Gauhati High Court
M/S. Lohia Charitable Trust vs Union Of India And 5 Ors on 23 October, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/12
GAHC010033282016
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7660/2016
M/S. LOHIA CHARITABLE TRUST
A TRUST ESTABLISHED UNDER THE PROVISIONS OF THE INDIAN TRUST
ACT, 1882 AND REPRESENTED BY SRI SANJAY AGARWALLA, SECRETARY
OF THE TRUST ON BEING AUTHORIZED BY IT.
VERSUS
UNION OF INDIA and 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA IN THE MINISTRY OF
CULTURE ETC., NEW DELHI-1.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM IN THE DEPARTMENT OF CULTURE ETC.
3:THE DIRECTORATE OF ARCHAEOLOGY
ASSAM
HAVING IT'S REGISTERED OFFICE AT AMBARI
GUWAHATI -781001 UNDER P.O. AMBARI
P.S. LATASIL IN THE DISTRICT OF KAMRUP
ASSAM REPRESENTED BY IT'S DIRECTOR.
4:THE DIRECTOR OF ARCHAEOLOGY
ASSAM
HAVING HIS OFFICE AT AMBARI
GUWAHATI -781001 UNDER P.O. AMBARI
P.S. LATASIL IN THE DISTRICT OF KAMRUP
ASSAM.
5:THE DEPUTY COMMISSIONER
Page No.# 2/12
TINSUKIA.
6:THE CIRCLE OFFICER
TINSUKIA REVENUE CIRCLE
TINSUKIA
ASSAM
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocate for the petitioner : Shri G. Choudhury, Advocate.
Advocates for respondents : Shri H. Sarma, Addl. Sr. GA.
Date of hearing : 14.10.2025
Date of judgment : 23.10.2025
JUDGMENT & ORDER
A communication dated 15.12.2015 issued by the Director of Archaeology, Assam to the Deputy Commissioner, Tinsukia, followed by a notice by the Circle Officer, Tinsukia dated 22.07.2016 directing the petitioner to hand over documents for verification pertaining to the land in question are the subject matter of challenge in this petition instituted under Article 226 of the Constitution of India.
2. As per the facts projected, the petitioner is a Trust registered under the Indian Trust Act, 1882 and was gifted a plot of land measuring 17 Bigha, 1 katha, 9 lechas covered by Dag nos. 2014 / 2015 / 2016 /2017 /2012A / 2012B / 2012C /2087 / 2018/ 1730 / 1742 / 1746A part of PP No. 11 and 91 of Page No.# 3/12 village Tinsukia, Mouza: Tinsukia in the district of Tinsukia, Assam vide registered Gift Deed No. 1365 of the year 1970 and is in possession of the land in question since then. The petitioner Trust has constructed a temple on the aforesaid plot of land over which there is also a tank. On 24.05.2015, a mob of around 200 people had illegally trespassed into the premises and had caused vandalism and had also threatened the watchman. Accordingly, an ejahar was lodged on behalf of the petitioner on 24.05.2015. Subsequently, the Director of Archaeology, Assam had issued a communication dated 15.12.2015 to the Deputy Commissioner, Tinsukia on the subject of handing over of the physical possession of the Chauldhuwa Pukhuri in the district of Tinsukia. It has been stated in the said communication that the aforesaid Pukhuri (water tank) bears historical and archaeological significance to the Matak Dynasty of Assam and is presently under the possession of the petitioner Trust. It was also stated that since the tank was considered to be historical in nature under Section 12 of the Assam Ancient Monuments and Records Act, 1959, the same should be acquired and handed over to the concerned Department. Subsequent to the said communication, the petitioner has received a notice dated 22.07.2016 issued by the Circle Officer, Tinsukia Revenue Circle, directing for production of all the documents pertaining to the transfer of the land. The schedule of the said notice has mentioned the patta number, dag numbers and other particulars of the land in question. It is the aforesaid action which is the subject matter of challenge in the present writ petition.
3. I have heard Shri G. Choudhury, learned counsel for the petitioner. I have also heard Shri H. Sarma, learned Addl. Senior Govt. Advocate.
