Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4823 OF 2013

(Arising out of SLP(C) No. 20180 of 2010)

K. Guruprasad Rao ....Appellant

versus

State of Karnataka and others ....Respondents

J U D G M E N T

G.S. SINGHVI, J.

1.Leave granted.

2.With the hope of their immortalization, several Emperors, Kings and

other rich people got built temples, churches, mosques and other buildings in

different parts of the world including India. Many of these structures are not

only marvels of architecture, but also represent the culture and heritage of the

particular place and period. With the passage of time, these structures

acquired the status of historical monuments, the preservation and protection

of which has become a herculean task for successive generations.

1

Page 2 Legislations in other countries

3.The issue of preservation and protection of ancient and historical

monuments has been a matter of concern for the Governments and private

individuals alike. In his work titled Preserving Archaeological Sites and

Monuments, Henry Cleere, World Heritage Coordinator, International

Council on Monuments and Sites, Paris and Visiting Professor, Institute of

Archaeology UCL, London has mentioned that the first law on the subject

was enacted in Sweden in 1666 and professional agencies were set up to

implement the same. Several other countries enacted similar legislative

instruments in 17

th

and 18

th

centuries. The United Kingdom enacted first

Ancient Monuments Protection Act in 1882. France did so in 1913. The

earliest Japanese legislation, the Law for the Preservation of Ancient Temples

and Shrines, was enacted in 1897 and the United States waited until 1906

before its Federal Antiquities Act came into force. Their pre-hispanic

civilizations were highly symbolic for the cultural identities of the countries

that emerged after the independence struggles in Latin America during the

first half of the nineteenth century, just as its Hellenic past grandeur was the

material expression of Greek national identity. It is therefore not surprising

that preservation of the remains of these cultures was given a high priority by

the new nations. In 1821, Mexico passed the first law to preserve and protect

the country's archaeological heritage. In the same year Peru shook itself free

from Spanish rule and in 1822 a Supreme Decree was published, forbidding

2

Page 3 any trade in ancient relics.

4.By the outbreak of World War I in 1914 almost every European

country (with the notable exception of Belgium) and most of the major

countries around the world had some form of antiquities protection and

preservation legislation. Legislation had also been introduced by European

colonial powers in many of their overseas territories; in some cases, such as

France, the metropolitan statutes were enforced in their colonies.

5.The Treaty of Versailles saw more new nations being created in

Europe, and here once again preservation legislation was introduced soon

after their constitutions had been approved, usually based on the systems of

the major countries such as Austria-Hungary from which they had been

formed.

6.The inter-war period saw legislative protection being progressively

amended and expanded in many parts of the world. New antiquities laws

were enacted in Denmark, Greece, and the United Kingdom in the 1930s.

Two major statutes, covering the protection of the cultural and natural

heritage respectively, were promulgated in Italy by the Fascist regime just

before the outbreak of World War II; interestingly, both are still force in

2001.

7.The 1897 Japanese law was extended to all "national treasures" in

1929. The current legislation relating to the cultural heritage in Peru stems

3

Page 4 from a basic law passed in 1929, and a 1927 law covers the cultural heritage

of Bolivia.

8.The creation of the USSR and the introduction of a socialist

constitution led to state ownership of all cultural property being declared in a

fundamental law of October 1918. (Unlike the laws of countries emerging

from colonial domination, this was motivated for ideological reasons rather

than in the interests of cultural identity.) The antiquities legislation of all the

countries of the post-World War II socialist bloc of central and eastern

Europe, as well as that of other socialist countries such as the People's

Republic of China, North Korea, Vietnam, and Cuba, were modeled on the

basic Soviet legislation.

9.The former colonial territories of Africa and Asia introduced protective

legislation, often modeled on that of their former overlords, as soon as they

achieved independence. The former British colonies in particular adopted

similar laws, based on what became known as the "Westminster Model"

constitution. The legislation of the British Raj was retained until improved

legislative protection of the cultural heritage of India was introduced.

10.The second half of the twentieth century witnessed a continuous

process of extending and improving heritage legislation across the globe.

New or amended laws have been adopted by national legislatures of at least

one country each year. At the international level work began between the two

4

Page 5 World Wars by the League of Nations which resulted in organization by the

United Nations Educational, Scientific and Cultural Organization (UNESCO)

of two important international conventions designed to protect and preserve

the cultural heritage, whether cultural, natural, or portable. Regional bodies

such as the Council of Europe prepared similar conventions.

11.In 1972, UNESCO held the World Heritage Convention. One of the

decisions taken in that convention was to appoint World Heritage Committee

with the task of identifying the World Heritage Sites which were in danger.

This was intended to increase the international awareness about the threat

posed to certain World Heritage Sites and to encourage counteractive

measures. In the case of natural sites, ascertained dangers include the serious

decline in the population of an endangered or other valuable species or the

deterioration of natural beauty or scientific value of a property by man-made

activities such as logging, pollution, human settlement, mining, agriculture

and major public works. Ascertained dangers for cultural properties include

serious deterioration of materials, structure, ornaments or architectural

coherence and the loss of historical authenticity or cultural significance.

Potential dangers for both cultural and natural sites include development

projects, armed conflicts, insufficient management systems or changes in the

legal protective status of the property. In the case of cultural sites gradual

changes due to geology, climate or environment can also be potential dangers.

12.In India, the legal regime dates back to 18

th

century. The Governments

5

Page 6 of Bengal, Hyderabad, Madras and Mysore enacted the Bengal Regulation

XIX of 1810, the Hyderabad Ancient Monuments Preservation Act VIII of

1337 Fasli, the Madras Regulation VII of 1817 respectively. In the 19

th

century, the Government of Mysore enacted the Mysore Ancient Monuments

Preservation Act, 1925. The extent and reach of these statutes were

obviously limited to the territories of the concerned States.

