No 95 of 1964
Petition under article 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 article 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 ie 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 GO MS No 66163Edn purporting to be under the provisions of the Travancore Ancient Monuments Preservation Regulation 1 of 1112ME  193637 AD 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 article 191 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 OP 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 article 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 article 191 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 1112ME 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 ME was impliedly repealed by the extension of the Central Act ie the Ancient Monuments Preservation Act 1904 in the year 1951 to Kerala as the said Up65 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 ME is of the year 1936 AD
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 ME Act VI of 1125 ME 1949 AD 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 ie the Ancient Monuments Preservation Act 1904 and the Travancore Ancient Monuments Preservation Regulation 1 of 1112 ME 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 section 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 section 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 section 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 section 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 ME 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 section 3 of the State Regulation 1 of 1112 ME
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 article 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


Summary:
By a Notification under the Travancore Ancient Monuments Preservation Regulation 1 of 1112ME 1936 37 AD 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 article 191 f
It was contended on behalf of the petitioner that the impugned Notification had no legal force as Regulation 1 of 1112ME 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
HELDBy 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 section 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 section 3 of Regulation 1 of 11II 12 ME 875 H 876 A B