Case Title: B. Manoharan …Petitioner
Versus
The Ministry of Culture and Ors. … Respondents
Date of Decision: Reserved On 19.06.2023.
Pronounced On 27.06.2023.
Coram: THE HONOURABLE MR. JUSTICE M. DHANDAPANI.
Citation: W.P. No.32163 of 2022. and WMP 696/2023.
Introduction:
The tomb of David Yale and Joseph Hymners, the son and friend of Elihu Yale, the then Governor of East India Company, situated within the compound of the Law College within the campus of the High Court, is sought to be removed, by filing the present petition premising the case that the said tomb has no archaeological value and does not fall within the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, (for short ‘the Act’) Writ Petition filed under Article 226 of the Constitution of India praying this 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.
Facts:
During the early 1700, when the city was under the rule of the East India Company, a Guava garden was situated next to the Fort, which was used as a burial ground and a Church was constructed there and over a period of time, the cemetery had extended upto the present law college. All the cemeteries were razed down to make the wall for Fort St. George after the attack by the French during the year 1758, barring two monuments, which were left standing, one of which is of Yale Obelisk, beneath which rest Ellhu Yale’s son, David and his close friend Joseph Hynmers. Alongside the said tomb is a circulat valut enclosed with railing which contains the remains of six members of the Powney family.
It is the further averment of the petitioner that though representation has been given for removal or in the alternative for relocation of the tomb to another place, if the respondents really feel that the structure has archaeological significance, no response has been forthcoming from the respondents and, therefore, left with no alternative, the present petition has been filed for a Declaration as afore stated.
Issues:
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?
Legal Analysis:
The Court is conscious of the fact that developmental necessity cannot rob the archaeological value of a structure, which has been declared as a protected monument. Mere developmental necessity should not shield the eyes of this Court when a particular monument is archaeologically important. 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. But with a heavy heart, this Court is constrained to record that the present act of the respondents clearly show that without resorting to the duties prescribed by the statute, the Authority has shirked their responsibility imposed on them by the statute by not properly discharging their duties. In the aforesaid background, as evidenced by the discussion above, the structure has neither archaeological value or historical importance and is neither an artistic masterpiece for it to be maintained as a protected monument and in such a scenario, the developmental activities necessitated in the current day scenario cannot be brushed aside for merely housing the cemetery of individuals, who have no historical significance, but for being the son of the then Governor of the East India Company. Necessarily the said tomb has to pave the way for the development of parking space, which is the need of the hour
Judgement:
This Court is of the 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. In view of the aforesaid discussion, necessarily this Court has to answer the question framed in the negative against the respondents, as the said tomb does not fulfil the requirements as provided for u/s 2 (a) and (j) r/w Section 3 of the Act. Accordingly, for the reasons aforesaid, this 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.
Conclusion:
“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,” the court observed. Thus, the court set aside the rejection order of the authorities and allowed the petition directing the respondents to take steps for relocating the tomb to any appropriate place.
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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.
