✦ High Court of India

The High Court

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 81 of 2022 1. Ashok Kumar Swain, aged about 56 years, S/o- Brahmananda Swain, At/PO- Karamanga (Balisahi), PS- Konark, Dist- Puri. 2. Tarekeswar Baral, aged about 50 years, S/o- Iswar Baral, R/o. At- Mulisahi, PO- Matiapada, PS- Konark, Dist- Puri. 3. Lalbihari Tarenia, aged about 58 years, S/o- Fakir Tarenia, R/o. At/PO- Kantijhadi, PO- Matiapada, PS- Konark, Dist- Puri. 4. Ranjan Kandi @ Ranjan Kumar Kandi, aged about 47 years, S/o- Bhramarbar Kandi, R/o. At/PO- Junei, PS- Konark, Dist- Puri. 5. Ashok Kumar Biswal, aged about 50 years, S/o- Kasinath Biswal, R/o. At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri 6. Dhaneswar Das, aged about 51 years, S/o- Manguli Das, R/o. At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri. 7. Niranjan Mall, aged about 56 years, S/o- Hata Kishore Mall, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 8. Umakanta Behera, aged about 56 years, S/o- Bhramarbar Behera, At- Nuagaon, PO- Matiapada, PS- Konark, Dist- Puri. 9. Laxmidhar Behera, aged about 62 years, S/o- Srinibas Behera, R/o. At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri. 10. Damodhar Das, aged about 61 years, S/o- Udanath Dash, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 1 of 27 11. Ramesh Chandra Nayak, aged about 62 years, S/o- Jagannath Nayak, At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri. 12. Sadashiba Pati, aged about 62 years, S/o-Jagannath Pati, R/o.At- Raulapatna, PO/PS- Konark, Dist- Puri. 13. Surendra Dash, aged about 61 years, S/o- Jatadhari Dash, At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri. 14. Budhanath Nayak, aged about 65years, S/o-Chaitanya Nayak, At- Raulapatna, PO/PS- Konark, Dist- Puri. 15. Subash Chandra Nayak, aged about 61 years, S/o- Bulei Nayak, R/o. At/PO- Karamanga, PS- Konark, Dist- Puri. 16. Hata Kishore Maharana, aged about 57 years, S/o- Udayanath Maharana, R/o.At- Raulapatna, PO/PS- Konark, Dist- Puri. 17. Sarat Chandra Behera, aged about 62 years, S/o- Naran Behera, R/o.At- Ishaneswar, PO- Kurjanga, PS- Konark, Dist- Puri. 18. Rabindra Swain @ Rabi Swain, aged about 60 years, S/o- Bhagaban Swain, R/o.At- Kantimala, PO- Kotanga, PS- Konark, Dist- Puri. 19. Rajendra Prasad Nayak, aged about 59 years, S/o- Hatakishore

Legal Reasoning

of this Court in W.P.(C) No.17384 of 2015 whereby, their claim in the writ petition for grant of license in terms of the Policy of 2007 issued by the Archaeological Survey of India (ASI) has not been acceded to in view of supersession of the said Policy by a subsequent Gazette Notification dated 24.05.2017 published on 25.05.2017. 2. The learned Single Judge has rejected the claim of the appellants, mainly, on the ground that issuance of license being an administrative matter, there could not be a direction for issuance of license under the old Policy when the new Policy was in place. The learned Single Judge has further observed that in any event, the new Policy also provides for renewal of license, obviously including such licenses which were issued under the old Policy. Therefore, even when the appellants had got licenses under the old Policy, they would have to apply for renewal under the 2017 Policy. 3. We have heard Mr. Subir Palit, learned Senior Counsel appearing on behalf of the appellants. We have also heard Mr. W.A. No.81 of 2022 Page 17 of 27 Chandrakanta Pradhan, learned Senior Panel Counsel for the Union of India, Mr. Santanu Kumar Sarangi, learned Senior Counsel assisted by Mr. Manmaya Kumar Dash, learned counsel and Mr. D.P. Dash, learned counsel appearing on behalf of the intervenors. 