Kerala High Court
Most Rev.Dr.Joshua Mar Ignathios vs Union Of India on 3 August, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
WP(C) No.2510/2019 1 / 12
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 3rd day of August 2021 / 12th Sravana, 1943
WP(C) NO. 2510 OF 2019(K)
PETITIONER:
MOST REV.DR.JOSHUA MAR IGNATHIOS, AGED 67 YEARS S/O. LATE
K.O.VARGHESE, BISHOP OF MALANKARA CATHOLIC DIOCESE OF MAVELIKKARA,
RESIDING AT AMALAGIRI CATHOLIC BISHOPS HOUSE, HOUSE
NO.XII/439E,PUNNAMMOODU, MAVELIKKARA, ALAPPUZHA-690 101-RERESENTED
BY HIS POWER OF ATTORNEY HOLDER, MR.M.THOMAS, AGED 67 YEARS, S/O.
LATE MR.G.MATHAI, RESIDING AT CHARUVILA MELATHIL HOUSE,CHOWALLOOR,
IDAKKADOM P.O., EZHUKONE, KOTTARAKKARA,KOLLAM.
RESPONDENTS:
1. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD,
TRANSPORT AND HIGHWAYS, TRANSPORT BHAWAN, 1,PARLIAMENT STREET, NEW
DELHI-110 001.
2. NATIONAL HIGHWAYS AUTHORITY OF INDIA REPRESENTED BY ITS CHAIRMAN, G
5&6 SECTOR-10,DWARAKA,NEW DELHI-110 075.
3. REGIONAL OFFICER, NATIONAL HIGHWAY AUTHORITY OF INDIA, OFFICE OF THE
CHIEF ENGINEER, (NATIONAL HIGHWAYS), PUBIC WORKS DEPARTMENT, PUBLIC
OFFICE, MUSEUM P.O., THIRUVANANTHAPURAM-695 033.
4. PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, NATIONAL HIGHWAY
AUTHORITY OF INDIA, MINISTRY OF ROAD, TRANSPORT AND
HIGHWAYS,T.C.36/414 (5), KOYIKKAL VEEDU, KAVU LANE, PALKULANGARA,
THIRUVANANTHAPURAM-695 024.
5. STATE OF KERALA, REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
6. CHIEF ENGINEER, (NATIONAL HIGHWAYS) PUBLIC OFFICE, MUSEUM P.O.,
THIRUVANANTHAPURAM-695 033
7. DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, ALAPPUZHA-688 001.
8. SEPCIAL DEPUTY COLLECTOR (LA NH), COLLECTORATE, CIVIL STATION,
ALAPPUZHA-688 001.
9. SPECIAL TAHSILDAR (LA NH), HARIPPAD, ALAPPUZHA-690 514.
10. EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, NH DIVISION,
MINI CIVIL STATION ANNEX.,3RD FLOOR, THATHAMPALLY P.O.,
ALAPPUZHA-688 013.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the stay of acquisition proceedings in furtherance of
Ext.p3 in front of the property of the petitioner (Ch. 448/20-Ch.448/975)
otherwise than the mode of concentric widening as ordered in Exts.P6,P7,P8
and P10, pending disposal of the writ petition.
WP(C) No.2510/2019 2 / 12
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S. GEORGE VARGHESE(PERUMPALLIKUTTIYIL), A.R.DILEEP, P.J.JOE PAUL, RAJAN
G. GEORGE & KESHAVRAJ NAIR Advocates for the petitioner, SMT.I. SHEELA
DEVI, CENTRAL GOVERNMENT COUNSEL for respondent 1, SRI.K.A.SALIL
NARAYANAN,STANDING COUNSEL for respondents 2 to 4 and of GOVERNMENT
PLEADER for respondents 5,7,8 & 9, the court passed the following:-
WP(C) No.2510/2019 3 / 12
EXHIBIT P3 : A TRUE COPY OF THE RELEVANT EXTRACTS OF THE
NOTIFICATION NO.S.O.NO. 671(E) DATED 15.02.2018 DULY PUBLISHED IN THE
LOCAL NEWSPAPER ON 11.03.2018.
