{"id":256601,"date":"1965-02-03T00:00:00","date_gmt":"1965-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/joseph-pothen-vs-state-of-kerala-on-3-february-1965"},"modified":"2016-03-19T04:03:35","modified_gmt":"2016-03-18T22:33:35","slug":"joseph-pothen-vs-state-of-kerala-on-3-february-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/joseph-pothen-vs-state-of-kerala-on-3-february-1965","title":{"rendered":"Joseph Pothen vs State Of Kerala on 3 February, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Joseph Pothen vs State Of Kerala on 3 February, 1965<\/div>\n
Equivalent citations: 1965 AIR 1514, 1965 SCR (2) 868<\/div>\n
Author: K S Rao<\/div>\n
Bench: Rao, K. Subba (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Sikri, S.M.<\/div>\n
           PETITIONER:\nJOSEPH POTHEN\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KERALA\n\nDATE OF JUDGMENT:\n03\/02\/1965\n\nBENCH:\nRAO, K. SUBBA (CJ)\nBENCH:\nRAO, K. SUBBA (CJ)\nWANCHOO, K.N.\nHIDAYATULLAH, M.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n 1965 AIR 1514\t\t  1965 SCR  (2) 868\n CITATOR INFO :\n E&D\t    1970 SC 898\t (54,59)\n\n\nACT:\nTravancore  Ancient Monuments Preservation Regulation (1  of\n1112\/ M.E.-1936-37)-Whether implied repealed by extension of\nCentral Act<\/a> VII of 1904 to State-or by the Central Act<\/a>s LXXI\nof  1951 and XXIV of 1958-State issuing\t Notification  under\nthe  Regulation\t declaring Fort wall as\t a  monument-Whether\nvalid.\nConstitution  of India-Entry 67 (List I)-Entry 12 (List\t II)\nEntry 40 (List III)-Scope of.\n\n\n\nHEADNOTE:\nBy  a  Notification under the Travancore  Ancient  Monuments\nPreservation  Regulation (1 of 1112\/M.E.-1936-37 A.D.),\t the\nState  Government  declared a fort wall,  which\t was  within\ncertain\t  property  purchased  by  the\tpetitioner,  to\t  be\nprotected monument for the purposes of the Regulation.\t The\npetitioner  challenged\tthe Notification as  infringing\t his\nfundamental right under Art. 19(1) (f).<\/a>\nIt  was\t contended  on behalf of  the  petitioner  that\t the\nimpugned Notification had no legal force as Regulation 1  of\n1112\/M.E.,  though  validly  made when it  was\tpassed,\t was\nimpliedly repealed by the extension to the State in 1951  of\nthe  Ancient Monuments Preservation Act<\/a>, 1904  (Central\t Act<\/a>\nVII of 1904) as that Act covered the same field occupied  by\nthe State Government, and in any event there was an  implied\nrepeal\tof the Regulation by the Central Act<\/a>s LXXI  of\t1951\nand  XXIV of 1958.  It was also contended that the  disputed\nwall was not an ancient 'monument' but fell within the\tterm\n'archaeological sites or remains' and as the latter  subject\nwas  in\t the  Concurrent List, upon  the  extension  of\t the\nCentral\t Act<\/a> VII of 1904 in 1951 to the State,\tthe  Central\nAct<\/a>  occupied  practically the entire field covered  by\t the\nState Act<\/a> and thereby implicitly repealed the State Act<\/a>.\nHELD:By\t  virtue  of  Entry  67\t of  the  Union\t  List,\nParliament  could  make\t a law in  respect  of\tancient\t and\nhistorical  monuments declared by or under a law made by  it\nto  be of national importance, but the Central Act<\/a>  of\t1904\ndid  not  embody the requisite declaration.   Therefore\t the\nRegulation,  which  fell under Entry 12 of the\tState  List,\ncontinued  to  hold the field despite the extension  of\t the\nCentral Act<\/a> to the State. [873 F-G]\nSimilarly,  the Central Act<\/a>s LXXI of 1951 and XXIV  of\t1958\napplied only to ancient or historical monuments specified in\nPart 1 of the Schedule to the 1951 Act or expressly notified\nby  the Central Government under s. 4<\/a> of the 1958  Act.\t  As\nneither of these Acts covered the monument in question,\t the\nState Regulation continued to be applicable in respect of it\ntherefore  followed  hat the Notification issued  under\t the\nState Act<\/a> was valid. [873 H; 874 A-E]\nThe contention based on the argument that the disputed\twall\nwas  not  a monument but an archaeological  site  or  remain\ncould  not  be\taccepted,  because it  was  clear  from\t the\nevidence  before  the court that the Fort wall\twas  not  an\narchaeological\tsite for exploration and study but  that  it\nwas\n\t\t\t    869\nan existing structure surviving from a former period and, as\nsuch, a monument.  The State Government was therefore within\nits  rights in issuing the impugned notification under s.  3<\/a>\nof Regulation 1 of 11II 12\/ M.E. [875 H; 876 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION: Writ Petition No. 95 of 1964.
