ASHOK PRAPAN SHARMA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) In Rishikesh (Dehradun) there is a celebrated temple known as the temple of Bharat Ji Maharaj. By virtue of a series of Sanads which run into antiquity and into which it is not necessary to enter for the purpose of this case, the petitioner claims to be the Mahant thereof and absolute owner of two statues of Yaksh and Yakshani placed under a banyan tree (Bat Briksh) in the campus of the temple. These statues are alleged to be of great historical importance as well as religious sanctity. However, the District Magistrate, Dehradun addressed a letter dated 19-10-1973 to the Curator, Ancient Museum, Mathura a copy whereof was served on the petitioner (Annexure 3 to the writ petition) wherein it was mentioned that the District Magistrate permitted the Curator to remove the aforesaid two statues of Yaksh and Yakshani for the purpose of placing them for display in the museum of Mathura. The aforesaid letter purported to have been issued in the exercise of powers conferred under notification No. l718/IV-2(2)-65, dated 22-5-1968, a copy whereof has been filed as Annexure 4 to the writ petition. It is the letter dated 19-10-1973 which has been impugned in this writ petition.

(2.) In a nutshell the question which falls for consideration is as to whether such order directing the removal of the statues in question from the Bharat Ji temple to the museum at Mathura could be legally passed. The right to deal with ancient monuments is governed by the Ancient Monuments Preservation Act, 1904 {Act VII of 1904) (hereinafter referred to as the Act). The Act envisages a number of modes by taking resort to which the Government can deal with ancient monuments. The condition precedent, however, to embarking on any such action is a declaration under Section 3 of the Act. By virute of such declaration an ancient monument can be treated as a protected monument within the meaning of the Act. Under this section power has been conferred on the Collector to propose with the previous sanction of the Central Government to the owner of a protected monument to enter into an agreement with the Central Government for the preservation of any such protected monument which is in existence. Such agreement would empower the Government to perform a number of actions which are enumerated in Sub-section (2) of Section 5 of the Act. Besides, Section 10 of the Act empowers the Central Government, if it apprehends that a protected monument is in danger of being destroyed, injured or allowed to fall into decay, to direct the State Government to acquire it under the provisions of the Land Acquisition Act, 1894 as if the preservation of a protected monument were a public purpose within the meaning of that Act.

(3.) It has been categorically averred in the writ petition that no action under any of the provisions mentioned above was taken in the instant case to deprive the petitioner of the ownership of the two statues. We may mention that no counter-affidavit was filed in the case. On the other hand, Sri M. C, Gupta, learned Standing Counsel appearing for the State made a statement that he had instructions not to oppose this writ petition. Thus, the allegations made by the petitioner remain uncontroverted and we proceed on the basis that the petitioner is the owner of the statues which are sought to be removed in pursuance of the notification purported to have been passed under Section 18 of the Act.