13.In 1898, the question of antiquarian exploration and research, and the

necessity of taking steps for the protection of monuments and relics of

antiquity within the territory controlled by the British, received the attention

of the then Government. After consulting the Local Governments, the

competent legislature enacted the Ancient Monuments Preservation Act, 1904

(for short, ‘the 1904 Act’). The anxiety of the Government to protect

monuments which were under its control and also those which were in the

hands of private owners is reflected in paragraph 3 of the Statement of

Objects and Reasons contained in the Bill which led to the enactment of the

1904 Act. The same reads as under:

“3. The first portion of the Bill deals with protection of "Ancient

monuments" an expression which has been defined in clause 2

(now section 2). The measure will apply only to such of these as

are from time to time expressly brought within its contents

though being declared to be "protected monuments". A greater

number of more famous buildings in India are already in

possession or under the control of the Government; but there are

others worthy of preservation which are in the hands of private

owners. Some of these have already been insured or are fast

falling into decay. The preservation of these is the chief object of

6

Page 7 the clause of the Bill now referred to and the provisions of the

Bill are in general accordance with the policy enunciated in

section 23 of the Religious Endowments Act, 1863 (20 of 1863),

which recognises and saves the right of the Government "to

prevent injury to and preserve buildings remarkable in their

antiquity and for their - historical or architectural value or

required for the convenience of the public". The power to

intervene is at present limited to cases to which section 3 of the

Bengal Regulation 19 of 1810 or section 3 of the Madras

Regulation VII of 1817 applies. In framing the present Bill the

Government Has aimed at having the necessity of good will and

securing the cooperation of the owners concerned and it hopes

that the action which it is proposed to take may tend rather to the

encouragement than to the suppression of private effort. The Bill

provides that the owner or the manager of the building which

merits greater care than it has been receiving may be invited to

enter into an agreement for its protection and that in the event of

his refusing to come to terms the collector may proceed to

acquire it compulsorily or take proper course to secure its

application. It has been made clear that there is to be no resort to

compulsory acquisition in the case the monument is used in

connection with religious observances or in other case until the

owner has had an opportunity of entering into an agreement of

the kind indicated above; and it is expressly provided that the

monument maintained by the Government under the proposed

Act, shall not be used for any purpose inconsistent with its

character or with purpose of its foundation, and that, so far as is

compatible with the object in view the public shall have access

to it free of charge. By the 4th proviso of clause 11 (now section

10) it is laid down that in assessing the value of the monument

for the purpose of compulsory acquisition under the Land

Acquisition Act, 1894 (1 of 1894) its archaeological, artistic or

historical merits shall not be taken into account. The object of

the Government as purchaser being to preserve at the public

expense and for the public benefit an ancient monument with all

its associations, it is considered that the value of those

associations should not be paid for.”

14.Under the Government of India Act, 1935 the subject "Ancient and historical monuments;

archaeological monuments; archaeological sites and remains" was included in Entry 15 of the Federal List. This was

done keeping in view the provisions of the 1904 Act which was applicable to all ancient monuments and objects of

archaeological, historical or artistic interest.

7

Page 8 15.The members of the Constituent Assembly, which was entrusted with

the task of drafting the Constitution, were very much aware of the necessity

of protecting the monuments and places/objects of artistic or historic

importance but they were also conscious of the fact that the Central

Government alone may not be in a position to take measures for the

protection of ancient and historical monuments across the vast territory of the

country. Therefore, it was decided that the States should be burdened with

the responsibility of protecting the ancient and historical monuments within

their territories. This is the reason why the subject relating to ancient

monuments and archaeological sites and remains has been distributed into

three different entries:

1.Entry 67 of the Union List - Ancient and historical monuments and

records, and archaeological sites and remains, declared by or under law

made by Parliament to be of national importance.

2.Entry 12 of the State List - Ancient and historical monuments and

records other than those declared by or under law made by Parliament

to be of national importance.

3.Entry 40 of the Concurrent List - Archaeological sites and remains

other than those declared by or under law made by Parliament to be of

national importance.

16.By incorporating Article 49 in the Directive Principles of State Policy,

the framers of the Constitution made it obligatory for the State to protect

8

Page 9 every monument or place or object of artistic or historic interest, declared by

or under law made by Parliament to be of national importance, from

spoliation, disfigurement, destruction, removal, disposal or export, as the case

may be.

17. Since the 1904 Act governed all ancient monuments

whether falling in the Central field or the State field and all executive powers

were vested in the Central Government, it was felt that a separate legislation

should be enacted by Parliament to exclusively deal with ancient monuments

of national importance falling under Entry 67 of List I of the Seventh Sched-

ule and the archaeological sites and remains falling under Entry 40 of List III.

For achieving this object, Parliament enacted the Ancient Monuments and Ar-

chaeological Sites and Remains Act, 1958 (for short, ‘the 1958 Act), the pre-

amble of which reads thus:

“An act to provide for the preservation of ancient and

historical monuments and archaeological sites and re-

mains of national importance, for the regulation of ar-

chaeological excavations and for the protection of the

sculptures, carvings and other like objects.”

18. Sections 2(a), (i), (j), (4) and 38(1), (2)(a) of the 1958 Act read

as under:

“2. Definitions- In this Act, unless the context otherwise

requires—

(a) “ancient monument” means any

structure, erection or monument, or any tumulus or place

9

Page 10 of interment, or any cave, rock, sculpture, inscription or

monolith, which is of historical, archaeological or artistic

interest and which has been in existence for not less than

one hundred years, and includes--

(i) the remains of an ancient monu-

ment,

(ii) the site of an ancient monument,

(iii)such portion of land adjoining the site of an ancient

monument as may be required for fencing or covering in

or otherwise preserving such monument, and

(iv)the means of access to, and convenient inspection of

an ancient monument.

(i) “protected area” means any ar-

chaeological site and remains which is declared to be na-

tional importance by or under this Act.

(j) “protected monument” means

any ancient monument which is declared to be of national

importance by or under this Act.

4. Power of Central Government

to declare ancient monument, etc., to be of national im-

portance—(1) Where the Central Government is of opin-

ion that any ancient monument or archaeological site and

remains not included in section 3 is of national import-

ance, it may, by notification in the Official Gazette, give

two months’ notice of its intention to declare such ancient

monument or archaeological site and remains to be of na-

tional importance, and a copy of every such notification

shall be affixed in a conspicuous place near the monu-

ment or site and remains, as the case may be.

(2) Any person interested in any

such ancient monument or archaeological site and remains

may, within two months after the issue of the notification,

objects to the declaration of the monument, or the archae-

ological site and remains, to be of national importance.

(3) On the expiry of the said period of two months, the

Central Government may, after considering the objections,

if any, received by it, declare by notification in the Offi-

10

Page 11 cial Gazette, the ancient monument or the archaeological

site and remains, as the case may be, to be of national im-

portance.

(4) A notification published under

sub-section (3) shall, unless and until it is withdrawn, be

conclusive evidence of the fact that the ancient monument

or archaeological site and remains to which it relates is of

national importance for the purposes of this Act.

38. Power to make rules-(1) The Central Government

may, by notification, in the Official Gazette and subject to

the condition of previous publication, make rule for carry-

ing out the purposes of this Act.

(2)In particular, and without prejudice to the generality of

the foregoing power, such rules may provide for all or any

of the following matters, namely:--

(a) the prohibition or regulation by

licensing or otherwise of mining, quarrying, excavating,

blasting or any operation of a like nature near a protected

monument or the construction of buildings on land adjoin-

ing such monument and the removal of unauthorised

buildings.”

19.In exercise of the powers conferred by Section 38 of the 1958 Act, the

Central Government made the Ancient Monuments and Archaeological Sites

and Remains Rules, 1959 (for short, ‘the 1959 Rules’). Rules 2(f), 10, 31 to

35 of the 1959 Rules read as under:

“2(f)“prohibited area” or “regulated area” means an area

near or adjoining a protected monument which the

Central Government has, by notification in the Official

Gazette, declared to be a prohibited area, from as the case

may be, a regulated area, for purposes of mining operation

or construction or both.

10.Permission required for construction etc. (1) No

person shall undertake any construction or mining

operation with a protected area except under and in

11

Page 12 accordance with a permission granted in this behalf by the

Central Government.