4. The appellants claimed in the writ petition that they had chosen the profession of guides/photographers in the precinct of centrally protected monuments of the Sun temple at Konark since long. They had approached the authorities for issuance of license/identity cards as approved guides and photographers but no steps were taken to regulate the activities of the persons engaged in the profession of guides/photographers inside the Sun temple. The appellants are 154 in number. According to their own statement, initially there were handful of persons engaged in the profession of guides/photographers at the Sun temple but, in course of time, their number increased gradually and now several hundred guides/photographers were operating inside the Sun temple without any regulation and without any record or proof of their identity and at times, the people from outside also come to Konark and work as photographer without valid license or identity proof. W.A. No.81 of 2022 Page 18 of 27 5. Realizing the problem, the Tourism Department, Government of Odisha had decided to regulate the guides/photographers operating inside Konark temple. Accordingly, 110 persons were issued identity cards by the Tourism Officer, Konark in the year 2001-02 to operate as photographers, all of whom are the appellants herein. Certain other persons who were interested in this profession and had applied for identity cards are also the appellants herein who had filed the aforesaid writ application. 6. Section 38 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 authorizes the Central Government to make rules in respect of right of access of public to a protected monument and fee etc. In exercise of the said power, the ASI had framed a policy on 29.02.2007 for issuance of licenses to the photographers to operate within the precinct of central monuments with effect from 01.02.2007. 7. The Director General, Archaeological Survey of India had written a letter to the Superintending Archaeologist, ASI, Bhubaneswar Circle, Bhubaneswar regarding issuance of photographic license to the W.A. No.81 of 2022 Page 19 of 27 photographers at the Sun temple and had also directed to issue license under Clause-4 of the Policy. 8. Pursuant to a notice, calling upon the interested parties to submit their applications, the appellants had submitted their applications with bio-data. The appellants later approached this Court by filing the aforesaid W.P.(C) No.17384 of 2015 seeking direction to the respondent No.2 to issue license under the said policy of the year 2007. It is their further case that the Tourist Officer, Konark had issued identity cards to 110 persons and applications for grant of identity

Arguments

Nayak, R/o. At- Srikanthapur, PO- Karamanga, PS- Konark, Dist-Puri. 20. Kapila Charan Nayak, aged about 49 years, S/o- Dibakar Nayak, R/o. At- Raulpatna, PO/PS- Konark, Dist-Puri. 21. Bideshi Beura, aged about 58 years, S/o- Anam Beura, R/o.At- W.A. No.81 of 2022 Page 2 of 27 Dalimbagoradi, PO/PS- Konark, Dist-Puri. 22. Ramesh Chandra Khuntia, aged about 62 years, S/o- Bulla Khuntia, R/o. At-Sarada, PS- Konark, Dist- Puri. 23. Banamber Lenka, aged about 55 years, S/o-Shyam Lenka, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 24. Sarat Chandra Nayak @ Sarat Nayak, aged about 55 years, S/o- Dhaneswar Nayak, R/o. At/PO- Raulapatna, PO/PS- Konark, Dist- Puri. 25. Akshya Kumar Nayak, aged about 53 years, S/o- Chemei Nayak, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 26. Sri Nrusingha Ch. Tripathy @ Nrusingha Tripathy, aged about 49 years, S/o- Birbar Tripathy, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 27. Braja Kishore Swain (Since Dead). 28. Purna Chandra Mohanty, aged about 49 years, S/o- Sadhu Mohanty, R/o. At-Paikerapur, PO-Matiapada, PS- Konark, Dist-Puri. 29. Hata Kishore Nayak @ Hata Nayak, aged about 67 years, S/o- Sapani Nayak, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 30. Naresh Nayak, aged about 57 years, S/o- Dhaneswar Nayak, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 31. Karna Behura, aged about 52 years, S/o- Subudhi Behera, R/o. At- Dalimabagordi, PO/PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 3 of 27 32. Deshabandhu Jena, aged about 59 years, S/o- Golekha Jena, R/o. At/PO/PS- Konark, Dist- Puri. 33. Rabindra Kumar Nayak, aged about 50 years, S/o- Dwarikanath Nayak, R/o. At- Roulapatna, PO/PS- Konark, Dist- Puri. 34. Bimbadhar Lenka, aged about 56 years, S/o- Charan Lenka, R/o. At-Roulapatna, PO/PS- Konark, Dist- Puri. 35. Laxmidhar Chhatoi (Since Dead). 