1965 (2) TMI 133 - SC - Indian Laws

Summary

Issues Involved:
1. Preliminary Objection on Res Judicata
2. Fundamental Right under Article 19(1)(f)
3. Validity of Travancore Ancient Monuments Preservation Regulation
4. Classification of the Disputed Wall as an Ancient Monument or Archaeological Site

Issue-Wise Detailed Analysis:

1. Preliminary Objection on Res Judicata:
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. The petitioner had previously filed O.P. No. 1502 of 1960 in the High Court of Kerala for similar relief, which was dismissed. The High Court did not go into the merits of the petitioner's contentions but dismissed the petition on the ground that the petitioner had an effective remedy by way of a civil suit. The Supreme Court rejected this contention, stating that the doctrine of res judicata could be invoked only if there was a final decision on the merits, which was not the case here.

2. Fundamental Right under Article 19(1)(f):
The petitioner claimed that the notification infringed his fundamental right under Article 19(1)(f) of the Constitution. The sale deed under which the petitioner purchased the Eastern Palace from the Maharaja included the outer compound walls. The State admitted the title of the Maharaja to the Eastern Palace but asserted that the disputed wall was part of the historic Fort wall. The Court found that the petitioner had possessory title to the wall and was in physical possession thereof. The petitioner, therefore, had a fundamental right to be protected against interference with that right without the sanction of law.

3. Validity of Travancore Ancient Monuments Preservation Regulation:
The petitioner contended that Regulation 1 of 1112 M.E. was impliedly repealed by the extension of the Central Act, the Ancient Monuments Preservation Act, 1904, and subsequent Central Acts. The Court examined the legislative fields allotted to the Central and State Legislatures and found that Parliament could only make laws with respect to monuments declared to be of national importance. The Central Act of 1904 did not embody any such declaration. Therefore, the State Act continued to hold the field. The Court concluded that the notification issued under the State Act was valid.

4. Classification of the Disputed Wall as an Ancient Monument or Archaeological Site:
The petitioner argued that the disputed wall was not an ancient monument but an archaeological site or remains, and that the matter was covered by entry 40 of the Concurrent List. The Court found it not possible to hold that the Fort wall was not an ancient monument but only an archaeological site or remains. The State Government had notified the Fort wall as an ancient monument. The Court held that the Fort wall was a historical monument, not an archaeological site for exploration and study. Therefore, the State Government was within its rights to issue the notification under Regulation 1 of 1112 M.E.

Conclusion:
The petition was dismissed with costs. The Court upheld the validity of the Travancore Ancient Monuments Preservation Regulation and the notification issued thereunder, rejecting the petitioner's claims on all grounds. The Court did not express an opinion on whether Article 363 of the Constitution was a bar to the maintainability of the petition, as it was not necessary for the decision.