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

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

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

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

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

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

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

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

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

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

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