ARDHENDU KUMAR DAS versus THE STATE OF ODISHA AND ORS.
[2022] 15 S.C.R. 358, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Arguments
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[2022] 15 S.C.R. 358
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ARDHENDU KUMAR DAS
v.
THE STATE OF ODISHA AND ORS.
(Civil Appeal No. 4515 of 2022)
JUNE 03, 2022
[B. R. GAVAI AND HIMA KOHLI, JJ.]
Archaeological Sites: Ancient Monuments and Archaeological
Sites and Remains Act, 1958 – ss.2, 20C, 20D – Public work or
project essential to the public – PIL filed before High Court
challenging construction undertaken by respondent Nos. 1 and 2
within the prohibited area of the Shree Jagannath Temple complex
on the ground that it contravened provisions of the 1958 Act – Their
grievance in the instant appeal was that High Court did not grant
an interim order restraining respondents from proceeding further
with the construction – Held: All the provisions of the 1958 Act
have to be read harmoniously – When sub-section (4) of s.20A of
the Act is read in harmony with clause (dc) of s.2 and the provisions
of s.20C and s.20D of the Act, the submission that no construction
at all can be made in the prohibited area or the regulated area
would be unsustainable – Competent authority has complied with
the procedure as required under s.20D of the Act and the National
Monuments Authority has granted its permission for the work, which
is undertaken – The legislature has deliberately excluded four
categories from the definition of “construction” – The purpose
behind it appears to be that the repairs and renovation of the
buildings, which are existing and the constructions which
are
necessary for providing basic facilities like drainage, toilets, water
supply and distribution of electricity should be kept out of the rigour
of requirement of statutory permissions – The argument that the
said provision is only to enable a person who resides in the
prohibited area to get his existing structure re-constructed, repaired
and renovated and the said provision cannot come to the aid of the
State to create facilities for the public is rejected – If an individual
person can construct a toilet in a prohibited area, so can the State,
when the State finds it necessary to do it in the larger public interest
for providing basic facilities to the lakhs of devotees visiting the
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shrine – The activities undertaken by State are completely in tune
with the directions issued by this Court in the case of Mrinalini Padhi–
They are necessary in the larger public interest and there is no
prohibition in the statute for doing so, as sought to be argued by
the appellants – High Court also recorded the statement of Advocate
General thatboth the ASI and the State Government would work
together to ensure that no archaeological remains are missed out or
damaged – PIL filed before the High Court rather than being in
public interest, is detrimental to the public interest at large – Frivolous
petitions encroach upon a valuable judicial time which could be
otherwise utilized for considering genuine issues – The appeals,
having been found to be without any substance, are dismissed with
costs, quantified at Rs.1,00,000/- each, payable by the appellants
to respondent No.1 within four weeks – Public interest litigation.
Public interest litigation: Practice of filing frivolous petitions
– Deprecated – Frivolous petitions are nothing but abuse of process
of law – They encroach upon a valuable judicial time which could
be otherwise utilized for considering genuine issues – It is high
time that such so-called public interest litigations are nipped in the
bud so that the developmental activities in the larger public interest
are not stalled.
Dismissing the appeals, the Court
HELD: 1. The definition of “construction” in Clause (dc)
of Section 2 of the
Ancient Monuments and Archaeological Sites
and Remains Act, 1958 specifically excludes: (i) Re-construction,
repair and renovation of an existing structure or building;
(ii)Construction, maintenance and cleansing of drains and drainage
works and of public latrines, urinals and similar conveniences;
(iii) Construction and maintenance of works meant for providing
supply of water for public; and (iv)Construction or maintenance,
extension, management for supply and distribution of electricity
to the public or provision for similar facilities for public. [Para
36][376-B-D]
2. Sub-section (4) of Section 20A of the Act prohibits any
permission including the one for carrying out any public work or
project essential to the public or other constructions in any
prohibited area referred to in sub-section (3) thereof on and after
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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the date on which the Ancient Monuments and Archaeological
Sites and Remains (Amendment and Validation) Bill, 2010
receives the assent of the President. The same was brought into
the statute book by Act No. 10 of 2010. It is further to be noted
that by the very same amendment, Section 20C of the said Act
has also been brought into the statute book. Sub-section (1) of
Section 20C of the said Act provides that any person, who owns
any building or structure, which existed in a prohibited area before
16th June, 1992, or, which had been subsequently constructed
with the approval of the Director-General and desires to carry
out any repair or renovation of such building or structure, may
make an application to the competent authority for carrying out
such repair or renovation, as the case may be. Likewise, sub-
section (2) of Section 20C of the said Act enables a person, who
owns or possesses any building or structure or land in any
regulated area, and desires to carry out any construction or re-
construction or repair or renovation of such building or structure
on such land, as the case may be, to make an application to the
competent authority for carrying out construction or re-
construction or repair or renovation, as the case may be. Section
20D of the said Act deals with grant of permission by competent
authority within regulated area. Sub-section (1) of Section 20D of
the said Act provides that an application for
grant of permission
under Section 20C of the said Act, shall be made to the competent
authority. Sub-section (2) thereof requires the competent
authority to forward the same to the authority to consider and
intimate impact of such construction having regard to the heritage
bye-laws relating to the concerned protected monument or
protected area. Under proviso to Sub-section (2) thereof, the
Central Government is empowered to prescribe the category of
applications in respect of which the permission will be granted
under this sub-section and the applications which shall be referred
to the authority for its recommendations. Under sub-section (3)
thereof, the authority is required to intimate, within two months
from the date of receipt of application under sub-section (2)
thereof, to the competent authority, the impact of such
construction etc. Under sub-section (4) thereof, the competent
authority is required to either grant permission or refuse the
same as so recommended by the authority within one month of
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the receipt of intimation from the authority under sub-section (3)
thereof. Under sub-section (5) thereof, a finality is given to the
recommendations of the authority. [Para 37-39][376-D-H; 377-
A-E]
3. It is a settled principle of law that all the provisions in
the statute have to be read harmoniously. It is presumed that
each and every provision has been brought by the legislature
into the statute book with some purpose. A particular provision
cannot be read in isolation and has to be read in context to each
other. An attempt has to be made to reconcile all the provisions
of the statute together, unless it is impossible. At first blush, the
arguments of the appellants on the basis of sub-section (4) of
Section 20A of the said Act may appear to be attractive. But when
sub-section (4) of Section 20A of the said Act is read in harmony
with clause (dc) of Section 2 and the provisions of Sections 20C
and 20D of the said Act, this Court finds that the submission that
no construction at all can be made in the prohibited area or the
regulated area, would be unsustainable. Firstly, clause (dc) of
Section 2 of the said Act itself excludes four categories from the
definition of “construction”. The legislative intent is thus clear
that the four categories which are excluded from the definition of
“construction” as defined in clause (dc) of Section 2 of the said
Act would not be treated as a “construction”, wherever the said
term is referred to in the statute. The
legislative intent is clear
that the re-construction, repair, renovation of the existing
buildings has been excluded from the definition. Similarly, the
construction, maintenance etc. of drains, drainage works, public
latrines and urinals; the construction and maintenance of works
meant for providing supply of water to public; and construction
etc. for distribution of electricity, which could be construed to be
essential services for catering to the needs of the public at large,
have consciously been kept out of the definition of “construction”.