36. Prasanta Kumar Sethy, aged about 51 years, S/o- Narendra Sethy, R/o. At- Kunjamatha, PO- Kurujanga, PS- Konark, Dist- Puri. 37. Chhabi Nayak, aged about 48 years, S/o- Prahalad Nayak, R/o. At- Banapada, PO/PS- Konark, Dist- Puri. 38. Digamber Biswal, aged about 47 years, Bharamarabar Biswal, R/o. At-Raulapatria, PO/PS- Konark, Dist- Puri. 39. Pradipta Kumar Majhi, aged about 44 years, S/o- Gadadhar Majhi, R/o. At/PO/PS- Konark, Dist- Puri. 40. Sudarsan Swain, aged about 49 years, S/o- Nabaghan Swain, R/o. At- Banapada, PO/PS- Konark, Dist- Puri. 41. Krushna Chandra Rout, aged about 53 years, S/o- Iswar Rout, R/o. At/PO- Karamanga, PS- Konark, Dist- Puri. 42. Sutani Patra, aged about 62 years, S/o- Maheswar Patra, R/o. At- Kantijhadi, PO- Matiapada, PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 4 of 27 43. Balaram Dalei, aged about 48 years, S/o- Shankar Dalei, R/o. At/PO/PS- Konark, Dist- Puri. 44. Biranchi Patra, aged about 46 years, S/o- Dharum Patra, R/o. At- Paikerapur, PO- Matiapada, PS- Konark, Dist- Puri. 45. Laxmidhar Jena, aged about 52 years, S/o- Sudam Jena, R/o. At/PO- Karamanga, PS- Konark, Dist- Puri. 46. Harihar Swain, aged about 49 years, S/o- Sarbesswar Swain, R/o. At- Mulisahi, PO- Matiapada, PS- Konark, Dist- Puri. 47. Bijaya Kumar Nayak, aged about 49 years, S/o- Chemi Nayak, R/o. At/PO-Karamanga, PS- Konark, Dist- Puri. 48. Brajabandhu Nayak, aged about 48 years, S/o- Baidhar Nayak, R/o. At- Srikanthapur, PO-Karamanga, PS- Konark, Dist- Puri. 49. Babuli Mallick, aged about 49 years, S/o- Balia Mallick, R/o. At/PO-Karamanga, PS- Konark, Dist- Puri. 50. Bikash Parida, aged about 50 years, S/o- Kulamani Parida, At- Naroda, PO- Khadisha, PS-Gop, Dist- Puri. 51. Jitendra Das, aged about 41 years, S/o- Gangadhar Das, At- Sudhabarimula, PO/PS- Tulashipur, Dist- Puri. 52. Purna Chandra Das, aged about 46 years, S/o- Harihar Das, At- Paitabarai, PO- Matiapada, PS- Konark, Dist- Puri. 53. Abhimanyu Behera, aged about 47 years, S/o- Antrayami Behera, R/o. At/PO/PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 5 of 27 54. Kartikaeswar Pradhan @ Kartika Pradhan, aged about 55 years, S/o- Madhab Pradhan, R/o. At- Nakakana, PO- Junei, PS- Konark, Dist- Puri. 55. Niranjan Nayak, aged about 47 years, S/o- Ramesh Nayak, R/o. At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri. 56. Radhakanta Nayak, aged about 53 years, S/o- Baidhar Nayak, R/o. At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri. 57. Narendra Nayak, aged about 55 years, S/o- Abakash Nayak, R/o. At/PO- Sutan, PS- Konark, Dist- Puri. 58. Sahedav Das, aged about 42 years, S/o- Jaharia Das, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 59. Bharat Kumar Parida, (Since Dead). 60. Biranchi Narayan Dash, aged about 36 years, S/o- Bhagaban Dash, R/o. At- Paitabarai, PO- Matiapada, PS- Konark, Dist- Puri. 61. Dillip Kumar Tripathy, aged about 38 years, S/o- Ramachandra Tripathy, R/o. At- Roulpatna, PO/PS- Konark, Dist- Puri. 62. Pradip Kumar Biswal @ Pradip Biswal, aged about 48 years, S/o- Radha Biswal, R/o. At- Paitabarai, PO- Matiapada, PS- Konark, Dist- Puri. 63. Purna Chandra Satpathy, (Since Dead). W.A. No.81 of 2022 Page 6 of 27 64. Subash Chandra Swain, aged about 40 years, S/o- Maheswar Swain, R/o. At/PO- Karamanga, PS- Konark, Dist- Puri. 65. Mohan Panda, aged about 55 years, S/o- Gangadhar Panda, R/o. At- Roulpatna, PO/PS- Konark, Dist- Puri. 66. Pabitra Parida, aged about 54 years, S/o- Nrupabar Parida, At- Anasara, PO- Dhantri, PS- Konark, Dist- Puri. 67. Dillip Kumar Tarenia, aged about 38 years, S/o- Lalbehari Tarenia, R/o. At- Kantijhadi, PO- Matiapada, PS- Konark, Dist- Puri. 68. Radheshyam Sahoo, aged about 61 years, S/o- Jaladhar Sahoo, R/o. At- Mullisahi, PO- Matiapada, PS- Konark, Dist- Puri. 69. Sridhar Muduli, aged about 52 years, S/o- Lokanath Muduli, At- Jadupur, PO- Chiteswari, PO- Konark, Dist- Puri. 