JUDGMENT

R. Gurusinghe, J.

The petitioner filed this Writ application seeking to grant/issue an order in the nature of Mandamus directing the 1^st to 3^rd respondents to unearth the said relic granite monument, inventory the same, protect and maintain the relic monument and display it for the public, complying with the statutory provisions under section 40 of the Antiquities Ordinance as amended by Act No. 24 of 1998.

The petitioners state as follows:

“Being a Buddhist, practising Buddhism, dedicated religious activist and one of the regular pilgrims who visits and worships various religious places, especially including the ancient Buddhist site of Hiriwadunna, which is historically and archeologically important place of relics, subjected to the offerings and worship of pilgrims coming from various places of the country.”

Petitioner further states that he visited the subject matter of this application in 2000, to wit: Hiriwadunna Bodiya, an ancient granite monument, which was firmly located under the roots of the relic Bodiya, and where pilgrims were able to make offerings and worship. The petitioner states that he had taken photographs at that time, and two are produced, marked P3 and P4.

The petitioner further states that when he visited the said site in 2020, he observed that the relic monument had been covered with soil and that a gold-plated fence had been erected around the Bodiya. Thereafter, the petitioner states that he had made several complaints to the relevant authorities, and in 2021, the 1st respondent began excavations with other officials of the Department of Archaeology, removed the soil over it, and unearthed the said monument. Subsequently, the final report under the title of “Hiriwadunna Sri Bodhi Raja Aranya Senasanaya, Asanaya Kaneema, 2021” had been sent to the 1^st respondent with the recommendations dated 27.04.2022 by the 3rd respondent. A copy of that report is produced, marked P13.

The respondents have filed objections to the petitioner’s application. The respondents raised the following preliminary objections.

I. The reliefs prayed for are patently misconceived in law;

II. The petitioner has not established the prerequisites for a writ of mandamus;

III. The petitioner is guilty of laches;

IV. The instant application involves questions of fact that are in dispute, and the petitioner cannot invite Your Lordships’ Court with clean hands;

V. The petitioner has filed this application for a collateral purpose and failed to come before the court with clean hands. The petitioner's conduct warrants dismissal of the instant application in limine.

The respondents have denied having acted unreasonably or in violation of the law. The 1^st and 3^rd respondents pointed out that the 2^nd respondent is neither a legal person nor a natural person.

The respondents have stated the following facts.

I. In terms of the provisions of the Antiquities Ordinance and the amendments thereto, every ancient monument or all undiscovered antiquities (other than ancient monuments) shall be deemed to be the absolute property of the State;

II. The 1^st respondent, by operation of law, is empowered to preserve archaeological heritage, and the 1^st respondent is vested with the discretion to decide on the manner in which such archaeological heritage will be preserved;

III. In the year 2021, the Department of Archaeology took measures to excavate the area and discovered the subject stone slab, which is an ancient monument in terms of the Antiquities Ordinance;

IV. However, the stone slab is covered with the roots of the adjoining Bo tree, and the stone slab could only be unearthed by removing the roots of the Bo tree;

V. Covering the ancient monument with soil was considered the most viable solution to preserve the said monument;

VI. Unearthing of the ancient monument in question will cause damage to the Bo tree situated in the temple, which is venerated by the Buddhists;

VII. Damaging the Bo tree, which is near the ancient monument, which is held sacred or in vene