It could be presumed that the legislature was aware that repairs
and reconstruction of existing structures or buildings or
construction of essential facilities like public latrines, urinals,
water supply and electricity distribution for the pilgrims/residents
are basic necessities and as such, should be permitted even in
the prohibited area. If it is not so interpreted, then Section 20C
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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of the said Act would be rendered otiose and redundant. An
interpretation which leads a particular provision to be otiose or
redundant or meaningless, has to be avoided. [Paras 40-42][377-
F-H; 378-A-D]
4. Section 20D of the Act deals with the entire procedure
regarding grant of permission by the competent authority within
regulated area. Undisputedly, in the present case, the competent
authority has complied with the procedure as required under
Section 20D of the said Act and the authority, i.e., the NMA has
granted its permission for the work, which is undertaken. It could
thus clearly be seen that the Director-General has observed that
the amenities which fall within the prohibited area of the temple
are required for the devotees, and therefore, it was agreed that
this may be allowed. It was further observed that the ASI would
work in coordination with the State Government on the design
so that there is no visual impact on the main temple. The State
Government was also requested to keep the entire design simple
in tandem with the spiritual nature of the entire temple complex.
In the impugned order, even the Division Bench of the High Court
has recorded the statement of the Advocate General to the effect
that both ASI and the State Government would work together.
Insofar the reception area is concerned, the impugned order
would also reveal that the learned Advocate General has clarified
that it will now be moved
out of the prohibited area and it will be
constructed in the regulated area. [Paras 44, 46 and 47][378-G-
H; 380-B-D]
5. It could thus clearly be seen that even the Director-
General of ASI has recognized the potential of Puri and
Ekamrakshetra for being taken up as World Heritage sites. It
was agreed that all the work in both the places would be designed
and executed keeping in mind the possibility of developing them
for being acknowledged as World Heritage Sites. The affidavit of
the Superintending Archaeologist, ASI would also reveal that there
does not appear to be any serious objection with regard to
construction of works such as toilets, drains and electrical works
in the prohibited area. There also does not appear to be any
serious objection with regard to undertaking construction in the
regulated area. [Paras 49 and 50][380-H; 381-A-B]
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6. Taking into consideration all these aspects of the matter,
it is amply clear that the construction activities which are being
undertaken, are being undertaken in pursuance of the directions
issued by a three Judge Bench of this Court in the case of
Mrinalini Padhi. The construction is being carried out for the
purpose of providing basic and essential amenities like toilets
for men and women, cloak rooms, electricity rooms etc. These
are the basic facilities which are necessary for the convenience
of the devotees at large. As already discussed hereinabove, the
legislative intent appears to be clear. The legislature has
deliberately excluded four categories from the definition of
“construction”. The purpose behind it appears to be that the
repairs and renovation of the buildings, which are existing and
the constructions which are necessary for providing basic facilities
like drainage, toilets, water supply and distribution of electricity
should be kept out of the rigour of requirement of statutory
permissions. [Para 51][381-D-F]
7. If an individual person can construct a toilet in a
prohibited area; can the State be denied to do so, when the State
finds it necessary to do it in the larger public interest for providing
basic facilities to the lakhs of devotees visiting the shrine? The
answer is an emphatic ‘no’. [Para 52][381-G-H]
8. In the recent past, there is mushroom growth of public
interest litigations. However, in many of such petitions, there is
no public interest involved at all. The petitions are either publicity
interest litigations or personal interest litigation. This Court highly
deprecates practice of filing such frivolous petitions. They are
nothing but abuse of process of law. They encroach upon a
valuable judicial time which could be otherwise utilized for
considering genuine issues. It is high time that such so-called
public interest litigations are nipped in the bud so that the
developmental activities in the larger public interest are not
stalled. In the result, the appeals, having been found to be without
any substance, are dismissed with costs, quantified at Rs.1,00,000/
- each, payable by the appellants to the respondent No.1. [Paras
59 and 60][382-G-H; 383-A]
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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Mrinalini Padhi v.Union of India and others (2019) 18
SCC 1 : [2019] 16 SCR 811 – referred to.
Case Law Reference
[2019] 16 SCR 811
referred to
Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4515
of 2022.
From the Judgment and Order dated 09.05.2022 of the High Court
of Orissa at Cuttack in Writ Petition (Civil) No.6257 of 2022.
With
Civil Appeal No. 4516 of 2022.