EXHIBIT P6 : A TRUE COPY OF THE LETTER NO. E2352369/M(PWD&R)/2018
DATED 17.03.2018 SENT BY THE HONOURABLE MINISTER FOR PUBLIC WORKS
DEPARTMENT TO THE PETITIONER
EXHIBIT P7 : A TRUE COPY OF THE COMMUNICATION NO.D4369/2017 DATED
24.04.2018 ISSUED BY THE 10TH RESPONDENT TO THE 7TH RESPONDENT.
EXHIBIT P8 : A TRUE COPY OF THE COMMUNICATION NO. A232/2018 DATED
26.05.2018 SENT BY THE 7TH RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P10 : A TRUE COPY OF THE COMMUNICATION NO. NHA/PIU-
TVM/PWD/2018/1316 DATED 01.12.2018 SENT BY THE 4TH RESPONDENT TO THE 5TH
RESPONDENT.
WP(C) No.2510/2019 4 / 12
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
-----------------------------------------------
W.P(C). No. 8562 of 2021 (S),
W.P(C). No. 2510 of 2019
and
W.P(C). No. 6572 of 2020
----------------------------------------------
Dated this the 3rd day of August, 2021
ORDER
S. Manikumar, CJ.
Respondent No.1 and 2 have filed a counter affidavit in W.P(C). No.8562 of 2021, so also the 3rd respondent. Mr.K.A. Salil Narayanan, learned counsel appearing for the Project Director, Project implementation Unit, NHAI/4th respondent submitted that copies of the counter affidavits have been sent to NHAI for response. That apart, NHAI has requested to respond on the inspection report, on the proposal of demolition of the ancient church of St. George Orthodox Valiyapally, Cheppad. He prayed for some time to get appropriate instructions from the Project Director, NHAI.
2. Perusal of the material on record indicates that the Archaeological Survey of India has conducted an inspection of the church and reported thus:
"Inspection Report on the Proposal of the demolition of the ancient Church of St. George Orthodox Valiyapally. Cheppad, Alappuzha District, Kerala due to expansion of the National Highway WP(C) No.2510/2019 5 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 2 Introduction As per the directions of Director General Office, ASI, New Delhi vide F.No.T-19066/13/2021-Antiquity dated 02.02.2021, I have inspected the St. George Orthodox Valiyapally, Cheppad, Alappuzha District, Kerala on 22.01.2021 in the presence of Vicar Fr.Alexander Vattakkattu Vicar, St. George Orthodox Church, Cheppad and other members of the Church. The Church is located at Cheppad between Harippad and Kayamkulam in Alappuzha district. The church is located very close to the National Highway 66. The nearest railway station is Cheppad and airport is Thiruvananthapuram international airport.
History of the Church The St. George Church at Cheppad believed to be built in 1300 CE, is one of the earliest churches in Alappuzha district. It is believed that the Church at Cheppad was erected from the ruins of the old church at Harippad. The Church was built with the help of a local chieftain Kanjur Valiathan who transported the materials from Harippad to establish the Church here. The original church had undergone several changes from its basic form and it is believed that the main portico of the church and subsidiary porches on either sides were built after traditional pattern of porches in Hindu temples with wooden carvings. The church was visited by Archbishop Alexis De Menezes in 1599 CE and installed a statue of St. Mary with the child Jesus in the church. A two storied building was constructed behind the church as a residence of Mar Dionyslus IV who was the Cheppad Metropolitan. His sacred WP(C) No.2510/2019 6 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 3 remains are kept in an attached room on the left side of the altar.
