Joseph Pothen Vs. State of Kerala
 INSC 18 (3 February 1965)
03/02/1965 RAO, K. SUBBA (CJ)
RAO, K. SUBBA (CJ) WANCHOO, K.N.
CITATION: 1965 AIR 1514 1965 SCR (2) 868
E&D 1970 SC 898 (54,59)
Travancore Ancient Monuments Preservation
Regulation (1 of 1112/ M.E.-1936-37)-Whether implied repealed by extension of
Central Act VII of 1904 to State-or by the Central Acts LXXI of 1951 and XXIV
of 1958-State issuing Notification under the Regulation declaring Fort wall as
a monument-Whether valid.
Constitution of India-Entry 67 (List I)-Entry
12 (List II) Entry 40 (List III)-Scope of.
By a Notification under the Travancore
Ancient Monuments Preservation Regulation (1 of 1112/M.E.-1936-37 A.D.), the
State Government declared a fort wall, which was within certain property
purchased by the petitioner, to be protected monument for the purposes of the
Regulation. The petitioner challenged the Notification as infringing his
fundamental right under Art. 19(1) (f).
It was contended on behalf of the petitioner
that the impugned Notification had no legal force as Regulation 1 of 1112/M.E.,
though validly made when it was passed, was impliedly repealed by the extension
to the State in 1951 of the Ancient Monuments Preservation Act, 1904 (Central
Act VII of 1904) as that Act covered the same field occupied by the State
Government, and in any event there was an implied repeal of the Regulation by
the Central Acts LXXI of 1951 and XXIV of 1958. It was also contended that the
disputed wall was not an ancient 'monument' but fell within the term
'archaeological sites or remains' and as the latter subject was in the
Concurrent List, upon the extension of the Central Act VII of 1904 in 1951 to
the State, the Central Act occupied practically the entire field covered by the
State Act and thereby implicitly repealed the State Act.
HELD:By virtue of Entry 67 of the Union List,
Parliament could make a law in respect of ancient and historical monuments
declared by or under a law made by it to be of national importance, but the
Central Act of 1904 did not embody the requisite declaration. Therefore the
Regulation, which fell under Entry 12 of the State List, continued to hold the
field despite the extension of the Central Act to the State. [873 F-G]
Similarly, the Central Acts LXXI of 1951 and XXIV of 1958 applied only to
ancient or historical monuments specified in Part 1 of the Schedule to the 1951
Act or expressly notified by the Central Government under s. 4 of the 1958 Act.
As neither of these Acts covered the monument in question, the State Regulation
continued to be applicable in respect of it therefore followed hat the
Notification issued under the State Act was valid. [873 H; 874 A-E] The
contention based on the argument that the disputed wall was not a monument but
an archaeological site or remain could not be accepted, because it was clear
from the evidence before the court that the Fort wall was not an archaeological
site for exploration and study but that it was 869 an existing structure
surviving from a former period and, as such, a monument. The State Government
was therefore within its rights in issuing the impugned notification under s. 3
of Regulation 1 of 11II 12/ M.E. [875 H; 876 A-B]
ORIGINAL JURISDICTION: Writ Petition No. 95
Petition under Art. 32 of the Constitution
for enforcement of fundamental rights.
T. N. Subramonia Iyer, Arun B. Saharaya and
Sardar Bhadur for the petitioner.
V. P. Gopala Nambiar, Advocate-General for
the State of Kerala and V. A. Seyid Muhammad, for the respondent.
The Judgment of the Court was delivered by
Subba Rao, J. This is a petition under Art. 32 of the Constitution for issuing
an appropriate writ to quash the order and notification dated October 3, 1963,
issued by the respondent and to restrain it from interfering with the
petitioner's right in the property comprised in survey Nos.
646 to 650 in Trivendrum City.
Kizhakke Kottaram (i.e., Eastern Palace), 2
acres and 57 cents. in extent, comprised in survey Nos. 646 to 650 and
consisting of land, trees, buildings, out-houses, the surrounding well on all
sides, gates and all appurtenant, in the City of Trivendrum originally belonged
to His Highness the Maharaja of Travancore, Under a sale deed dated January 7,
1959, the Maharaja sold the same to the petitioner. The petitioner's case is
that the eastern wall now in dispute is a portion of the Palace wall and is
situate in survey Nos. 646 to 650 and that since the purchase he has been in
possession of the same. On October 3, 1963, the Government of Kerala passed an
order, G.O. (MS) No. 661/63/Edn., purporting to be under the provisions of the
Travancore Ancient Monuments Preservation Regulation 1 of 1112/M.E. (193637
A.D.) Under that order the Government considered the Fort walls around the Sree
Padmanabhaswamy Temple as of archaeological importance and that they should be
preserved as a protected monument. Under that order the said are described as
being situated, among others, in the aforesaid survey numbers also. Pursuant to
that order the State Government issued a notification dated October 3, 1963,
declaring the said walls to be a protected monument for the purpose of the said
Regulation The petitioner, alleging that the part of the said walls situate in
the said. survey numbers belonged to him and he was in possession thereof and
that the said notification infringed his fundamental right under Art. 19(1) (f)
of the Constitution, filed the present writ petition.