4. Shri Choudhury, learned counsel for the petitioner, has submitted that Page No.# 4/12 though there exists a water body on the plot of the land, the same was a part of the Gift Deed of the year 1970 which was duly registered and since then, the petitioner is in peaceful possession of the land in question. He has submitted that a temple has been constructed over the aforesaid plot of land beside which, the water body exists and the same is commonly termed as Shivbari. It is submitted that at no point of time, there has been any challenge to the Transfer Deed. He has submitted that the impugned action is backed by mala fide in as much as there is a move by certain section of the society to encroach and occupy the land by forcefully evicting the petitioner from the said plot. It is submitted that under the Ancient Monument Preservation Act, 1904, "ancient monument" as well as "land" has been defined under Section 2 (1) and Section 2 (5) respectively. Under Section 4, there is a provision for acquisition of rights or guardianship of ancient monuments. The learned counsel has handed over a list of the protected archaeological sites and monuments of Assam under the Directorate of Archaeology Assam in which there is, however no mention of any Chauldhuwa Pukhuri in the district of Tinsukia. He has also referred to Section 10 which relates to compulsory purchase of ancient monuments. He has also referred to the Assam Ancient Monuments & Records Act of 1959, the provision of which are pari materia to the Central Act.
5. The learned counsel has submitted that the rights of the owner of the land cannot be taken away as such and it is only the aspect of preservation which is to be looked after by the Directorate of Archaeology. He has clarified that such submission has been made without prejudice to the primary submission that the land / water body in question is not a part of any historical monument. By referring to the Assam Ancient Monuments & Records Rules of 1964, more particularly Rule 3 thereof, the learned counsel has submitted that the Page No.# 5/12 provisions have been laid therein which have not been followed in the instant case. Rule 3 mandates an enquiry before declaring any ancient monument as protected.
6. Reference has also been made to the Assam Heritage (Tangible) Protection Preservation, Conservation and Maintenance Act, 2020, more particularly, the definition of 'heritage area' under Section 2(h) and 'monument' under Section 2(p). He has also drawn the attention of this Court to Section 5 which provides for a State Legal Advisory Committee. He has also drawn the attention of this Court to the order dated 16.06.2025 passed in these proceedings whereby a direction was given to the State authorities to file further affidavit clarifying the issue in spite of which no further affidavit has been filed. By referring to the affidavit-in-oppositions filed by the Respondent Nos. 4 and 5, the learned counsel for the petitioner has submitted that rejoinder affidavits have been filed to clarify the issue by the petitioner.
7. The learned counsel has drawn the attention of this Court to the relief prayed for in the writ petition which are extracted herein below:
"That this petition has been filed bona fide and for the ends of justice.
In the premises aforesaid, it is prayed therefore that this Hon'ble Court may graciously be pleased to admit this petition, call for the records, and issue rule, calling upon the respondents to show cause as to why;
a) a writ in the nature of Mandamus shall not be issued forbearing the authorities from acting in pursuance to the impugned letter dated 22-07-2016 issued by the Circle Officer, Tinsukia shall not be set aside and quashed;
b) and/or as to why it shall not be declared that the pond situated over lands measuring about 3K 18L over dag No. 2016 of PP No: 14 is not an ancient monument by the name of "Chauldhowa Pukhuri"
6) Andres as to why a wit of certiorari shall not be issued setting aside the Page No.# 6/12 impugned letters dated 15-12-2015 and 22-07-2018 being in excess of Jurisdiction of the Director of Archaeology, Assam as well as the Crete Officer, Tinsukia;
d) And/or any other wit, direction or enters commanding, prohibiting and directing the authorities and all others not to disturb the peaceful possession of the petitioners over the sad scheduled pond situated over lands measuring about 3K 181 ever dag No. 2016 of PP No. 14 of Town Sheet No. 12 of Mouza:
Tinsukia in the district of Tinsukia, Assam by unilaterally and callously invoking their powers illegally against the settled principles of Law,
e) And upon hearing the parties on the cause or causes shown,, if any, be pleased to make the rule absolute and/or pass any other further and/or other orders as to this Hon'ble Court may deem fit and proper.