\nPetition  under Art. 32<\/a> of the Constitution for\t enforcement
\nof fundamental rights.\n<\/p>\n
T.   N.\t Subramonia  Iyer,  Arun  B.  Saharaya\tand   Sardar
\nBhadur for the petitioner.\n<\/p>\n
V.   P. Gopala Nambiar, Advocate-General for the State of
\nKerala and V. A. Seyid Muhammad<\/a>, for the respondent.
\nThe Judgment of the Court was delivered by
\nSubba  Rao,  J.\t This is a petition under  Art.\t 32<\/a>  of\t the
\nConstitution  for issuing an appropriate writ to  quash\t the
\norder and notification dated October 3, 1963, issued by\t the
\nrespondent  and\t to restrain it from  interfering  with\t the
\npetitioner’s right in the property comprised in survey\tNos.
\n646 to 650 in Trivendrum City.\n<\/p>\n
Kizhakke  Kottaram  (i.e., Eastern Palace), 2 acres  and  57
\ncents.\tin extent, comprised in survey Nos. 646 to  650\t and
\nconsisting  of\tland,  trees,  buildings,  out-houses,\t the
\nsurrounding well on all sides, gates and all appurtenant, in
\nthe  City of Trivendrum originally belonged to His  Highness
\nthe Maharaja of Travancore, Under a sale deed dated  January
\n7, 1959, the Maharaja sold the same to the petitioner.\t The
\npetitioner’s case is that the eastern wall now in dispute is
\na  portion of the Palace wall and is situate in survey\tNos.
\n646  to\t 650  and that since the purchase  he  has  been  in
\npossession of the same.\t On October 3, 1963, the  Government
\nof  Kerala  passed  an order,  G.O.  (MS)  No.\t661\/63\/Edn.,
\npurporting  to\tbe under the provisions\t of  the  Travancore
\nAncient Monuments Preservation Regulation 1 of 1112\/M.E.  (-
\n193637 A.D.) Under that order the Government considered\t the
\nFort  walls  around the Sree Padmanabhaswamy  Temple  as  of
\narchaeological importance and that they should be  preserved
\nas  a  protected monument.  Under that order  the  said\t are
\ndescribed as being situated, among others, in the  aforesaid
\nsurvey\tnumbers\t also.\t Pursuant to that  order  the  State
\nGovernment  issued  a notification dated  October  3,  1963,
\ndeclaring the said walls to be a protected monument for\t the
\npurpose of the said Regulation The petitioner, alleging that
\nthe  part  of  the said walls situate in  the  said.  survey
\nnumbers belonged to him and he was in possession thereof and
\nthat  the said notification infringed his fundamental  right
\nunder Art. 19(1) (f)<\/a> of the Constitution, filed the  present
\nwrit petition.\n<\/p>\n
870<\/span><\/p>\n
The  State  filed a counter-affidavit in which\tit  admitted
\nthat  the Kizhakke Kottaram was purchased by the  petitioner
\nfrom the Maharaja of Travancore, but contended that the\t wan
\nwhich bounded the Kizhakke Kottaram on the east was part  of
\nthe  fort  wall which had always remained and  continued  to
\nremain\tto  be the property of\tthe  Travancore-Cochin,\t and
\nlater  on Kerala, Government.  It was further  alleged\tthat
\nthough the said wan was part of the historic fort wall,\t the
\npetitioner  deliberately “intermeddled” with it.  In  short,
\nthe  respondent claimed that the said wall was part  of\t the
\nhistoric fort wall and, therefore, the said notification was
\nvalidly\t issued in order to preserve the same and  that\t the
\npetitioner had illegally encroached upon it.
