Calcutta High Court (Appellete Side)
Md. Arif Hossain & Ors vs Union Of India & Ors on 6 December, 2022
06.12.2022
Item No.14
Court No.6.
S. De
R.V.W. 293 of 2019
With
I.A. No. CAN/1/2021
In
W.P.C.T. 83 of 2017
Md. Arif Hossain & Ors.
Vs.
Union of India & Ors.
Mr. Subir Sanyal,
Mr. Sayantan Hazra,
Mr. Sagnik Roy Choudhury,
...for the review applicants.
Mr. Wasim Ahmed,
Sk. Md. Masud,
...for the State.
Mr. Dayashankar Mishra,
...for the Union of India.
The petitioners claimed in the original
application filed before the Central Administrative
Tribunal, Calcutta Bench, being O.A.
350/01533/2014 that they were engaged by the
erstwhile nawabs and/or their agents to manage the
Murshidabad Motijhil Mosque and Cemetry. After the
Mosque was declared as a monument of national
importance and after the Archaeological Survey of
India (ASI) took over the mosque, the petitioners
claimed regularization under ASI. The Tribunal
rejected the plea of the petitioners on the ground that
ASI has taken over the mosque for the purpose of its
preservation and conservation only and has not taken
over the management of the mosque.
Such order of the Tribunal was challenged by
the petitioners by filing W.P.C.T. 83 of 2017 before a
Division Bench of this Court. By a judgment and
order dated November 8, 2019 such writ petition was
dismissed with the following observation :-
"In the absence of the ASI having
taken over the management, the
petitioners had no legal right to
claim regularisation of their
services under the ASI. We have
not been shown by Mr. Sanyal,
learned advocate for the
petitioners that such a finding
returned by the tri9bunal is
erroneous. ASI has nothing to do
with the management of the
mosque and having regard to the
avowed objects for whyich it has
been brought into existence viz.,
preservation and conservation of
ancient monuments, persons who
claim to be part of the
management of the mosque
cannot and do not have any
legally protected right to be
regularised in the service of the
ASI."
The present review application has been filed by
the petitioners claiming that ASI has now admitted
that it has taken over the management of the said
mosque. Since the only ground on which the claim of
the petitioners for regularization was rejected was that
ASI did not take over management of the mosque, the
order of the Division Bench needs to be reviewed as
the same is based on wrong factual premises. The
petitioners have relied on several replies to
applications made under the Right to Information Act,
2005. Most of such replies which are part of CAN 1 of
2021 filed with the memorandum of review, are
evasive. However, the reply of the Superintending
Archaeologist (I/C), Raiganj Circle, Hazarduari Palace,
Murshidabad dated April 15, 2021 (page 148 of the
petition), is categorical in as much, to the question as
to whether Raiganj Circle of ASI (erstwhile Kolkata
Circle) has taken over the management/administrative
control of the said monument, the categorical reply is
'yes'.
Since this is an issue of some importance, we
deem it appropriate to request the Director General of
ASI to submit a report to this Court specifically
clarifying as to whether or not the management and
administrative control of the mosque in question, has
been taken over by ASI. The report shall clearly
indicate the nature and extent of involvement of ASI
with the said mosque and exactly what functions ASI
performs in connection with such mosque. The report
should be supported by an affidavit. Such report
should be made available to this Court, if necessary
through learned advocate for ASI, on the next
occasion.
List the matter on January 10, 2023.
Mr. Mishra, learned advocate representing
Union of India and ASI will communicate this order to
the Director General of ASI. Registry will also
communicate this order to the Director General of ASI
immediately.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
