Kerala High Court
Mr.E.Abdul Gafoor vs State Of Kerala on 19 May, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WP(C).No.31351 OF 2009(L)
PETITIONERS:
1 MR.E.ABDUL GAFOOR,
ERANJIKKAL HOUSE, POTTAKKAD, FEROK P.O., CALICUT.
2 MR. M.KUNJI MOHAMMED HAJI
MUNNIYUR P.O., VIA CHEMMAD, MALAPPURAM DISTRICT.
3 MR. PALLIYALI MAJID
K.M.BAZAR, MUNNIYUR P.O., MALAPPURAM DISTRICT.
4 MR. K.M.ABDUL GAFOOR
VALANCHERY HOUSE, P.O.PULIKKAL,, MALAPPURAM DISTRICT,
PIN-673 637.
5 MR. JAFAR CHAKKALA
OTTAKANIRTHIL HOUSE, VELIMUKKU P.O.,, THIRURANGADI,
MALAPPURAM DISTRICT, PIN-676 317.
6 MR. HARIS MOHAMMED
KOZHICHETTIL HOUSE, VELIMUKKU P.O., THIRURANGADI,,
MALAPPURAM DISTRICT, PIN-676 317.
7 MR.PALLIYALI USMAN
K.M.BAZAR, MUNNIYUR P.O., MALAPPURAM DISTRICT,,
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER,
MR.MOHEMMEED HAJI, K.M.BAZAR, MUNNIYUR P.O.,
MALAPPURAM DISTRICT.
8 MR.ABDUL SALIM
ERANJIKKAL HOUSE, POTTAKKAD, FEROK P.O., CALICUT,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.
E.HASSANKOYA HAJI, EDAKKZHIPARAMBU, HOUSE,
FEROK P.O., CALICUT.
9 MR.ERANCHIKKAL HASSAN KOYA HAJI
EDAKKZHIPARAMBU HOUSE, POTTAKKAD,, FEROOK P.O.,
CALICUT. (DECEASED)
10 MR. MOHAMMED ALI
ERANJIKKAL HOUSE, POTTAKKAD, FEROK P.O., CALICUT.
11 MR. ABDUL AZIZ
ERANJIKKAL HOUSE, POTTAKKAD, FEROK P.O., CALICUT,,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
MR. E.HASSAN KOYA HAJI, EDAKKAZHIPARAMBU HOUSE,
POTTAKKAD, FEROK P.O., CALICUT.
ADDL HALEEMA
P12 W/O.MR.ERANCHIKKAL HASAN KOYA HAJI,
EDAKKZHIPARAMBU HOUSE, FEROK.P.O., CALICUT.
WP(C).Nos.31351/2009 & 1989/2010
2
P13 E.ABDUL RAHIMAN
S/O.MR.ERANCHIKKAL HASAN KOYA HAJI,
EDAKKZHIPARAMBU HOUSE, FEROK.P.O., CALICUT.
P14 E.AMINAKUTTY
D/O.MR.ERANCHIKKAL HASAN KOYA HAJI,
EDAKKZHIPARAMBU HOUSE, FEROK.P.O., CALICUT.
P15 E.SUHRA
D/O.MR.ERANCHIKKAL HASAN KOYA HAJI,
EDAKKZHIPARAMBU HOUSE, FEROK.P.O., CALICUT.
P16 E.UMMU HABEEBA
D/O.MR.ERANCHIKKAL HASAN KOYA HAJI,
EDAKKZHIPARAMBU HOUSE, FEROK.P.O., CALICUT.
P17 E.ASHRAF
S/O.MR.ERANCHIKKAL HASAN KOYA HAJI,
EDAKKZHIPARAMBU HOUSE, FEROK.P.O., CALICUT.
P18 E.ASMABI
D/O.MR.ERANCHIKKAL HASAN KOYA HAJI,
EDAKKZHIPARAMBU HOUSE, FEROK.P.O., CALICUT.
* ADDL P12 TO P18 ARE IMPLEADED AS THE LEGAL
HEIRS OF DECEASED P9 AS PER ORDER DATED
27.09.2013 IN I.A 12433/2013.
BY ADV. SRI.T.M.ABDUL LATHEEF
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF ARCHAEOLOGICAL SECRETARIAT,
THIRUVANANTHAPURAM.
2 THE DISTRICT COLLECTOR, CALICUT.
3 VILLAGE OFFICER, FEROKE.
4 THE DIRECTOR
ARCHAEOLOGICAL DEPARTMENT,THIRUVANANTHAPURAM.
ADDL THE FEROKE CULTURAL CO-ORDINATION COMMITTEE
R5 BABA COMPLEX, KADALUNDI ROAD, P.O.FEROKE,
KOZHIKODE REPRESENTED BY ITS GENERAL
CONVENOR,K.JYASANKARAN.