\nIt  is not necessary to state the different  contentions  of
\nthe  parties  at  this stage, as we  shall  deal  with\tthem
\nseparately.\n<\/p>\n
The learned Advocate-General of Kerala raised a\t preliminary
\nobjection  to the maintainability of the application on\t the
\nground\tthat the petition is barred by the principle of\t res
\njudicata  in that a petition for the same relief  was  filed
\nbefore\tthe  High Court of Kerala and  was  dismissed.\t The
\npetitioner filed O.P. No. 1502 of 1960 in the High Court  of
\nKerala\tat Emakulam for a relief similar to that now  sought
\nin  this  petition.   The  said\t petition  came\t up   before
\nVaidialingam, J., who dismissed that petition on the  ground
\nthat it sought for the declaration of title to the  property
\nin  question, that the said relief was foreign to the  scope
\nof  the proceedings under Art. 226<\/a> of the  Constitution\t and
\nthat  claims  based  on title or possession  could  be\tmore
\nappropriately investigated in a civil suit.  When an  appeal
\nwas  filed against that order a Division Bench of  the\tHigh
\nCourt, consisting of Raman Nair and Raghavan, JJ., dismissed
\nthe  same, accepting the view of Vaidialingam, J., that\t the
\nproper forum for the said relief was a civil Court.  It\t is,
\ntherefore, clear that the Kerala High Court did not go\tinto
\nthe  merits of the petitioner’s contentions,  but  dismissed
\nthe  petition  for  the reason that the\t petitioner  had  an
\neffective  remedy  by way of a suit.   Every  citizen  whose
\nfundamental   right  is\t infringed  by\tthe  State   has   a
\nfundamental  right to approach this Court for enforcing\t his
\nright.\t If  by a final decision of a  competent  Court\t his
\ntitle to property has been negatived, he ceases to have\t the
\nfundamental   right  in\t respect  of  that   property\tand,
\ntherefore, he can no longer enforce it.\t In that context the
\ndoctrine of res judicata may be invoked.  But where there is
\nno  such decision at all, there is no scope to call  in\t its
\naid.  We, therefore, reject this contention.\n<\/p>\n
871<\/span><\/p>\n
The  next question is whether the petitioner has any  funda-
\nmental\tright in respect of the wall in dispute\t within\t the
\nmeaning\t of  Art. 19(1) (f)<\/a> of the Constitution.   The\tSale
\ndeed  under which the petitioner has purchased\tthe  Eastern
\nPalace from the Maharaja is filed along with the petition as
\nAnnexure  A-2.\tUnder the said sale deed, dated\t January  7,
\n1959, the Maharaja sold the Eastern Palace situate in survey
\nNos.  646  to 650, 2 acres and 57 cents, in extent,  to\t the
\npetitioner.   The  outer compound walls of the\tsaid  Palace
\nbuilding  were also expressly conveyed under the sale  deed.
