Kerala High Court
Dr.Raghavan vs The State Of Kerala on 3 January, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
WP(C) NO. 19497 OF 2021
PETITIONERS:
1 DR.RAGHAVAN,
AGED 79 YEARS
S/O. RAMANKUTTY, SOUTH PALACE, NO. 11/391, PALACE ROAD,
KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK, PUTHIYIDOM,
KANJOOR, ERNAKULAM DISTRICT 682 575.
2 PONNAMMA RAGHAVAN,
AGED 71 YEARS
W/O. RAGHAVAN, SOUTH PALACE, NO. 11/319, PALACE ROAD,
KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK, PUTHIYIDOM, KANJOOR
ERNAKULAM DISTRICT 682 575.
BY ADVS.
V.N.SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR
NITHEESH.M
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF CULTURAL
AFFAIRS, (KERALA), SUNDARAVILASAM, PALACE FORT P.O.
THIRUVANANTHAPURAM DISTRICT 695 023.
2 THE PRINCIPAL SECRETARY,
DEPARTMENT OF CULTURAL AFFAIRS, (KERALA), SUNDARAVILASAM,
PALACE FORT P.O., THIRUVANANTHAPURAM DISTRICT 695 023.
3 THE DIRECTOR OF ARCHAEOLOGY,
ARCHEOLOGICAL DEPARTMENT OF KERALA, SUNDARAVILASAM,
PALACE, FORT P.O., THIRUVANANTHAPURAM DISTRICT 695 023.
4 THE DISTRICT COLLECTOR,
ERNAKULAM , COLLECTORATE, KOCHI 682 030.
5 THE TAHSILDAR,
WP(C) NO. 19497 OF 2021
2
MINI CIVIL STATION, ALUVA TALUK OFFICE, CIVIL STATION
ROAD, PARIYAR NAGAR, 683 101.
6 THE VILLAGE OFFICER,
KIZHAKKUMBHAGAM VILLAGE, PUNTHIYIDOM, ALUVA TALUK,
ERNAKULAM DISTRICT 683 101.
7 ASHOKAN,
AGED 58 YEARS
S/O. EDATHADAN RAGHAVAN, EDATHADAN HOUSE, ALOOR VILLAGE
AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680 683.
8 MOHANAN,
AGED 55 YEARS
S/O. EDATHADAN RAGHAVAN, EDATHADAN HOUSE, ALOOR VILLAGE
AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680 683.
9 SALILA ALIAS SALITHA,
AGED 53 YEARS
W/O. MOHANAN, EDATHADAN HOUSE, ALOOR VILLAGE AND DESOM,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680 683.
BY ADVS.
T.N.MANOJ
SRI. P.S.APPU, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 19497 OF 2021
3
JUDGMENT
The petitioners say that they are owners of certain properties covered by Exts.P1 to P4 title documents and that, though the same or the constructions thereon, can never be brought within the ambit of the Kerala Ancient Monuments Archaeological sites and Remains Act, 1968 ("Act" for short), the Government of Kerala has now issued Ext.P7 notification invoking its provisions, with intent to declare some of the portions thereof as either ancient monuments or Archaeological sites.
2. The petitioners assert that Ext.P7 is untenable and illegal, which is manifest from Ext.R3 (a) recommendations made, wherein, it has been specifically found that the buildings in the property in question have been modified over WP(C) NO. 19497 OF 2021 4 time, thus rendering it without the attributes of an ancient monument, as defined under Section 2 of the 'Act'.
3. Sri.V.N.Sankarjee - learned counsel for the petitioners, further explained his clients' case saying that, if one is to examine Ext.R5(a) report settled by the Superintending Archaeologist of Thiruvananthapuram, it would be rendered perspicuous that the afore facts are known to the said Authority also, but still, she made the impugned recommendation to treat the portion in question, namely that covered by Ext.P7, as an archaeological or historical site solely because, it is believed that it is where "Sakthan Thamburan" - the erstwhile King of the Princely State of Kochi - was born. He submitted that even this is disputed since, "Sakthan Thamburan" was not born in the area in question; WP(C) NO. 19497 OF 2021 5 but that even if it is so assumed for the sake of argument, it would still render it indubitable that the 'Act' cannot apply to any portion of the property, as has been now sought to be done through Ext.P7. He then added that his client is justified in having approached this Court also for the reason that the property in question is covered by Ext.P6 Act, namely the "Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) Act, 1961" ("Valiamma Thampuran Act"
for short), which he argued has an overriding effect over the 'Act' or any other statutes. He concluded saying that, in any manner of looking at it, Ext.P7 is untenable because, when the Superintending Archaeologist admits, in Ext.R5(a), that the property and the buildings thereon have evolved over the years, thus robbing it of all antiquity and archaeological WP(C) NO. 19497 OF 2021 6 attributes, a declaration like Ext.P7 could not have been issued, pointing out that, as per Section 2 of the 'Act', is only buildings of over 100 years in age which can ever be brought within its ambit.
4. Sri.Manoj appearing for respondents 7, 8 and 9, submitted that they are the owners of some of the portions of the land involved in this case and that they are now facing great predicament because they are unable to use it in any manner, nor are they in a position to raise any monetary resources out of it. He explained that wife of one of his clients was suffering from cancer and in fact, succumbed to it subsequently, all because he was unable to provide for her treatment fully, but which he tried to do by availing loan from a Co-operative Bank. He submitted that the said Bank has now initiated WP(C) NO. 19497 OF 2021 7 action against the said person and therefore, that his clients have been left without any other option but to support Ext.P7, so that they may obtain statutory compensation, once the properties are dealt with, within the purlieus of the 'Act'.
