Supreme Court Upholds Construction near Shree Jagannath Temple: Arhendu Kumar Das vs. State of Odisha (2022)

Date of the Judgment: June 3, 2022

Citation: 2022 INSC 502

Judges: B.R. Gavai, J., Hima Kohli, J.

Can developmental activities be permitted near ancient monuments, especially when they are for public convenience? The Supreme Court of India addressed this crucial question in a recent case concerning the Shree Jagannath Temple in Puri, Odisha. This judgment clarifies the extent of permissible construction within prohibited areas of protected monuments, balancing heritage preservation with public needs. The bench comprised Justices B.R. Gavai and Hima Kohli, who delivered a unanimous judgment.

Case Background

A Public Interest Litigation (PIL) was filed in the High Court of Orissa by Dillip Kumar Baral, challenging the construction activities undertaken by the State of Odisha and other respondents near the Shree Jagannath Temple. The petitioner alleged that these activities violated The Ancient Monuments and Archaeological Sites and Remains Act, 1958. The High Court did not grant an interim order to stop the construction, leading to the filing of the present appeals before the Supreme Court by Ardhendu Kumar Das and Sumanta Kumar Ghadei, who were intervenors in the High Court.

The appellants claimed to be ardent devotees of Lord Jagannath and social activists concerned about the preservation of ancient monuments. They contended that the ongoing construction was illegal and posed a threat to the temple’s structure and heritage.

Timeline:

Course of Proceedings

The High Court of Orissa, after hearing the Advocate General for the State of Odisha, did not grant an interim order to restrain the construction. Aggrieved by this, the appellants filed Special Leave Petitions before the Supreme Court. The Supreme Court allowed the intervention applications and granted leave in the Special Leave Petitions, considering the larger public interest involved. Raghunath Gochhikar and others, claiming to be Sevayats, were also allowed to intervene, supporting the State Government’s stand.

Legal Framework

The case primarily revolves around the interpretation of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as “the said Act”). Key provisions include:

• Section 2(da): Defines “Authority” as the National Monuments Authority (NMA).
• Section 2(db): Defines “competent authority” as an officer not below the rank of Director of Archaeology or Commissioner of Archaeology.
• Section 2(dc): Defines “construction” but excludes re-construction, repair, renovation of existing structures, and construction of public utilities like toilets, drains, and water supply.
  
  “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 re­construction, 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;”
• Section 20A: Declares a 100-meter area around protected monuments as a prohibited area. It restricts construction activities in the prohibited area, but allows for exceptions for public works in certain cases. Sub-section (4) specifies that no permission shall be granted for construction in any prohibited area after the date the Amendment Act of 2010 receives presidential assent.
  
  (4) No permission, referred to in sub­section (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.”
• Section 20C: Allows for applications for repair or renovation in prohibited areas for structures existing before June 16, 1992, or constructed with prior approval. It also allows for construction, re-construction, repair or renovation in regulated areas.
• Section 20D: Outlines the procedure for granting permission by the competent authority within regulated areas. The competent authority must forward the application to the NMA, which then provides its recommendations.
  
  20D. Grant of permission by competent authority within regulated area.—(1) Every application for grant of permission under Section 20­C 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 large­scale development project, public project and project essential to the public) having regard to the heritage bye­laws 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 sub­section 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 sub­section (2), intimate to the competent authority impact of such construction (including the impact of large­scale 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 sub­section (3), either grant permission or refuse the same as so recommended by the Authority.
  (5) The recommendations of the Authority shall be final.

Arguments

Appellants’ Arguments:

• The appellants argued that Section 20A(4) of the said Act, prohibits any construction in the prohibited area after the 2010 amendment.
• They contended that the NMA has no authority to permit construction, as it is only a recommendatory body under Section 20I of the said Act.
• They submitted that only the Archaeological Survey of India (ASI) can undertake construction in the prohibited area.
• The appellants relied on a communication dated 5th February, 2022 from the Conservation Assistant, ASI, to the Sr. Project Manager, OBCC, which stated that the respondents were carrying out unauthorised construction within the prohibited area.
• They argued that the ongoing excavation near the temple was hazardous to the old structure.

Respondents’ Arguments:

• The Advocate General for the State of Odisha argued that the NMA is the “Authority” under Section 2(da) of the said Act.
• The “competent authority,” as defined in Section 2(db) of the said Act, is the Director of Culture, Government of Odisha, who applied for the NOC to the NMA.
• The Advocate General argued that the definition of “construction” in Section 2(dc) of the said Act, specifically excludes re-construction, repair, renovation, and construction of public utilities like toilets and water supply. Therefore, the current works are not “construction” under the Act.
• The State relied on the Supreme Court’s judgment in Mrinalini Padhi vs. Union of India and others, which emphasized the need for separate toilets for men and women and other facilities for the devotees.
• The State argued that the construction was necessary to provide basic facilities to the large number of devotees visiting the temple. The area within 75 meters of the temple was acquired to clear passage for devotees.
• The State also argued that the buildings in the vicinity were acquired through negotiations, and the Sevayats supported the developmental work.

