Hon'ble S.N.H. Zaidi,J.
This writ petition has been filed by the petitioners praying inter alia for quashing the order dated 04.10.2007 passed by the Commissioner, Varanasi Mandal, Varanasi and further for directing the respondents to provide due compensation to the petitioners on the basis of market value of the property which has been taken by the authorities measuring 1.73 acres including the house and temple.
Learned counsel appearing for the petitioners has submitted that land measuring 81 bighas 1 biswa and 15 dhur was purchased in public auction by Maharaja Jai Narain Ghosal in the name of Madan Mohan Mukharji on 31.3.1814. Madan Mohan Mukharji got constructed a temple and house in the premises of the temple and dedicated it in the name of Thakur Karuna Nidhan. After the death of Maharaja Jai Narain Ghosal, his son Raja Kali Shanker Ghosal gifted on 15.7.1826 the entire land of 81 bigha 9 biswa and 15 dhur in favour of Thakur Karuna Nidhan without any authority and title. The petitioners and their predecessors being the heirs of Madan Mohan Mukharji had been in possession of the premises in question as owners. A suit ( Case No. 235 of 1997) was filed in the Civil Court for damages and eviction of the petitioners' predecessors showing them as licensee of the premises. The respondent no. 2 issued a notification dated 14.8.1987 under section 3 of the Ancient Monuments Preservation Act, 1904 (hereinafter referred to as the Act, 1904) and declared the property in question as protected monuments. The transaction in respect of the property in question has lost its character of benami by virtue of sections 4 and 7 of the Benami Transaction Act, 1988 as the transaction was made prior to 1988. The civil court after framing the categorical issues particularly issues no. 2 and 3 relating to respective ownership of the parties over property in question held by its judgement dated 15.12.1998 that the petitioners were owners of the property in question and dismissed the suit. However, pursuant to the notification dated 14.8.1987 and impugned order dated 4.10.2007, the State authorities evicted the petitioners from the premises even without being paid any compensation, which is bad in law.
Learned counsel appearing for the petitioners has drawn our attention to Section 4 (6) of the Act, 1904 which says that when a protected monument is without an owner, the Commissioner may assume the guardianship of the monument.
Learned Standing Counsel has contended that by operation of the U.P. Ancient and Historical Monuments and Archaeological Sites and Remains Preservation Act, 1956, Section-4 of the Act, 1904 will squarely apply in this case. Nobody has objection in connection thereto.
We are only concerned about the application of the Act, 1904. Section-3 of the Act, 1904 provides for declaration of an ancient monument as a protected monuments. Section 4 thereof is in respect of acquisition of rights in or guardianship of a protected monument. We find that Section 4 (6) of the Act, 1904 does not provide for the requisition or acquisition of protected monument. In the case of declaration of protected monuments, section 3 itself does not accrue any right in favour of the State with regard to its automatic acquisition and section 4 also does not empower the State to evict the petitioners who are having their rights, title and interest, whatsoever under the decree for dismissal of the suit or to issue any notification or notice as to why they should not be evicted from the premises or if at all evicted, adequate compensation as per market value will not be given to the petitioners under section 21 of the Act, 1904.
We are of the view that the petitioners have a positive case in this regard. Even a trespasser of a premises can not be evicted without giving an opportunity of being heard as to why he should not be evicted from such premises. The petitioners are having a decree of the civil court in their favour. Another civil suit with regard to some other matter is pending, which is not very much relevant. When there is a specific decree declaring the rights, title and interest of the petitioners as the owner of the premises, they should have been given an opportunity of hearing as to why they should not be evicted from the premises in question and if eviction is to be made, as to why the compensation is not to be given. However, in this case without doing so the order impugned has been passed by the authority concerned, which cannot be sustained. Hence, the order impugned dated 04.10.2007 is hereby quashed. As a result of the above, the petitioners shall be put back in the possession over the premises in question as early as possible but not beyond the period of one month from the date of production of a certified copy of this order. However, if any step is required to be taken by the State which is the prerogative of the State Government it shall issue a fresh notification under section 4 of the Act, 1904 and after giving an opportunity of hearing to the petitioners possible steps may be taken in accordance with law. In view of the above, the writ petition is allowed.
No order is passed as to costs.
28.01.2010 ank/-
Order Date :- 28.1.2010 ank