(2) Every application for permission under sub-rule (1)

shall be made to the Central Government in Form I at

least three months before the date of commencement of

the construction or operation.

31.Notice or intention to declare a prohibited or

regulated area—(1) Before declaring an area near or

adjoining a protected monument to be a prohibited area or

a regulated area for purposes of mining operation or

construction or both, the Central Government shall, by

notification in the Official Gazette, give one month’s

notice of its intention to do so, and a copy of such

notification shall be affixed in a conspicuous place near

the area.

(2) Every such notification shall specify the limits of the

area which is to be so declared and shall also call for

objection, if any, from interested persons.

32. Declaration of prohibited or regulated area—After the

expiry of one month from the date of the notification

under rule 31 and after considering the objectio9ns, if any,

received within the said period, the Central Government

may declare, by notification in the official Gazette, the

area specified in the notification under rule 31, or any part

of such area, to be a prohibited area, or as the case may

be, a regulated area for purposes of mining operation or

construction or both.

33.Effect of declaration of prohibited or regulated area

—No person other than an archaeological officer shall

undertake any mining operation or any construction--

(a)in a prohibited area, or

(b)in a regulated area except under and in accordance

with the terms and conditions of a licence granted

by the Director-General.

34. Application for licence-Every person intending to

undertake any mining operation or any construction in a

regulated area shall apply to the Director-General in Form

12

Page 13 VI at least three months before the date of commencement

of such operation or construction.

35.Grant or refusal of licence—(1) On receipt of an

application under rule 34 the Director-General may grant

a licence, or, if he is satisfied that the licence asked for

should not be granted, may for reasons to be recorded,

refuse to grant a licence.

(2)Every licence granted under sub-rule (1) shall be in

Form VIII and be subject to the following conditions,

namely—

(a)the licence shall not be transferable.

(b)It shall be valid for the period specified therein, and

(c)Any other condition relating to the manner of carrying

out the mining operation or the construction which the

Director-General may specify in the licence for

ensuring the safety and appearance of, and the

maintenance of the approach and access to the

protected monument.”

20.The legislatures of various States including the State of Karnataka

enacted separate legislations for protection and preservation of ancient

monuments falling under Entry 12 of List II of the Seventh Schedule. The

Karnataka Act is titled as “The Karnataka Ancient and Historical Monuments

and Archaeological Sites and Remains Act, 1961 (for short, ‘the Karnataka

Act’). The Statement of Objects and Reasons contained in the Bill which led

to enactment of the Karnataka Act reads as under:

“STATEMENT OF OBJECTS AND REASONS

(Karnataka Act No. 7 of 1962)

Karnataka Gazette, Extraordinary, dated 1-11-1959

In the new State of Mysore, the following Acts relating to

protection and preservation of ancient monuments, etc.,

are in force:—

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Page 14 (1) The Hyderabad Ancient Monuments Preservation Act,

1337F (Hyderabad Act VIII of 1337 Fasli) is in force in

the Hyderabad Area;

(2) The Mysore Ancient Monuments Preservation Act,

1925 (Mysore Act IX of 1925) is in force in the Mysore

Area; and

(3) The Ancient Monuments Preservation Act, 1904

(Central Act VII of 1904) is in force in all the areas of the

new State of Mysore.

The Government of India have advised the State

Governments not to take advantage of the provisions of

the aforesaid Central Act to protect and preserve

monuments and to enact their own laws on the subject.

Recently, the Government of India have enacted the

Ancient Monuments and Archaeological Sites and

Remains Act, 1958 covering matters falling under Entry

67 in the Union List and Entry 40 in Concurrent List of

the Seventh Schedule to the Constitution of India.

The present Bill seeks to bring about uniformity in the

laws relating to protection and preservation of ancient

monuments falling under Entry 12 in the State List, that is,

ancient and historical monuments other than those

declared by or under law made by Parliament to be of

national importance.

The provisions of the Bill are on the lines of the

corresponding provisions of the Ancient Monuments and

Archaeological Sites and Remains Act, 1958.”

21.The preamble of the Karnataka Act and Sections 2(1), (10), 4, 31(1)

and (2)(a), which have bearing on the disposal of this appeal read as under:

Preamble

“An act to provide for the preservation of ancient and historical

monuments and Archaeological sites and remains and for the

protection of sculptures, carvings and other like objects in the

14

Page 15 State of Karnataka.

Whereas, it is expedient to provide for the preservation of

ancient and historical monuments and archeological sites and

remains in the State of Karnataka other than those declared by or

under law made by Parliament to be of national importance, and

for the protection of sculptures, carvings and other like objects;”

2. Definitions.—In this Act, unless the context otherwise

requires,—

(1) “Ancient monument” means any structure, erection or

monument, or any tumulus or place of interment, or any cave,

rock-sculpture, inscription or monolith, which is of historical,

archeological or artistic interest and which has been in existence

for not less than one hundred years, and includes.—

(i) the remains of an ancient monument;

(ii) the site of an ancient monument;

(iii) such portion of land adjoining the site of an ancient

monument as may be required for fencing or covering in or

otherwise preserving such monument; and

(iv) the means of access to, and convenient inspection of, an

ancient monument;

xxxx xxxx xxxx

(10) “Protected monument” means an ancient monument which

is declared to be protected by or under this Act.

4. Power of Government to declare ancient monuments to be

protected monuments.—(1) Where the Government is of

opinion that any ancient monument should be declared as a

protected monument, it may, by notification in the Official

Gazette, give two months’ notice of its intention to declare such

ancient monument to be a protected monument and a copy of

every such notification shall be affixed in a conspicuous place

near the monument.

(2) Any person interested in any such ancient monument may

within two months after the issue of the notification, object to

the declaration of the monument to be a protected monument.

(3) On the expiry of the said period of two months, the

15

Page 16 Government may, after considering the objections, if any,

received by it, declare by notification in the Official Gazette, the

ancient monument to be a protected monument.

(4) A notification published under sub-section (3) shall, unless

and until it is withdrawn, be conclusive evidence of the fact that

the ancient monument to which it relates is a protected

monument for the purposes of this Act.

31. Power to make rules.—(1) The Government may, by

notification in the Official Gazette and subject to the condition

of previous publication, make rules for carrying out the purposes

of this Act.

