# JOSEPH POTHEN v. STATE OF KERALA

- **Citation:** [1965] 2 S.C.R. 868
- **Court:** Supreme Court of India
- **Decided:** 1965-02-03
- **Case number:** Writ Petition No. 95 of 1964
- **Bench:** K. Subba Rao, K. N. Wanchoo, M. Hidayatullah, J.C. Shah, s. M. Snw
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joseph-pothen-v-state-of-kerala-3362
- **Pages:** 9

## Headnote

Travancore Ancient Monuments Preservation Regulation (1 of 1112/
M.E~1936-31)-Whether impUed repealed by extension of Central Act
VII of 1904 to Statt>-<>r 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 61 (List 1)-Entry 12 (List II) Entry
40 (List lll)-Scope of.
A
B
c
By a Notification under the Travancore Ancient Monuments Preaer-
,
vation 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 monu1ne11t for the purposes of the Regulation.
D
The petitioner challenged the Notification as infringing hio fundamental
right under Art. 19(1) (f).
It was contended on behalf of the petitioner that the impugned Notification had no legal force as Reguiation 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made when it was passed, was impliedly repealed by the extension to the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 Vll 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field covered by the State Act and thereby impliedly repealed the State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 ID hold the
field despite the extension cf the Central Att ro the State. [873 F-0]
E
F
Similarly. the Central Acts I.XX! of 1951 and XXIV of 1953 applied
C
only to ancient or historical monuments specifi'd in P•rt I of the Schedule
ID 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 R~suJation continued ID be applicable in respect of
it; it therefore followed lhat the Notification issued under the State Act
was valid. [873 H; 874 A-El
1
1
The . contention based on the argument that the disputed wall was not
H
a monument but an archaeological site or remain could not be ad!:epted.
because it was clear from the evidence before the court that the Fort wall
was not an archaeological site for exp!Oration and study but that it wa>
JOSEPH POTHEN v. STATE (Subba Rao, J.)
869
A
an aisling structure surviving from a former period and, as 811Ch, a monument. The State Government was therefore within its rights in issuing
the impugned notification unders. 3 of Regulation 1of1112/M.E. (875 H;
876 A-Bl
ORIGINAL JURISDICTION: Writ Petition No. 95 of 1964.
Petition under Art. 32 of the Constitution for enforcement of
B fundamental rights.
T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bahardur for the petitioner.
V. P. Gopa/a Nambiar, Advocate-General for the State
of
Kera/a and V. A. Seyid Muhammad, for the respondent.
C