Ms. Priya Hingorani (AC) Ms. Mahalakshmi Pavani, Vinay
Navare, Kapil Sibal, Pinaki Mishra, A. D. N. Rao, Sr. Advs., Ashok
Parija, Adv. General, Himanshu Yadav (AC), Anirudh Jamwal (AC),
Tomy Chacko, Ankolekar Gurudatta, Gautam Das, Sangram Pattnaik,
Dhirendra Kumar Jha, Merusagar Samantaray, Joydip Roy, Rahul G.
Tanwani, Parvartak Pathak, Tapas Parida, C. M. Gopal, Ms. Vandana
Miglani Bebarta, Ms. Smita Samantaray, Dr. Akash Kaushik, Gaurav
Khanna, Arnav Behera, Avnish Kumar Sharma, Dhananjaya Mishra,
Pai Amit, Ms. Pankhuri Bhardwaj, Swetaretu Mishra, Sanjay K. Das,
V. K. Monga, Annam Venkatesh, D. Shiva Shankar, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Both these petitions challenge the interlocutory order dated 9th
May, 2022, passed by the Division Bench of the High Court of Orissa at
Cuttack, in Writ Petition (Civil) No.6257 of 2022, wherein the Division
Bench of the High Court has recorded certain submissions and statements
made by the learned Advocate General appearing on behalf of the State
of Odisha and directed the matter to be posted on 22nd June, 2022 along
with Writ Petition (Civil) No. 10153 of 2022. From the tenor of the
arguments advanced by the learned counsel for the petitioners, it appears
that they are basically aggrieved since the High Court has not granted
an interim order restraining the respondents from proceeding further
with the construction.
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2. The factual background leading to the filing of the present
proceedings is thus:
3. A Public Interest Litigation being Writ Petition (Civil) No.6257
of 2022 came to be filed before the High Court of Orissa by one Dillip
Kumar Baral challenging the alleged unsanctioned and unauthorised
construction activities undertaken by the respondent Nos. 1 and 2 within
the prohibited area of the Shree Jagannath Temple complex in
contravention of the provisions of The Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (hereinafter referred to as
“the said Act”)
4. It appears that initially the said writ petition was listed before
the Division Bench of the High Court on 8th April, 2022, on which date,
certain statements made by the learned Advocate General were taken
on record. Subsequently, when the matter was listed on 21st April, 2022,
certain further orders came to be passed. Subsequently, the order dated
9th May, 2022 has been passed by the High Court, which is impugned in
the present Special Leave Petitions.
5. The petitioner-Ardhendu Kumar Das in Special Leave Petition
(Civil) Diary No.16718 of 2022 is not the petitioner before the High
Court. However, he claims to be an ardent devotee of Lord Jagannath
and therefore, had filed an Intervention Application before the High Court,
which is pending consideration. The petitioner has therefore filed an
Interlocutory Application seeking permission to file the present Special
Leave Petition challenging
the order dated 9th May, 2022 of the Division
Bench of the High Court.
6. The petitioner-Sumanta Kumar Ghadei in Special Leave Petition
(Civil) Diary No.17078 of 2022 is also not the petitioner before the High
Court. The said petitioner had also filed an Intervention Application in
the writ petition before the High Court, which is pending adjudication.
The said petitioner claims to be a social activist and businessman, who is
a devotee of Lord Jagannath and also claims to have done research and
has keen interest in ancient monuments and sculptures of the State.
7. Taking into consideration the fact that larger issues involving
public interest are involved, we allow the said applications for permission
to file Special Leave Petitions. We also grant leave in both these Special
Leave Petitions.
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
ORS. [B. R. GAVAI, J.]
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8. An impleadment application has been filed by Raghunath
Gochhikar and others, who claim to be Sevayats. The applicants support
the stand of the State Government. We are inclined to allow their
application and permit them to intervene. It is ordered accordingly.
9. We have heard Ms. Mahalakshmi Pavani, learned Senior
Counsel appearing on behalf of the appellant-Ardhendu Kumar Das,
Mr. Vinay Navare, learned Senior Counsel appearing on behalf of the
appellant-Sumanta Kumar Ghadei, Mr. Ashok Parija, learned Advocate
General for State of Odisha, Mr. Kapil Sibal and Mr. Pinaki Mishra,
learned Senior Counsel appearing on behalf of the respondent-State,
Mr. A.D.N. Rao, learned Senior Counsel appearing on behalf of the
Archaeological Survey of India (“ASI” for short), Mr. Swetaretu Mishra,
learned counsel appearing on behalf of the respondent Nos. 5 to 7-Shree
Jagannath Temple Managing Committee and Mr. Pai Amit, learned
counsel appearing on behalf of the applicants/interveners/impleaders.
10. Ms. Mahalakshmi Pavani, learned Senior Counsel submits
that in view of sub-section (4) of Section 20A of the said Act, no
permission can be granted for carrying out any public work or project
essential to the public or other constructions in any prohibited area on
and after the date on which the Ancient Monuments and Archaeological
Sites and Remains (Amendment and Validation) Bill, 2010 receives the
assent of the President. Ms. Pavani
further submitted that the
communication dated 5th February, 2022, addressed by the Conservation
Assistant, ASI, to the Sr. Project Manager, OBCC, would show that the
respondent Nos. 1 and 2 were carrying out unauthorised construction
within the prohibited area of the Centrally Protected Monument of Shree
Jagannath Temple. She further submits that the inspection report would
reveal that there are serious irregularities in the work carried out by the
respondents-State. She further submits that voluminous excavation is
being done near the Temple, which would be hazardous to the Temple,
which is an old structure.
