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 ORS.
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 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, subsection (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 reconstruction 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. 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 ORS.
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; 377A-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 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][377F-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-GH; 380-B-D]
5. It could thus clearly be seen that even the DirectorGeneral 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] ORS.
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]
Mrinalini Padhi v.Union of India and others (2019) 18 SCC 1 : [2019] 16 SCR 811 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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