Architecture of the Church This church is a simple structure built in stone and wood built in the indigenous church architecture pattern of Kerala, in an east-west axis wherein the madbaha' altar is located on the east and the main entrance of the church in the west. The church along with its adjoining building is enclosed by a modern compound wall very close to the National Highway. A cross with a beautiful carved granite base at the bottom is erected in front of the church close to the road. As per plan, the main church building could be divided into three, the entrance facade with the image of the St.George in the centre and a cross on the top serves as gable for the roof of the interior of the church which slopes in two directions and giving the structure an ornamental face concealing the tiled roof behind with a simple pillared verandah at the front, the nave or the long rectangular hall is entered through main entrance in the centre and two smaller entrances on either sides and windows and doors on the southern and northern sides and has two pillared aisles on either side which is a rather a verandah for congregation and the sanctum sanctorum or madbaha which is a narrow room as compared to have accommodating the altar of the church.
The entrance façade of the church is a long tower, the present façade seems to have replaced the old entrance portion of the church. A major portion of the façade seems to have been reconstructed in the year 1952 as evident from a stone WP(C) No.2510/2019 7 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 4 engraving in the façade wall. The entrance door of the façade is fixed to granite sash with wooden door.The granite sash has few linear decorated portions which may indicate that this granite sash must have been a part of the old church. Inside the nave there is no pillars and has pointed arch windows. The madbaha and nave are separated by an semi circular arched opening. The madbaha is smaller in width than nave and the floor of the madbaha is slightly higer and approached by few steps than that of nave. The madbaha is tall structure square in shape and a beautifully decorated altar made of wood is seen placed closer to the eastern wall of the madbaha. The lime plastered walls of the madbaha are adorned with beautiful mural paintings claimed to be of 13th century CE. These murals depict scenes from the life of Jesus Christ and are the exquisite specimens of indigenous mural art of Kerala. The roof of the madbaha is having wooden ceiling and has two small pointed arch windows each on the side walls. On the other side wall attached to the a madbaha on the southern side is decorated small structure where the sacred mortal remains of his Grace Mar Diosysius IV was laid to rest. Mar Diosysius IV is regarded as one of the great figures in the history of the Orthodox Syrian Church because it was his efforts that the church could retain its old faith and avoid merger with the Anglican Church. As the sacred resting place of the mortal remains of the Mar Diosysius IV is a place of pilgrimage of devout Orthodox Christians even today. His Imperial Majesty Hailic Selassie, the Emperor of Ethiopia paid a visit to this Church in 1956 and gave valuable presents. In the vicinity of the church on the north is a spacious two storeyed building said to be built in 1825 CE. Behind the Church is a tall Belfry of later construction. On the northern WP(C) No.2510/2019 8 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 5 side is a modern flag staff.
Observations:
The National High way NH-66 passes very close to this ancient church. The church is situated on the eastern side of the NH-66 at Cheppad between Harippad and Kayamkulam. As part of expansion of NH-66 to four lanes by the National High Way Authority of India (NHAI) has laid marking stones inside the Church complex and this alignment runs through the ancient church. The present alignment will affect the ancient Church and may have to be demolished. Since the Church is an important heritage building, the NHAI have to change the alignment of the proposed expansion of four lane so that this church is not affected.
This office has addressed a letter to the Director, NHAI, Thiruvananthapuram, Kerala on 08.02.2021 (copy enclosed) asking the change the alignment of the proposed expansion of the NH-66 and the new alignment be proposed in consultation with this office to save the ancient church. The church have to be protected and preserved as the mural paintings on the walls of madbaha of the church is a work of early phase of mural in Kerala. Though the church has undergone many changes such as modern polished granite stone have been laid for flooring and modern tiles on the side walls the basic characteristics of the early phase of the church architecture of the Kerala has been retained and is a standing testimony of the early history of the Christianity in Kerala. This church represents pre-portugese church architecture and an early phase of Kerala Christian architecture. If agreed on the light of above characteristics, St. George Othodox Church, WP(C) No.2510/2019 9 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 6 Cheppad can be protected as Centrally Protected Monument. The Protection proposal will be submitted if approval in principle for the protection is sanctioned."
