Judgment

SUBBA RAO, Actg. C. J.: 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.

4. It is not necessary to state the different contentions of the parties at this stage, as we shall deal with them separately.

5. The learned Advocate-General of Kerala raised a preliminary objection to the maintainability o the application on the ground that the petition is barred by the principle of res judicata in that a petition for the same relief was filed before the High Court of Kerala and was dismissed. The petitioner filed O. P. No. 1502 of 1960 in the High Court of Kerala at Ernakulam for a relief similar to that now sought in this petition. The said petition came up before Vaidialingam, J., who dismissed that petition on the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under Art. 226 of the Constitution and that claims based on title or possession could be more appropriately investigated in a civil suit. When an appeal was filed against that order, a Division Bench of the High Court, consisting of Raman Nair and Raghavan, JJ., dismissed the same, accepting the view of Vaidialingam, J., that the proper forum for the said relief was a civil Court. It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner s contentions, but dismissed the petition for the