IS SUO MOTU IMPLEADED AS ADDITIONAL R5 AS PER
ORDER DATED 27.09.2013
R1, R2, R3,R4 SRI.SURIN GEORGE
IPE,SR.GOVERNMENT LEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19.05.2020, ALONG WITH WP(C).1989/2010(S), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.31351/2009 & 1989/2010
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WP(C).No.1989 OF 2010
PETITIONER:
FEROKE CULTURAL CO-ORDINATION COMMITTEE
BABA COMPLEX, KADALUNDI ROAD, P.O.FEROKE,
KOZHIKODE REPRESENTED BY ITS GENERAL CONVENOR,
K.JAYASANKARAN.
BY ADV. SRI.SIVAN MADATHIL
RESPONDENTS:
1 DIRECTOR OF ARCHEOLOGY
OFFICE OF THE DIRECTOR OF STATE, ARCHEOLOGY,
THIRUVANANTHAPURAM-23.
2 STATE OF KERALA REPRESENTED BY SECRETARY,
CULTURAL AFFAIRS,, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
3 UNION OF INDIA REPRESENTED BY SECRETARY,
CULTURAL AFFAIRS, NEW DELHI.
4 DIRECTOR GENERAL OF ARCHEOLOGY
CENTRAL ARCHEOLOGICAL DEPARTMENT, NEW DELHI.
5 THE DISTRICT COLLECTOR
CIVIL STATION-KOZHIKODE.
R1,R2,R5 SRI. SURIN GEORGE IPE,SR.GOVERNMENT
LEADER
R3-4 BY SRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19.05.2020, ALONG WITH WP(C).31351/2009(L), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.31351/2009 & 1989/2010
4
JUDGMENT
SHAJI P.CHALY,J.
The captioned writ petitions are materially connected in respect of the 'Tipu Sulthan Fort', a historical monument at Feroke, Kozhikode declared to be so as per the provisions of the The Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968 (Act 26 of 1969) (hereinafter referred to as the 'Act 1968)
2. W.P.(C) No.31351/2009 is one filed by the owners of the said property, whereas W.P.(C) No.1989/2010 is a Public Interest Litigation filed by a society formed in the year 2007 seeking directions to the Director of Archaeology and others to protect the 'Tipu Sulthan Fort' situated in Survey No.166/1 of Feroke Village in accordance with the provisions of the Act, 1968, and that is how the writ petitions were clubbed together for hearing. Therefore, we heard the writ petitions together and propose to pass this common judgment.
3. So far as W.P.(C) No.31351/2009 is concerned, the following reliefs are sought for by the writ petitioners:-
WP(C).Nos.31351/2009 & 1989/2010 5 "i) issue a writ of certiorari or other appropriate writ direction or order and quash Exhibit P8 and P9 in so far as in relates to the property of petitioners as illegal and unconstitutional.
ii) To declare that the action of the
respondents in issuing Exhibit P8 and P9
notifications without complying with the
requirements under Section 4 of the "Kerala Ancient Monument and Archaeological Sites and Remains Act, 1968" of the act is illegal and unlawful and unconstitutional;"
4. Brief material facts discernible from the writ petition and the counter affidavit filed thereunder are as follows.
5. Petitioners are owners of an extent of 5.61 acres of property lying in Re-survey No. 1661/1 of Feroke Village, purchased by them as per Exts. P1 to P3 sale deeds bearing Nos. 3801/2006, 3019/2008 and 3018/2008 of the office of the Sub Registrar, Feroke, Kozhikode District. According to the petitioners, they are in ownership and uninterrupted possession of the aforementioned properties ever since the execution of the sale deeds. Thereafter, mutation was effected and the 'Tandaper' numbers were changed to their names in WP(C).Nos.31351/2009 & 1989/2010 6 accordance with the documents described above. The village tax was being collected by the revenue authorities thereafter.
6. On 08.07.2009 the Village Officer, Feroke i.e. the 3 rd respondent informed the petitioners that officers from the Archeological Department from Thiruvananthapuram would be inspecting the properties on 09.07.2009, and on enquiry they were informed by the Village Officer that, the Archaeological Department has received information that their properties have some archaeological relevance and the same has something to do with the 'Tipu Sultan Fort'. Anyhow an inspection was carried out by the officials of the Archaeological Department on 09.07.2009, however, they refused to divulge any information with respect to the archaeological importance of the property. But, at the same time, it was informed that they propose to conduct excavation in the property in the next few days. Petitioners have also submitted that they were not aware of any proceedings initiated against the property as per Act, 1968, and at the time of purchase, the properties were remaining as garden land with buildings. That being so, the inspection, and the information regarding the proposed WP(C).Nos.31351/2009 & 1989/2010 7 excavation very casually, and informally given to the petitioners is unsustainable in law, and therefore is an arbitrary action on the part of the respondents. It is also the case of the petitioners that, the property in question has no remains of any structure of archaeological relevance or interest much less any 'Fort' as is now claimed by Director of Archaeological Department i.e. the 4 th respondent herein. It is also stated that the property is having a total extent of 8.5 acres, with a residential building called "Fort Hill Bungalow", which was originally in the ownership of CommonWealth Trust Ltd., an English Company, from whom it was purchased by one Dr.T.P.Mohammed as per sale deed No.1228/1973 evident from Ext.P5 of the office of the SRO, Feroke.