3. Reading of the same indicates that the church is believed to have been constructed in 1300 CE. Archaeological Survey of India has categorically observed that the Church has to be protected as centrally protected monument for the reasons stated supra. Ancient monuments and archaeological sites and remains of national importance, is dealt with in Section 3 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, which reads thus:
"3. Certain ancient monuments, etc., deemed to be of national importance.- All ancient and historical monuments and all archaeological sites and remains which have been declared by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (71 of 1951), or by section 126 of the States Reorganisation Act, 1956 (37 of 1956), to be of national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purposes of this Act."
4. Central Government is empowered to declare ancient and historical monument etc. of national importance. Section 4 reads thus:
"4 .Power of Central Government to declare ancient monuments, etc., to be of national importance.
(1) Where the Central Government is of opinion that any ancient monument or archaeological site and remains not included in section 3 is of national importance, it may, by notification in the Official Gazette, give two months notice of WP(C) No.2510/2019 10 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 7 its intention to declare such ancient monument or archaeological site and remains to be of national importance;
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 of national importance.
(3) On the expiry of the said period of two months, the Central Government may, after considering the objections, if any, received by it, declare by notification in the Official Gazette, the ancient monument or the archaeological site and remains, as the case may be, to be of national importance. (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 of national importance for the purposes of this Act.
1[4A. Categorisation and classification in respect of ancient monuments or archaeological sites and remains declared as of national importance under sections 3 and 4.--(1) The Central Government shall, on the recommendation of the Authority, prescribe categories in respect of ancient monuments or archaeological sites and remains declared as of national importance under sections 3 and 4, and while prescribing such categories it shall have regard to the historical, archaeological and architectural value and such other factors as may be relevant for the purpose of such categorisation.
(2) The Central Government shall, on the recommendation of the Authority, classify all the ancient monuments or archaeological sites and remains declared as of national importance under sections 3 and 4, in accordance with the categories prescribed under sub-section (1) and thereafter make the same available to the public and exhibit the same on its website and also in such other manner as it may deem fit.]"
5. Monuments and archaeological sites are also dealt with, in Kerala Ancient Monuments and Archaeological sites and Remains Act, 1968, is an WP(C) No.2510/2019 11 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 8 Act provide 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. Section 3 deals with certain ancient monuments etc. deemed to be protected monuments or areas. Under Section 4 of the Act, 1968, the State Government is empowered to declare ancient monuments etc., to be protected monuments and areas. In the case on hand, Archaeological Survey of India unequivocally has suggested that St. George Orthodox Valiyapally, Cheppad, Alappuzha, should be protected as a centrally protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
6. However, Superintending Engineer in Charge of ASI, Thrissur Circle, in his inspection report, has stated that "the protection proposal will be submitted if approval in principle for the protection is sanctioned."
7. In our opinion, when there is any categorical opinion that the church has to be protected as a centrally protected monument, steps ought to have been taken by the Archaeological Survey of India, Thrissur Circle, to the Central Government, for declaration, under Section 4 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, or Archaeological Survey of India, Thrissur Circle, should have made a request to the State Government for declaration WP(C) No.2510/2019 12 / 12 W.P(C).Nos.8562/2021, 6572/2020 & 2510/2019 9 under Section 4 of the Kerala Ancient Monuments and Archaeological sites and Remains Act, 1968.
8. In view of the categorical opinion of ASI, Thrissur Circle, that St. George Orthodox Valiyapally, Cheppad, Alappuzha has to be declared as a centrally protected monument, we direct the Project Director, NHAI/respondent No.4 not to take possession of the church until further orders.
Post on 27.8.2021.
Sd/-
S. Manikumar, Chief Justice Sd/-
Shaji P. Chaly, Judge sou.
03-08-2021 /True Copy/ Assistant Registrar