PETITIONER: JOSEPH POTHEN Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT: 03/02/1965 BENCH: RAO, K. SUBBA (CJ) BENCH: RAO, K. SUBBA (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M. CITATION: 1965 AIR 1514 1965 SCR (2) 868 CITATOR INFO : E&D 1970 SC 898 (54,59) ACT: Travancore Ancient Monuments Preservation Regulation (1 of 1112/ M.E.-1936-37)-Whether implied repealed by extension of Central Act VII of 1904 to State-or by the Central Acts LXXI of 1951 and XXIV of 1958-State issuing Notification under the Regulation declaring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. HEADNOTE: 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Notification had no legal force as Regulation 1 of 1112/M.E., though validly made when it was passed, was impliedly repealed by the extension to the State in 1951 of the Ancient Monuments Preservation Act, 1904 (Central Act VII of 1904) as that Act covered the same field occupied by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to the State, the Central Act occupied practically the entire field covered by the State Act and thereby implicitly repealed the State Act.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] JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 95 of 1964.
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
separately.
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 funda-
mental 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 Monu-
ments. Preservation Regulation (Regulation 1 of 1112/M.E.)
ceased to be law in the State of Kerala and, therefore, the
said notification issued thereunder 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
thereunder 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 Archaeo-
logical 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 question.
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 thereunder.
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. “Monu-
ment” 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 thereunder.
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.
Petition dismissed.
877