(2) In particular and without prejudice to the generality of the

foregoing power, such rules may provide for all or any of the

following matters, namely:—

(a) the prohibition or regulation by licensing or otherwise of

mining, quarrying, excavating, blasting or any operation of a like

nature near a protected monument or the construction of

buildings on land adjoining such monument and the removal of

unauthorised buildings;

xxxx xxxx xxxx”

22.In exercise of the powers conferred by Section 31 of the Karnataka

Act, the State Government framed the Karnataka Ancient and Historical

Monuments and Archaeological Sites and Remains Rules, 1966 (for short,

‘the Rules’). Rules 2(b), (f) and (g), 11, 12, 13, 14 and 15 of the Rules read

as under:

“2.Definitions. – In these rules, unless the context

otherwise requires. –

(a)xxxx xxxx xxxx

(b) “Construction” of any structure includes additions to

or alterations of an existing building;

16

Page 17 (f) “Mining operation” means any operation for the pur-

pose of searching for or obtaining minerals and includes

quarrying, excavating minerals and includes quarrying, ex-

cavating, blasting and any operation of the like nature;

(g) “prohibited area” or “Regulated area” means an area

near or adjoining a protected monument which the State

Government has, by notification in the Official Gazette,

declared to be a prohibited area, or, as the case may be , a

regulated area, for purposes of mining operation or con-

struction or both;

xxxx xxxx xxxx

11. Notice of intention to declare a prohibited or regu-

lated area. - (1) before declaring an area near or adjoin-

ing a protected monument, to be a prohibited area or a

regulated area for purposes or mining operation or con-

struction or both, the Government shall, by notification in

the Official Gazette, give one month’s notice of its inten-

tion to do so, and a copy of such notification shall be af-

fixed in a conspicuous place near the area.

(2) Every such notification shall specify the limit of the

area which is to be so declared and shall also call for ob-

jections, if any, from interested persons.

12. Declaration of prohibited or regulated area. - After

the expiry of one month from the date of the notification

under rule 11 and after considering the objections, if any,

received within the said period, the Government may de-

clare, by notification in the Official Gazette, the area spe-

cified in the Notification in the under rule 11 or any part,

of such area, to be a prohibited area or, as the case may

be, a regulated area for purposes of mining operation or

construction or both.

13. Effect of declaration of prohibited or regulated

area. - No person other than the Director shall undertake

any mining operation or any construction. –

(a) in a prohibited area, or

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Page 18 (b) in a regulated area, except under and in accordance

with the terms and conditions of licence granted by the

Director.

14. Application for licence. - Every person intending to

undertake any mining operation or any construction in a

regulated area shall apply to the Director in Form II at

least three months before the date of commencement of

such operation or construction.

15. Grant or refusal of licence. - (1) On receipt of an ap-

plication under Rule 14, the Director may grant a licence

or, if he is satisfied that the licence asked for should not

be granted, may for reasons to be recorded, refuse to grant

a licence.

(2) Every licence granted under sub-rule (1) shall be in

form III and be subject to the following conditions,

namely:-

(a) the licence shall not be transferable;

(b) it shall be valid for the period specified therein; and

(c) any other condition relating to the manner of carrying

out the mining operation or the construction which the

Director may specify in the licence for ensuring the safety

and appearance of, and the maintenance of approach and

access to , the protected monument.”

23.Unfortunately, the greed of the present generation has taken toll not

only of various national assets including historical and ancient monuments

and like many wild life species, a number of monuments have become extinct

because of unregulated mining activities/operations in the vicinity of such

monuments and buildings representing heritage and culture of the past.

The facts

18

Page 19 24.Jambunatheshwara Temple or Jambunatha Temple for whose

protection the appellant has been making efforts for last many years was built

in 1540 on Jambunath Hill which falls in Hospet Taluk, District Bellary

(Karnataka). The temple was built with massive granite blocks in typical

trabeate system, characterized by the predominant use of columns and beams

as main load bearing members. It is situated 4.5. kilometers southeast of

Taluk Hospet, District Bellary (Karnataka) on a hillock at a height of 800 ft. and is

surrounded by a range of hillocks rich in good iron-ore. The main temple facing east, consists of a

garbhagriha, a sukanasi and an antarala surrounded by a closed ambulatory passage, a navaranga with

two entrance mandapas and a maha ranga mandapa all enclosed by a high parakara. The temple rises over

a high double adhishthana with ornate mouldings which is typical of Vijayanagara style and period. The

wall of the garbhagriha and antarala is decorated with kumuda panjaras set between a pair of pilasters.

The ornate eave is decorated with kudu with human heads and kirtimukhas at the top. The sanctum

houses a sivalinga over a circular peetha. There are several subsidiary structures surrounding the main

temple. There are modern structures built around the temple for the sake of pilgrims and devotees. To the

south of the temple are two sub-shrines dedicated to Veerabhadra and Brahma respectively in front of

which is a well which gets water through a perennial source from the hillock and serves the needs of the

temple and pilgrims. The water from this well is believed to have medicinal and curative properties and

hence considered very sacred by the pilgrims. The temple has superstructure built of brick and lime

mortar over its sanctum and entrance mandapas. The pillars in the navaranga and maha ranga mandapas

are typical of Vijayanagara period with their cubical mouldings depicting carvings of various divinities of

Saiva, Sakta and other sects, besides social themes.

25.The temple was declared as a Protected Monument by the Government

of Karnataka under Section 4 of the Karnataka Act. By notification dated 13.9.1991, an area of 9 acres 12

cents in Survey No.198 surrounded by Survey No.115-B on all four sides of the temple was declared as

‘Protected Area’. By another notification dated 7.12.1996, the State Government declared an area within

the radius of 200 meters from the periphery and precincts of Jambunatheswara temple as ‘Safe Zone’

where no mining activity could be conducted.

19

Page 20 26.On 5.4.1952, Shri R. Gangadharappa was granted a mining lease for an

area measuring 182.45 hectares near Jambunatheswara temple for extraction

of iron ore for a period of 30 years. The lease was renewed on 4.2.1982 for a

further period of 30 years in the name of his legal heir Sri R.Pampapathy. During the

currency of lease (extended period), Sri R. Pampapathy died and his wife R.Mallamma was permitted to

carry on the mining operations in the name of M/s. Aarpee Iron Ore Mines, Bellary (respondent No.4).

The lessee was also granted permission under Section 2 of the Forest (Conservation) Act, 1980 (for short,

‘the 1980 Act’) to undertake mining operations over forest measuring 101.51 hectares.

27.In May, 2003, the Director of Ancient Monuments inspected the

temple in the presence of Senior Geologist, Department of Mines and

Geology, Karnataka and found that the mining activity was causing damage to

the structure of the temple. Thereupon he wrote letter dated 15.7.2003 to the

Assistant Commissioner, Endowments to take action for stopping the mining

activities within a radius of one kilometer from the temple. Accordingly, the

Assistant Commissioner sent letter dated 29.9.2003 to respondent No.4. He

also issued notice dated 16.1.2004 to respondent No.4 informing the latter

that if the needful is not done, action will be taken under Section 133 Cr.P.C.

28.While the officers of the Karnataka Government entrusted with the task

of protecting ancient monuments were taking steps to curb the mining

activities within a radius of one kilometer from the temple, the Ministry of

Environment and Forests, Government of India accorded permission to

respondent No.4 to increase the production of iron ore from 0.6 million

tonnes per annum to 1.5 million tonnes per annum.

20

Page 21 29.The appellant, who is an Advocate by profession and is practicing at

Hospet, Bellary, felt that unless mining activities are stopped in the vicinity of

the temple, a centuries old ancient monument may be totally destroyed.

