Terming a petition filed “in the public intetest” as frivolous, the vacation bench of the Supreme Court, on June 2, 2022, said the state cannot be prevented from making necessary arrangements to provide basic facilities to lakhs of devotees visiting the temple and construction activity being carried out by the Odisha government at the famed Shree Jagannath temple in Puri is necessary in larger public interest. The vacation bench of Justices BR Gavai and Hima Kohli rejected the PIL diled by Andhendu Das ( Ardhendu Kumar Das vs State of Odisha, 2022) and imposed a fine of Rs. 1 lakh on the appellants.
Brief Background of the Case
The petitioners Ardhendu Kumar Das, claiming to be an ardent devotee of Lord Jagannath and Mr. Sumanta Kumar Ghedai, a social worker and businessman, was relying on Section 20A, 20C and 20D of the Ancient Monument and Archaeological Sites and Remains Act, 1958. He had diled this appeals before the Supreme Court challenging the order of June 9, 2022 of the Division Bench of the Orissa High Court without being party to the proceedings in the High Court, which had refused to restrain the state government from going ahead with excavations and construction in around Lord Jagannath temple.
Arguments of Appellants
Senior counsel Mahalakshmi Pavani on behalf of the appellant Mr. Ardhendu Kumar Das, submitted that “No permission can be granted for carrying out any public work or project essential to the public or other construction in any prohibited area” and also cited Section 20A (4) of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (AMASR Act). Ms. Pavani submits that inspection report would reveal that there are serious irregularities in the work carried out by the 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”.
Vinay Navare, senior counsel submitted that National Monument Authority (NMA) is only a recommendatory authority and has no authority in law to permit any construction either in the prohibited area nor in the regulated area. He also submitted before the court that the same has to be undertaken only by the ASI and by no other authority. Mr. Navare has also submitted argument against the No Objection Certificate issued by the National Monument Authority to the state government on dated September 4, 2021.
Arguments of State Government
On behalf of the respondent-state government, Advocate General of Orissa Mr. Ashok Parija, submitted his submission against the arguments raised by the appellants that clause (dc) of Section 2 of the Act defines “construction”. He submits that the definition specifically excludes 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.
The Advocate General further submitted that the three-Judge Bench of this Court in the case of Mrinalini Padhi v. Union of India has itself found that it was necessary to construct separate toilets for males and females. He further submitted that the 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.
Advocate General Parija had also argued that under The Ancient Monuments and Archaeological Sites and Remains Act, the authority is the National Monument Authority, and the competent authority has been notified to be the Odisha government’s director culture on February 13, 2012. “Construction does not mean repair or remake existing structures or clean the sewage, drains etc. This is how it is understood and DG ASI also understands the same way. “Grant of permission was by director culture… the director culture of the government of Odisha is the competent authority. What was prohibited within 100 metres was construction. The concept plan of the state aims to provide amenities and beautify the temple,” he had said. He added that 60,000 people visit the temple everyday and there is a need for more toilets.
Senior Advocate Pinaki Mishra, also appearing for a respondent, submitted that during the annual Rath Yatra, around 15-20 lakh people visit the place, and there have been instances of stampedes in the past. Therefore, there was a need to clear the area and also to increase the amenities for pilgrims. “Entire sevayak association support this state govt venture to decongest the area so that Puri becomes a world heritage city. They are backing this as they have given their lands and buildings and want the work to be completed”, he submitted
Senior advocates Kapil Sibal and Pinaki Misra, who also appeared in support of the state government, told the court that the petitioners have suppressed information from the court by showing a note by ASI of February 5, 2022 objecting to the construction and not disclosing a subsequent note of February 2, 2022 by director general, ASI permitting the construction of public amenities in the larger interest of devotees.
Decisions of Supreme Court
The apex court after perusing arguments made by counsels from both sides, held that 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.
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 mentioned that Sections 20C and 20D of the AMASR 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
The Court further 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”.
The acute 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 Jagannath Temple. In that case, the Court had emphasised on the need 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.
The apex Court with strict observations against the misuse of PIL, dismissed the appeals with costs of Rs. 1 Lakh, payable by the Appellants to the Orissa Government within 4 weeks from the date of this judgment.
SC Comment on Public Interest Litigation
SC pointed out that frivolous PILs should be nipped in the bud – In the recent past, it is noticed that there is mushrooming 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 (Para 59 of the Judgement)
The judgement may be read here: