100 Mt Area From Protected Monument Red Line For Odisha Govt: Select Committee Report

From the lawns of the Odisha Assembly to the corridors of Parliament to the streets of the State, the battle over the mining and construction activities around the 12th century Jagannath temple in Puri has been raging.

On March 29, Odisha Assembly was in turmoil over the construction close to the protected monument. Raising the matter in the House, Puri BJP MLA Jayant Sarangi charged the State government with carrying out mining works in the periphery of the temple site without getting permission from apex heritage authorities like National Monument Authorities (NMA) and Archaeological Survey of India (ASI).

On March 31, Bhubaneswar MP and BJP national spokesperson Aparajita Sarangi raised the issue in the Lok Sabha. "The Ancient Monuments and Archaeological Sites and Remains (AMASR) Act passed by Parliament prohibits any construction within the 100-metre prohibited zone of a centrally-protected monument and regulates constructions within 200 metres of the monument after the permission from the National Monument Authority. But Odisha government has been carrying out massive digging around the temple without the mandatory permission of the Archaeological Survey of India (ASI) and National Monument Authority (NMA)."

The Controversy

The Shree Jagannath Heritage Corridor Project was unveiled by Odisha government in December 2019. The Shree Jagannath Temple Administration (SJTA) approved the architectural design plan of the project costing Rs 3,200 crore.

Chief Minister Naveen Patnaik laid the foundation stone for the project on November 24, 2021. Odisha Bridge Construction Corporation (OBCC) has been made the executing agency and Tata Projects the monitoring agency

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Use of JCB In Corridor Project

The controversy stirred up as  OBCC is involved only in constructing bridges and erecting buildings. It lacks expertise and experience in heritage conservation related works. Moreover, the use of JCB machines to dig up the area within the Centrally-protected shrine's prohibited zone (100 mt) to set up public amenities has made the experts fume over.

Reports show that work is being carried out beyond 7 metres from the Meghnad Prachir, which is the buffer zone of the temple.

ASI Letter To Odisha Works Dept

ASI has also raised a red herring to the constructions in the SJHC very recently. On Feb 8, the ASI Bhubaneswar Circle had shot a missive to the Secretary, Works Department, Odisha government, detailing violation of AMASR Act. (see the image above)

The AMASR Act

The Ancient Monuments and Archaeological Sites and Remains (AMASR), 1958, is an Act to provide for the preservation of ancient historical monuments and archaeological sites and remains of national importance. It is also for regulation of archaeological excavations for the protection of sculptures, carvings et al.

Section 19 of the Act clearly states that no person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining, quarrying, excavating, blasting or any operation of a like nature in such area, or utilise such area or any part thereof in any other manner without the permission of the Central Government.

The 1958 Act was amended in 2010 and 2017.

Aparjita - Pinaki Letter War

Refuting the charges levelled by BJP MP Aparjita Sarangi, Puri MP and BJD Parliamentary Leader Pinaki Mishra said Naveen Patnaik government never violates any law of the land.

The BJD MP had produced a letter dated Sept 9, 2021, purportedly sent by National Monuments Authority (NMA). The letter from NMA Director to Director, Odisha Culture Department states that the Authority has 'no objection' under strict compliance of AMASR Act 1958, Section 2 (dc), to execution of works in the prohibited areas namely cloakroom, toilets etc.

AMASR Act section 2 (dc)

At the same time, the NMA missive mentioned that with respect to other structures like reception centre, information-cum-donation kiosk, Police service centre, ATM kiosk, first aid centre etc facilities for the public in the prohibited area, the State government should file a detailed reply to justify the necessity of the works. (see the image above)

Sticking to her statement in Parliament, the former bureaucrat-turned-politician has, even, posted an ASI letter dated Feb 5, 2022.

In order to buttress her charges against the State government, the BJP MP produced a letter. As per the letter produced, ASI Puri sub-circle had sent a missive to the Project Manager of Odisha Bridge and Constructions Company Ltd (OBCC), a State PSU, labelling the ongoing construction as unauthorised as it violates the AMASR Act and requested to cease the work immediately. 

