Ardhendu Kumar Das vs The State Of Odisha

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._4515 OF 2022 [Arising out of Special Leave Petition (Civil) No.10427 of 2022]

ARDHENDU KUMAR DAS ...APPELLANT(S)

VERSUS THE STATE OF ODISHA AND ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO.4516 OF 2022 [Arising out of Special Leave Petition (Civil) No.10428 of 2022]

JUDGMENT

B.R. GAVAI, J.

1. Both these petitions challenge the interlocutory order

dated 9th May, 2022, passed by the Division Bench of the High Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.06.03 Court of Orissa at Cuttack, in Writ Petition (Civil) No.6257 of 12:04:22 IST Reason:

2022, wherein the Division Bench of the High Court has

1 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 22 nd 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.

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

2 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 8 th 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 9 th May,

2022 has been passed by the High Court, which is impugned in

the present Special Leave Petitions.

5. The petitioner­Ardhendu 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

3 Special Leave Petition challenging the order dated 9 th May, 2022

of the Division Bench of the High Court.

6. The petitioner­Sumanta 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.

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

4 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 appellant­Ardhendu Kumar

Das, Mr. Vinay Navare, learned Senior Counsel appearing on

behalf of the appellant­Sumanta 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 respondent­State, 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 sub­section (4) of Section 20A of the said Act, no

permission can be granted for carrying out any public work or

5 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 respondents­State. 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 so­called “No Objection Certificate” (“NOC” for

short) issued by the National Monuments Authority (“NMA” for

6 short) dated 4th September, 2021, is concerned, the said

Authority has no authority in law to permit construction.

Relying on the provisions of Section 20­I of the said Act, he

submits that NMA is only a recommendatory authority 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 respondents­State 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

7 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 13 th

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

8 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.

15. The learned Advocate General further submitted that the

three­Judge 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.

1 (2019) 18 SCC 1

9 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

10 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 have been advanced on behalf of both the

11 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 three­Judge 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 8 th

June, 2018, directing the District Judge, Puri to submit a

report. This Court thereafter vide order dated 9 th 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 4 th November, 2019,

12 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

13 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 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.

14

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 three­Judge 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

15 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 respondents­State and the Temple

administration is in tune with the directions issued by this

Court.

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:

16

“2. Definitions.­ In this Act, unless the context otherwise requires,­

(a) ………………………………………………….

(da) “Authority” means the National Monuments Authority constituted under Section 20­F;

(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, 20­D and 20­E;

(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 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

17 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 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 4­A. (2) Save as otherwise provided in Section 20­C, 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 Director­General, as the case may be, is satisfied that—

18

(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 sub­section (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 the Central Government or the Director­General, as the case may be, for the construction within the

19 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 24/22/2006­M, 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

20 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 re­construction 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 Director­General 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.

(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 re­construction 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 re­construction or repair or renovation, as the case may be.

GRANT OF PERMISSION BY COMPETENT AUTHORITY

21 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 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

22 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 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 sub­section (4) and during the carrying out of the repair or renovation work or re­ construction of building or construction referred to in that sub­section, is of the opinion (on the basis of material in his possession or otherwise) that such repair or renovation work or re­construction 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 sub­section (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 sub­section (2) of Section 20­C until the heritage by­ laws have been prepared under sub­

23 section (1) of Section 20­E and published under sub­section (7) of that section. (8) The Central Government, or the Director­General, 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 13 th

24 February 2012, has been notified to 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) Re­construction, 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 sub­section (4) of Section 20A of the said Act

25 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 sub­section

(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. Sub­section (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 16 th June, 1992, or,

which had been subsequently constructed with the approval of

the Director­General 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, sub­section

26 (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 re­construction 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. Sub­section (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. Sub­section (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 bye­laws relating to the concerned

protected monument or protected area. Under proviso to sub­

section (2) thereof, the Central Government is empowered to

27 prescribe the category of applications in respect of which the

permission will be granted under this sub­section and the

applications which shall be referred to the authority for its

recommendations. Under sub­section (3) thereof, the authority

is required to intimate, within two months from the date of

receipt of application under sub­section (2) thereof, to the

competent authority, the impact of such construction etc.

Under sub­section (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 sub­section (3) thereof.

Under sub­section (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.

28 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 sub­section (4) of Section 20A of the said Act may

appear to be attractive. But when sub­section (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.

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 re­construction,

29 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.

30

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 4 th September 2021, passed by

the NMA, which reads thus:

“2. After examination of the case, it is stated that the Authority has "No Objection' under assurance

31 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 area­namely 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 re­located 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 21 st February 2022, which reads

thus:

“1. Shree Jagannath Temple, Puri

32 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 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 Director­General has

observed that the amenities which fall within the prohibited

area of the temple are required for the devotees, and therefore,

33 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 Director­General 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

34 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 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

35 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 three­Judge 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

36 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 re­constructed,

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’.

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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 21 st

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., 30 th

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

38 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 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.

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

39 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 so­called public interest litigations are nipped in

the bud so that the developmental activities in the larger public

interest are not stalled.

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.

…….........................J. [B.R. GAVAI]

…….........................J. [HIMA KOHLI] NEW DELHI;

JUNE 03, 2022.

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