11. Shri Vinay Navare, learned Senior Counsel submits that insofar
as the so-called “No Objection Certificate” (“NOC” for short) issued
by the National Monuments Authority (“NMA” for short) dated 4th
September, 2021, is concerned, the said Authority has no authority in
law to permit construction. Relying on the provisions of Section 20-I of
the said Act, he submits that NMA is only a recommendatory authority
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and has no authority in law to permit any construction either in the
prohibited area or in the regulated area. He further submits that if any
construction activity is to be undertaken in a prohibited area, the same
has to be undertaken only by the ASI and by no other authority.
12. Both the learned counsel therefore submit that it is necessary
to injunct the respondents-State from carrying out any further
construction activity during the pendency of the present appeals.
13. Shri Ashok Parija, learned Advocate General, submits that
under clause (da) of Section 2 of the said Act, the word “Authority” has
been defined to mean the NMA constituted under Section 20F. He submits
that clause (db) of Section 2 of the said Act defines “competent authority”
to mean an officer not below the rank of Director of archaeology or
Commissioner of archaeology of the Central or State Government or
equivalent rank, specified, by notification in the Official Gazette, as the
competent authority by the Central Government. He submits that the
Government of India vide Notification dated 13th February, 2012, in
exercise of the powers conferred by the proviso to clause (db) of Section
2 of the said Act has notified Director, Culture, Department of Tourism
and Culture (Culture), Government of Odisha, Bhubaneshwar as the
“competent authority” for the State of Odisha for the purpose of Sections
20C and 20D of the said Act. The learned Advocate General further
submits that “grant of
permission by competent authority” is regulated
by Section 20D of the said Act. He further submits that in view of the
provisions of Section 20D of the said Act, the competent authority for
the State of Odisha had made an application for grant of NOC to NMA.
NMA vide order dated 4th September, 2021 granted its NOC for carrying
out various works within the prohibited area and the regulated area.
14. The learned Advocate General further submitted that clause
(dc) of Section 2 of the said Act defines “construction”. He submits that
the definition specifically excludes any re-construction, repair and
renovation of an existing structure or building, or, construction,
maintenance and cleansing of drains and drainage works and of public
latrines, urinals and similar conveniences, or, the construction and
maintenance of works meant for providing supply of water for public, or,
the construction or maintenance, extension, management for supply and
distribution of electricity to the public or provision for similar facilities
for public.
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
ORS. [B. R. GAVAI, J.]
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15. The learned Advocate General further submitted that the three-
Judge Bench of this Court in the case of Mrinalini Padhi vs. Union of
India and others1 has itself found that it was necessary to construct
separate toilets for male and female. He further submitted that this Court
in the said case itself has directed ASI to cooperate and to permit the
activities of improvement which are necessary for providing facilities to
the public at large.
16. Mr. Pinaki Mishra, learned Senior Counsel, submits that taking
into consideration the fact that there was serious inconvenience to the
devotees who throng in lakhs during the Rath Yatra period, it was found
necessary that the area within the radius of 75 meters surrounding the
Temple be cleared for passage to the devotees. He submitted that on an
average, about 60,000 devotees visit the Temple every day. There are
no proper queues for the devotees to maintain discipline and enter the
Temple. He submits that the basic facilities like toilets for women and
men were lacking. As such, taking into consideration the larger public
interest, the Government had acquired the buildings in the vicinity which
were constructed as lodges decades ago, by spending an amount of
Rs.700 crores. He submitted that the entire area surrounding the Temple
was acquired through negotiations without resorting to the provisions of
the Land Acquisition Act. He submits that these buildings were owned
by
Sevayats, who are also not opposing the developmental work
surrounding the Temple and, on the contrary, support the same.
17. Mr. Pai Amit, learned counsel appearing on behalf of the
applicants/interveners/impleaders and Mr. Swetaretu Mishra, learned
counsel appearing on behalf of Shree Jagannath Temple Managing
Committee also support the submissions made by the learned Advocate
General.
18. Mr. A.D.N. Rao, learned Senior Counsel appearing for ASI
submits that the stand of the ASI is reflected in the affidavit filed before
the High Court of Orissa and states that the ASI has no objection to the
construction being carried out strictly in conformity with the provisions
of law.
19. Though the present appeals challenge the interlocutory order
passed by the Division Bench of the High Court, since lengthy arguments
1 (2019) 18 SCC 1
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have been advanced on behalf of both the parties, we find it appropriate
to consider the submissions on merits, as advanced.
20. Before we consider the challenge with regard to violation of
the statutory provisions, it will be apposite to refer to an earlier decision
of this Court, which will have a bearing on the decision in the present
matter.
21. A three-Judge Bench of this Court in the case of Mrinalini
Padhi (supra), had an occasion to consider the situation prevailing in the
vicinity of Shree Jagannath Temple. This Court in the said case had
initially passed an order on 8th June, 2018, directing the District Judge,
Puri to submit a report. This Court thereafter vide order dated 9th January,
2019, appointed Shri Ranjit Kumar, learned Senior Counsel as Amicus
Curiae and Ms. Priya Hingorani, learned Senior Counsel was requested
to assist him in the matter. Shri Ranjit Kumar, learned Amicus Curiae
has submitted interim reports from time to time on the basis of which
certain orders came to be passed. Finally, vide the order dated 4th
November, 2019, this Court issued various directions. While issuing the
directions, this court had also taken on record the views of various
stakeholders.
22. This Court in paragraph 17 of the judgment in the case of
Mrinalini Padhi (supra) had found that redevelopment plan around the
Temple is mainly to decongest the area for the benefit of pilgrims and to
make the city of Puri a world heritage city. This Court also
recorded that
nobody was opposing the reforms for the betterment of the place. This
Court also noticed in paragraph 18 that during the annual Rath Yatra,
lakhs of people visit the Temple town and the congregation is
unmanageable.
23. This Court took on record the observations of Shri Ranjit Kumar,
learned Amicus Curiae as well as Ms. Priya Hingorani, learned Senior
Counsel, who had personally visited the Temple premises. A perusal of
the order would reveal that this Court had also requested Shri Tushar
Mehta, learned Solicitor General of India to personally visit the Temple
premises. From their observations, it was found that the Temples inside
the Mathas, their Gaadis, Samadhis and other artefacts have been
preserved.