7. Matters being so, petitioners have addressed Ext.P6 letter dated 27.07.2009 to respondent Nos. 2, 3 and 4 i.e. the District Collector Calicut, Village Officer Feroke, and the Director of Archaeological Department, Thiruvananthapuram in order to ascertain the details. Thereupon Ext.P7 reply was issued by the Director of Archaeological Department, Thiruvananthapuram dated 19.10.2009, whereby it was WP(C).Nos.31351/2009 & 1989/2010 8 informed that the property is a notified one in accordance with the provisions of Act, 1968, and they are entitled as of right to enter into the property by providing notice under Section 21 of Act, 1968 and the petitioners are entitled to enjoy the property only in accordance with the restrictions contained under Section 19 of Act, 1968. Along with Ext.P7, Ext.P8 notification under Section 4(1) dated 02.02.1991 and an erratum notification dated 22.11.2008 were also provided to the petitioners. Apparently, Ext.P8 notification was issued proposing to declare an extent of 3.1323 hectares of property in Survey No.1661 with defined boundaries. However, a mistake has crept in while providing the Survey Number in Ext.P8 and it was accordingly that Ext.P9 notification was issued correcting the Re-survey No. as R.S 166/1 instead of R.S 1661. Therefore, the predominant contention advanced by the petitioners is, since at the time of purchase of the property by them, the Survey Number of the property was not correctly shown, whatever action taken in accordance with the provisions of Act, 1968 cannot be sustained under law and is void ab initio. Moreover it is contended that, due to the WP(C).Nos.31351/2009 & 1989/2010 9 mistake in the Survey Number, it cannot be said that the property is notified as per Section 4(1), and the property cannot be said to be an Ancient Monument declared under Section 4(1) of Act, 1968. That apart it is submitted that, there are no remains in the property, and further, there is no notification issued to declare the property other than the property in which the remains alleged to be situated in terms of Section 4(1) of Act, 1968 and therefore the entire proceedings of the department of Archaeology by virtue of Exts.P8 and P9 notifications are bad and therefore petitioners are entitled to get the reliefs as is sought for in the writ petition.
8. A detailed counter affidavit is filed for and on behalf of the State of Kerala disputing the allegations, claims and demands raised by the petitioners. The English translation of the notification issued under Section 4(1) of Act, 1968 is produced as Ext.R1(a) dated 02.02.1991 and the final notification in contemplation of Section 4(3) of Act, 1968 is produced as Ext.R1(b) dated 04.11.1991. It is also pointed out therein that the afore notifications were issued based on WP(C).Nos.31351/2009 & 1989/2010 10 Ext.R1(c) communication dated 06.02.1990 of the Director of Archaeology, stating that the monument situated in the property is a rare monument in the entire sub-continent and hence remains require state protection immediately. It is also evident from Ext.R1(c) that the said monument was inspected by the Director during his tenure in the Archaeological Survey of India and at that time it was recommended for state protection. Therefore according to the Government, the requirements contemplated as per Act, 1968 was followed by the Government and therefore the contentions put forth by the petitioners that the action of the Government is not in terms of law cannot be sustained.
9. So far as W.P.(C) No.1989/2010 is concerned, the following are the reliefs sought for by the petitioner, public interest litigant:
"i) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1 st, 2nd and 5th respondents to take immediate and effective steps to acquire 3.1323 Hectors of land where Tippu Sultan's Fort is situated in Feroke (Paramukku- Kottasthalam), in Survey No.166/1 of Feroke Village by virtue of the provisions in Kerala Ancient Monument and Archaeological Sites Act and by WP(C).Nos.31351/2009 & 1989/2010 11 invoking Kerala Land Acquisition Act for the protection of the monument.
iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1 st , 2nd and 5th respondents to acquire any further land in the adjacent area of declared property if it deems fit for the continued protection of the Fort and surroundings which is at present a protected monument.
iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1 st, 2nd and 5th respondents to take urgent steps to ensure that no encroachment or any illegal activities are carried out in the protected area of the Tipu Sultan's Fort comprising 3.1323 Hectares in Survey No.166/1 of Feroke Village.
iv) issue a writ of mandamus or any other appropriate writ, order or direction directing the first respondent to proceed with the excavation and other related matter to achieve the purpose of declaring the protected monuments by virtue of issuance of Ext.P4 notification.
v) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2 nd and 5th respondents to give all necessary help, both financial and police protection to preserve the area to enable the 1st respondent authority to proceed with the excavation and protection of the monuments i.e the Fort and surroundings considering its pubic importance."