ASI’s Stand:

• The ASI stated that it has no objection to the construction being carried out in conformity with the provisions of law.
• The ASI also clarified that works such as toilets, drains, and electrical works do not fall under the definition of “construction”.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court did not frame specific issues but considered the following:

1. Whether the construction activities undertaken by the State of Odisha near Shree Jagannath Temple violate the provisions of The Ancient Monuments and Archaeological Sites and Remains Act, 1958.
2. Whether the NMA has the authority to grant permission for construction in the prohibited area.
3. Whether the definition of “construction” under the Act includes the construction of public utilities like toilets and water supply.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issues:

Authorities

The following authorities were considered by the Court:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed the judgment in Mrinalini Padhi vs. Union of India and others [CITATION: (2019) 18 SCC 1], which had previously emphasized the need for providing public facilities at the Shree Jagannath Temple. This case was crucial in establishing the necessity of the construction activities.
• The Court interpreted The Ancient Monuments and Archaeological Sites and Remains Act, 1958, harmoniously, giving due consideration to all the provisions of the Act. The Court held that the definition of “construction” under Section 2(dc) of the said Act specifically excludes the construction of public utilities such as toilets, drains, and water supply.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the need to balance heritage preservation with the practical needs of the public. The Court emphasized the following points:

• Public Convenience: The Court recognized the large number of devotees visiting the Shree Jagannath Temple and the need to provide basic facilities such as toilets, cloakrooms, and proper queue management.
• Legislative Intent: The Court interpreted the definition of “construction” in the Act to exclude essential public utilities, indicating a legislative intent to allow such facilities even in prohibited areas.
• Harmonious Interpretation: The Court harmonized different provisions of the Act, avoiding a narrow interpretation that would render certain sections redundant.
• Previous Directions: The Court noted that the construction activities were in line with the directions issued by a three-judge bench in Mrinalini Padhi, which had emphasized the need for public facilities at the temple.
• ASI’s Stand: The Court considered the ASI’s stand that it had no serious objection to the construction of essential public utilities in the prohibited area, provided it was in compliance with the law.

Fact:Law Ratio

The Court’s reasoning was a mix of factual considerations (such as the need for public convenience) and legal interpretation (of the Ancient Monuments Act). The legal aspects, particularly the interpretation of the definition of “construction” and the harmonious reading of the statute, weighed more heavily in the Court’s decision.

Logical Reasoning

Judgment

The Supreme Court held that the construction activities undertaken by the State of Odisha near the Shree Jagannath Temple were legal and necessary for providing basic facilities to the devotees. The Court reasoned that:

• The definition of “construction” in Section 2(dc) of the said Act specifically excludes the construction of public utilities like toilets, drains, and water supply.
• The construction activities were in line with the directions issued by the Supreme Court in Mrinalini Padhi vs. Union of India and others, which had emphasized the need for public facilities at the temple.
• The NMA, as the designated “Authority,” had granted permission for the construction after due process.
• The Court emphasized that all provisions of the statute have to be read harmoniously.
• The Court rejected the argument that only the ASI could undertake construction in the prohibited area, stating that the definition of construction excludes public utilities and other essential services.

The Court quoted the following from the judgment:

“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.”

“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’.”

“We have no hesitation in holding that the activities undertaken by the State are completely in tune with the directions issued by the three­Judge 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.”

The Court dismissed the appeals with costs of Rs. 1,00,000 each, payable by the appellants to the respondent No. 1 within four weeks.

Key Takeaways

• The definition of “construction” under The Ancient Monuments and Archaeological Sites and Remains Act, 1958, excludes essential public utilities like toilets, drains, and water supply.
• Construction of essential public utilities is permissible even in the prohibited area of ancient monuments, provided it is in line with the directions of the Supreme Court and the provisions of the Act.
• The National Monuments Authority (NMA) is the designated authority for granting permissions for construction near ancient monuments.
• The Supreme Court emphasized the need to balance heritage preservation with the practical needs of the public.
• Frivolous Public Interest Litigations which are detrimental to public interest are deprecated.

Directions

The Supreme Court did not give any specific directions, but it upheld the ongoing construction activities and imposed costs on the appellants.

Development of Law

The ratio decidendi of the case is that the definition of “construction” under Section 2(dc) of The Ancient Monuments and Archaeological Sites and Remains Act, 1958, excludes essential public utilities. This interpretation allows for the construction of such facilities even in prohibited areas, provided they are necessary for public convenience and are in compliance with the law. The judgment clarifies that the Act does not prohibit all construction in the prohibited areas, but only those that do not fall within the exception of public utilities. This is a change from a strict interpretation of Section 20A(4) which could have prohibited such construction.

Conclusion

The Supreme Court’s judgment in Arhendu Kumar Das vs. The State of Odisha and Ors., clarifies the scope of permissible construction activities near ancient monuments. By harmoniously interpreting the provisions of The Ancient Monuments and Archaeological Sites and Remains Act, 1958, the Court upheld the construction of essential public utilities near the Shree Jagannath Temple. This decision balances the need for heritage preservation with the practical needs of the public, emphasizing that development activities for public convenience are permissible when they are in line with the law and the directions of the Court.