Therefore, he filed Writ Petition No.9512/2009 before the Karnataka High

Court in public interest and prayed for cancellation of the mining lease

granted to respondent No.4 and for issue of a mandamus to the official

respondents to stop mining activity within one kilometer from the temple. He

further prayed for issue of a direction to Superintending Archaeologist,

Archaeological Survey of India (respondent No.9) to take steps for

restoration of the temple to its original state. In paragraphs 1, 2, 5 and 6 of

the writ petition, the appellant made the following averments:

“1.The fourth respondent herein was granted

permission for mining in Sy. No 115 in Jambhunathahalli,

Hospet by the Director of Mines and Geology, the second

respondent herein. In January, 2008 the Ministry of

Environment and Forest has given permission for

expansion of mining activity. The lease area of the mine is

about 101.51 hectares. Copy of the mining lease is

produced at ANNEXURE-A. The central Government has

given environmental clearance for the mining operations

on the basis of wrong information furnished by the third

respondent. Copy of the permission given by the Ministry

of Environment and Forests and for renewal of the mining

lease is produced at ANNEXURE- B.

2.The fourth respondent also obtained permission for

adopting a system of deep hole blasting for the mining

area from the Directorate General of Mines Safety. Copy

of the permission letter is produced at ANNEXURE-C. In

January 2008, the fourth respondent also obtained

clearance for enhancement of production capacity of iron

ore production from the Ministry of Environment and

Forests. Copy of the permission is produced at

21

Page 22 ANNEXURE-D.

5.The mining operation conducted by the fourth

respondent among others consists of blasting, which is

done by wagon blasting even though permission is

given for "opencast and mechanized blasting". The

lessee in question has been using wagon blasting. This

type of blasting is not being used and is not in vogue. The

wagon blasting results in loud explosion with a deafening

sound. The dust spreads to all the nearby places. On

account of this, the temple has suffered the most. The

column of the outer walls of the temple has turned brown

on account of the soil residue settling on the walls. The

explosion also causes tremors, which is felt as far as

Hospet. The residents of Hospet also feel the intensity of

the tremor. Needless to say, the temple, which is

almost 100 meters from the mining area is bearing

the brunt of these activities. The walls of the temple

have cracked and may collapse if mining activities

continue.

6. Inside the temple, there is a well. The water in the

well is said to contain many medicinal properties. In fact,

devotees throng to the temple to collect the water.

However, in recent years, the water has turned brown

because of the dust. The number of devotees who come to

visit the temple has also been reduced to a large extent on

account of mining activities and the dust pollutes the

nearby areas.”

30.Respondent No.4 filed objections and pleaded that the writ petition

should not be entertained because Writ Petition No.27067/1998 filed with

similar prayer was dismissed by the High Court on 7.8.2000 and that order

has become final. It was further pleaded that no blasting operations were

being conducted within 200 meters radius of the temple and precautionary

measures have been taken to prevent any damage to the temple. An

additional plea taken by respondent No.4 was that the writ petition was highly

22

Page 23 belated.

31.After taking cognizance of the averments contained in the writ petition,

the Division Bench of the High Court directed respondent Nos.2, 3, 8, 10, 12

and 13 (in the writ petition) to submit a report as to whether the area on

which respondent No.4 is carrying on mining operation was located within

the prohibitory distance of 200 meters specified in the notification issued by

the State Government under the Karnataka Act. The concerned respondents

inspected the site and submitted a report stating therein that no mining was

being done within 200 meters from the temple. The relevant portions of the

report are extracted below:

“Sub:- Brief report regarding mining activities of M/s. R.

Mallamma M.L.No.1806 Hospet Taluk, Bellary District.

Ref: Head Office Telephone Message Dt. 28.05.2009.

With reference to above subject as per the directions

inspected M.L.No. 1806 area along with J.E of this Office

on 28.05.2009.

At time of inspection assistance mines Manager Sri.

Phanikumar present on this spot. It is observed that

mining lease area of M.LNo. 1806 is just running adjust to

the periphery of Sri. Jambunatheshwar Temple. (Sy.No.

198). It is also observed at the time of inspection there

was no mining activity in a mining pit which is located at

130 Mtr. from the temple. At present in the said lease

mining operation are going on at about 1 Km. away

towards East from the temple.

After verifying available records in the office the

Government order NO.CI.65.MMM.96 Dt. 07.12.1996

state that mining operations should beyond 200 meters

away from the periphery of the temple.(Copy enclosed)

23

Page 24 It further submitted that on 12.10.2007 this Office in the

presence of revenue department and police department

carried out joint inspection of M/s. R. Mallamma leased

area and issued a notice to the said lease stating that they

should not carry out any mining activity within 300 Mtrs.

from the periphery of the temple.

Further, according to the direction from the Director of

Mines and Geology vide letter No. Department of

Mines and Geology/ML/1806/Permit/2007-08/6481 dated

22.02.2008 inspection was carried out and report was

submitted stating that said lessee is carrying out mining

activity 1.7 km. away from the periphery of the temple,

(copy enclosed).

Again it is submitted that on 30.08.2008 notice was issued

to the said lessee. (Copy enclosed).

This report is submitted for your kind information and

further necessary action."

32.The High Court accepted the report and dismissed the writ petition

without dealing with any of the issues raised by the appellant.

33.The appellant has questioned the order of the High Court primarily on

the ground of non-consideration of the factual assertion made by him about

the mining activity of respondent No.4 within 200 meters of the temple by

Wagon Blasting Method. He has also pointed out that as per the report

submitted before the High Court, respondent No.4 had dug mining pit at 130

meters from the temple resulting in erosion of the soil in and around the

temple.

34.Notice of the special leave petition out of which this appeal arises was

24

Page 25 issued on 9.7.2010 and respondent Nos.1 to 3 and 6 to 8 were directed to

ensure that no mining activity is undertaken or continued at the site in

question.

35.In the statement of objections filed on behalf of respondent No.4, the

plea of res judicata raised before the High Court has been reiterated and it

has been averred that no mining activity is being conducted within the Safe

Zone declared by the State of Government. According to respondent No.4,

the mining lease deed executed in its favour restricts mining operation within

a distance of 50 meters from any public structure and in the absence of any

other prohibition under the Mines and Minerals (Development and

Regulation) Act, 1957 (for short, ‘the 1957 Act’), the Mineral Concessions

Rules, 1960 or the Mineral Conservation and Development Rules, 1988, the

Court cannot prohibit the carrying on of the mining operations within a radius

of one kilometer from the temple in question. Respondent No.4 pointed out

that several other leaseholders are carrying operation within a distance of one

kilometer from the temple. Respondent No.4 also relied upon report dated

9.4.2007 prepared by Deputy Director of Mines and Geology who had

inspected the site and pleaded that no damage was done to the temple due to

mining operations. Respondent No.4 denied that it was doing mining by the

Wagon Blasting Method and emphasized that it had employed controlled

blasting method.

36.After hearing the learned counsel for the parties, this Court passed

25

Page 26 order dated 8.11.2010 and directed respondent No.9 to personally inspect the

site of the temple and the area in which mining activities were going on prior

to 9.7.2010 and submit a report indicating whether such activities had

affected the temple. In compliance of that order, respondent No.9 made

reference to M/s. CIVIL-AID Technoclinic Private Limited, Bangalore to

assess the structural stability of the monument due to surrounding mining

activities. Thereupon the firm carried out detailed inspection along with

concerned officials in November and summarised the outcome of inspection

in the following words:

“PHYSICAL OBSERVATIONS

Main Temple Structure:

1. Visible settlement of foundation system was observed

alround the temple at various locations.

