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2009 DIGILAW 221 (KER)

Rev. Fr. Mathew Narively v. State of Kerala

2009-03-03

ANTONY DOMINIC

body2009
Judgment: This writ petition is filed seeking to quash Ext.P3 and a declaration that Section 4(1) and 4(3) of the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968, (here-in-after referred to as the Act) is unconstitutional and void, being ultra vires of Art. 14, 25 and 26(b) of the Constitution is also sought for. 2. First petitioner is the Vicar of St.Augustines Forane Church, Ramapuram and 2nd and 3rd petitioners are its Trustees. Ext.P1 is a notification issued by the first respondent, in terms of Section 4(1) of the Act, giving notice of their intention to declare St. Marys Church, St. Augustines Church and the two storied building in which late Thoma Kathanar was residing, to be Protected Monument s for the purpose of the Act. By this notification the first respondent invited objections, to be addressed to the Secretary to Government, Cultural Affairs (B) Department, Government Secretariat, Thiruvananthapuram. Accordingly, objections were filed and Ext.P2 is the objection filed by the first petitioner. Parties were heard by the first respondent on 112.2007 and by Ext.P3, the first respondent rejected the objections and directed the 3rd respondent to take further steps to declare St.Marys Church, St. Augustines Church and the two storied building as Protected Monuments as envisaged in the Act. It is challenging this notification and for other reliefs, that this writ petition is filed. 3. Contentions raised were mainly that there was no consideration as to whether the structures mentioned in Ext.P1 notification are Ancient Monuments as defined in the Act. It was also contended that none of the officials had inspected the buildings or made any report and therefore the formation of opinion which is a condition precedent for exercising the powers under Section 4 of the Act is bad. Lastly it was contended that Section 4 does not laid down any guidelines for exercising the power conferred on the first respondent and therefore Section 4 is unconstitutional. Reliance was placed on the judgments of the Apex Court in Barium Chemicals Ltd. and another V. Company Law Board and Others (AIR 1967 SC 295), Air India V. Nergesh Meerza & Ors.(1981 (4) SCC 335) and District Registrar & Collector Hyderabad and Another V. Canara Bank & Ors. (2005 (1) SCC 496). 4. Reliance was placed on the judgments of the Apex Court in Barium Chemicals Ltd. and another V. Company Law Board and Others (AIR 1967 SC 295), Air India V. Nergesh Meerza & Ors.(1981 (4) SCC 335) and District Registrar & Collector Hyderabad and Another V. Canara Bank & Ors. (2005 (1) SCC 496). 4. A counter affidavit has been filed on behalf of respondents 1 and 2 and the additional respondents who got impleaded also have filed their counter affidavits. In fact, the additional 5th respondent, claims to have made several representations to various authorities, including National Trust for Art and Cultural Heritage, District Collector and Tourism Department, to intervene for the maintenance and preservation of the buildings and structures. It is stated that it was on the recommendation of the National Trust for Art and Cultural Heritage that the matter was considered and taken up by the first respondent culminating in Ext.P3. 5. I shall first deal with the contentions of the learned counsel for the petitioners that Section 4(1) and (3) are unconstitutional for the reason that no guidelines have been prescribed for exercising the power conferred therein. Before I proceed further, I should make reference to Sections 2(a), (d) and 4. 6. The term "ancient monument" has been defined in Section 2(a), which being relevant is extracted below for reference. "ancient erection or monuments" or means any structure, internment, monument, any tumulus or place of inscription or monolith, which is rock-sculpture, or any cave, 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;" 7. The term "archaeological sites and remains" has been defined in Section 2(d) which is extracted below for reference. The term "archaeological sites and remains" has been defined in Section 2(d) which is extracted below for reference. "means any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence r not less than one hundred years, and includes- (I) such portion of land adjoining the area as may be required for fencing or covering I or otherwise preserving it, and (ii) the means of access to, and convenient inspection of, the area, but does not include any archaeological site or remains declared by or under any law made by Parliament to be of national importance". 8. Section 4 reads as under. (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 months 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 monument or protected area, as the case may be. (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 purposes of this Act." 9. A reading of definition of ancient monuments show that, the Act has laid down the parameters which are to be satisfied to declare a monument as an ancient monument. A reading of definition of ancient monuments show that, the Act has laid down the parameters which are to be satisfied to declare a monument as an ancient monument. Similarly, archaeological sites and remains also is defined in such a manner that it should contain ruins or relics of historical or archaeological importance which has at least been in existence for 100 years. Only such of those ancient monuments and archaeological sites and remains, which answer the requirements of Section 2(a) and (d), can be declared as protected monuments and areas, exercising the power under Section 4 of the Act. A reading of Section 4 further shows that, when the Government are of opinion that any ancient monument or archaeological sites and remains should be declared to be protected monument or protected area, which expressions are also defined in Sections 2(j) and (k) of the Act, the Government have to give 2 months notice by notification in the gazette, of their intention to declare the same as protected monument or protected area. The Section also provides that the notification shall be affixed in a conspicuous place near the monument or site and remains, as the case may be. Sub Section(2) entitles any person interested to object to the proposed declaration. Sub Section (3) provides that on the expiry of 2 months period specified in sub section (1) the Government may after considering the objections, declare by notification, that the ancient monument or archaeological sites remains to be protected monuments or protected area as the case may be. A reading of Section 2(a), (d),(j) and (k), in the light of Section 4 shows that, guidelines are implicit in the statute itself and only in terms of such guidelines, can the Government issue a declaration in the manner as provided in Section 4 of the Act. Therefore, since the statute itself provides for inbuilt guidelines and safeguards, I am not prepared to accept the plea of the counsel for the petitioner that Section 4(1) and (3) are unconstitutional for want of guidelines. In view of my aforesaid conclusion, I do not think it necessary to refer to the judgments cited by the counsel for the petitioners. 