-AND-
In the interim suspend the operation of the impugned letters dated 15-12-2015 and 22-07-2016 as well as prohibit any move to facilitate the attachment and/or forcible take over/dispossession of the petitioner from his legally owned and possessed lands along with the pond situated over lands measuring about 3K 181 over dag No. 2016 of PP No. 14 of Town Sheet No. 12 of Mouza, Tinsukia in the district of Tinsukia, Assam pursuant to the impugned letter No. ARC 11.261/Tinsukia/2015-16/1010 11.261/Tinsukia/ dated 15-12-2015 issued by the respondent No. 4 as well as the letter dated 22-007-2016 issued by the respondent no. 6.
And for this act of kindness, the petitioner as in duty bound shall ever pray."
He accordingly submits that the present action which is the subject matter of challenge in this writ petition be interfered with and the writ petition be allowed.
8. Per contra, Shri Sarma, the learned Addl. Senior Govt. Advocate, Assam has submitted that the water body in question is indeed the Chauldhuwa Pukhuri in the district of Tinsukia. He has placed before this Court a book entitled "The Mataks and their Kingdom" written by one Shri Sristidhar Dutta of the Jawaharlal Nehru College, Pasighat, Arunachal Pradesh and has submitted Page No.# 7/12 that in the said book, there is a reference of the Chauldhuwa Pukhuri being one of the ancient monuments of the Matak Dynasty. He has submitted that the present action impugned, namely, the communication dated 15.12.2015 and notice dated 22.07.2016 are only steps taken for a verification and therefore there was no cause of action at all to approach this Court and accordingly the writ petition is liable to be dismissed as premature. He has submitted that the order dated 22.07.2016 is only for the purpose of verification of the ownership and the procedure laid down in the statutes and Rules would be followed. By referring to the Assam Act of 1959, more specifically Section 12 thereof, the learned State Counsel has submitted that area covering protected monuments can also be acquired. The learned State Counsel has however candidly submitted that the records pertaining to the case were not transmitted to him.
9. Shri Choudhury, the learned counsel for the petitioner in his rejoinder has submitted that even the identification of the plot of land has not been done. As regards the aspect of acquisition, he has submitted that acquisition cannot be made in the instant case as the same is conditional upon certain circumstances which are not present in the instant case.
10. The rival submissions have been duly considered and the materials placed before this Court have been carefully perused.
11. For the sake of convenience, the various statutes holding the field and the relevant provisions are extracted herein below:
(i) The Ancient Monument Preservation Act, 1904
2. Definitions.
2(1) "ancient monument" means any structure, erection or monument or any tumulus or place of interment, or any cave, rock-sculpture, inscription or Page No.# 8/12 monolith, which is of historical, archeological or artistic interest, or any remains thereof, and includes-- (a) the site of an ancient monument; (b) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument; and (c) the means of access to and convenient inspection of an ancient monument:
2 (5) "land" includes a revenue-free estate, a revenue-paying estate, and a permanent transferable tenure, whether such estate or tenure be subject to incumbrances or not: and
(ii) Assam Ancient Monuments and Records Act 1959
"12. Acquisition of protected monuments.-If the State Government apprehends that a protected monument is in danger of being destroyed, injured, misused, or allowed to fall into decay, it may acquire the protected monument under the provisions of the Land Acquisition Act, 1894 (Act I of 1894) as if the maintenance of the protected monument were a public purpose within the meaning of that Act."
(iii) Assam Ancient Monuments and Records Rules, 1964 "3. Manner of enquiry before an Ancient Monuments may be declared to be protected.
(1) The Superintendent shall, before a notification under Section 3 is issued, cause a thorough enquiry as to the antiquity of the monument to be protected, and shall determine as accurately as possible the age of the Monument on such evidences as may be available to him.
(2) On obtaining evidences which the Superintendent considers sufficient for protection of a Monument, he shall submit necessary proposals to the State Government for protection of the same under intimation to the Deputy Commissioner concerned.
(3) In submitting a proposal to the State Government the Superintendent Page No.# 9/12 shall specify the exact area of the land that is required for the purpose of preserving the Monument in proper manner, with facilities for approach road, reaction of any structures and for laying out of gardens."