2. Non alignment was observed in plinth level stone

beams in most of the locations.

3. Wide gaps were observed between the stone panel

joints in most of the locations.

4. Cracks were observed in stone panels at isolated

locations.

5. Wide gaps were observed in stone members at beam

bearing regions in most of the locations.

6. Non alignment was observed in stone beams between

the spans at ceiling level in most of the locations.

7. Cracks were observed in stone capital below the beam

bearing region at various locations.

8. The wide gaps between the stone members were

observed to be filed with cement mortar.

26

Page 27 9. It is observed that recently stone members

were observed to be cleaned with chemical wash.

10. WPC over the roof slab was observed to be severely

deteriorated in the form of hapazardous cracks.

11. Wide cracks were observed along the stone beam line

over the roof slab.

12. Severe undulations were observed over the roof slab in

most of the locations.

13. Accumulation of dead leaves and growth of vegetation was observed over

the roof slab at various locations.

14. No visible abnormalities was observed in well.”

“ Peripheral structures :

1. Absence of plinth protection was observed alround the

building.

2. Severe growth of vegetation was observed alround the

building.

3. Inclined cracks were observed in masonry wall at

various locations.

4. Severe separation cracks were observed at the

interface of wall and slab junction.

5. Debonding and spalling of plaster was observed in

masonry wall at various locations.

6. Damp patches were observed in masonry walls at

various locations.

7. Deterioration of WPC was observed over the roof

slab.”

“Inferences:

Following inferences are drawn, based on the detailed

inspection:

1. The visible distress observed in stone members of

structure is essentially due to one or the combination of

following factors:

27

Page 28 ·Prolonged age effect.

·Disturbance caused to the structure due to nearby

mining activities.

·Inadequate/ineffective maintenance over a period of

time.

2. Severe cracks observed in peripheral structures are

mainly due to disturbances caused by surrounding

mining activities and inadequate maintenance over a

period of time.”

“ Recommendations :

Following recommendations are made, based on the

above inferences:

1. In view of the severity of the structural/functional

distress and considering structural type of temple

structure, it is recommended to carryout mining

activities away from temple, atleast 1 km radius around

the temple to minimize the possible vibration.

Further, it is recommended to take up the appropriate

restoration of the structure, considering long term

durability and safety of the structure after carrying

out detailed scientific study of the structure.

2. The deteriorated WPC over the roof slab shall be

removed and replaced with appropriate light weight

waterproof treatment in order to relieve the loads.

3. The possible endanger to temple structure due to water

storage depression in nearby in mining area shall be

avoided by creating suitable drainage facility with

appropriate benching and pitching to avoid possible

collapse of disturbed hillock towards temple structure.

4. Periodic maintenance of the temple structure shall be

adhered regularly.”

The report prepared by respondent No.9 is accompanied by several

28

Page 29 photographs which provide visual evidence of the damage caused to the

temple due to mining activities.

37.On 14.1.2011, the Court ordered impleadment of the Superintending

Archaeologist of the State of Karnataka as a party and directed him to file an

affidavit on the present status of the temple specifying therein whether the

mining activities have already damaged the same. Simultaneously, respondent

No.9 was directed to indicate whether other lessees were carrying on mining

operations in the vicinity of the temple and disclose their names.

38.By an order dated 11.3.2011, the Court ordered impleadment of M/s.

Mysore Minerals Ltd., Smt.R. Mallamma, Sri R.J. Pattabhiramaih, Sri Allam

Basavaraj, M/s. R.B.S.S.N. Das, Sri R. Charuchandra, Sri H.N. Prem Kumar

and M/s Kariganur Mineral Mining Industries as parties and also stayed

mining operations within a radius of 2 kilometers from the temple.

39.After service of notice, respondent No.4 filed statement of objections

on 31.8.2010, respondent Nos. 1 to 3 and 5 filed their objections on

24.9.2011, respondent No.9 filed affidavit dated 2.10.2010, respondent No.7

filed counter affidavit dated 5.1.2011, respondent No.14 filed affidavit dated

17.2.2011 and respondent No.18 filed counter affidavit dated 15.4.2011.

40.In the statement of objections filed on behalf of respondent No.4, the

maintainability of the appeal has been questioned on the ground that similar

issue had been raised before the High Court in Writ Petition No. 27027 of

29

Page 30 1998 and the same was dismissed vide order dated 7.8.2000. Respondent

No.4 has also accused the appellant of seeking the Court’s intervention after a

long time gap of 27 years. On merits, the case of respondent No.4 is that

mining activity is being done strictly in accordance with the provisions of the

1957 Act, the Mineral Concession Rules, 1960 and the Mineral Conservation

and Development Rules, 1988 and they do not contain any prohibition on

mining operations within a radius of one kilometer from the temple.

Respondent No.4 has also relied upon report dated 9.4.2007 prepared by

Deputy Director of Mines and Geology and averred that no damage has been

caused to the temple due to mining operations. It is also the case of

respondent No.4 that mining is being done by controlled blasting and not by

Wagon Blasting Method.

41.The thrust of the objections, affidavits and counter affidavits filed by

other respondents is that mining is being done as per the provisions of the

1957 Act and the Rules framed thereunder and there is no legal justification

for imposing any restriction in violation of that Act and the Rules.

42. One significant aspect of the pleadings which deserves to

be mentioned at this stage is that the State of Karnataka and its officers have

taken contradictory stands on the issue of the nature of mining operations un-

dertaken by respondent No.4. While respondent Nos. 1 to 3 and 5 have

claimed that respondent No.4 has been carrying out mining by controlled

blasting in accordance with the permission granted by the Director General of

30

Page 31 Mines Safety and not by the Wagon Blasting Method, in affidavit dated

14.2.2011 filed by him, Shri B.M. Chikkamaregowda, Deputy Director, De-

partment of Archaeology and Museums, Kamalapur, Hospet Taluk, Bellary

District has unequivocally contradicted this by making the following state-

ment:

“4. I further humbly submit that, during the inspection, it

was observed that the mining activity has been carried out to

the east south-east of the temple at a distance of less than 100

meters from the periphery of the temple and extending further

to the east and south-east Plate IV (a) & (b). It appears that

initially the mining was carried out nearer to the temple

continually over a period of decades which has resulted in the

formation of a huge crater at about a distance of 100 meters

from the temple on the east and later on the mining activity

has been extended further east clearly indicated by the

stepped terrace formation in a semi-circular pattern

surrounding the crater Plate V (a) & (b). Now only a high and

narrow ridge divides the temple and the crater. Due to

continuous mining, the depth of the crater has reached almost

the level of the temple foundation and has become the source

of accumulation of rain water as well as rise in sub-soil water

level. This has resulted in the underground seepage of water

towards the temple which is evidenced by dampness in some

of the subsidiary shrines on the southern side.