24. In paragraph 40, this Court issued various directions. In
paragraph 40.15, this Court directed that there was necessity to have a
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proper darshan by people at large. It was also directed that it was
necessary to avoid commotion and chaos as large number of pilgrims
visit the Temple every day. This Court therefore directed the Temple
Administration and the Chief Administrator including the State
Government to prepare a roadmap with the help of experts for having
proper darshan by the devotees/pilgrims. In paragraph 40.16, this Court
further directed the Temple administration and also the Temple police to
ensure that there would be a dedicated section of personnel to tighten
security inside the Temple and ensure that no such incident takes place
in the Temples and no misbehaviour is meted out to women.
25. It will also be relevant to reproduce the directions in paragraph
40.19 and 40.20, which read thus:
“40.19. The learned Amicus Curiae has also pointed out that there
is a necessity for separate toilets for male and female. We direct
that let the toilets be provided with modern amenities and should
be kept absolutely clean. The number of toilets shall be adequate
having regard to the average footfall in the temple, which is large
in number.
40.20. There is a necessity pointed out about the cloak rooms.
Let steps be taken by the Temple administration in this regard.”
26. It could thus be seen that the three-Judge Bench of this Court
has emphasized on the necessity to have separate toilets for male and
female. This Court further directed that the
toilets be provided with
modern amenities and should be kept absolutely clean. This Court also
directed that the number of toilets shall be adequate having regard to the
average footfall in the Temple. This Court further emphasized the
necessity to have cloak rooms and directed the Temple administration to
take steps in that regard.
27. This Court further directed the ASI to cooperate and to permit
the activities of improvement which are not prima facie objectionable
and are necessary for public hygiene, sanitation and public health. This
Court only put a rider that the form of the new structure is maintained in
the same manner as the ancient one.
28. It would thus clearly reveal that the nature of construction
which is undertaken by the respondents-State and the Temple
administration is in tune with the directions issued by this Court.
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29. In this background, we will proceed to consider the submissions
with regard to the violation of the provisions of the said Act.
30. Clauses (da), (db) and (dc) of Section 2 of the said Act define
“Authority”, “competent authority” and “construction” respectively, which
are as under:
“2. Definitions.- In this Act, unless the context otherwise
requires,-
(a)
………………………………………………….
(da) “Authority” means the National Monuments Authority
constituted under Section 20-F;
(db) “competent authority” means an officer not below the rank
of Director of Archaeology or Commissioner of
Archaeology of the Central or State Government or
equivalent rank, specified, by notification in the Official
Gazette, as the competent authority by the Central
Government to perform functions under this Act:
Provided that the Central Government may, by notification
in the Official Gazette, specify different competent
authorities for the purpose of Sections 20-C, 20-D and 20-
E;
(dc)
“construction” means any erection of a structure or a building,
including any addition or extension thereto either vertically
or horizontally, but does not include any re-construction,
repair and renovation of an existing structure or building,
or, construction, maintenance and cleansing of drains and
drainage works and of public latrines, urinals and similar
conveniences, or, the construction and maintenance of works
meant for providing supply of water for public, or, the
construction or maintenance,
extension, management for
supply and distribution of electricity to the public or provision
for similar facilities for public;”
31. Section 20A of the said Act reads thus:
“PROHIBITED AND REGULATED AREAS
20A. Declaration of prohibited area and carrying out public
work or other works in prohibited area.—Every area, beginning
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at the limit of the protected area or the protected monument,
as the case may be, and extending to a distance of one hundred
metres in all directions shall be the prohibited area in respect
of such protected area or protected monument:
Provided that the Central Government may, on the
recommendation of the Authority, by notification in the Official
Gazette, specify an area more than one hundred metres to be
prohibited area having regard to the classification of any
protected monument or protected area, as the case may be,
under Section 4-A.
(2) Save as otherwise provided in Section 20-C, no person,
other than an archaeological officer, shall carry out any
construction in any prohibited area.
(3) In a case where the Central Government or the Director-
General, as the case may be, is satisfied that—
(a) it is necessary or expedient for carrying out such public
work or any project essential to the public; or
(b) such other work or project, in its opinion, shall not have
any substantial adverse impact on the preservation,
safety, security of, or, access to, the monument or its
immediate surrounding.
It or he may, notwithstanding anything contained in sub-
section (2), in exceptional cases and having regard to the public
interest, by order and for reasons to be recorded in writing,
permit, such public work or project essential to the public or
other constructions, to be carried out in a prohibited area:
Provided that any
area near any protected monument or its
adjoining area declared, during the period beginning on or after
the 16th day of June, 1992 but ending before the date on which
the Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Bill, 2010, receives the assent of
the President, as a prohibited area in respect of such protected
monument, shall be deemed to be the prohibited area declared
in respect of that protected monument in accordance with the
provisions of this Act and any permission or licence granted by
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the Central Government or the Director-General, as the case
may be, for the construction within the prohibited area on the
basis of the recommendation of the Expert Advisory
Committee, shall be deemed to have been validly granted in
accordance with the provisions of this Act, as if this section
had been in force at all material times:
Provided further that nothing contained in the first proviso
shall apply to any permission granted, subsequent to the
completion of construction or re-construction of any building
or structure in any prohibited area in pursuance of the
notification of the Government of India in the Department of
Culture (Archaeological Survey of India) Number S.O. 1764,
dated the 16th June, 1992 issued under Rule 34 of the Ancient
Monuments and Archaeological Sites and Remains Rules, 1959,
or, without having obtained the recommendations of the
Committee constituted in pursuance of the order of the
Government of India Number 24/22/2006-M, dated the 20th
July, 2006 (subsequently referred to as the Expert Advisory
Committee in orders dated the 27th August, 2008 and the 5th
May, 2009).]
