The court affirmed the priority of public interest in preserving historical monuments over private construction rights, ruling unauthorized constructions after necessary prohibitions as invalid.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. H. Buragohain, the learned counsel appearing on behalf of the petitioners in both the writ petitions. Ms. A. Gayan, the learned CGC appears on behalf of the respondent Nos.1 to 5; Ms. N. Bordoloi, the learned counsel appears on behalf of the Revenue Department and Mr. N. Das, the learned counsel appears on behalf of the District Administration, Sivasagar.

PREFACE

2. The petitioners in WP(C) No.7322/2015 have assailed the notice dated 10.11.2015 issued by the Authorized Signatory of the Archaeological Survey of India as well as for consequential reliefs. The petitioner in WP(C) No.7235/2015 has assailed the notice dated 10.11.2015 issued by the Authorized Signatory of the Archaeological Survey of India as well as for consequential reliefs. By the notices dated 10.11.2015, impugned in both the writ petitions, the Authorized Signatory had directed the petitioners in both the writ petitions to remove the unauthorized building/construction within seven days of the receipt of the notice, failing which the Central Government shall in exercise of its powers under Rule 38 (2) of the ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES AND REMAINS RULES , 1959 (for short, ‘the Rules of 1959’) cause the unauthorized building construction to be removed at his/her/their costs and expenses through the District Administration.

BRIEF FACTS OF THE CASE WP(C) No.7322/2015

3. The predecessor-in-interest of the substituted petitioners herein was the occupier of a plot of land admeasuring 1 bigha 2 kathas 10 lechas under Dag No.123 (Part) since 1933 with dwelling houses thereon in Phukan Phodia Village, Gaurisagar under Mora Bazar Mouza of Sivasagar District. During the lifetime of the father of the original petitioner, he applied for settlement of the land under his possession from the State Government. Recommendations were made by the Competent Authorities for settlement of a plot of land admeasuring 1 bigha 2 kathas 10 lechas of land under Dag No. 123 (Part) in favour of the original petitioner’s father. However, the Government of Assam settled only 2 kathas 10 lechas of land under Dag No.123 (Part) vide an order dated 11.09.1979. However, the said settlement so made in favour of the original petitioner’s father was revoked vide an order dated 27.10.1979. This revocation of the settlement so made in favour of the original petitioner’s father was put to challenge by filing a writ petition by the original petitioner’s father along with one Betharam Bairagi, who is the father of the petitioner in WP(C) No.7235/2015. The said writ petition was registered and numbered as Civil Rule No. 939/1983. The reason for cancelling the settlement vide order dated 27.10.1979 in the case of the original petitioner's father was that the land was within the prohibited area.

4. The learned Division Bench of this Court by a judgment and order dated 02.07.1990 interfered with the order of cancellation dated 27.10.1979 opining from the cadastral map that the land which was settled in favour of the original petitioner's father was far away from the banks of Gaurisagar intervened by Dag Nos.133, 134 & 135. It was also observed that Dag No.123 was away from the bank of Gaurisagar Tank and outside the area of Devidol and Vishnudol.

It is pertinent at this stage to note that in the judgment and order passed by the learned Division Bench of this Court dated 02.07.1990, the provisions of the ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES AND REMAINS ACT , 1958 (for short, ‘the Act of 1958’) as well as the Rules framed therein under or the Ancient Monuments Preservation Act, 1904 (for short, ‘the Act of 1904’) were not taken into consideration. The reason being that the Notification dated 16.06.1992 declaring the prohibited area issued by the Central Government was issued subsequent to the passing of the judgment by the learned Division Bench.

5. The records further reveal that pursuant to the judgment passed by the learned Division Bench dated 02.07.1990,