870 The State filed a counter-affidavit in
which it admitted that the Kizhakke Kottaram was purchased by the petitioner
from the Maharaja of Travancore, but contended that the wan which bounded the
Kizhakke Kottaram on the east was part of the fort wall which had always
remained and continued to remain to be the property of the Travancore-Cochin,
and later on Kerala, Government. It was further alleged that though the said
wan was part of the historic fort wall, the petitioner deliberately
"intermeddled" with it. In short, the respondent claimed that the
said wall was part of the historic fort wall and, therefore, the said
notification was validly issued in order to preserve the same and that the
petitioner had illegally encroached upon it.
It is not necessary to state the different
contentions of the parties at this stage, as we shall deal with them
The learned Advocate-General of Kerala raised
a preliminary objection to the maintainability of the application on the ground
that the petition is barred by the principle of res judicata in that a petition
for the same relief was filed before the High Court of Kerala and was
dismissed. The petitioner filed O.P. No. 1502 of 1960 in the High Court of
Kerala at Emakulam for a relief similar to that now sought in this petition.
The said petition came up before Vaidialingam, J., who dismissed that petition
on the ground that it sought for the declaration of title to the property in
question, that the said relief was foreign to the scope of the proceedings
under Art. 226 of the Constitution and that claims based on title or possession
could be more appropriately investigated in a civil suit. When an appeal was
filed against that order a Division Bench of the High Court, consisting of
Raman Nair and Raghavan, JJ., dismissed the same, accepting the view of
Vaidialingam, J., that the proper forum for the said relief was a civil Court.
It is, therefore, clear that the Kerala High Court did not go into the merits
of the petitioner's contentions, but dismissed the petition for the reason that
the petitioner had an effective remedy by way of a suit. Every citizen whose
fundamental right is infringed by the State has a fundamental right to approach
this Court for enforcing his right. If by a final decision of a competent Court
his title to property has been negatived, he ceases to have the fundamental
right in respect of that property and, therefore, he can no longer enforce it.
In that context the doctrine of res judicata may be invoked. But where there is
no such decision at all, there is no scope to call in its aid. We, therefore,
reject this contention.
871 The next question is whether the
petitioner has any fundamental right in respect of the wall in dispute within
the meaning of Art. 19(1) (f) of the Constitution. The Sale deed under which
the petitioner has purchased the Eastern Palace from the Maharaja is filed
along with the petition as Annexure A-2. Under the said sale deed, dated
January 7, 1959, the Maharaja sold the Eastern Palace situate in survey Nos.
646 to 650, 2 acres and 57 cents, in extent, to the petitioner. The outer
compound walls of the said Palace building were also expressly conveyed under
the sale deed.
In the schedule of properties annexed to the
sale deed the eastern boundary is given as a road. Prima facie, therefore, the
sale deed establishes that the Maharaja conveyed the eastern wall of the
building abutting the road to the petitioner. In the counter-affidavit the
State, while admitting the title of the Maharaja to the Eastern Palace and the
execution of the sale deed by him conveying the said Palace to the petitioner,
asserted that the disputed wall is part of the historic Fort wall. According to
the State, Sree Padmanabhaswamy Temple is surrounded by the historic Fort wall
and the disputed wall is a part of it. In support of this contention, the State
has given extracts from the Travancore State Manual, the list of forts
furnished to the Government by the Chief Engineer in 1886, the history of
Travancore by Sri K. P. Sankunni Menon., the Memoir of the Survey of Travancore
and Cochin States by Lieutenants Ward and Conner, and the Trivendrum District
Gazetteer published in 1962. The said extracts describe the history of the Fort
wall. It is not possible, without further evidence, on the basis of the
affidavits filed by the petitioner and the State to come to a definite
conclusion whether the disputed part of the wall is a part of the historic Fort
wall. We are, therefore, withholding, our final decision on this point, as we
are satisfied that the petitioner has purchased the disputed wall from the
Maharaja and is in physical possession thereof. Indeed, the fact that he is in
possession has been admitted by the State in its counter-affidavit. It is
stated therein that the petitioner has "intermeddled" with the wall.