(iv) The Assam Heritage (Tangible) Protection, Preservation, Conservation and Maintenance Act 2020:
"2(h) "heritage areas" means those areas of archaeological or historical or architectural or esthetic significance which are included in a list(s) published by a notification in the Official Gazette, by the Government, from time to time;
2(p) "monument" means any ancient monument and sites which is not declared as such by the State Government by notification in the Official Gazette, to be a protected monument under the Assam Ancient Monuments and Records Act, 1959 and by the Central Government under the Ancient Monuments and Archeological Sites and Remains Act, 1958;"
12. The list which has been provided by the learned counsel for the petitioner of protected archaeological sites and monuments of Assam under the Directorate of Archaeology, Assam does not contain any historical site as Chauldhuwa Pukhuri in the district of Tinsukia. The Book, as mentioned above, placed on record by the learned State Counsel has however made a mention about the same as one of the ancient sites of the Matak Dynasty. The same Book, however is not an official document. Be that as it may, even if it is assumed that the water tank on the plot of the land in question is actually connected to the Matak Dynasty and is a historical site, the statutes holding the field has laid down a procedure for preservation of such site. This Court finds force in the contention advanced on behalf of the petitioner that it is not necessary for transfer of the rights of the ownership and it is only the aspect of Page No.# 10/12 preservation which can be looked into by the Directorate. This Court is also of the opinion that Section 12 of the Act of 1959 will have no application inasmuch as such acquisition of the sites of protected monuments is conditional upon the following conditions:
(i) Apprehension of danger
(ii) Apprehension of being destroyed
(iii) Apprehension of being injured
(iv) Apprehension of being misused
(v) Apprehension of falling into decay
13. In the above case, there is nothing on record to show that any of the conditions precedent are present in the instant case.
14. This Court is of the opinion that even if it is considered that the water tank in question may be connected to the Matak Dynasty and be considered as a historical monument, any exercise undertaken to preserve such water tank has to be in accordance with the objective of the Act. The impugned action appears to have been taken without coming to a conclusion that the water tank in question is actually a historical site or monument. The impugned communication dated 15.12.2015 or the notice dated 22.7.2016 do not reveal that any materials were taken into account before the said communication were issued. It also does not appear that any public hearing was done on the aspect of the status of the water tank in question. This Court is of the opinion that unless there is a satisfaction arrived at that the tank in question is a historical monument or site which is required to be preserved, the stage of verification of the ownership of the land in question will not arise. This Court has also taken Page No.# 11/12 into consideration the order dated 16.06.2025 passed by this Court, the operative part of which is extracted herein below:
"9. In the aforesaid backdrop, this Court is of the opinion that the affidavit filed by the Director of Archaeology, Assam is not sufficient for adjudication of the present writ petition. Therefore, a detailed affidavit is required to be filed clarifying under what circumstances, the impugned order is issued as well as whether the aforesaid order was an approval/ direction to the Collector i.e., the Deputy Commissioner, Tinsukia, in exercise of its power under Section 12 of the Act, 1959, read with Section 17 of the Act, 1894 and whether Chauldhuwa Pukhuri, Tinsukia is a listed archaeological witness in terms of the Act, 1959 & the Rules, 1964".
15. As noted above, in spite of such clear direction, no affidavit has been filed by the State to clarify the issue and no record has been produced.
16. Under Rule 3 of the Assam Rules of 1964, a procedure has been laid down mandating an enquiry before an ancient monument may be declared to be protected. The same would require obtaining of evidence and submission of report. The same does not appear to have been done in the instant case. In this regard, it would be convenient to refer and rely upon the landmark judgment of the Hon'ble Privy Council in the case of Nazir Ahmad Vs. the King Emperor reported in AIR 1936 PC 253 (II) wherein the following observations were made-
"... The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. ..."
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17. Under the aforesaid facts and circumstances, this Court is of the view that a case for interference is made out and accordingly, the impugned communication dated 15.12.2015 and the notice dated 22.07.2016 issued by the Circle Officer are interfered with and set aside. This Court however clarifies that the present interference is only on the aspect that the procedure laid down has not been followed.
18. It is accordingly observed that the authorities would be at liberty to undertake a proper exercise in sync with the statute, which may also require a public hearing on the identity of the site as to whether it forms a historical site / monument under the Act statute which requires preservation.
19. The writ petition accordingly stands allowed in the manner indicated above.
20. No order as to cost.
JUDGE Comparing Assistant