## Text

JOSEPH POTHEN
v.
STATE OF KERALA
February 3, 1965
[K. SUBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH
AND s. M. Snw, JJ.]
Travancore Ancient Monuments Preservation Regulation (1 of 1112/
M.E~1936-31)-Whether impUed repealed by extension of Central Act
VII of 1904 to Statt>-<>r 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 61 (List 1)-Entry 12 (List II) Entry
40 (List lll)-Scope of.
A
B
c
By a Notification under the Travancore Ancient Monuments Preaer-
,
vation 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 monu1ne11t for the purposes of the Regulation.
D
The petitioner challenged the Notification as infringing hio fundamental
right under Art. 19(1) (f).
It was contended on behalf of the petitioner that the impugned Notification had no legal force as Reguiation 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 Vll 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 impliedly 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 ID hold the
field despite the extension cf the Central Att ro the State. [873 F-0]
E
F
Similarly. the Central Acts I.XX! of 1951 and XXIV of 1953 applied
C
only to ancient or historical monuments specifi'd in P•rt I of the Schedule
ID 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 R~suJation continued ID be applicable in respect of
it; it therefore followed lhat the Notification issued under the State Act
was valid. [873 H; 874 A-El
1
1
The . contention based on the argument that the disputed wall was not
H
a monument but an archaeological site or remain could not be ad!:epted.
because it was clear from the evidence before the court that the Fort wall
was not an archaeological site for exp!Oration and study but that it wa>
JOSEPH POTHEN v. STATE (Subba Rao, J.)
869
A
an aisling structure surviving from a former period and, as 811Ch, a monument. The State Government was therefore within its rights in issuing
the impugned notification unders. 3 of Regulation 1of1112/M.E. (875 H;
876 A-Bl
ORIGINAL JURISDICTION: Writ Petition No. 95 of 1964.
Petition under Art. 32 of the Constitution for enforcement of
B fundamental rights.
T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bahardur for the petitioner.
V. P. Gopa/a Nambiar, Advocate-General for the State
of
Kera/a and V. A. Seyid Muhammad, for the respondent.
C
The Judgment of the Court was delivered by
Sobba 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 proD perty compi,ised 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 appurtenants, in the City of Trivendrum
originally belonged to His Highness the Maharaja of Travancore.
E 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, tl1e Government of Kerala passed an order, G.O. (MS) No. 661/63/Edn.,
F purporting to be under the provisions of the Travancore Ancient
Monuments Preservation Regulation 1 of 1112/M.E. (-193637 A.O.)
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 JllOnument.
Under that order the said WBlls
are
G 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
H
thereof and that the said notification infringed his fundamental
right under Art.
19(1) (f) of the Constitution, filed the present
writ petition.
870
SUPREME COURT REPORTS
[1965] 2 S.C.R.
The State filed a counter-affidavit in which it admitted that A
the Kizhakke Kottaram was purchased by the petitioner from the
Maharaja of Travancore, but contended that the wall 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,
Govermnent. It was further alleged that though the said wall B
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.
c
The learned Advocate-General of Kerala raised a preliminary
objection to the maintainability of the application on the ground D
that the petition is barred by the principle of res ;udicata 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 Ernakulam for a relief
similar to that now sought in this petition.
The said petition
came up before Vaidialingam, J., who dismissed that petition on E
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 F
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 G
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 H
at all, there is no scope to call in its aid. We, therefore, reject
this contention.
JOSEPH POTHEN v. STATE (Subba Rao, J.)
871
A
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
B
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
C 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
D 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
E
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.
F
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
G
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 thereunder had no legal force.
It was conH
tended 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
USup./65-9
872
SUPREME COUllT REPORTS
(1965] 2 S.C. R.
Act covered th1~ 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, 195 l (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 I (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 Lr'st) :
Archaeological sites and remains other than those declared by or under law made by Parliament to be of
national importance.
A
B
c
D
E
ft will be noticed that by reason of the said entries Parliament
could only make Jaw with respect to ancient and historical monuF
lnents and archaeological sites and remains declared" by PHrliament to be of natio!'al importance. Where the Parliament h~'
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 kws subject to the other constituG
tional 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 AppliH
cation 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
•
JOSEPH POTHEN v. STATE (Subba Rao,/.)
873
A 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. The 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
B 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 c;intended 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
C 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
D
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
E
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
F 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
G 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 Import'!nce) Act, 1951 (Act
H LXXI of 1951), to sustain his argument. That Act applied to
ancient and historical monuments referred to or specified in Part
I of the Schedule thereto which had been declared to be of
nation.al importance.
In Part I of the Schedule to the said Act
874
SUPllBMB COUllT llBPOllTS
[1965] 2 S.C.ll •.
certain monuments in the District of Trichur in the TravancoreA
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 XXN of 1958). It
repealed the Central Act LXXI of 195 I. 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
B
to be ancient and historical monuments and remained declared
C
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 D
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 VIl of 1904 to the Travancore
area and the passing of Central Acts LXXI of 1951 and XXIV of E
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 !llonument, but an
archaeological site or remains; the said matter is covered by entry F
40 of the Concurrent List (List III) of the Seventh Schedule to the
Constitution; when. Act VIl of 1904 was extended by Part B
States (Laws) Act ill of 1951 to the Travancore area, it occupied
practically tlte entire field covered by the State Act and, therefore,
the latter Act was impliedly repealed by the former Act.
Assuming that that is the legal position, we find it not possible
to hold that the Fort wall is not an andent monument but only
an archaeological site or remains.
The argument of the learned
counsel is built upon the definition of "ancient monument" in
G
the State Act (Regulation 1 of 1112 M.E.) and that in the CcnH
tral 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
•
\. '
JOSEPH POTHEN v. STATE (Subba Rao, /.)
87 5
A apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to
cover both--0n 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
B
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
C
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. "MonuD
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
E
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 GovemF ment 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
wa'. ~ill archaeological site or remains and, therefore, the Central
Act displaced the State Act.
Nor did he argue before the High
G Court to that effect.
In the petition filed in this Court he cpiestioned the constitutional validity of the State Act onlv on the
~ound 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 inH
valid.
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
SUPUMI OOU1T REPORTS
(1965) 2 s.c.R.
that the Fort wall was a historical monument and was treated as
A
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 th.: 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
B
I 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 pre1cribed thereunder.
In this view, it is not necessary to express our opinion on the c
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.
,,
0
•