The petitioner has possessory title in the wall and is, therefore entitled to
be protected against interference with that right without the sanction of law.
The next question is whether the Travancore
Ancient Monuments. Preservation Regulation (Regulation 1 of 1112/M.E.) ceased
to be law in the State of Kerala and, therefore, the said notification issued
there under had no legal force. It was contended that Regulation 1 of 1112 M.E.
was impliedly repealed by the extension of the Central Act, i.e., the Ancient
Monuments Preservation Act, 1904, in the year 1951 to Kerala, as the said
Up./65-9 872 Act covered the same field occupied by the State Act, or at any
rate the Said Regulation was impliedly repealed by the Ancient and Historical
Monuments and Archaeological Sites and Remains (Declaration of National
Importance) Act, 1951 (Act LXXI of 1951) and the Ancient and Historical
Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). To
appreciate this contention it would be convenient at the outset to notice the
relevant legislative fields allotted to the Central and State Legislatures by
the entries in the three Lists of the Seventh Schedule to the Constitution. The
following are the relevant entries in the said Schedule :
Entry 67 of List 1 (Union List) Ancient and
historical monuments and records, and archaeological sites and remains,
declared by or under law made by Parliament to be of national importance.
Entry 12 of List II (State List) Libraries,
museums and other similar institutions controlled or financed by the State;
ancient and historical monuments and records other than those declared by or
under law made by Parliament to be of national importance.
Entry 40 of List III (Concurrent List)
Archaeological sites and remains other than those declared by or under law made
by Parliament to be of national importance.
It will be noticed that by reason of the said
entries Parliament could only make law with respect to ancient and historical
monuments and archaeological sites and remains declared by Parliament to be of
national importance. Where the Parliament has not declared them to be of any
national importance, the State Legislature has exclusive power to make law in
respect of ancient and historical monuments and records and both Parliament and
the State Legislature can make laws subject to the other constitutional
provisions in respect of archaeological sites and remains. Regulation 1 of 1112
M.E. is of the year 1936 A.D. It was a State law and it is not disputed that it
was validly made at the time it was passed. After the Travancore-Cochin State
was formed, under the Travancore-Cochin Administration and Application of Law
Act, 1125 M.E. (Act VI of 1125 M.E.) (1949 A.D), the existing laws of
Travancore were extended to that part of the area of the new State which before
the appointed day 873 formed the territory of the State of Travancore. The
result was that the said Regulation continued to be in force in the 'Travancore
area of the new State. Ile Part B States (Laws) Act, 1951 (Act No. III of 1951)
was made by Parliament; and there under the Ancient Monuments Preservation Act,
1904, was extended to the new State of Travancore-Cochin. A comparative study
of the two Acts, i.e., the Ancient Monuments Preservation Act, 1904, and the
Travancore Ancient Monuments Preservation Regulation 1 of 1112 M.E., shows that
they practically covered the same field. If there was nothing more, it may be
contended that the State Act was impliedly repealed by the Central Act. But S.
3 of the Part B States (Laws) Act, 1951, made the application of the Central
Act to the State subject to an important condition.
The said s. 3 reads :
"The Acts and Ordinances specified in
the Schedule shall be amended in the manner and to the extent therein
specified, and the territorial extent of each of the said Acts and Ordinances
shall, as from the appointed day, and in so far as any of the said Acts or
Ordinances or any of the provisions contained therein relates to matters with
respect to which Parliament has power to make laws, be as stated in the extent
clause thereof as so amended." The condition is that the said Act shall
relate to matters with respect to which Parliament has power to make laws.
The question, therefore, is whether
Parliament can make a law in respect of ancient monuments with respect whereof
the State had made the impugned Regulation. As we have pointed out earlier, the
Parliament can make a law in respect of ancient and historical monuments and
records declared by or under law made by it to be of national importance, but
the Central Act of 1904 did not embody any declaration to that effect.
Therefore, the Central Act could not enter the field occupied by the State
Legislature under List II. If so, it follows that the State Act held the field
notwithstanding the fact that the Central Act was extended to the State area.
Nor can the learned counsel for the
petitioner call in aid the, Ancient and Historical Monuments and Archaeological
Sites and Remains (Declaration of National Importance) Act, 1951 (Act LXXI of
1951), to sustain his argument. That Act applied to ancient and historical
monuments referred to or specified in Part 1 of the Schedule thereto which had
been declared to be of national importance. In Part 1 of the Schedule to the
said Act 874 certain monuments in the District of Trichur in the
Travancore-Cochin State were specified. The monument in question was not
included in the said Schedule. The result is that the State Act did not in any
way come into conflict with the Central Act LXXI of 1951. The State Act, therefore,
survived even after the passing of the said Central Act.