Lens On Letters

Thorough scanning of the purported NMA letter reveals that the Odisha government has sought permission from the NMA for constructing public facilities ranging from toilets, cloakrooms etc to reception centre, information kiosk et al. But the NMA has not given any in-principle nod to other public facilities.

The letter, however, mentioned that while implementing the Sri Mandir Heritage Corridor Project, Odisha government has to strictly comply with the AMASR Act Section 2 (dc).

What Section 2 (dc) Says?

As the AMASR Act prohibits 'construction' or 'excavation' of any kind within the prohibited area (100mt) from the protected monument, Section 2 (dc) of the Act explains what constitutes the word 'Construction'. The salient points are given below.

Section 2 (dc): “Construction” means any erection of a structure or a building, including any addition or extension thereto either vertically or horizontally.

• But it does not include any re-construction, repair and renovation of an existing structure or building, or, construction, maintenance and cleaning of drains and drainage works and of public latrines, urinals and similar conveniences,
• or, the construction and maintenance of works meant for providing the 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.

Since the letter produced by BJD MP Pinaki Mishra mentioned the "No Objection under the assurance of strict compliance of AMASR Act 1958 Section 2 (dc)", and going by the definition of the relevant section of the Act, it can be inferred so that the State authorities cannot undertake any "erection of a structure or building vertically or horizontally" in the prohibited area.

Instead of denying that works are taking place in a prohibited zone, both MP Pinaki Mishra and Chief Secretary Suresh Mahapatra maintained that new construction works are being carried out as per rules and there is no harm to the safety of the Shrine.

100 Mt Area - Red Line For Odisha?

The Parliament Select Committee has examined the 100mt prohibited area clause mentioned in the Amended AMASR Act. Here are the excerpts from the Select Committee Report tabled in Rajya Sabha in February 2019.

Examining the Amendment made to section 2 of the AMASR Act in 2017, the Select Committee has made the following observations and accepted the amendment without any modification.

As per the Amendment by the Union Government to Section 2, (j), an insertion (ja) introduced that said “public works” means construction works related to infrastructure financed and carried out by any department or office of the Central Government for the following.

• Public purposes which are necessary for the safety or security of the public at large
• Emergent necessity based on specific instance of danger to the safety or security of the public at large
•  And there is no reasonable possibility of any other viable alternative to such construction beyond the limits of the prohibited area

The above amendment is quite clear that construction of 'public works' by Central government may be allowed in the prohibited zone, provided it is necessary for public safety, security and, more so, there is no viable alternative to the 'public work' is available.

Many state governments, including Odisha, presented their views before the Select Committee to include the words "State Government", "Local Bodies" along with Central Government.

• Odisha has specifically requested to incorporate the words "State funded Projects/Central Funded Projects undertaken by State Government."

Replying to the states' demand, the Ministry of Culture informed the following to the committee.

• The ministry said the definition is very specific and only central Government projects fulfilling the criteria laid down under the definition will be allowed in the prohibited area.

Select Committee Decision

• The Committee notes that though there are varying opinions suggested by witnesses and definitions suggested by different Ministries, the definition of “public works” as given in the Bill is correct to the limited specific purpose mentioned in the Statement of Objects and Reasons of the ancient Monuments and Archaeological Sites and Remains (Amendment)Bill, 2017. Accordingly, the Committee adopted Clause 2 without any amendment.
• Veteran BJD leader Rajya Sabha MP Prasanna Acharya had been a member of the Select Committee. And no note of dissent was given by the BJD leader to the Committee headed by BJP RS MP Dr Vinay P Sahasrabuddhe.

The Key Takeaway

A study of the purported letters produced by MPs Sarangi and Pinaki, along with a look at the relevant sections of the AMASR Act mentioned in their produced letters, which when seen with the Select Committee observations, makes it amply clear that the 100 mt area from the protected monument is a 'red line' for the State government, especially when it is related to new construction works.