under the provisions of AMASR Act, 1958 and therefore, any encroachments within the cemetery are illegal and without any authority of any law and that the relief sought by the petitioners will perpetuate illegal and unauthorized occupation of the protected monument, which ought not to be countenanced by the Court. Page 0409 The respondents further contended that the petitioners’ have not produced anything to show any right or title for continued occupation of the monument in question and therefore are merely encroachers. The respondents further submitted that Mr. Alool did not have any authority to allow use of or encroachment upon the protected area of the monument and that such a permission, even if granted, was contrary to law. The respondents also submitted that upon visit to the monument on 1.4.2005 it was seen that the petitioners have built houses over the graves, sometimes using the raised portions of the graves as support for the walls and that some of the graves have also been defaced to such an extent that it was not possible to identify the remains interred beneath the graves. The respondents further submitted that the rules regarding the prohibited area and restricted area were promulgated in 1992 and that the constructions carried out only after 16.6.1992 would be in violation of the said rules and that the rules relating to prohibited and regulated area are not attracted in the present case where the construction has taken place within the protected monument and not outside the protected monument. The respondents therefore asserted that the respondents have a statutory responsibility to ensure that the monuments of national importance are preserved and protected and that no person has the right to desecrate and deface these monuments of national importance.
14. I have heard the counsel for the parties and have perused the petition, counter affidavit and the documents filed therein. The issue which needs to be addressed here is whether the D’ Eremao Cemetery is a protected monument within the meaning of the AMASR Act, 1958. The relevant provisions of the AMASR Act, 1958 for the purposes of determining the issue are reproduced as under:
Section 3. Certain ancient monuments, etc., deemed to be of national importance – All ancient and historical monuments and all archeological sites and remains which have been declared by the Ancient and Historical Monuments and Archeological Sites and Remains (Declaration of National Importance) Act, 1951 (71 of 1951), or by Section 126 of the State Reorganisations Act, 1956 (37 of 1956), to be of national importance, shall be deemed to be an ancient and historical monuments or archeological sites and remains declared to be of national importance for the purpose of this Act
Section 4. Power of Central Government to declare ancient monument, etc., to be of national importance.-
(1) Where the Central Government, is of opinion that any ancient monument or archeological site and remains not included in Section 3 is of national importance, it may, by notification in the Official Gazette, give two months’ notice of its intention to declare such ancient monument or archeological site and remains to be of national importance; and a copy of every such notification shall be affixed in a conspicuous place near the monument or site and remains, as the case may be.
(2) Any person interested in any such ancient monument or archaeological site and remains may, within two months after the Page 0410 issue of the notification, objects to the declaration of the monument, or the archeological site and remains, to be of national importance.
(3) On the expiry of the said period of two months, the Central government may, after considering the objections, if any, received by it, declare by notification in the official Gazette, the ancient monument or the archaeological site and remains, as the case may be, to be of national importance.
(4) A Notification published under Sub-section (3) shall, unless and until it is withdrawn, be conclusive evidence of the fact that ancient monument or archaeological site and remains to which it relates is of national importance for the purposes of this act.
Section 39. Repeals and saving
(1) The Ancient and Historical Monuments and Archaeological Site and Remains (Declaration of National Importance) Act, 1951 (71 of 1951), and Section 126 of the States Reorganization Act, 1956 (37 of 1956), are hereby repealed.
(2) The Ancient Monument Preservation Act, 1904 (7of 1904), shall cease to have effect in relation to ancient and historical monuments and archaeological sites and remains declared by or under this Act to be of national importance, except as respects things done or omitted to be done before the commencement of this act.
15. Perusal of Section 3 of the AMASR Act, 1958 reveals that it is a saving provision and all the monuments that were declared as monuments of national importance under the Ancient and Historical Monuments and Archeological Sites and Remains Act, 1951 or under Section 126 of the States Reorganization Act, 1956 shall be deemed to be monuments of national importance under the AMASR Act, 1958. Thus all the monuments declared as Ancient and Historical Monuments under the 1951 Act and Section 126 of the States Reorganization Act, 1956 that are repealed by Section 39 of the AMASR Act, 1958 such monuments as Ancient and Historical Monuments are in turn saved under Section 3 of the Act.
16. Section 4 provides for a mandatory requirement for issuance of a notification by the Central Government in an official gazette only in cases where it desires to declare an ancient monument to be of national importance only if the monument is not already declared as Ancient and Historical Monument under Section 3. This implies that a notification is to be issued only in cases were the monuments are not declared as that of national importance under the Ancient and Historical Monuments and Archaeological Site and Remains (Declaration of National Importance) Act, 1951 or under Section 126 of the States Reorganization Act, 1956. Section 4, therefore, nowhere provides for issuance of a denovo notification in respect of all the monuments which are to be included in the list of monuments of national importance under the AMASR Act, 1958 irrespective of the fact that under the old Acts they had already been declared so. Such an interpretation to Section 4 of the AMASR Act 1958 is neither possible nor plausible. Therefore the contention of the petitioner that since the Ancient and Historical Monuments and Archaeological Site and Remains (Declaration of National Page 0411 Importance) Act, 1951 and Section 126 of the States Reorganizations Act, 1956 (37 of 1956) were being specifically repealed by the Section 39 of the AMASR Act, 1958 and so the monuments which were declared protected under those Act will not be protected monuments under the AMASR Act, 1958 unless there is notification for their inclusion is issued in an official gazette is not sustainable.