WP(C).Nos.31351/2009 & 1989/2010 12
10. The basic contention advanced therein is that, the precious monument, i.e. Tipu's Fort and other creations are in a ruined condition at present due to lack of preservation and carelessness, and even though petitioner had made repeated requests to take care of this ancient monument and protect the same for the benefit of the present and the future generation, which is a part of Indian history, no action was taken by the Government and the other stakeholders, which persuaded the petitioner to file the writ petition.
11. Along with the writ petition, various documents are produced and some of the relevant aspects to be noted from the exhibits produced are newspaper reports appeared in Mathrubhumi Paper, a vernacular daily, dated 13.01.2009 and 09.12.2009, that, though excavation is proposed to be done in the property in question, there is lethargic attitude on the part of the Archaeological Department, in not conducting excavation as is declared by the Archaeological Department. The photographs appeared in the newspaper reveal that, an old large well, and a laterite cave is situated in the property. It is also discernible from the news item that, apart from the WP(C).Nos.31351/2009 & 1989/2010 13 residential building, a long cave made of laterite stone and other structures are remaining in the property.
12. We have heard learned counsel appearing for the respective writ petitioners Sri.T.M.Abdul Latheef, and Sri.Sivan Madathil, learned senior Government Pleader for the State, Sri.Surin George Ipe, and learned Assistant Solicitor General Sri.P. Vijayakumar, appearing for the Union of India and perused the pleadings and documents on record.
13. The paramount contention advanced by the writ petitioners in W.P.(C) No.31351/2009 is relying upon the provisions of Act, 1968. The Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968 was introduced by the State Government for the preservation of Ancient Monuments and Archaeological Sites and Remains other than those of national importance for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects. The said State Act has come into force on publication in the Kerala Gazette Ex.No/150 dated 27.06.1969. The object and reasons for the said legislation was to enact a uniform law on the subject WP(C).Nos.31351/2009 & 1989/2010 14 applicable throughout the State replacing the Travancore Ancient Monuments Preservation Act (1 of 1112), the Ancient Monuments Preservation Act IX of 1110 (Cochin Act) and the Ancient Monuments Preservation Act, 1904 (Central Act 7 of 1904).
14. Section 2 (a) of the Act, 1968 defines ancient monument to mean as follows:-
"2. Definitions:- In this Act, unless the context otherwise requires,
(a) "ancient monument" means any structure, erection or monument, or any tumulus or place of internment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years and includes.
(i) the remains of an ancient monument,
(ii) the site of an ancient monument,
(iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and
(iv) the means of access to, and convenient inspection of an ancient monument, but does not include any ancient or historical monument declared by or under any law made by Parliament to be of national importance;"
WP(C).Nos.31351/2009 & 1989/2010 15
15. 'Protected area' is defined under Section 2(j) as follows:-
"means any archaeological site and remains which is declared to be a protected area by or under this Act."
16. Section 4 deals with power of Government to declare ancient monuments, etc., to be protected monuments and areas, which reads thus:-
"4. Power of Government to declare ancient monuments, etc. to be protected monuments and areas:-
"(1) Where the Government are of opinion that any ancient monument or archaeological site and remains should be declared to be a protected monument or a protected area, as the case may be, they may, by notification, give two month's notice of their intention to declare such ancient monument or archaeological site and remains to be a protected monument or a protected area, as the case may be;
and a copy of every such notification shall be affixed in a conspicuous place near the monument or site and remains, as the case may be, (2) Any person interested in any such ancient monument or archaeological site and remains may, within two months after the issue of the notification, object to the declaration of the monument or the archaeological site and remains to be a protected area, as the case may be, WP(C).Nos.31351/2009 & 1989/2010 16 (3) On the expiry of the said period of two months, the Government may, after considering the objections, if any, received by them, declare by notification, the ancient monument or the archaeological site and remains to be a protected monument or a protected area, as the case may be.
(4) A notification published under sub-
section(3) shall, unless and until it is withdrawn, be conclusive evidence of the fact that the ancient monument or the archaeological site and remains to which it relates is a protected monument or a protected area, as the case may be, for the purpose of this Act."
17. On an evaluation of Section 4, it is evident that, if the Government are of the opinion that any ancient monument or archaeological sites and remains should be declared to be a protected monument or a protected area, as the case may be, the Government shall do so by issuing notification giving two months' of their intention to declare such ancient monument or archaeological site and remains to be a protected monument or a protected area, as the case may be. Sub- section 3 thereto makes it clear that, on the expiry of the said period of two months, the Government may after considering any objections received, declare by yet another notification, the ancient monument or the archaeological site and remains WP(C).Nos.31351/2009 & 1989/2010 17 to be a protected monument or a protected area, as the case may be.
18. Relying upon the aforesaid provision it is contented by learned counsel for the land owners that in the notification issued as per Section 4(1) of Act, 1968, the ancient monument alone was proposed to be notified and therefore the notification issued under Section 4(3) of the Act, 1968 declaring the property in question as an ancient monument and a protected area cannot be sustained under law. Even though some of the documents are in Malayalam, later English translations were produced and for convenience, the English translation of the documents are relied upon. In order to understand the situation, we think it is only appropriate that the notifications so issued by the State Government under Section 4(1) and 4(3) are extracted.