70. Ramachandra Dalei, aged about 52 years, S/o- Dhada Dalei, At- Srikanthapur, PO- Karamanga, PS- Konark, Dist- Puri. 71. Dwarikanath Padhi, aged about 52 years, S/o- Somanath Padhi, At- Gundi, PO- Junei, PS- Konark, Dist- Puri. 72. Satyanarayan Kandi, aged about 47 years, S/o- Dhrub Kandi, At- Paitabarai, PO- Matiapada, PS- Konark, Dist- Puri. 73. Brajabandhu Swain, aged about 49 years, S/o- Dhada Swain, At- Kharagaon, PS- Junei, PO- Konark, Dist-Puri. 74. Manoj Kumar Muduli, aged about 45 years, S/o- Ramachandra Muduli, At/PO- Junei, PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 7 of 27 75. Upendra Sahoo, aged about 53 years, S/o- Natabar Sahoo, At- Madhipur, PO/PS- Konark, Dist-Puri. 76. Jadumani Beura, aged about 55 years, S/o- Aparti Beura, At- Jadupur, PO- Chiteswari, PS- Konark, Dist- Puri. 77. Kumar Behera, aged about 55 years, S/o- Sadhu Behera, At- Ishaneswar, PO- Kurujanga, PS- Konark, Dist- Puri. 78. Baidhar Nayak, aged about 57 years, S/o- Keshab Nayak, At- Raulapatna, PO/PS- Konark, Dist- Puri. 79. Surendra Kumar Kandi @ Surendra Kandi, aged about 39 years, S/o- Jatadhari Kandi, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 80. Manas Kumar Patro @ Manas Patra, aged about 38 years, S/o- Amreswar Patro, At-Banapada, PO/Ps- Konark, Dist- Puri. 81. Bijaya Kumar Swain, aged about 45 years, S/o- Jadumani Swain, R/o. At- Talasuan, PO- Kurujanga, PO- Konark, Dist-Puri. 82. Pabitra Kumar Swain @ Pabitra Swain, aged about 40 years, S/o- Sarbeswar Swain, At/PO- Karamanga, PS- Konark, Dist- Puri. 83. Trilochan Nayak, aged about 53 years, S/o- Damodhar Nayak, At- Roulapatna, PO/PS- Konark, Dist- Puri. 84. Nabakishore Padhi, aged about 45 years, S/o- Dhurub Chandra Padhi, R/o. At- Madhipur, PO/PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 8 of 27 85. Narayan Behera, aged about 51 years, S/o- Udayanath Behera, At- Karamanga, PO-Karamanga, PS- Konark, Dist- Puri. 86. Mitra Bhanu Martha, aged about 38 years, S/o- Krupasindhu Martha, At- Srikanthapur, PO-Karamanga, PS- Konark, Dist-Puri. 87. Narendra Swain, aged about 46 years, S/o- Hatakishore Swain, At- Mulisahi, PO- Matipada, PS- Konark, Dist-Puri. 88. Niranjan Kandi, aged about 48 years, S/o- Bhima Kandi, R/o At- Raulapatna, PO/PS- Konark, Dist- Puri. 89. Ramesh Chandra Behera, aged about 57 years, S/o- Natabar Behera, R/o. At- Bagharoradi, PO/PS- Konark, Dist- Puri. 90. Bholanath Swain, aged about 50 years, S/o- Nabaghan, R/o. At- Banapada, PO/PS- Konark, Dist- Puri. 91. Bijayananda Sasmal, aged about 44 years, S/o- Madhusudan Sasmal, R/o. At- Siripur, PO/PS- Konark, Dist- Puri. 92. Hadubandhu Muduli, aged about 50 years, S/o- Jagannath Muduli, R/o. At-Jadupur, PO- Chitreswari, PS- Konark, Dist- Puri. 93. Jatadhari Behera, aged about 39 years, S/o- Kumar Behera, R/o. At- Baligotha, PO- Kurujang, PS- Konark, Dist-Puri. 94. Rohit Kumar Nayak, (Since Dead). 95. Niranjan Barik, aged about 52 years, S/o- Dhaneswar Barik, R/o. At- Siripur, PO/PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 9 of 27 96. Ranjan Kumar Lenka @ Ranjan Lenka, aged about 45 years, S/o- Khetrabasi Lenka, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 97. Umakanta Nayak, aged about 29 years, S/o- Pravat Nayak, R/o. At/PO- Karmanga, PO/PS- Konark, Dist- Puri. 98. Judisthir Sahoo, aged about 55 years, S/o- Sareswar Sahoo, R/o. At- Kantijhadi, PO- Matiapada, PS- Konark, Dist-Puri. 99. Santosh Kumar Das @ Santosh Das, aged about 51 years, S/o- Fakir Charan Das, R/o. At-Kharagaon, PO- Junei, PS- Konark, Dist- Puri. 100. Akshay Kumar Murudi @ Akshya Murudi, aged about 38 years, S/o- Dhurub Murudi, R/o. At- Kulanga, PO- Junei, PS- Konark, Dist- Puri. 101. Purna Chandra Mohanty, aged about 44 years, S/o- Jogendra Mohanty, R/o. At- Kantijhadi, PO- Matiapada, PS- Konark, Dist- Puri. 102. Chandresekhar Mohanty, age about 44 years, S/o- Bauribandhu Mohanty, R/o. At- Kantijhadi, PO- Matiapada, PS- Konark, Dist- Puri. 103. Ranjit Kumar Nayak, aged about 30 years, S/o- Pratap Nayak, R/o. At/PO- Karamanga, PS- Konark, Dist- Puri. 