\nIn  the schedule of properties annexed to the sale deed\t the
\neastern\t  boundary  is\tgiven  as  a  road.   Prima   facie,
\ntherefore,  the\t sale  deed establishes\t that  the  Maharaja
\nconveyed the eastern wall of the building abutting the\troad
\nto  the\t petitioner.  In the  counter-affidavit\t the  State,
\nwhile  admitting  the title of the Maharaja to\tthe  Eastern
\nPalace\tand the execution of the sale deed by him  conveying
\nthe  said  Palace  to  the  petitioner,\t asserted  that\t the
\ndisputed wall is part of the historic Fort wall.   According
\nto  the State, Sree Padmanabhaswamy Temple is surrounded  by
\nthe  historic Fort wall and the disputed wall is a  part  of
\nit.   In  support of this contention, the  State  has  given
\nextracts from the Travancore State Manual, the list of forts
\nfurnished  to the Government by the Chief Engineer in  1886,
\nthe history of Travancore by Sri K. P. Sankunni Menon.,\t the
\nMemoir\tof  the Survey of Travancore and  Cochin  States  by
\nLieutenants  Ward  and Conner, and the\tTrivendrum  District
\nGazetteer published in 1962.  The said extracts describe the
\nhistory\t of  the  Fort wall.  It is  not  possible,  without
\nfurther\t evidence, on the basis of the affidavits  filed  by
\nthe  petitioner\t and  the  State  to  come  to\ta   definite
\nconclusion  whether the disputed part of the wall is a\tpart
\nof the historic Fort wall.  We are, therefore,\twithholding,
\nour  final decision on this point, as we are satisfied\tthat
\nthe  petitioner\t has purchased the disputed  wall  from\t the
\nMaharaja and is in physical possession thereof.\t Indeed, the
\nfact that he is in possession has been admitted by the State
\nin  its\t counter-affidavit.  It is stated therein  that\t the
\npetitioner has “intermeddled” with the wall.  The petitioner
\nhas possessory title in the wall and is, therefore  entitled
\nto be protected against interference with that right without
\nthe sanction of law.\n<\/p>\n
The  next question is whether the Travancore  Ancient  Monu-
\nments.\tPreservation Regulation (Regulation 1 of  1112\/M.E.)
\nceased to be law in the State of Kerala and, therefore,\t the
\nsaid notification issued thereunder had no legal force.\t  It
\nwas  contended that Regulation 1 of 1112 M.E. was  impliedly
\nrepealed  by  the extension of the Central  Act<\/a>,  i.e.,\t the
\nAncient\t Monuments Preservation Act<\/a>, 1904, in the year\t1951
\nto Kerala, as the said
\nUp.\/65-9
\n872<\/span>
\nAct covered the same field occupied by the State Act<\/a>, or  at
\nany  rate the Said Regulation was impliedly repealed by\t the
\nAncient\t and Historical Monuments and  Archaeological  Sites
\nand  Remains (Declaration of National Importance) Act,\t1951
\n(Act LXXI of 1951) and the Ancient and Historical  Monuments
\nand Archaeological Sites and Remains Act, 1958 (Act XXIV  of
\n1958).\tTo appreciate this contention it would be convenient
\nat  the\t outset to notice the  relevant\t legislative  fields
\nallotted  to  the  Central and\tState  Legislatures  by\t the
\nentries\t in the three Lists of the Seventh Schedule  to\t the
\nConstitution.  The following are the relevant entries in the
\nsaid Schedule :\n<\/p>\n
\t      Entry 67 of List 1 (Union List)
\n\t      Ancient and historical monuments and  records,
\n\t      and archaeological sites and remains, declared
\n\t      by  or under law made by Parliament to  be  of