5. Sri.P.S.Appu - learned Government Pleader, in response to the afore submissions of the petitioners and respondents 1 to 6, submitted that this writ petition is wholly unnecessary and in fact, an abuse of processes because, Ext.P7 is only a notice issued under Section 4 of the 'Act'. He submitted that, as is evident from the said notification itself, the petitioners, party respondents or any other interested person, could have made objections as to why the property or the buildings thereon, will not come within the sweep of the 'Act'; but asserted that no such WP(C) NO. 19497 OF 2021 8 have ever been received by any of the competent Authorities until now. He offered that, if, therefore, the petitioners or any other persons are interested in making such objections, it can be done even now, provided a time frame is fixed by this Court, so that the competent Authority of the Government can consider the same and decide whether a declaration as required under the 'Act' is deserving of being finally issued.
6. Though I have recorded the submissions of the parties and their contentions in some detail as afore, I am of the firm view that, it is premature for this Court to enter into the legal arena relating to the validity of Ext.P7 because, as rightly argued by the learned Government Pleader, it is only a notice issued under Section 4 of the 'Act' against which the petitioners, as also the party respondents or any one else, WP(C) NO. 19497 OF 2021 9 obtained necessary recourse by way of an opportunity to file objections.
7. The contentions of the petitioner, namely that "Valiamma Thampuran Act", will override the provisions of the Act, as also that Ext.R3(a) report would incapacitate any further declaration under the latter statute with respect to the property in question, are certainly matters that they can bring to the notice of the Government appropriately through their objections or such other statements.
8. I do not see any reason why this Court should interject the afore process, particularly when it is part of the statutory scheme; and in any event, the questions of facts, especially that the building in question is not ancient or liable to be protected under the Act, are ones which cannot be considered by this Court while WP(C) NO. 19497 OF 2021 10 acting under the Article 226 of the Constitution of India.
9. I am certain that, therefore, the Government must be given the liberty of considering all such objections before taking a final decision thereon; which they should obviously do, after hearing the objectors, including the petitioners.
In the afore circumstances, I allow this writ petition with the following directions:
a) I leave liberty to the petitioners, the party respondents or any other person who may be interested, of making their objections to Ext.P7 notice, which shall be done not later than two months from the date of receipt of a copy of this judgment.
b) The competent Authority of the WP(C) NO. 19497 OF 2021 11 Government, on receiving the objections of the petitioners and other parties as afore, will proceed to hear them and thus take a final decision, within the confines of the 'Act';
culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than four months from the date of receipt of objections.
c) I clarify that I have not entered into the merits of any of the rival contentions of the parties, and hence the Government will consider all of them dispassionately, and their opinion on them reflected in the resultant order.
Sd/-
DEVAN RAMACHANDRAN JUDGE SAS WP(C) NO. 19497 OF 2021 12 APPENDIX OF WP(C) 19497/2021 PETITIONERS' EXHIBITS:
Exhibit P1 TRUE COPY OF SALE DEED BEARING NUMBER 2225/1990 DATED 6.11.1990 ON THE FILE OF THE S.R.O. SREEMOOLANAGARAM.
Exhibit P2 TRUE COPY OF SALE DEED BEARING NUMBER 595/1993 DATED 26.12.1992 ON THE FILE OF THE S.R.O. SREEMOOLANAGARAM.
Exhibit P3 TRUE COPY OF SALE DEED BEARING NUMBER 2470/1993 DATED 16.9.1993 ON THE FILE OF THE S.R.O. SREEMOOLANAGARAM.
Exhibit P4 TRUE COPY OF SALE DEED BEARING NUMBER 874/1/2018 DATED 7.4.2018 ON THE FILE OF THE S.R.O. SREEMOOLANAGARAM.
Exhibit P5 TRUE COPY OF THE PARTITION DEED NO. 4029 DATED 9.11.1980 ON THE FILE OF THE S.R.O. TRIPUNITHURA (THE RELEVANT PAGES PAGE 1 TO 37, 60,65,78,138 & 146-42 PAGES).
Exhibit P6 TRUE COPY OF THE VALIAMMA THAMPURAM KOVILAKAM ESTATE AND THE PALACE FUND PARTITION ACT 1961).
Exhibit P7 TRUE COPY OF G.O. (RT) NO. 101/2020 DATED 4.3.2020.
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 18.11.2015 IN WPC NO. 27484/2012.
Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 9.7.2018 IN W.A. NO. 1329/2018 OF THIS HONOURABLE COURT. Exhibit P10 TRUE COPY OF THE COMMISSION REPROT DATED 18.2.1995 IN C.M.P. NO. 3935/1995 IN O.P. NO. 2165/1995.
Exhibit P11 TRUE COPY OF THE JUDGMENT DATED 29.3.1995 IN O.P. NO. 17788/1994 AND O.P. NO. 2165/1995 OF THIS HONOURABLE COURT.
RESPONDENT EXHIBITS Exhibit R3 A A TRUE COPY OF THE REPORT DATED 30.08.2016 OF THEN SUPERINTENDING ARCHAEOLOGIST AND DOCUMENTATION OFFICER CARRIED OUT AN INSPECTION OF THE MONUMENT Exhibit R3 B A TRUE COPY OF THE LETTER DATED 05.10.2005 OF WP(C) NO. 19497 OF 2021 13 DISTRICT COLLECTOR, ERNAKULAM Exhibit R3 C A TRUE COPY OF THE REPORT OF THE DOCUMENTATION OFFICER DATED 22.06.2006 Exhibit R3 D A COPY OF GOVERNMENT ORDER DATED 19.01.2017.
TRUE COPY OF THE DECLARATION/ NOTICE DATED Exhibit R7(a) 10/10 /2023 ISSUED BY THE ALOOR SERVICE CO-
OPERATIVE BANK