GOVERNMENT OF KERALA Cultural Affairs (B) Department NOTIFICATION No.2667/B1/88/GAD Thiruvananthapuram, 2nd February, 1991 Whereas the Government of Kerala are of opinion that the "Tipu Sultan Fort" (Paramukku Kottasthalam) at Farook Village, WP(C).Nos.31351/2009 & 1989/2010 18 Kozhikode Taluk, Kozhikode District and more particularly described in the schedule below, should be declared to be a protected monument for the purpose of the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968 (26 of 1969) Now, therefore, under sub-section (1) of section 4 of the said Act, the Government of Kerala hereby give notice of their intention to do so after two months from the publication of this notification in the Kerala Gazette.
Any objection received from any person interested in the said ancient monument within two months from the date of publication of the notification in the Gazette will be considered by the Government. The objection shall be addressed to the Secretary to Government, Cultural Affairs (B) Department, Government Secretariat, Thiruvananthapuram.
33/688/91B
Sl. Name of Name of Sy.No. Boundaries
N Village, monument
o. Taluk and and extent
District of site
1 Farook Tipu Sultan R.S.1661 North: R.S.159/2B
Kozhikode Fort Kodakkadan
Kozhikode (Paramukku Kannadiparamb
Kottastalam) a 167/1, 2, 3
3.1323 Panakkad
hectare Parambu
East : Panakkad
1 Parambu
2 R.S.165/1A, B
Edakkad Purayi
Parambu
3 166/2 Cemetery
South R.S.165/1A, 1B
:1 Edakkad Purayi
Parambu
2 R.S.164/1, 2
Edakkad Purayi
Parambu
West : 160/4
WP(C).Nos.31351/2009 & 1989/2010
19
1 Kadumkadavath
u Parambu
2 160/5
3 160/9
Kizhakkey
Thodiparambu
4 160/10 do
5 160/12 do
By order of the Governor
T.N.Jayachandran
Commissioner and Secretary to
Government
GOVERNMENT OF KERALA
Cultural Affairs (B) Department
NOTIFICATION
G.O.(P)No.28/91/GAD Thiruvananthapuram, 6th November,
1991
S.R.O.No.1410/91.- In exercise of powers conferred by sub section (3) of section 4 of the Kerala Ancient Monuments and Archaeological sites and Remains Act, 1968 (26 of 1969), the Government of Kerala hereby declare the "Tipu Sultan Fort"
(Paramukku Kottasthalam) at Farook Village, Kozhikode Taluk, Kozhikode District and an area of 3.1323 hectares around it more particularly described in the schedule given below to be a protected Monument and protected area within the meaning of the said Act, notice of the same having been previously published as notification No.2667/B1/88/GAD dated 2 nd February 1991 in the Extraordinary Kerala Gazette No.217 dated 20 th February 1991 as required under sub section (1) of the said section.
WP(C).Nos.31351/2009 & 1989/2010 20 33/5067/91B Name of Name of Sy.No. Boundaries Village, Taluk monument and District and extent of site Farook Tipu Sultan R.S.1661 North: R.S.159/2B Kozhikode Fort Kodakkadan Kozhikode (Paramukku Kannadiparamba Kottastalam) 167/1, 2, 3 3.1323 Panakkad hectare Parambu East : Panakkad 1 Parambu 2 R.S.165/1A, B Edakkad Purayi Parambu 3 166/2 Cemetery South R.S.165/1A, 1B :1 Edakkad Purayi Parambu 2 R.S.164/1, 2 Edakkad Purayi Parambu West : 160/4 1 Kadumkadavathu Parambu 2 160/5 3 160/9 Kizhakkey Thodiparambu 4 160/10 do 5 160/12 do By order of the Governor Dr.D.Babu Paul Commissioner and Secretary to Government Explanatory Note
(This does not form part of the notification but is intended to indicate its general purport). WP(C).Nos.31351/2009 & 1989/2010 21 The Director of Archaeology has reported the necessity to declare the Tipu Sultan fort (Paramukku Kottasthalam) as a protected Monument. Accordingly under section 4(1) of the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968, preliminary notification was published in the Kerala Gazette extraordinary dated 20.02.1991. In the said notification it was required that objection, if any, received by Government within two months from the specified date shall be considered by Government. No objection has been received. Hence the Government decided to declare the Monument described in the Schedule as protected and the area around it as protected area. The notification is intended to achieve this object.