\n\t      national importance.<\/p><\/blockquote>\n
\t      Entry 12 of List II (State List)
\n\t      Libraries,    museums   and   other    similar
\n\t      institutions  controlled\tor financed  by\t the
\n\t      State;  ancient and historical  monuments\t and
\n\t      records other than those declared by or  under
\n\t      law  made\t by  Parliament to  be\tof  national
\n\t      importance.\n<\/p><\/blockquote>\n
\t      Entry 40 of List III (Concurrent List)
\n\t      Archaeological  sites and remains\t other\tthan
\n\t      those  declared  by  or  under  law  made\t  by
\n\t      Parliament to be of national importance.\n<\/p><\/blockquote>\n
It  will  be  noticed that by reason  of  the  said  entries
\nParliament  could only make law with respect to ancient\t and
\nhistorical  monuments and archaeological sites\tand  remains
\ndeclared by Parliament to be of national importance.   Where
\nthe  Parliament has not declared them to be of any  national
\nimportance,  the  State Legislature has exclusive  power  to
\nmake law in respect of ancient and historical monuments\t and
\nrecords\t and both Parliament and the State  Legislature\t can
\nmake laws subject to the other constitutional provisions  in
\nrespect\t of archaeological sites and remains.  Regulation  1
\nof 1112 M.E. is of the year 1936 A.D. It was a State law and
\nit  is not disputed that it was validly made at the time  it
\nwas  passed.  After the Travancore-Cochin State was  formed,
\nunder  the Travancore-Cochin Administration and\t Application
\nof Law Act<\/a>, 1125 M.E. (Act VI of 1125 M.E.) (1949 A.D),\t the
\nexisting  laws of Travancore were extended to that  part  of
\nthe area of the new State which before the appointed day
\n873<\/span>
\nformed the territory of the State of Travancore.  The result
\nwas that the said Regulation continued to be in force in the
\n‘Travancore area of the new State.  Ile Part B States (Laws)
\nAct, 1951 (Act No. III of 1951) was made by Parliament;\t and
\nthereunder the Ancient Monuments Preservation Act<\/a>, 1904, was
\nextended   to  the  new\t State\tof   Travancore-Cochin.\t   A
\ncomparative  study  of\tthe  two  Acts,\t i.e.,\tthe  Ancient
\nMonuments Preservation Act<\/a>, 1904, and the Travancore Ancient
\nMonuments Preservation Regulation 1 of 1112 M.E., shows that
\nthey  practically  covered  the same field.   If  there\t was
\nnothing\t more,\tit may be contended that the State  Act<\/a>\t was
\nimpliedly repealed by the Central Act<\/a>.\tBut S. 3<\/a> of the Part
\nB  States  (Laws)  Act, 1951, made the\tapplication  of\t the
\nCentral Act<\/a> to the State subject to an important  condition.
\nThe said s. 3<\/a> reads :\n<\/p>\n
\t      “The  Act<\/a>s  and Ordinances  specified  in\t the
\n\t      Schedule shall be amended in the manner and to
\n\t      the   extent   therein  specified,   and\t the
\n\t      territorial  extent of each of the  said\tActs
\n\t      and  Ordinances shall, as from  the  appointed
\n\t      day, and in so far as any of the said Acts  or
\n\t      Ordinances or any of the provisions  contained
\n\t      therein  relates\tto matters with\t respect  to
\n\t      which Parliament has power to make laws, be as
\n\t      stated  in  the extent clause  thereof  as  so
\n\t      amended.”\n<\/p><\/blockquote>\n
The  condition is that the said Act shall relate to  matters
\nwith  respect  to which Parliament has power to\t make  laws.