104. Dillip Kumar Lenka, aged about 27 years, S/o- Sahadev Lenka, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 10 of 27 105. Gourang Charan Sahoo, S/o- Bhagaban Sahoo, R/o.At- Mulinahi, PO- Matiapada, PS- Konark, Dist- Puri. 106. Chinamya Beura, aged about 21 years, S/o- Basanta Beura, R/o. At- Dalimbagoradi, PO/PS- Konark, Dist- Puri. 107. Pankja Kumar Swain, aged about 26 years, S/o- Bansidhar Swain, R/o. At-Kantijhadi, PO- Matiapada, PS- Konark, Dist- Puri. 108. Dhibar Sethi, aged about 32 years, S/o- Daitari Sethi, R/o. At/PO- Junei, PS- Konark, Dist- Puri. 109. Madhusudan Das, aged about 31 years, S/o- Kunja Behari Das, At- Raulapatna, PO/PS- Konark, Dist- Puri. 110. Chandan Lenka, aged about 24 years, S/o- Ramesh Lenka, R/o. At-Raulapatna, PO/PS- Konark, Dist- Puri. 111. Chitresen Kandi, aged about 25 years, S/o- Jambeswar Kandi, R/o. At- Dalimagaradi, PO/PS- Konark, Dist-Puri. 112. Subrat Kumar Swain @ Subrat Swain, aged about 31 years, S/o- Ramesh Chandra Swain, R/o. At- Kantijhadi, PO- Matiapada, PS- Konark, Dist-Puri. 113. Biswajit Sikari @ Biswojit Sikari, aged about 26 years, S/o- Gandharab Sikari, R/o. At/PO- Karamanga, PS- Konark, Dist- Puri. 114. Prakash Chandra Sahoo, aged about 25 years, S/o- Radhu Sahoo, R/o. At- Mulisahi, PO- Matiapada, PS- Konark, Dist-Puri. W.A. No.81 of 2022 Page 11 of 27 115. Pravat Nayak, aged about 32 years, S/o- Jambeswar Nayak, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 116. Mantha Beura, aged about 21 years, S/o- Pravat Beura, R/o. At- Banapada, PO/PS- Konark, Dist- Puri. 117. Sampad Jena, aged about 27 years, S/o- Nilakantha Jena, R/o. At-Upala, PO- Dhantri, PS- Konark, Dist- Puri. 118. Prasana Kumar Behera @ Prasana Kumar Beura, aged about 34 years, S/o. Late Krushna Chandra Behera, R/o. At-Banapada, PO/PS- Konark, Dist- Puri. 119. Chandra Sekhar Nayak, aged about 33 years, S/o- Amareswar Nayak, R/o. At- Srikanthapur, PO/PS- Konark. Dist- Puri. 120. Ramesh Chandra Nayak, aged about 31 years, S/o- Brundaban Nayak, R/o. At- Banapada, PO/PS- Konark, Dist-Puri. 121. Gopabandhu Pati, aged about 30 years, S/o- Sadasiv Pati, R/o. At- Raulapatna, PO/ PS- Konark, Dist- Puri. 122. Bhubananda Lenka, aged about 38 years, S/o- Late Brhmananda Lenka, R/o. At- Raulapatna, PO/PS-Konark, Dist-Puri. 123. Pitabas Beura, aged about 41 years, S/o- Harihar Beura, R/o. At- Banapada, PO/PS- Konark, Dist- Puri. 124. Ghanashyam Prusty, aged about 39 years, S/o- Late Chakradhar Prusty, R/o. At- Balisahi, PO- Pattnika, PS- Satyabadi, Dist- Puri. W.A. No.81 of 2022 Page 12 of 27 125. Trilochan Pradhan, aged about 37 years, S/o- Sadhu Charan Pradhan, At-Poitara, PO-Alichar, PS- Gop, Dist- Puri. 126. Santosh Das, aged about 31 years, S/o- Benudhar Das, R/o. At- Srikanthapur, PO/PS- Konark, Dist- Puri. 127. Sukanta Swain, aged about 29 years, S/o- Jata Swain, R/o. At- Mulinahi, PO- Matiapada, PS- Konark, Dist- Puri. 128. Basanta Kumar Parida, aged about 33 years, S/o- Bidyadhar Parida, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 129. Bikram Beura, aged about 27 years, S/o- Ashok Beura, R/o. At- Banapada, PO/PS- Konark, Dist- Puri. 130. Sukanta Dalei, aged about 29 years, S/o- Banamber Dalei, R/o. At- Gagapur, PO- Matiapada, PS- Konark, Dist- Puri. 131. Rabindra Behera, aged about 50 years, S/o- Iswar Behera R/o. At- Patsanipur, PO- Matiapada, PS- Konark, Dist- Puri. 132. Gunanidhi Lenka, aged about 34 years, S/o- Panchu Lenka, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 133. Rajkishore Swain, aged about 36 years, S/o- Sarbeswar Swain, R/o. At- Mulisahi, PO- Matiapada, PS- Konark, Dist- Puri. 134. Trinath Dalei, aged about 32 years, S/o- Sadhu Dalei, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 135. Santosh Sikari, aged about 30 years, S/o- Laxman Sikari, R/o. At- Karamanga, PO/PS- Konark, Dist- Puri. W.A. No.81 of 2022 Page 13 of 27 136. Prasan Kumar Rout @ Prasanna Kumar Rout, aged about 34 years, S/o- Krushna Chandra Rout, R/o. At- Kopra, PO- Mahalapada, PS- Konark, Dist- Puri. 137. Sudarshan Das, aged about 25 