19. Therefore on a reading of the notification, and the schedule thereto, it is clear that the property that was proposed to be notified under Section 4(3) was the monument inclusive of an extent of 3.1323 hectares of land, the boundaries of which are clearly demarcated. However, as contended by the petitioner, it is true, the Survey Number was shown as R.S.1661. Apparently, a mistake occurred while providing the Survey number in the notifications and it was accordingly that Ext.P9 notification dated 22.11.2008 was issued by the State Government correcting the Survey Number as R.S.166/1. The predominant contention advanced by WP(C).Nos.31351/2009 & 1989/2010 22 learned counsel for the petitioners is that, at the time of purchase of the property during the year 2006 and 2008 the Survey Number was not corrected and therefore the petitioner was not aware of the notification issued under Section 4(1) of Act, 1968. In our considered opinion, the description of the property was clearly given in the Gazette notification issued by the State Government. The boundaries are shown, from where it is clear that there is no property existing as R.S. 1661 anywhere around. There is also no case for the petitioners that any such Survey Number is remaining in the Feroke Village. Moreover even if there was any mistake with respect to the Survey Number notified, the property was clearly identifiable from the four boundaries provided and there is no case for the landowner that the boundaries shown are incorrect. Therefore we do not think that the contention advanced due to the incorrect description of the Survey Number in the notifications issued by the State Government as per Sections 4(1) and 4(3) of Act, 1968 has any force factually or legally.
20. It is also the case of the petitioners that there was no proper enquiry or investigation conducted by the WP(C).Nos.31351/2009 & 1989/2010 23 Archaeological Department before declaring the property as a monument as per the provisions of Act, 1968. First of all the petitioners have no locus standi to question any such Act because the notification under Section 4(1) was issued as early as on 20th February, 1991, inviting objections to the proposal for declaration of the property in terms of Act, 1968. It is the clear case of the petitioners that the property was previously owned by one Dr.T.P.Muhammed as per registered sale deed No.1228 of 1973. That apart, it is explicit from Ext.R1(c) produced by the State Government that, as directed by the State Government as per office order dated 15.11.1989, Dr.Velayudhan Nair, Conservation Officer, Archaeology Department and one B.Balamohanan, Assistant, Pazhassiraja Museum, Kozhikode and Director of the Archaeological Department jointly inspected the site pointed out by the Petitions Committee of the State Legislative Assembly at Feroke on 15.11.1989. On inspection of the site, a cave was found, made out of laterite stone and carved artistically. A well was also seen in the said site, however completely covered with plants and it became impossible to collect more WP(C).Nos.31351/2009 & 1989/2010 24 materials. Therefore the authority under the Act conducted inspection in the site and it was thereafter only the notification was issued as per the provisions of Act, 1968. Moreover as per Annexure A1 produced by the petitioners along with I.A.No.1 of 2020 dated 25.04.2011, it is seen, further steps could not be taken to protect the monument in view of the interim order of status quo passed by this Court in the writ petition in question. It is also evident from Annexure A2 communication dated 25.03.2011 addressed by the Documentation Officer of the Archaeological Museum, Shakthan Thampuran palace, Thrissur to the Director of Archaeological Department, Thiruvananthapuram that in the year 1986 Citizens Fort Hill Feroke, Kozhikode had submitted a complaint to the then Prime Minister demanding to protect the Tippu Sultan Fort at Feroke, with a copy to the Archaeological Director also. The Director of Archaeological Department as per letter No.A 3246/86 directed the Charge Officer of Pazhassi Raja Museum to inspect the respective Fort, and accordingly, on 08.12.1986, the Charge Officer inspected the said Fort and submitted a WP(C).Nos.31351/2009 & 1989/2010 25 report dated 09.12.1986 bearing No.PR 156/86 to the Director of the Archaeological Department, Thiruvananthapuram.
21. On 03.02.1988, the Secretary Citizen Forum Fort hill Feroke had submitted a memorandum to the Secretary, Kerala legislative Assembly with a copy to the District Collector Kozhikode and the Director Archaeological Department, requesting to protect the Feroke Fort, further, and during the said period, one P.Radhan sent a memorandum to the Archaeological Survey of India, New Delhi and accordingly an official from ASI inspected the Fort, and thereafter the Additional Director as per letter dated 07.12.1986 issued a communication to Sri.PRadhan, conveying that necessary steps were being taken for safeguarding the interest of the ancient remains of the Fort. Added to this on 03.03.1988, the Kerala legislative Assembly Petitions Committee as per petition No.14823/Petition/A3/86/in G/ dated 25.02.88 conducted a hearing at Kozhikode Collectorate, apart from a detailed inspection of the Fort, and its surroundings, in the presence of the Conservation Officer and Charge Officer of Pazhassi raja Museum. Thereafter, it was conveyed through Annexure A2 WP(C).Nos.31351/2009 & 1989/2010 26 letter that, on 15.11.1989 the conservation officer of Archaeological department and others jointly inspected the Fort, still later Archaeological Director had issued a letter dated 05.10.1990 to the District Collector for collecting the revenue details of the said Fort. It is further stated in the said letter that due to the identification of the property in question as an ancient monument along with the adjacent property, it requires to be protected, and it was accordingly that action was initiated, as per the provisions of Act, 1968.
22. Taking into account the aforesaid factual details available from the records, we are of the considered opinion that the contention advanced by the petitioners that no in depth study was conducted before taking any action in terms of the provisions of Act, 1968, are not legally addressed so as to make any interference as is sought for by the petitioners.
