JOSEPH POTHEN Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a petition under Art. 32 of the Constitution for issuing an appropriate writ to quash the order and notification, dated October 3, 1963, issued by the respondent and to restrain it from interfering with the petitioner's right in the property comprised in survey Nos. 646 to 650 in Trivendrum City.

(2.) Kizhakke Kottaram (i.e. Eastern Palace), 2 acres and 57 cents, in extent, comprised in survey Nos. 646 to 650 and consisting of land, trees, buildings, out-houses, the surrounding wall on all sides, gates and all appurtenants, in the city of Trivendrum originally belonged to His Highness the Maharaja of Travancore. Under a sale-deed dated January 7, 1959, the Maharaja sold the same to the petitioner. The petitioner's case is that the eastern wall now in dispute is a portion of the Palace wall and is situate in survey Nos. 646 to 650 and that since the purchase he has been in possession of, the same. On October 3, 1963, the Government of Kerala passed an order, G. O. (MS) No. 661/63 Edn., purporting to be under the provisions of the Travancore Ancient Monuments Preservation Regulation 1 of 1112. M.E. (1936-37 A.D.), Under that order the Government considered the Fort walls around the Sree Padmanabhaswamy Temple as of archaeological importance and that they should be preserved as a protected monument. Under that order the said walls are described as being situated, among others, in the aforesaid survey numbers also. Pursuant to that order the State Government issued a notification dated October 3, 1963, declaring the said walls to be a protected monument for the purpose of the said Regulation. The petitioner, alleging that the part of the said wall situate in the said survey numbers belonged to him and he was in possession thereof and that the said notification infringed his fundamental right under Article 19 (1)(f) of the Constitution, filed the present writ petition.

(3.) The State filed a counter-affidavit in which it admitted that the Kizhakke Kottaram was purchased by the petitioner from the Maharaja of Travancore, but contended that the wall which bounded the Kizhakke Kottaram on the east was part of the fort all which had always remained and continued to remain to be the property of the Travancore-Cochin, and later on Kerala Government. It was further alleged that though the said wall was part of the historic fort wall, the petitioner deliberately "intermeddled" with it. In short, the respondent claimed that the said wall was part of the historic fort wall and, therefore, the said notification was validly issued in order to preserve the same and that the petitioner had illegally encroached upon it.