years, S/o- Benudhar Das, R/o. At- Srikanthapur, PO/PS- Konark, Dist- Puri. 138. Basanta Kandi, aged about 28 years, S/o- Surendra Kandi, R/o. At- Dalimagoradi, PO/PS-Konark, Dist- Puri. 139. Trilochan Moharana, aged about 32 years, S/o- Laxmidhar Moharana, R/o. At- Isaneswar, PO- Kurujanga, PS- Konark, Dist- Puri. 140. Lingaraj Nayak, aged about 36 years, S/o- Bansidhar Nayak, R/o. At- Kuruma, PO- Balidokan, PS- Konark, Dist- Puri. 141. Rajendra Nayak, aged about 39 years, S/o- Alekha Nayak, R/o. At- Raulapatna, PO/PS- Konark, Dist- Puri. 142. Sukanta Biswal, aged about 28 years, S/o- Premananda Biswal, R/o. At- Paitabarei, PO- Matiapada, PS- Konark, Dist- Puri. 143. Rajesh Nayak @ Rajesh Kumar Nayak, aged about 24 years, S/o- Bhagaban Nayak, R/o At-Banapada, PO/PS- Konark, Dist- Puri. 144. Chandan Kandi, aged about 23 years, S/o- Bhaga Kandi, R/o. At- Dalimagoradi, PO/PS- Konark, Dist- Puri. 145. Ramhari Patra, aged about 19 years, S/o- Banamber Patra, R/o. At- Kundeswar, PO- Krushnanagar Patna, PS- Kakata Pur, Dist- Puri. W.A. No.81 of 2022 Page 14 of 27 146. Purna Chandra Behera, aged about 19 years. S/o- Ratnakar Beura, R/o. At- Raulapatna, PO/PS - Konark, Dist-Puri. 147. Braja Kishore Sahu (Since Dead). 148. Narayan Murudi, aged about 31 years, S/o- Bidyadhar Murudi, R/o. At- Balisahi, PO/PS- Konark, Dist- Puri. 149. Kanhu Charan Kandi, aged about 42 years, S/o- Late Chitanya Kandi, R/o. At- Mulisahi, PO- Matiapada, PS- Konark, Dist- Puri. 150. Prasanta Patra, aged about 32 years, S/o- Golekha Patra, R/o. At-Karamanga, PO/PS- Konark, Dist- Puri. 151. Gouranga Nayak, aged about 27 years, S/o- Amareswar Nayak, R/o. At- Banapada, PO/PS- Konark, Dist- Puri. 152. Bichitra Kumar Nayak, aged about 26 years, S/o- Late Bipini Nayak, R/o. At- Raulapatna, PS- Konark, Dist- Puri. 153. Prasan Sahu @ Prasanna Sahoo, aged about 36 years, S/o- Narendra Sahu, R/o. At- Santiamatha, PO- Kununjang, Dist- Puri. 154. Pradeep Kumar Ojha, aged about 40 years, S/o- Krushna Chandra Ojha, At- Roulpatna, PO/PS- Konark, Dist- Puri. -Versus- …Appellants 1. Union of India, represented through the Secretary, Department of Tourism, Govt. of India, Paryatan Bhawan, New Delhi. W.A. No.81 of 2022 Page 15 of 27 2. Archeological Survey of India, New Delhi, represented through the Director General A.S.I., 10, Janapath, New Delhi, 110011. 3. The Director (Tourism), Department of Tourism & Culture, Paryatan Bhawan, Kalpana Square, Bhubaneswar. 4. 5. The Tourist Officer, Konark, At/PO/PS- Konark, Dist- Puri. The Superintending Archeologist, A.S.I., Bhubaneswar Circle, At- Toshali Appartment, Satya Nagar, Unit-III, Bhubaneswar, Dist- Khurda. 6. The Collector-cum-District Magistrate, Puri, At/PO/Dist-Puri. …Respondents Advocates appeared in the case: For the Appellants : Mr. Subir Palit, Senior Advocate For Respondents No.1 & 2 : Mr. Chandrakanta Pradhan, Senior Panel Counsel, Union of India For the Intervenors : Mr. Santanu Kumar Sarangi, Sr. Advocate Mr. Manmay Kumar Dash, Advocate Mr. D.P. Dash, Advocate CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 13.01.2025 W.A. No.81 of 2022 Page 16 of 27 Chakradhari Sharan Singh, CJ. In the present intra-court appeal, the appellants have challenged an order dated 05.01.2022 passed by a learned Single Judge

Decision

cards for nearly 45 persons were pending. When the writ petition was pending, the ASI came up with a new policy in the year 2017 to regulate and administer licenses required under Rule 8(d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 for the photographers to perform within centrally protected monuments for monetary consideration. 