\nThe  question, therefore, is whether Parliament can  make  a
\nlaw in respect of ancient monuments with respect whereof the
\nState had made the impugned Regulation.\t As we have  pointed
\nout  earlier,  the Parliament can make a law in\t respect  of
\nancient and historical monuments and records declared by  or
\nunder  law made by it to be of national importance, but\t the
\nCentral\t Act<\/a> of 1904 did not embody any declaration to\tthat
\neffect.\t  Therefore,  the Central Act<\/a> could  not  enter\t the
\nfield  occupied by the State Legislature under List II.\t  If
\nso,   it  follows  that\t the  State  Act<\/a>  held\t the   field
\nnotwithstanding\t the fact that the Central Act<\/a> was  extended
\nto the State area.\n<\/p>\n
Nor  can the learned counsel for the petitioner call in\t aid
\nthe,  Ancient  and Historical Monuments\t and  Archaeological
\nSites and Remains (Declaration of National Importance)\tAct,
\n1951 (Act LXXI of 1951), to sustain his argument.  That\t Act<\/a>
\napplied\t to ancient and historical monuments referred to  or
\nspecified  in Part 1 of the Schedule thereto which had\tbeen
\ndeclared  to  be of national importance.  In Part 1  of\t the
\nSchedule to the said Act
\n874<\/span>
\ncertain\t monuments  in\tthe  District  of  Trichur  in\t the
\nTravancore-Cochin  State  were specified.  The\tmonument  in
\nquestion was not included in the said Schedule.\t The  result
\nis that the State Act<\/a> did not in any way come into  conflict
\nwith  the  Central  Act<\/a>\t LXXI  of  1951.   The\tState\tAct<\/a>,
\ntherefore,  survived  even  after the passing  of  the\tsaid
\nCentral Act<\/a>.\n<\/p>\n
The  next Central Act<\/a> is the Ancient Monuments and  Archaeo-
\nlogical Sites and Remains Act, 1958 (Act XXIV of 1958).\t  It
\nrepealed  the Central Act<\/a> LXXI of 1951.\t Under S. 3<\/a>  thereof
\nall ancient and historical monuments declared by Central Act<\/a>
\nNo.  LXXI  of 1951 to be of national  importance  should  be
\ndeemed\tto be ancient and historical monuments and  remained
\ndeclared to be of national importance for the purpose of the
\nsaid Act.  Section 4<\/a> thereof enabled the Central  Government
\nto  issue  a notice of its intention to\t declare  any  other
\nmonument  to  be of national importance which did  not\tcome
\nunder s. 3<\/a> of the said Act.  But the Central Government\t did
\nnot give any notice of its intention to declare the monument
\nin question as one of national importance.  If so, that\t Act
\nalso did not replace the State Act<\/a> in regard to the monument
\nin question.\n<\/p>\n
For   the   aforesaid\treasons\t it  must   be\t held\tthat
\nnotwithstanding the extension of the Central Act<\/a> VII of 1904
\nto the Travancore area and the passing of Central Act<\/a>s\tLXXI
\nof  1951 and XXIV of 1958, the State Act<\/a> continued  to\thold
\nthe  field  in\trespect of the\tmonument  in  question.\t  It
\nfollows that the notification issued under the State Act<\/a> was
\nvalid.\n<\/p>\n
The  next  argument of the learned counsel  may\t be  briefly
\nstated thus : The disputed wall is not an ancient  monument,
\nbut  an archaeological site or remains; the said  matter  is
\ncovered by entry 40 of the Concurrent List (List 111) of the
\nSeventh\t Schedule to the Constitution: when Act VII of\t1904
\nwas extended by Part B States (Laws) Act<\/a> III of 1951 to\t the
\nTravancore  area, it occupied practically the  entire  field
\ncovered by the State Act<\/a> and, therefore, the latter Act\t was
\nimpliedly repealed by the former Act.\n<\/p>\n
Assuming that is the legal position, we find it not possible
\nto  hold that the Fort wall is not an ancient  monument\t but
\nonly an archaeological site or remains.\t The argument of the
\nlearned\t counsel  is built upon the definition\tof  “ancient
\nmonument”  in the State Act<\/a> (Regulation 1 of 1112 M.E.)\t and
\nthat  in  the Central Act<\/a> of 1904.  It is not  necessary  to
\nexpress\t our opinion on the question whether the  definition
\nis comprehensive enough to take in an archaeological site or
\nremains, and whether the Acts
\n875<\/span>
\napply  to both ancient monuments strictly so called  and  to
\narchaeological site or remains.\t If the definition was\twide
\nenough\tto  cover  both–on  which we  do  not\texpress\t any
\nopinion-that State Act<\/a> may be liable to attack on the ground
\nthat  it, in so far as it deals with archaeological site  or
\nremains,  was displaced by the Central Act<\/a>.  But  the  State
\nGovernment  only  purported to notify the Fort\twall  as  an
\nancient monument and, therefore, if the State Act<\/a>, in so far
\nas it dealt with monument is good, as we have held it to be,
\nthe impugned notification was validly issued thereunder.
\nThe  Constitution  itself,  as\twe  have  noticed   earlier,
\nmaintains a clear distinction between ancient monuments\t are
\narchaeological\tsite  or remains; the former is put  in\t the
\nState List and the latter, in the Concurrent List.
\nThe  dictionary meaning of the two expressions\talso  brings
\nout the distinction between the two concepts.  “Monument” is
\nderived from monere, which means to remind, to warn.  “Monu-
\nment”  means,  among others, “a structure surviving  from  a
\nformer period” whereas “archaeology” is the scientific study
\nof the life and culture of ancient peoples.   Archaeological
\nsite or remains, therefore, is a site or remains which could
\nbe explored in order.\n<\/p>\n
to  study the life and culture of the ancient peoples.\t The
\ntwo expressions, therefore, bear different meanings.  Though
\nthe  demarcating  line\tmay  be thin in\t a  rare  case,\t the
\ndistinction is clear.\n<\/p>\n
The entire record placed before us discloses that the  State
\nproceeded  on the basis that the Fort wall was\ta  monument;
\nthe notification dated October 3, 1963, issued by the  State
\nGovernment described the wall as a protected monument.\t The
\npetitioner questioned the notification on the ground that it
\nwas  not a monument but a part of the boundary wall  of\t his
\nproperty.   He did not make any allegation in  the  petition
\nfiled  in the High Court that it was an archaeological\tsite
\nor  remains  and, therefore, the Central Act<\/a>  displaced\t the
\nState Act<\/a>.  Nor did he argue before the High   Court to that
\neffect.\t  In the petition filed in this Court he  questioned
\nthe  constitutional  validity of the State Act<\/a> only  on\t the
\nground\tthat the Ancient Monuments Preservation\t Act<\/a>,  1904,
\nimpliedly repealed the State Act<\/a> relating to monuments.\t  He
\ndid not allege that the Fort wall was an archaeological site
\nor  remains  and, therefore, the State Act<\/a> as  well  as\t the
\nnotification were invalid.  The present argument is only  an
\nafterthought.\n<\/p>\n
The  extracts  given in the counter-affidavit filed  by\t the
\nState  from  the  relevant  Manuals  and  other\t books\t and
\ndocuments show
\n876<\/span>
\nthat the Fort wall was a historical monument and was treated
\nas  such,  being  the  wall built  around  the\tfamous\tSree
\nPadmanabhaswami\t Temple.  It is not an\tarchaeological\tsite
\nfor  exploration  and  study,  but  an\texisting   structure
\nsurviving  from a former period.  For the aforesaid  reasons
\nwe  hold  that\tthe Fort wall is a monument  and  the  State
\nGovernment  was\t within\t its rights to\tissue  the  impugned
\nnotification  under s. 3<\/a> of the State Regulation 1  of\t1112
\nM.E.  We are not deciding in this case whether the  wall  in
\ndispute is part of the Fort wall.  Such and other objections
\nmay be raised under the provisions of the Act in the  manner
\nprescribed thereunder.\n<\/p>\n
In this view, it is not necessary to express our opinion  on
\nthe  question whether Art. 363<\/a> of the Constitution is a\t bar
\nto the maintainability of the petition.\n<\/p>\n
In  the\t result, the petition fails and\t is  dismissed\twith
\ncosts.\n<\/p>\n
Petition dismissed.\n<\/p>\n
877<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Joseph Pothen vs State Of Kerala on 3 February, 1965 Equivalent citations: 1965 AIR 1514, 1965 SCR (2) 868 Author: K S Rao Bench: Rao, K. Subba (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Sikri, S.M. PETITIONER: JOSEPH POTHEN Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT: 03\/02\/1965 BENCH: RAO, K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-256601","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJoseph Pothen vs State Of Kerala on 3 February, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/joseph-pothen-vs-state-of-kerala-on-3-february-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Joseph Pothen vs State Of Kerala on 3 February, 1965 - 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