10. Now, what remains to be considered is whether the formation of opinion as contemplated in Section 4(1) is vitiated for any reason. In view of my aforesaid conclusion, I do not think it necessary to refer to the judgments cited by the counsel for the petitioners. 10. Now, what remains to be considered is whether the formation of opinion as contemplated in Section 4(1) is vitiated for any reason. One of the contentions, on the basis of which this argument is raised is that, before issuing Ext.P1 notification under Section 4(1) of the Act, none had inspected the building and therefore there was no material available before the first respondent to have formed the opinion as contemplated in the section. This does not appear to be factually correct. In paragraph 9 of the counter affidavit filed by respondents 1 and 2, it has been stated that Sri. R.Chandran Pillai, Research Officer of the Archeology Department had visited and inspected the church and submitted his report to the respective authorities. Further along with the counter affidavit, they have produced Ext. R2(a), a spot inspection report submitted by the Superintending Archaeologist and the Artist Superintendent of the Archeology Department on 29.2008. Although it is true that these reports have not been referred to in Ext.P1 or P3, such reports were in fact available with the authorities. In my considered opinion, these contentions are relevant because on the petitioners own showing, it can be seen that even according to them, the structures mentioned in Exts.P1 and P3 are ancient monuments as defined in Section 2(a). For this purpose, I shall make reference to the objection that was filed by the petitioners in response to Ext.P1, where the following statements have been made. I. The St. Augustines Church, was constructed in the year 1599 where a Church was already built in 1450 A.D which was dedicated to the memory of ever Virgin Mary. ii. St. Augustines Church was dedicated to the memory of St. Augustine, a renowned Catholic Theologian and Doctor of the Church, who lived in the 4th century. iii. St. Marys Church mentioned in the notification was built in 1864 and that the then community of faithful decided to have a statue of Our Lady of Mount Carmel above the main altar in memory of the first church. The two buildings stand side by side at a distance of only few meters, the small one built in 1599 and the present new Church built in 1864. iv. St. The two buildings stand side by side at a distance of only few meters, the small one built in 1599 and the present new Church built in 1864. iv. St. Augustines church was elevated to the status of a Forane Church in 1929 by the then Bishop of Changancherry. v. In the small Church is located, the tomb of Blessed Fr. Augustine Thevarparambil, popularly known as "Kunjachan", just in front of the statue of St. Augustine brought from Portugal which is placed above the altar on the left side. vi. The tomb of Blessed Kunjachan is a center of attraction by a large number of pilgrims from within the State and Outside. The missionary activity of Blessed Kunjachan is a matter of pride and worth of emulation by the entire Church and its faithful. His life of piety and prayer made him a saint during his life time and devotees throng to this place requesting his heavenly intercession for their needs. vii. Another noble soul of Ramapuram Rev. Paremakkal Thoma Kathanar (1736-1799) was the Gubernador of the Archdiocese Kodungalloor, who also spent his last days here, was buried here. His tomb is found on the right wall of the sanctuary of the small church. viii. Themain altar of the small church constructed in 1599, has beautiful paintings, which has been crupulously preserved and protected by the parish authorities. ix. The two storied building, mentioned in Ext.P1 is the one in which the late Thoma Kathanar, who expired in 1799 was residing, was the presbytery of the small church. x. It is stated that from 1926 onwards Blessed Kunjachan stayed in this building and now this building is considered to be a holy place for all the faithful as it was the residence of a holy man for about fifty years. xi. The rooms where Blessed Kunjachan stayed has been converted into a museum, which is also visited by large number of pilgrims. xii. Thetwo Vadyapuras and the compound wall are something special to Ramapuram church and all these are maintained properly. xii. The small church, the two storied building(residence of Thoma Kathanar and Blessed Kunjachan), the compound wall and Vadyapuras are well preserved and protected "as they are not only antique but have historical importance."(emphasis supplied) 11. Thus in the objection filed by the petitioners themselves, they have admitted that the structures in question are more than 100 years old. xii. The small church, the two storied building(residence of Thoma Kathanar and Blessed Kunjachan), the compound wall and Vadyapuras are well preserved and protected "as they are not only antique but have historical importance."(emphasis supplied) 11. Thus in the objection filed by the petitioners themselves, they have admitted that the structures in question are more than 100 years old. They have also admitted that the buildings are of antique value and historical importance. If this is the admitted factual position, it only means that by the petitioners own admission, it is evident that the structures notified in Ext.P1 answer the description of ancient monuments as defined in Section 2(a) of the Act. If that be so, there is absolutely no substance in the contention raised by the petitioners that the formation of opinion by the Government was erroneous and that the same was without any material. Therefore, the contention raised about the invalidity of Ext.P3 also is liable to be rejected for the aforesaid reason and I do so. For the aforesaid reasons I do not find any illegality in Exts.P1 or P3 and hence the writ petition is only to be dismissed and I do so.