9. They also contended in the writ petition that since the appellants had applied under the old Policy, their applications ought to have been directed to be disposed of by the learned Single Judge in accordance with the old Policy. W.A. No.81 of 2022 Page 20 of 27 10. On 29.08.2017, an interim order was passed by this Court in Misc. Case No.15414 of 2017 to the effect that those petitioners who were granted license by the Tourism Department shall be allowed to perform their duties as professional photographers till the next date, which interim order continued till its final disposal. Misc. Case No.5203 of 2018 was filed in the writ proceeding questioning the notification issued by the Director General, ASI inviting applications from the eligible persons for issuance of photographers license in accordance with the 2017 Policy. This was on the ground that the said notification contained such eligibility conditions which were not there in the earlier notice against which the appellants had submitted their applications earlier. In the said notification, minimum qualification of having passed matriculation/10th for the photographers was prescribed and the applicants were required to undergo a written examination and interview. 11. The appellants asserted in the said Misc. Case No.5203 of 2018 that most of the conditions were inserted for the first time to debar the appellants from applying under the notification. The prayer for amendment in the writ petition was allowed by an order dated 08.04.2019. W.A. No.81 of 2022 Page 21 of 27 12. A counter affidavit was filed in the writ proceeding sworn by the Tourist Officer-In-charge, Puri stating that in accordance with certain agreement made on 19.08.2002 with different guides and photographers association of Konark, the Tourist Officer, Konark had issued identity cards to 110 persons to operate as photographers within the precincts of Sun temple, Konark for a period of one year. The Director, Tourism had requested the Superintending Archaeologist, ASI, Bhubaneswar Circle through its letter dated 14.11.2005 for issuance of license to the photographers of the Sun temple and accordingly, the Superintending Archaeologist had requested the Director, Tourism to convene a meeting for preparation of draft guidelines and accordingly, the draft guidelines were issued on 29.02.2007. A plea was specifically taken that the State Government was not the competent authority to issue such license which could be granted by the Superintending Archaeologist following the provisions of the said guidelines. 13. A counter affidavit was also filed by the Superintending Archaeologist, ASI, Bhubaneswar stating therein that in terms of Rule- 8(d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 for photographers to perform within centrally protected W.A. No.81 of 2022 Page 22 of 27 monuments for monetary consideration, the Policy of 2017 was framed and published in the Gazette of India. The ASI had accordingly uploaded the format of application form on the website. The interested candidates, who intended to obtain license for photography within the premises of centrally protected monuments or group of monuments, might apply as per the instructions for candidates elaborated and monument wise number of photographers required. 14. Mr. Subir Palit, learned Senior Counsel appearing on behalf of the appellants has argued that the appellants might have been eligible to be considered for issuance of licenses under the Policy of 2007 but their applications submitted under the said policy were never considered and kept pending by the ASI. In the meanwhile, the 2017 Policy has been framed imposing such conditions which the appellants cannot fulfill. 15. Mr. Palit has further submitted that the appellants, 154 in number, who have been photographers for over two decades and some for three decades, are suddenly without a livelihood on account of the changed Policy of 2017. He also argued that if the ASI does not insist on the minimum qualification of matriculation, it will enable the W.A. No.81 of 2022 Page 23 of 27 applications for license by 154 appellants who had been issued identity cards by the Department of Tourism. The Policy of 2017 affects the livelihood of several hundreds of photographers and, therefore, the ASI should consider one time exception provided to those who may not having matriculation qualification but have been issued identity cards by the Department of Tourism, Government of Odisha to be considered for grant of license even in terms of the 2017 Policy while fulfilling the requirements of that Policy. 