17. A notification bearing No. 7331 dated 13.12.1922 was issued on 23.12.1922 in the Gazette of India declaring the D’ Eremao cemetery as a protected monument under the Ancient Monuments Act, 1904 by the Central Government which fact has not been disputed by the petitioner. The protection granted to the D’ Eremao cemetery under the 1904 Act continued under Section 126 of the States Reorganization Act, 1956. Section 126 of the States Reorganization Act is as under:
126. Declaration of certain ancient monuments in Part C States to be of non importance:
(1) All ancient and historical monuments in Part C States which, before the 1st day of April, 1956, have either been declared by the Central government to be protected monument within the Meaning of the Ancient Monuments 1904 or which have been taken possession of by the Central government as protected monuments are hereby declared to be ancient and historical monuments of national importance.
The monuments which were declared as protected monument under Section 126 of the States Reorganization Act, 1956 shall further continue to be protected monuments under Section 3 of the AMASR Act, 1958. Section 3 of the AMASR, 1958 specifically extends the protection which was given to the ancient monuments under the 1951 Act and under the States reorganization Act 1956 meaning thereby that the monuments which were declared as protected under the old acts will continue to be protected monuments under the new act (AMASR Act, 1958) and no fresh notification to declare them as monuments of National importance is required.
18. Further a notification issued in the gazette of India is valid and binding till any fresh notification withdrawing/repealing the earlier notification is issued. Thus, in the case in hand the notification was issued on 13.12.1922 declaring certain ancient monuments as protected monuments under the Ancient Monuments Act, 1904 and thereafter no notification canceling/repealing/withdrawing/modifying the earlier notification was issued which fact has not been and cannot be disputed by the petitioner. Thus, the 1922 notification will be applicable and will protect the monument in the present facts and circumstances. A new notification is only to be issued only in cases were the monument which is not covered under Section 3 of the AMASR, 1958 is to be extended protection and it is not to be issued for inclusion under the category of protected monument in the 1958 Act as has been contended by the petitioner.
19. In view of the provisions of the AMASR Act, 1958, 1904 Act and the States reorganization Act, 1956 it is clear that the D’ Eremao cemetery is a protected monument within the meaning of Section 3 of the AMASR Act, 1958. Since Page 0412 the cemetery is protected monument, therefore, the respondents are justified in issuing the notice dated 17.10.2005 under the provisions of AMASR Act, 1958 and the same does not call for any interference, whatsoever, by this Court.
20. Further the petitioners’ have not produced anything to show that they were not in unauthorized occupation of the premises in question or that they are not encroachers and that they have some right, title or interest in the property. The plea of adverse possession of the petitioners’ is also not tenable in the facts and circumstance. The plea of the petitioner is that their possession is permissive. This is not the case of the petitioners that their possession was hostile and notorious. Possession of the petitioners consistent with and in recognition of the owner’s title will not be adverse. Adverse possession is to be proved as a fact which the petitioners are unable to prove in the present facts and circumstances. Therefore the plea of the petitioners that they are entitled to continue in possession as they have become owners by adverse possession can not be sustained and is rejected.
21. The respondents have also relied on the order of the division bench of this Court dated 11.10.2006 in W.P (C) No. 8226/2002, 3867/2005, 3526/2005 and 10624/2005 wherein the division bench has issued directions to the respondents to remove unauthorized construction on the historical places which are centrally protected monuments. In view of the division bench order for removal of unauthorized construction on the historical places the order of the respondent No. 3 dated 17.10.2005 can not be faulted as they have passed this order in exercise of power under the provisions of AMASR Act under which they have been endowed with the necessary powers for maintenance of the protected monuments and D’ Eremao cemetery is a protected monument in the present facts and circumstances.
22. In totality of the facts and circumstances the D’ Eremao cemetery was declared as a protected monument under the AMASR Act, 1904 and which is a protected monument in terms of Section 3 of the AMASR, 1958 and the petitioners are encroachers within the protected area of the monument. Consequently, the order dated 17.10.2005 passed by the respondents can not be faulted on any of the grounds raised by the petitioners. There are, therefore, no grounds to exercise of jurisdiction under Article 226 of the Constitution of India against the said order dated 17th October, 2005 and the respondents can not be prohibited from proceeding and implementing the said order against the petitioners. The writ petition is, therefore, without any merit, it is therefore dismissed.