(4) No permission, referred to in sub-section (3), including
carrying out any public work or project essential to the public
or other constructions, shall be granted in any prohibited area
on and after the date on which the Ancient Monuments and
Archaeological Sites and Remains (Amendment and Validation)
Bill, 2010 receives the assent of the President.”
32.
Sections 20C and 20D of the said Act read thus:
20C. Application for repair or renovation in prohibited
area, or construction or re-construction or repair or
renovation in regulated area.—(1) Any person, who owns
any building or structure, which existed in a prohibited area
before the 16th day of June, 1992, or, which had been
subsequently constructed with the approval of the Director-
General and desires to carry out any repair or renovation of
such building or structure, may make an application to the
competent authority for carrying out such repair or renovation,
as the case may be.
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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(2) Any person, who owns or possesses any building or
structure or land in any regulated area, and desires to carry
out any construction or re-construction or repair or renovation
of such building or structure on such land, as the case may be,
may make an application to the competent authority for carrying
out construction or re-construction or repair or renovation, as
the case may be.
GRANT OF PERMISSION BY COMPETENT
AUTHORITY
20D. Grant of permission by competent authority within
regulated area.—(1) Every application for grant of permission
under Section 20-C of this Act shall be made to the competent
authority in such manner as may be prescribed.
(2) The competent authority shall, within fifteen days of
the receipt of the application, forward the same to the Authority
to consider and intimate impact of such construction (including
the impact of large-scale development project, public project
and project essential to the public) having regard to the heritage
bye-laws relating to the concerned protected monument or
protected area, as the case may be:
Provided that the Central Government may prescribe the
category of applications in respect of which the permission
may be granted under this sub-section and the application which
shall be referred to the Authority for its recommendations.
(3) The Authority shall, within two months from the date of
receipt of application under sub-section (2), intimate to the
competent
authority impact of such construction (including the
impact of large-scale development project, public project and
project essential to the public).
(4) The competent authority shall, within one month of the
receipt of intimation from the Authority under sub-section (3),
either grant permission or refuse the same as so recommended
by the Authority.
(5) The recommendations of the Authority shall be final.
(6) In case the competent authority refuses to grant
permission under this section, it shall, by order in writing, after
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giving an opportunity to the concerned person, intimate such
refusal within three months from the date of receipt of the
application to the applicant, the Central Government and the
Authority.
(7) If the competent authority, after grant of the permission
under sub-section (4) and during the carrying out of the repair
or renovation work or re-construction of building or construction
referred to in that sub-section, is of the opinion (on the basis of
material in his possession or otherwise) that such repair or
renovation work or re-construction of building or construction
is likely to have an adverse impact on the preservation, safety,
security or access to the monument considerably, it may refer
the same to the Authority for its recommendations and if so
recommended, withdraw the permission granted under sub-
section (4) if so required:
Provided that the competent authority may, in exceptional
cases, with the approval of the Authority grant permission to
the applicant referred to in sub-section (2) of Section 20-C
until the heritage by-laws have been prepared under sub-section
(1) of Section 20-E and published under sub-section (7) of that
section.
(8) The Central Government, or the Director-General, as
the case may be, shall exhibit, on their website, all the
permissions granted or refused under this Act.”
33. It could thus be seen that the “authority” has been defined
under Section 2(da) of the said Act to be a “National Monuments
Authority” constituted
under Section 20F of the said Act.
34. As per Section 2(db) of the said Act, the “competent authority”
means an officer not below the rank of Director of archaeology or
Commissioner of archaeology of the Central or State Government or
equivalent rank, specified, by notification in the Official Gazette, as the
competent authority by the Central Government to perform functions
under the said Act.
35. Undisputedly, the Director, Culture, Department of Tourism
and Culture (Culture), Government of Orissa, vide notification issued by
the Government of India dated 13th February 2012, has been notified to
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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be “competent authority” for the State of Orissa for the purposes of
Sections 20C and 20D of the said Act.
36. Clause (dc) of Section 2 of the said Act would be the most
important one. The definition of “construction” specifically excludes the
following:
(i)
Re-construction, repair and renovation of an existing
structure or building;
(ii)
Construction, maintenance and cleansing of drains and
drainage works and of public latrines, urinals and similar
conveniences;
(iii)
Construction and maintenance of works meant for providing
supply of water for public; and
(iv)
Construction or maintenance, extension, management for
supply and distribution of electricity to the public or provision
for similar facilities for public.
37. No doubt that the learned counsel for the appellant is right in
relying on sub-section (4) of Section 20A of the said Act which prohibits
any permission including the one for carrying out any public work or
project essential to the public or other constructions in any prohibited
area referred to in sub-section (3) thereof on and after the date on which
the Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Bill, 2010 receives the assent of the
President. The same was brought into the statute book by Act No. 10 of
2010.
38. It is further to be noted that by the very same amendment,
Section 20C of the said Act has also been brought into the statute book.
Sub-section (1) of
Section 20C of the said Act provides that any person,
who owns any building or structure, which existed in a prohibited area
before 16th June, 1992, or, which had been subsequently constructed
with the approval of the Director-General and desires to carry out any
repair or renovation of such building or structure, may make an application
to the competent authority for carrying out such repair or renovation, as
the case may be. Likewise, sub-section (2) of Section 20C of the said
Act enables a person, who owns or possesses any building or structure
or land in any regulated area, and desires to carry out any construction
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or re-construction or repair or renovation of such building or structure
on such land, as the case may be, to make an application to the competent
authority for carrying out construction or re-construction or repair or
renovation, as the case may be.