16. Mr. Subir Palit, learned Senior Counsel for the appellants has also argued that by introducing the Policy of 2017, the ASI has prohibited the means of self-employment of the appellants which is arbitrary and seriously jeopardized rights guaranteed to the appellants under Article 19(1)(g) of the Constitution of India. 17. The persons, who had applied under the 2017 Policy and have been issued licenses, have sought to intervene in the present proceeding. Mr. M.K. Das, learned counsel appearing on behalf of the intervenors has submitted that the Policy of 2017 framed by the ASI as per Rule-8(d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 has remained unchallenged. In accordance with W.A. No.81 of 2022 Page 24 of 27 the said policy decision, an advertisement was published inviting applications for granting license. A fresh advertisement was issued on 10.03.2022 in accordance with the Policy of 2017 inviting applications from the interested candidates who intended to obtain license for photography within the premises of centrally protected monument (Sun temple), Konark. He has relied on a recent Division Bench decision of the Delhi High Court dated 06.10.2023 passed in W.P.(C) No.12313 of 2018 & CMAPL No.47728 of 2018 (Mata Prasad & others v. Union of India & others) to contend that similar contentions raised by the petitioners before the Delhi High Court in relation to the challenge to the Policy of 2017 has been rejected. The Delhi High Court in case of Mata Prasad (supra), upheld the said Policy of 2017 and has specifically rejected the contention that the said Policy could not have been applied retrospectively. It has been argued accordingly that since the question is of implementation of a policy of the Central Government of 2017 to regulate and administer licenses under Rule- 8(d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 which is operative throughout the country, the same should not be interfered with. W.A. No.81 of 2022 Page 25 of 27 18. As has been noted above, the learned Single Judge dismissed the writ petition on the ground that those who had the license under the old policy shall have the liberty to apply for renewal of the license under the new policy of 2017. 19. In case of Mata Prasad (supra), identical issues were raised challenging Clause 2.7 of the Policy of 2017. The Delhi High Court has rejected the contention regarding the rights of the petitioners guaranteed under Article 19(1) of the Constitution of India being jeopardized. The Delhi High Court has held that obtaining license by following the due selection procedure laid down by the ASI does not in any manner violate the rights of the petitioners under Article 19(1)(g) of the Constitution of India. 20. We agree with the view taken by the Delhi High Court that the fundamental rights enshrined in Article 19 of the Constitution are not absolute and unqualified but subject to reasonable restrictions. We also agree with the view taken by the Delhi High Court that the persons who seek to operate as photographers in ASI protected monuments are liable to obtain license from the ASI after participating in the prescribed selection process. Merely on the ground that the appellants W.A. No.81 of 2022 Page 26 of 27 had operated as photographers without any license in the past owing to the policy in vogue at the material time that did not require license, does not obviate the requirement of obtaining license in terms of the policy that is prevalent now. 21. We do not find any merit in the present writ appeal, which is accordingly dismissed. The interlocutory applications, if any, stand disposed of. (Chakradhari Sharan Singh) Chief Justice Savitri Ratho, J. I agree. (Savitri Ratho) Judge S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Jan-2025 12:33:22 W.A. No.81 of 2022 Page 27 of 27

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