The next Central Act is the Ancient Monuments
and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). It repealed
the Central Act LXXI of 1951. Under S. 3 thereof all ancient and historical
monuments declared by Central Act No. LXXI of 1951 to be of national importance
should be deemed to be ancient and historical monuments and remained declared
to be of national importance for the purpose of the said Act. Section 4 thereof
enabled the Central Government to issue a notice of its intention to declare
any other monument to be of national importance which did not come under s. 3
of the said Act. But the Central Government did not give any notice of its
intention to declare the monument in question as one of national importance. If
so, that Act also did not replace the State Act in regard to the monument in
For the aforesaid reasons it must be held
that notwithstanding the extension of the Central Act VII of 1904 to the Travancore
area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State
Act continued to hold the field in respect of the monument in question. It
follows that the notification issued under the State Act was valid.
The next argument of the learned counsel may
be briefly stated thus : The disputed wall is not an ancient monument, but an
archaeological site or remains; the said matter is covered by entry 40 of the
Concurrent List (List 111) of the Seventh Schedule to the Constitution: when Act
VII of 1904 was extended by Part B States (Laws) Act III of 1951 to the
Travancore area, it occupied practically the entire field covered by the State
Act and, therefore, the latter Act was impliedly repealed by the former Act.
Assuming that is the legal position, we find
it not possible to hold that the Fort wall is not an ancient monument but only
an archaeological site or remains. The argument of the learned counsel is built
upon the definition of "ancient monument" in the State Act (Regulation
1 of 1112 M.E.) and that in the Central Act of 1904. It is not necessary to
express our opinion on the question whether the definition is comprehensive
enough to take in an archaeological site or remains, and whether the Acts 875
apply to both ancient monuments strictly so called and to archaeological site
or remains. If the definition was wide enough to cover both--on which we do not
express any opinion-that State Act may be liable to attack on the ground that
it, in so far as it deals with archaeological site or remains, was displaced by
the Central Act. But the State Government only purported to notify the Fort
wall as an ancient monument and, therefore, if the State Act, in so far as it
dealt with monument is good, as we have held it to be, the impugned notification
was validly issued there under.
The Constitution itself, as we have noticed
earlier, maintains a clear distinction between ancient monuments are
archaeological site or remains; the former is put in the State List and the
latter, in the Concurrent List.
The dictionary meaning of the two expressions
also brings out the distinction between the two concepts. "Monument"
is derived from monere, which means to remind, to warn. "Monument"
means, among others, "a structure surviving from a former period" whereas
"archaeology" is the scientific study of the life and culture of
ancient peoples. Archaeological site or remains, therefore, is a site or
remains which could be explored in order.
to study the life and culture of the ancient
peoples. The two expressions, therefore, bear different meanings. Though the
demarcating line may be thin in a rare case, the distinction is clear.
The entire record placed before us discloses
that the State proceeded on the basis that the Fort wall was a monument;
the notification dated October 3, 1963,
issued by the State Government described the wall as a protected monument. The
petitioner questioned the notification on the ground that it was not a monument
but a part of the boundary wall of his property. He did not make any allegation
in the petition filed in the High Court that it was an archaeological site or
remains and, therefore, the Central Act displaced the State Act. Nor did he
argue before the High Court to that effect. In the petition filed in this Court
he questioned the constitutional validity of the State Act only on the ground
that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State
Act relating to monuments. He did not allege that the Fort wall was an
archaeological site or remains and, therefore, the State Act as well as the
notification were invalid. The present argument is only an afterthought.
The extracts given in the counter-affidavit
filed by the State from the relevant Manuals and other books and documents show
876 that the Fort wall was a historical monument and was treated as such, being
the wall built around the famous Sree Padmanabhaswami Temple. It is not an
archaeological site for exploration and study, but an existing structure
surviving from a former period. For the aforesaid reasons we hold that the Fort
wall is a monument and the State Government was within its rights to issue the
impugned notification under s. 3 of the State Regulation 1 of 1112 M.E. We are
not deciding in this case whether the wall in dispute is part of the Fort wall.
Such and other objections may be raised under the provisions of the Act in the
manner prescribed there under.
In this view, it is not necessary to express
our opinion on the question whether Art. 363 of the Constitution is a bar to
the maintainability of the petition.
In the result, the petition fails and is
dismissed with costs.