Construction Of Essential Facilities Like Toilets, Water Supply Permissible In Prohibited Areas Near Archaeological Monuments : Supreme Court

While allowing the development works carried by Odisha Government near the historic Puri Jagannath Temple, the Supreme Court held that construction of essential facilities like toilets, water supply etc., are permissible within the prohibited area near a protected monument.

The Court held that the Ancient Monuments and Archaeological Sites and Remains Act(AMASR Act), 1958 does not absolutely bar such construction activities within the 100 meter prohibited area from a protected monument(Ardhendu Kumar Das vs State of Odisha).

According to Section 20A of the Act, area within the radius of 100 meters from the protected monument is declared as "prohibited area".

As per Section 20A(3), the Central Government or Director General can permit public works essential for public interest in prohibited area.

Section 20A(4) states that 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 after the date on which the 2010 Amendment to the AMASR Act received Presidential assent.

Relying on Section 20A(4), the petitioners argued that the construction of toilets etc by the State Government in the prohibited area of Jagannath Temple premises was illegal.

The Advocate General of Odisha argued that works like construction of toilets, drainages etc., are exempted from the definition of "construction" under Section 2(dc) of the Act.

The bench comprising Justices BR Gavai and Hima Kohli noted that 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.

The bench also noted that Sections 20C and 20D of the Act permits construction, repair, renovation etc in the prohibited area with the permission of the authority. In the instant case, the National Monument Authority has given permission for the construction activities.

The Court said that though the argument of the petitioner by relying on Section 20A(4) is attractive in first blush, the provision has to be read harmoniously with other provisions.

"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".

"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,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". 

Also, the need for toilets in the area was taken note of by the Supreme Court in the case Mrinalini Padhi vs. Union of India and others in which detailed directions were issued for the administration of the Jahgannath Temple. In that case,  the Court had emphasized on the necessity to have separate toilets for male and female. The Court further directed that the toilets be provided with modern amenities and should be kept absolutely clean. The Court also directed that the number of toilets shall be adequate having regard to the average footfall in the Temple.

In this backdrop, the bench observed :

"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:"

The petitioner raised an argument that such permission can be given only to an individual residing in the area for construction or renovation of an existing structure and not for the State to provide facilities for the public.

The bench rejected this argument as :

"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'".

Case Title : Ardhendu Kumar Das vs State of Odisha

Citation : 2022 LiveLaw (SC) 539

Head notes

Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Sections 20A, 20C, 20D -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 are kept out of the rigour of requirement of statutory permissions - Para 51

Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Sections 20A, 20C, 20D -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.(Para 41)

Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Section 2(dc)- Definition of "Construction" - The legislative intent is clear that the re­construction,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" (Para 41, 42)

Interpretation of Statutes - 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 (Para 40)

Public Interest Litigation - Frivolous PILs should be nipped in the bud - 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 so­called public interest litigations are nipped in the bud so that the developmental activities in the larger public interest are not stalled (Para 59)

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