23. Yet another contention advanced by learned counsel for the petitioners is that there is no notification issued to declare the protected area in contemplation of section 4(1) of Act 1968. Even though at the first blush the said contention appears to be legalistic, on a reading of the definition of WP(C).Nos.31351/2009 & 1989/2010 27 ancient monument as is quoted above, it is clear that, the ancient monument not only includes any structure, erection or monument or any tumulus or place of internment or any cave, rock- sculpture, inscription or monolith, which is of historical, archaeological, artistic interest, which was in existence for not less than 100 years, but includes, (i) the remains of an ancient monument, (ii) the site of an ancient monument (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument and for the means of access to and convenient inspection of an ancient monument, but does not include any ancient or historical monument declared by or under any law made by parliament to be of national importance. Therefore, it is unequivocal that it is not the ancient monument alone covered under the provisions of Act, but other properties attached to the monument shall also be ancient monuments, if they are found to be so.
24. More so, as per section 4(1) notification, the property scheduled was intended to be declared as an ancient monument, which is quite clear and evident from the schedule WP(C).Nos.31351/2009 & 1989/2010 28 of the notification. It is also clear from section 4(3) notification that the monument intended to be declared as one, is also the area adjoining the monuments situated in the property in question wherein also, the description of the property was elaborately made by including the boundaries of the property in question. Therefore, the said contention advanced by the learned counsel for the petitioner has no force at all.
25. That apart, the Act 1968 was intended to protect the archaeological sites and remains for regulating archaeological excavations and for the protection of sculptures, carvings and other like objects. On perusal of the pleadings and documents on record, it is clear that there is a cave situated in the property in question and a large well and from the inputs provided by the petitioner in W.P.(C).No.1989/2010, it seems, the cave is extending to different parts of the Kozhikode district. It is also evident from the photographs appeared in the vernacular dailies, that the cave is made of laterite structure and it has its own architectural value and relevance. Bearing in mind, the efforts made by the State Government, on the basis of various report secured from WP(C).Nos.31351/2009 & 1989/2010 29 the Archaeological Department as well as the Pazhassiraja museum, on the basis of directions given by the Petitions committee of the Legislative Assembly, the government was right in declaring the property in question as an ancient monument in terms of sections 4(1) and 4(3) of Act, 1968.
26. Thinking so, we are of the considered opinion that petitioners in W.P.(C) No. 31351/2009 have not made out any case for interference with the action of the State Government and the Director of Archaeology declaring the property in question as an ancient monument in contemplation of sections 4(1) and 4(3) of Act, 1968.Eventhough the constitutional validity of section 4 of the act is under challenge , we are of the view that the said provision has a laudable object to be achieved of protecting ancient monuments and its adjoining properties thus sustaining the history, the architecture, aesthetic value and importance, and the culture remained in the state, and protect and preserve it for the generations to come. Evaluating so, we do not think that the petitioners have made out any ground for interference as is sought for under Article 226 of the constitution of India, there being no WP(C).Nos.31351/2009 & 1989/2010 30 arbitrariness, unfairness or other justifiable legal circumstances to do so.
27. So far as the reliefs sought for in W.P. (C).No.1989/2010 is concerned, it is for protection of the 'Tipu Sultan Fort' situated in Sy.No.166/1 of Feroke Village, and directions are also sought for, to the Director of Archaeology to maintain the same. From the documents produced along with the other connected writ petition, it is evident that no action could be taken by the Archaeological Department to protect the monument and the properties due to the pendency of these writ petitions and the interim order of status quo ordered by this Court. Since the relief sought for in the writ petition filed by the landowners being declined , it is only appropriate that necessary directions are issued to the Department of Archaeology to take necessary steps to protect the monument and the property in terms of the provisions of Act, 1968.
Upshot of the above discussion is that W.P. (C).No.31351/2009 is dismissed and W.P.(C) No. 1989/2010 is allowed and consequently, there will be a direction to the WP(C).Nos.31351/2009 & 1989/2010 31 Department of Archaeology, Government of Kerala, to take necessary steps to protect the monument and the adjoining properties in terms of the notification issued under Section 4(3) of Act, 1968, at the earliest in order to avoid any further deterioration of the ancient monument and the remains, and at any rate, within six months from the date of receipt of a copy of this judgment. We also make it clear that the Department of Archaeology is at liberty to explore the possibility of conducting necessary excavations in order to identify any further historical and archaeological remains in the property in question as is sought for in W.P.(C).No.1989/2010.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE hmh WP(C).Nos.31351/2009 & 1989/2010 32 APPENDIX OF WP(C) 31351/2009 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED DOCUMENT NO-3801/2006 DATED 14.8.2006 ALONG WITH ITS ENGLISH TRANSLATION EXHIBIT P2 TRUE COPY OF THE SALE DEED DOCUMENT NO-3019/2008 DATED 02.7.2008 ALONG WITH ITS ENGLISH TRANSLATION EXHIBIT P3 TRUE COPY OF THE SALE DEED DOCUMENT NO-3018/2008 DATED 02.07.2008 ALONG WITH ITS ENGLISH TRANSLATION EXHIBIT P4 A TRUE COPY OF THE TAX RECEIPT DATED 27- 07-2009 EXHIBIT P4 B TRUE COPY OF THE TAX RECEIPT DATED 27- 07-2009 EXHIBIT P4 C TRUE COPY OF THE TAX RECEIPT DATED 26/5/2008 EXHIBIT P5 TRUE COPY OF THE SALE DEED, DOCUMENT NO.1228/1973.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 27/7/2009 EXHIBIT P7 TRUE COPY OF THE LETTER NO.A1 3729/09 DA DATED 19/10/2009 EXHIBIT P8 TRUE COPY OF THE NOTIFICATION NO.2667 BI/88 CAD DATED 2-2-1991 EXHIBIT P9 TRUE COPY OF THE NOTIFICATION NO.2542 DATED 22-11-2008 EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPHS.