5. I further submit that as per the Gazette Notification, an

area of 9 aces 12 cents in Survey Number 198 surrounded by

on all four sides by Sy.No.115-B, has been declared as

protected area and in the absence of clear demarcation of the

protected boundary, it could not be ascertained whether the

mining activity encroached the protected area also.

However, it is certain that the mining activity was carried out

in the prohibited area within a distance of 80. As per the

provisions of the Karnataka Ancient and Historical

Monuments and Archaeological Sites and Remains Act, 1991

(Karnataka Act of 1962), under Section 20, no construction

or mining, quarrying, excavating, Wasting or any operation of

a like nature is permitted without the permission of the

Government. The Director, Department of Archaeology and

31

Page 32 Museums, Government of Karnataka who was present during

the inspection has informed that no such permission has been

given by the Department for carrying out mining operation

within the notified zones. As per the records made available

by the State, Department of Archaeology, as early as 3

rd

March 2004, the Deputy Director, Department of

Archaeology and Museums, Government of Karnataka,

posted at Kamalapura had written to his Directorate office in

Mysore that during his spot inspection along with Shri

T.M. Manjunathaiah, Technical Assistant, on 27

th

February

2004 witnessed the mining activity going on in the vicinity of

the temple by using explosives (wagon blasting). He also

informed that the felt tremors due to the explosion in the

temple while he was inspecting the temple. He also noticed

cracks on the walls and roof due to the impact of the

explosion. He reported that the lessee who was carrying out

the mining was doing repairs in the form of plastering and

cement coating to cover up the cracks on the ancient temple.

He informed the temple priests about the damage being

caused due to such unscientific methods of repair which had

affected the architectural style of the ancient temple and

asked them to stop at once such works. He has recorded in

his letter that the temple is getting seriously damaged due to

mining activity and the temple is wholly discoloured.

6. I further humbly state that this discoloration is obviously

due to the accumulation of the deposit of the mineral dust

which was seen by the visiting team on 29

th

November 2010.

However, since the temple administration had done major

repairs to the temple proper in the form of chemical cleaning

and applying coat of warmish on pillars and walls, the

discoloration was seen only in the superstructures over the

sanctum and entrance mandapas as well as in patches inside

the temple.

7. I further submit that a close inspection of various parts

of the temple by Respondent No.9 along with Shri M.V.

Visveswara, Deputy Superintending Archaeologist cum Site

Manager, World Heritage Site, Hampi revealed that the

temple has suffered:

1. Settlement in its foundation in the Navaranga

and Maha Ranga Mamlapa portions;

2. A few pillars have gone out of plumb-Plate

32

Page 33 VI(a);

3.Concussion fractures in the capital portion of the

pillar in Maha Ranga Mandapa Plate VI (b);

4.Extended arms of the capital and beams have

broken at some places Plate VII (a) and (b);

5.Widening of joints on the wall portions both

horizontal and vertical:

6.Discoloration of the stucco of the

superstructure over the entrance mandapas and

sanctum Plate VIII and IX;

7.Development of cracks over the roof and the

longitudinal as well as peripheral ridge,

especially

near the joints Plate X (a) and (b);

8. Dampness due to seepage of water capillary

action and due to growth of vegetation;

9. Development of cracks over the roof and the

longitudinal as well as peripheral ridge,

especially near the joints;

10. Dampness due to seepage of water capillary

action and due to growth of vegetation.

8. I respectfully submit that again in the month of June

2007 on 16

th

a joint inspection by Tahsildar, Hospet, Deputy

Director, Mines and Geology, Government of Karnataka;

Deputy Director, State Archaeology, Government of

Karnataka; Revenue Inspector, Hospet; Taluk Surveyor

inspected the temple in Survey Number 198 and mining

activities in Survey Number 115 as per the instructions of the

Deputy Commissioner, Bellary, was carried out and they

have confirmed and recorded in their joint inspection report

that (i) the cracks were developed in the temple due to

mining; (ii) mining activities was carried out in the near

proximity of the temple and the (iii) if temple is not

conserved and mining activities are not stopped, the temple

may get affected severely.

9. I further humbly submit that Shri Subramanian, Senior

Geologist, Geological Survey of India, Bangalore, who

visited the site along with Respondent No.9, who viewed the

site from geological point of view, has opined that because of

intense mining activity fine dust particles are deposited on

south, south east and north gopuras of the temple and the

mining activity has led for the dumping of the mine waste on

33

Page 34 the eastern and north eastern part of the temple which has led

for artificial drainage on the eastern boundary of the temple.

One of the benches of the mine on the north eastern part of

the nala (drainage) has led for flooding and soil erosion in

and around the temple. As the temple is in lower elevation,

the mine is in the upper elevation, road cutting on the upper

elevation has lead for debris movement on the southern part

of the temple.

10.I further humbly submit that the Principal Design

Engineer, Shri Mohan Kumar, BE (Civil); ME (structure),

MIE, CH. Eng who was accompanying the team has opined

from the point of view of structural engineering, that the

visible distress observed in stone members of structure is

essentially due to one or the combination of following factors

namely Prolonged age effect: Disturbance caused to the

structure due to nearby mining activities;

Inadequate/Ineffective maintenance over a period of time.

11. I further humbly submit that since the mining has been

stopped for quite some time, the actual impact of the

blasting/mining on the temple, intensity of the explosion,

tremor and vibration as also the precise dust accumulation by

using appropriate scientific instruments could not be

ascertained. However, even in the absence of above data, the

onsite condition clearly brings out the following.

(a) The present condition of the temple which was

constructed in around 1500 AD, using massive granite

blocks, in trabeate system, is attributed to several factors

which are as under;

(b) Aging and lack of periodic maintenance by the concerned

department;

(c)Constructional methodology of trabeate system which

is having inheritant weakness of yielding to tremors and

shocks

(d) As repeatedly pointed out by the Deputy Director of State

Archaeology Department, Government of Karnataka and

other local authorities and also as observed by the

Respondent and other officials, mining activities using

explosives in the close proximity of the protected temple has

34

Page 35 also contributed to a extent for it& present detracted

condition.”

43.On 26.4.2011, the Court appointed a Committee of Experts with a

direction that it shall inspect the site of the temple, the area where mining

activities were being carried out and submit its report. The relevant portions

of that order are extracted below:

“For the purpose of undertaking a comprehensive

exercise for evaluation of the damage, if any,

caused on Jambunatheswara temple due to mining

activities undertaken before passing of stay orders

by this Court on 09.07.2010 and 18.02.2011, the

Committee comprising the following is constituted:

1The Director, Directorate of Archaeology

& Museums, Government of Karnataka,

Karnataka Exhibition Authority Complex,

Mysore570 010.

Convenor

2The Superintending Archaeologist,

Archaeological Survey of India, Bangalore

Circle, 5th Floor, `F' Wing,

Kendriya Sadan, Koramangala,

Bangalore 560 034. (Along with the

team of experts from ASI)

Member

3Geological Survey of India, State Unit of

Karnataka & Goa, Vasudha Bhavan,

Kumaraswamy Layout, Bangalore 560

078.

