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...

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

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