39. Section 20D of the said Act deals with grant of permission by
competent authority within regulated area. Sub-section (1) of Section
20D of the said Act provides that an application for grant of permission
under Section 20C of the said Act, shall be made to the competent
authority. Sub-section (2) thereof requires the competent authority to
forward the same to the authority to consider and intimate impact of
such construction having regard to the heritage bye-laws relating to the
concerned protected monument or protected area. Under proviso to sub-
section (2) thereof, the Central Government is empowered to prescribe
the category of applications in respect of which the permission will be
granted under this sub-section and the applications which shall be referred
to the authority for its recommendations. Under sub-section (3) thereof,
the authority is required to intimate, within two months from the date of
receipt of application under sub-section (2) thereof, to the competent
authority, the impact of such construction etc. Under sub-section (4)
thereof, the competent authority is required to either grant permission or
refuse the same as so recommended by the authority within one month
of the receipt of
intimation from the authority under sub-section (3)
thereof. Under sub-section (5) thereof, a finality is given to the
recommendations of the authority.
40. It is a settled principle of law that all the provisions in the
statute have to be read harmoniously. It is presumed that each and every
provision has been brought by the legislature into the statute book with
some purpose. A particular provision cannot be read in isolation and has
to be read in context to each other. An attempt has to be made to reconcile
all the provisions of the statute together, unless it is impossible.
41. At first blush, the arguments of the appellants on the basis of
sub-section (4) of Section 20A of the said Act may appear to be attractive.
But when sub-section (4) of Section 20A of the said Act is read in harmony
with clause (dc) of Section 2 and the provisions of Sections 20C and
20D of the said Act, we find that the submission that no construction at
all can be made in the prohibited area or the regulated area, would be
unsustainable.
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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42. Firstly, it is to be noted that clause (dc) of Section 2 of the said
Act itself excludes four categories as mentioned hereinabove from the
definition of “construction”. The legislative intent is thus clear that the
four categories which are excluded from the definition of “construction”
as defined in clause (dc) of Section 2 of the said Act would not be
treated as a “construction”, wherever the said term is referred to in the
statute. The legislative intent is clear that the re-construction, repair,
renovation of the existing buildings has been excluded from the definition.
Similarly, the construction, maintenance etc. of drains, drainage works,
public latrines and urinals; the construction and maintenance of works
meant for providing supply of water to public; and construction etc. for
distribution of electricity, which could be construed to be essential services
for catering to the needs of the public at large, have consciously been
kept out of the definition of “construction”. It could be presumed that
the legislature was aware that repairs and reconstruction of existing
structures or buildings or construction of essential facilities like public
latrines, urinals, water supply and electricity distribution for the pilgrims/
residents are basic necessities and as such, should be permitted even in
the prohibited area. If it is not so interpreted, then Section 20C of the
said Act would be rendered otiose and
redundant. It need not be
emphasized that an interpretation which leads a particular provision to
be otiose or redundant or meaningless, has to be avoided.
43. It could further be seen that the said position is also clarified in
the affidavit filed by the Superintending Archaeologist, ASI before the
High Court, which reads thus:
“E. While the works, such as toilets, drains, electrical works, etc.,
do not fall within the definition of ‘’construction”, and therefore
can be carried out even in the prohibited area. Some other works,
such as the reception center, fall squarely with the definition of
“construction”, and being in the prohibited area, is not permitted.”
44. Section 20D of the said Act deals with the entire procedure
regarding grant of permission by the competent authority within regulated
area. Undisputedly, in the present case, the competent authority has
complied with the procedure as required under Section 20D of the said
Act and the authority, i.e., the NMA has granted its permission for the
work, which is undertaken. It will be appropriate to refer to the relevant
part of the order dated 4th September 2021, passed by the NMA, which
reads thus:
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“2. After examination of the case, it is stated that the Authority
has “No Objection’ under assurance of strict compliance of
AMASR, Act, 1958. Section 2 (de), to the execution of the
following works in the prohibited area namely Cloak Room, Mini
Cloak Room, Shelter pavilion. Female Toilet, Male Toilet, Sevayat
Toilet, Electrical Room, and Pavement area, including a place to
stand in queue for toilets and reaching sanctum sanctorum that
are permitted under the exception clause to the definition of
“Construction” as given in the above mentioned section. In respect
of the other proposed construction works in the prohibited-area-
namely Reception Centre, Information cum Donation Kiosk, First
Aid Centre, Police Service Centre and ATM. Kiosk, it is requested
that details with regard to the facilities for the public which are
sought to he provided through these structures to justify their
location in the prohibited area or may be re-located in the _
Regulated area. Further, it may clearly be established with relevant
details that the scale of repair/renovation proposed to be carried
out in Bada Chhata Matha and Chhauni Matha does not tantamount
to addition/alteration or reconstruction.”
45. Insofar as the objections in the report of the ASI is concerned,
it will be relevant to refer to the note signed by the Director General of
ASI dated 21st February 2022, which reads thus:
“1. Shree Jagannath Temple, Puri
I visited the Shree Kshetra Shree Jagannath Temple, a
centrally
protected monument and the proposed area of work. The concept
plan of the State Government aims to provide amenities and
beautify the entire environs of the temple. The proposed amenities
fall within the prohibited area of the temple. Since these amenities
are required for the devotees, it was agreed that this may be
allowed. ASI would work in coordination with the State Government
on the design so that there is no visual impact on the main temple.
State Government was also requested to keep the entire design
simple in tandem with the spiritual nature of the entire temple
complex.
One point of discussion was the proposed Reception centre
which is at a distance of 75 metres from the temple (part falls
under the prohibited area). This bui1ding is proposed to be used to
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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hold devotees before they proceed to the main complex. Given
that this would be very essential, it was decided that the State
Government would consider options to slightly move the building
beyond 100 metres; this would also be good in the interest of
security of the temple.”
46. It could thus clearly be seen that the Director-General has
observed that the amenities which fall within the prohibited area of the
temple are required for the devotees, and therefore, it was agreed that
this may be allowed. It was further observed that the ASI would work in
coordination with the State Government on the design so that there is no
visual impact on the main temple. The State Government was also
requested to keep the entire design simple in tandem with the spiritual
nature of the entire temple complex.
47. In the impugned order, even the Division Bench of the High
Court has recorded the statement of the learned Advocate General to
the effect that both ASI and the State Government would work together.
Insofar the reception area is concerned, the impugned order would also
reveal that the learned Advocate General has clarified that it will now be
moved out of the prohibited area and it will be constructed in the regulated
area.
48. It will further be relevant to refer to the following extract of
the note of the Director-General of ASI, which reads thus:
“The potential of both Puri and Ekamrakshetra to be taken up for
World/
Heritage was also discussed. A brief overview of the World
Heritage guidelines especially relating to management of buffer
zone and the Outstanding Universal value of both temples was
shared with them. It was agreed that all work in both places would
be designed and executed, keeping in mind the possibility of
becoming World Heritage Sites, going forward. The State
Government was also requested to remove all encroachments
from VaitalDeul and Paramaguru temple which is one of the oldest
temple of Kalingan Architecture. The issue of shifting of the
kitchen of Anantabasudev temple to another. suitable location was
also discussed.”
49. It could thus clearly be seen that even the Director-General
of ASI has recognized the potential of Puri and Ekamrakshetra for
being taken up as World Heritage sites. It was agreed that all the work
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in both the places would be designed and executed keeping in mind the
possibility of developing them for being acknowledged as World
Heritage Sites.
50. The affidavit of the Superintending Archaeologist, ASI to which
we have already referred to hereinabove, would also reveal that there
does not appear to be any serious objection with regard to construction
of works such as toilets, drains and electrical works in the prohibited
area. There also does not appear to be any serious objection with regard
to undertaking construction in the regulated area. The insistence is that
the construction has to be carried out after necessary permissions are
obtained from the NMA under the provisions of the said Act. Another
concern appears to be that the entire design or the facilities should be
simple, in tandem with the spiritual nature, design and aesthetic of the
entire temple complex.
51. Taking into consideration all these aspects of the matter, it is
amply clear that the construction activities which are being undertaken,
are being undertaken in pursuance of the directions issued by a three-
Judge Bench of this Court in the case of Mrinalini Padhi (supra). The
construction is being carried out for the purpose of providing basic and
essential amenities like toilets for men and women, cloak rooms, electricity
rooms etc. These are the basic facilities which are necessary for the
convenience of the devotees at large. As already discussed hereinabove,
the legislative
intent appears to be clear. The legislature has deliberately
excluded four categories from the definition of “construction”. The
purpose behind it appears to be that the repairs and renovation of the
buildings, which are existing and the constructions which are necessary
for providing basic facilities like drainage, toilets, water supply and
distribution of electricity should be kept out of the rigour of requirement
of statutory permissions.
52. An argument was sought to be advanced by Shri Navare that
the said provision is only to enable a person who resides in the prohibited
area to get his existing structure re-constructed, repaired and renovated
and the said provision cannot come to the aid of the State to create
facilities for the public. Such an argument is taken note of only to be
rejected. If an individual person can construct a toilet in a prohibited
area; can the State be denied to do so, when the State finds it necessary
to do it in the larger public interest for providing basic facilities to the
lakhs of devotees visiting the shrine? The answer is an emphatic ‘no’.
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
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53. A hue and cry was made that the construction carried out is
contrary to the Inspection Report carried out by the ASI. However, the
note of the Director General of ASI dated 21st February, 2022 as well as
the affidavit filed by the ASI before the High Court would falsify this
position.
54. It would further be relevant to note that the High Court itself
has recorded the statement of the learned Advocate General for State
of Odisha that both the ASI and the State Government would work
together to ensure that no archaeological remains are missed out or
damaged.
55. It could thus be seen that even if the appellants had any genuine
concern, the same is already taken care of in the impugned order.
56. In spite of that, the matter was mentioned for obtaining urgent
orders before the Vacation Bench on Monday, i.e., 30th May, 2022. Since
the matter was not listed on Tuesday, i.e., 31st May, 2022, it was again
mentioned on the said date. Again, a hue and cry was made as if heavens
are going to fall if the petitions were not listed. As such, the petitions
were listed on Thursday, i.e., 2nd June, 2022. We have heard the learned
counsel for the parties at length.
57. We have no hesitation in holding that the activities undertaken
by the State are completely in tune with the directions issued by the
three-Judge Bench of this Court in the case of Mrinalini Padhi (supra).
They are necessary in the larger public interest and there
is no prohibition
in the statute for doing so, as sought to be argued by the appellants.
58. We, therefore, find no merit in the contentions raised on behalf
of the appellants. We are of the considered view that the public interest
litigation filed before the High Court rather than being in public interest,
is detrimental to the public interest at large.
59. In the recent past, it is noticed that there is mushroom growth
of public interest litigations. However, in many of such petitions, there is
no public interest involved at all. The petitions are either publicity interest
litigations or personal interest litigation. We highly deprecate practice of
filing such frivolous petitions. They are nothing but abuse of process of
law. They encroach upon a valuable judicial time which could be otherwise
utilized for considering genuine issues. It is high time that such so-called
public interest litigations are nipped in the bud so that the developmental
activities in the larger public interest are not stalled.
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60. In the result, the appeals, having been found to be without any
substance, are dismissed with costs, quantified at Rs.1,00,000/- (Rupees
one lakh) each, payable by the appellants to the respondent No.1 within
four weeks from the date of this judgment.
61. Pending application(s), if any, shall stand disposed of in the
above terms.
Devika Gujral
Appeals dismissed.
(Assisted by : Deepak Panwar, LCRA)
ARDHENDU KUMAR DAS v. THE STATE OF ODISHA AND
ORS. [B. R. GAVAI, J.]