JOSEPH POTHEN versus STATE OF KERALA

Citation: [1965] 2 S.C.R. 868 · Decided: 03-02-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed

Judgment (excerpt)

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M.E~1936-31)-Whether impUed repealed by extension of Central Act 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 Noti-
fication 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made when it was passed, was impliedly repealed by the extension to the 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 Regula-
tion 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field covered by the State Act and thereby impliedly repealed the State 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 Regula-
tion, 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 monu-
ment. 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 Bahar-
dur 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 Consti-
tution for issuing an appropriate writ to quash the order and noti-
fication dated October 3, 1963, issued by the respondent and to 
restrain it from interfering with the petitioner's right in the pro-
D 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 consist-
ing 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 p

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