Clarifying 'Construction' in Prohibited Areas Under AMASR Act: Ardhendu Kumar Das v. State of Odisha (2022 INSC 637)

Introduction

The Supreme Court of India, in the case of Ardhendu Kumar Das (S) v. State Of Odisha And Others (2022 INSC 637), addressed significant issues pertaining to construction activities within the prohibited areas surrounding the Shree Jagannath Temple complex. The case primarily involved the state government's undertaking of construction projects deemed unauthorized by petitioners, who were concerned about the preservation of the ancient monument. This commentary delves into the intricacies of the judgment, highlighting the court's stance on balancing heritage conservation with public infrastructure development.

Summary of the Judgment

The Supreme Court dismissed the Special Leave Petitions filed by Ardhendu Kumar Das and Sumanta Kumar Ghadei, who contested the Division Bench of the Orissa High Court's interlocutory order allowing the State of Odisha to proceed with construction activities around the Shree Jagannath Temple. The core of the court's decision hinged on the interpretation of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act), particularly the definitions and exceptions related to "construction." The Supreme Court upheld that certain construction activities, such as building toilets and public amenities, fall outside the strict definition of "construction" as per the Act and are permissible within prohibited areas when aimed at serving public interests without adversely affecting the monument.

Analysis

Precedents Cited

The judgment extensively referenced the earlier Supreme Court case of Mrinalini Padhi v. Union of India (2019) 18 SCC 1. In this precedent, the court emphasized the necessity of decongesting temple areas for better management during peak pilgrim influx, highlighting the balance between preservation and public utility. The current judgment builds upon this precedent by reinforcing the permissible scope of construction aimed at enhancing public facilities without compromising the heritage site's integrity.

Legal Reasoning

The Supreme Court's reasoning centered on the harmonious interpretation of the AMASR Act's provisions. It highlighted the following key points:

Definition of "Construction": The court emphasized that "construction" under Section 2(dc) of the AMASR Act excludes activities such as re-construction, repair, renovation of existing structures, and the building of essential public facilities like toilets and drains.
Exception Clause: Under Section 20A(3) and the amendment introduced by the 2010 Act, construction for public welfare can be permitted in prohibited areas if deemed necessary and not adversely impacting the monument.
Compliance with Procedures: The State of Odisha followed the prescribed procedures under Sections 20C and 20D, obtaining necessary permissions from the National Monuments Authority (NMA) and ensuring that the construction activities aligned with heritage preservation directives.
Public Interest: The court recognized the significant public interest in facilitating smooth pilgrim movement and ensuring the provision of basic amenities, which justified the balanced approach towards development and conservation.

Impact

This judgment sets a crucial precedent for interpreting "construction" within heritage-protected zones. It delineates the boundaries between permissible public utility projects and restrictive preservation mandates, thereby guiding future infrastructure developments around ancient monuments. By affirming that essential public facilities do not constitute "construction" under the Act, the court provides clarity that fosters both preservation and necessary modernization.

Complex Concepts Simplified

Definition of "Construction" under AMASR Act

Under Section 2(dc) of the AMASR Act, "construction" refers to the erection of new structures or buildings, including additions or extensions. However, it excludes reconstruction, repair, renovation of existing buildings, and the construction of essential public utilities such as toilets, drains, water supply facilities, and electricity distribution works. This distinction is pivotal in determining what activities require stringent permissions within prohibited areas.

Prohibited vs. Regulated Areas

Section 20A of the AMASR Act defines prohibited areas as zones extending 100 meters around protected monuments. Within these areas, construction is generally restricted. However, the Act provides exceptions for essential public works, which must be approved by competent authorities based on their impact on the monument's preservation and accessibility.

Role of Competent Authorities

The Act designates specific authorities, such as the National Monuments Authority (NMA) and state-level competent authorities, to oversee and grant permissions for construction activities. These bodies ensure that any approved projects align with heritage conservation goals and do not adversely affect the monuments.

Conclusion

The Supreme Court's decision in Ardhendu Kumar Das v. State of Odisha underscores the judiciary's role in interpreting heritage conservation laws in a manner that accommodates public welfare needs. By clarifying the scope of "construction" and endorsing a balanced approach, the court facilitates the development of essential public infrastructure without compromising the integrity of ancient monuments. This judgment not only reaffirms the importance of preserving cultural heritage but also acknowledges the necessity of adapting such sites to contemporary public needs.

The ruling serves as a guiding framework for future cases involving heritage sites, ensuring that development and preservation coexist harmoniously. It also cautions against frivolous public interest litigations that impede genuine progress, thereby promoting efficient and purposeful utilization of judicial resources.