http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

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ACT: Travancore  Ancient Monuments Preservation Regulation (1  of 1112/ M.E.-1936-37)-Whether implied repealed by extension of Central Act VII of 1904 to State-or by the Central Acts LXXI of  1951 and XXIV of 1958-State issuing  Notification  under the  Regulation 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had no legal force as Regulation 1  of 1112/M.E.,  though  validly  made when it  was  passed,  was impliedly repealed by the extension to the State in 1951  of the  Ancient Monuments Preservation Act, 1904  (Central  Act VII of 1904) as that Act covered the same field occupied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the State,  the  Central Act  occupied  practically the entire field covered  by  the State Act and thereby implicitly repealed the State Act.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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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