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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.

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.

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.