EXHIBIT P11 TRUE COPY OF THE PAPER PUBLICATION IN MATHRUBHUMI DATED 4/7/2009 EXHIBIT P12 TRUE COPY OF THE LETTER NO-A7 4242/08/D.A. DATED 29-10-2008 ISSUED BY THE STATE PUBLIC INFORMATION WP(C).Nos.31351/2009 & 1989/2010 33 OFFICER IN THE OFFICE OF THE ARCHAEOLOGY ALONG WITH ITS ENGLISH TRANSLATION EXHIBIT P13 TRUE COPY OF THE APPLICATION FILED UNDER THE RIGHT TO INFORMATION ACT DATED 18.01.2013 EXHIBIT P14 TRUE COPY OF THE LETTER NO-
1159739/B/17/CULTURAL DEPT.
DATED 8.2.2017 WITH NOTIFICATION NO- G.O.(P) NO-28/91/C.A.D DATED 8-11-1911 EXHIBIT P15 TRUE COPY OF THE APPEAL DATED 17.04.2017 FILED UNDER SECTION 19 OF THE RIGHT TO INFORMATION ACT.
EXHIBIT P16 TRUE COPY OF THE APPLICATION FILED UNDER THE RIGHT TO INFORMATION ACT DATED 17.04.2017 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A TRUE COPY OF THE GOVERNMENT NOTIFICATION UNDER SECTION 4(1) dated 2.02.1991 EXHIBIT R1 B TRUE COPY OF THE NOTIFICATION AS CONTEMPLEATED UNDER SECTION 4(3) PUBLISHED ON 14.11.1991 EXHIBIT R1 C TRUE COPY OF THE REPORT OF THE DIRECTOR OF ARCHAEOLOGY, THIRUVANANTHAPURAM DATED 6.02.1990.
WP(C).Nos.31351/2009 & 1989/2010 34 APPENDIX OF WP(C) 31351/2009 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF NOTICE PUBLISHED BY THE PETITIONER REGARDING THE SEMINAR EXHIBIT P2 PHOTOGRAPHS SHOWING THE PRESENT STAGE OF THIS HISTORICAL AND ARCHAEOLOGICAL MONUMENT EXHIBIT P3 PHOTOCOPY OF EXTRACT OF PRELIMINARY NOTIFICATION NO.2667/B1/88/CAD DATED 20.02.91 AND CONFIRMATORY NOTIFICATION NO.G.O.P NO.28/9/CAD DATED 06.11.1991 EXHIBIT P4 PHOTOCOPY OF G.O.(P) NO.28/91/CAD DATED 06.11.1991 EXHIBIT P5 PHOTOCOPY OF MASS PETITION DATED 26.05.2007 EXHIBIT P6 PHOTOCOPY OF COMMUNICATION NO.4686/B1/2007/CAD DATED 13.02.2008 EXHIBIT P7 PHOTOCOPY OF LETTER NO.A2-
3511/07/DA DATED 06.05.2008 EXHIBIT P8 PHOTOCOPY OF LETTER NO.A3.1884/09/CA DATED 27.05.2009 EXHIBIT P9 PHOTOCOPY OF MASS PETITION DATED 30.06.2009.
EXHIBIT P10 PHOTOCOPY OF LETTER
NO.S/5029/09/DA DATED
31.10.2009
WP(C).Nos.31351/2009 & 1989/2010
35
EXHIBIT P11 PHOTOCOPY OF REPORT APPEARED
IN MATHRUBOOMI DAILY DATED
13.01.2009
EXHIBIT P12 PHOTOCOPY OF NEWS ITEM
APPEARED IN MATHRUBOOMI DAILY
DATED 09.12.2009
EXHIBIT P13 PHOTOCOPY OF THE INFORMATIVE
ARTICLE PUBLISHED IN THE
MALAYALA MANORAMA DAILY OF
12.03.2008
RESPONDENT'S/S EXHIBITS: NIL