Member

4Shri A.B.Morappanavar, IFS, Dept. of

Ecology & Environment, Regional Director

and Deputy Conservator of Forest, #01,

Charanti Matt Building, Shivalaya Road,

Sadashivanagar, Belgaum 590001. Member

5Deputy Director, Department of Mines &

35

Page 36 Geology, Government of Karnataka, College

Road, Hospet 583 201 (Dist.Bellary)

Member

6Prof.C.S.Vadudevan, Asst. Professor,

Department of Ancient History &

Archaeology, Kannada University,

Hampi(Vidyaranya) -583 276 (Hospet Taluk,

Bellary Dist.) Member

7Sri Pankaj Modi, Conservation Architect,

Indian National Trust for Art & Cultural

Heritage, Karnataka Chapter, 166,

Kattariguppe Water Tank Road, 4th Cross,

4th Block, 3rd Phase, Banashankari III stage,

Bangalore 560 085.

Member

8The Deputy Director, Directorate of

Archaeology & Museums, Government of

Karnataka, Kamalapuram 583221.

(Hospet Taluk, Bellary Dist.)

Member

Secretary

9A representative of Directorate General of

Mines Safety (DGMS), Dhanbad, Jharkhand

For mine

safety

10A representative of Indian Bureau of

Mines, Nagpur, Maharashtra

For Mining

technology

The Committee shall inspect the site of the temple and

the area where mining activities were being carried

out, evaluate the impact of the mining activities on the

temple from all possible angles keeping in view the

relevant statutory provisions including the Environment

Protection Act, 1986, the Water (Prevention and

Control of Pollution) Act, 1974 and the Air

(Prevention and Control of Pollution) Act, 1981.”

44.The Court appointed Committee (for short, ‘the Committee’) held

meetings on 6.6.2011 at Hospet, on 8.7.2011 at Mysore and on 27.2.2011,

16.11.2011 and 26.12.2011 at Bangalore. During one of these meetings, the

Committee decided to avail of the services of Central Institute of Mining and

36

Page 37 Fuel Research (CIMFR), Dhanbad, Jharkhand for DETERMINATION OF

SAFE BLASTING PARAMETERS TO AVOID DAMAGE TO THE

TEMPLE and National Institute of Technology, Karnataka, Surathkal

(hereinafter referred to as ‘NIT’) for ASSESSMENT OF THE IMPACT OF

BLASTING OPERATIONS CARRIED OUT IN IRON-ORE MINES ON

JAMBUNATHESWARA TEMPLE AND SAFE LIMITING DISTANCE

FOR BLASTING ACTIVITY IN MINES.

45.CIMFR, Dhanbad carried out scientific investigations from 9

th

to 13

th

November, 2011. During that period, eight experimental trial blasts were

conducted at four different mines viz. Shankalapuram Iron Ore Mine of M/s.

R.B. Seth Shreeram Narsingdas (RBSSN) (Respondent No.18), Aarpee Iron

Ore Mine of Smt. R. Mallamma (respondent No.4), Jambunatheswara Iron

Ore Mine of M/s. Mysore Minerals Limited (respondent No.15) and

Kariganaur Iron Ore Mine of M/s. KMMI. Blast-induced ground vibrations

and air overpressure/noise generated during the experimental blasts were

monitored using five seismographs. Two seismographs were placed near the

Jambunatheswara Temple whereas the remaining three seismographs were

placed near the blasting sites. In two rounds of trial blasts conducted nearest

to the temple (i.e. in Aarpee Iron Ore Mine of Smt. R. Mallamma), a Sony-

make Handycam video camera was used to observe any occurrence of fly

rock from the blasts.

46.After conducting experimental trial blasts, CIMFR, Dhanbad sent a

37

Page 38 detailed report to the Committee along with photographs. The Executive

Summary of that report reads as under:

“EXECUTIVE SUMMARY

This report relates to the scientific investigations carried out by the Blasting

Department, Central Institute of Mining and Fuel Research (CIMFR), Dhanbad for the

safety of the Jambunatheswara Temple, situated in Hospet, karnataka from blasting

impacts produced by the surrounding mines during operation. The objective of the

scientific study was to assess the impact of opencast blasting on the Jambunatheswara

Temple and determination of a safe radial distance from the temple up to which all

blasting operations should be banned and the area in which controlled blasting

operations can be permitted along with details of safe blast design parameters. The field

investigation was carried out during 9th - 13th November, 2011. During the field

investigation, eight experimental trial blasts were conducted at different mines situated

nearby the temple. Ground vibrations and air overpressure/noise generated during the

experimental blasts were monitored at various locations using five seismographs. The

results of the study, conclusions and recommendations made in the report are

summarized below.

1. Eight trial blasts were conducted during the period of the field

investigation. Two blasts were conducted at Shankalapuram Iron

Ore Mine of M/s R. B. Seth Shreeram Narsingdas (RBSSN),

three blasts at Aarpee Iron Ore Mine of Smt. R. Mallamma, two

blasts at Jambunatheswara Iron Ore Mine of M/s Mysore

Mineral Limited (MML) and another one blast at Karinaganur

Iron Ore Mine of M/s KMMI.

2. All the trial blasts were conducted beyond 200 m distance

from the Jambunatheswara Temple. The distances of the blasting

locations from the temple varied between 290 and 1920.

3. The trial blasts were conducted as per the blast design

parameters normally practiced in each mine. The total number of

holes in the blasting rounds varied from 6 to 10. Depth of holes

varied betwin 7.0 and 10.0 m and blasthole diameter in all the

blasts was 115 mm. The total explosive charge varied between

106.20 and 407.50 kg. The maximum explosive charge per delay

varied from 17.67 kg to 40.75 kg. Shock tube (Nonel) initiation

system was used for both in-hole and surface hole-to-hole

initiation in all the blasts.

4. Five seismographs were used for monitoring of blast-induced

ground vibrations and air overpressures. In all the eight trial

blasts conducted, two seismographs were always fixed at the

Jambunatheswara Temple. The rest of the three seismographs

were placed nearer to the blasting locations, directed towards the

temple site. Distances of the vibration monitoring stations from

38

Page 39 the blasting locations varied between 290 and 1920.

5. In total, twenty-two ground vibration data were recorded from

the eight experimental trial blasts conducted at the four different

mines. The recorded magnitude of ground vibration data varied

betwin 0.325 and 6.68 mm/s. The maximum magnitude of

ground vibration recorded was 6.68 mm/s at a distance of 200 m

from the blasting source.

6. The magnitude of ground vibration data recorded at the

Jambunatheswara Temple varied between 0.325 and 1.13 mm/s.

The highest magnitude of ground vibration data recorded from

all the experimental trial blasts at the temple site was 1.13 mm/s

at a distance of 290 m from the blast site. It was recorded near

the Eastern Gate of the temple. The trial blast was conducted at

the 2nd Bench (Nishant Pit), Aarpee Iron Ore Mine of Smt. R.

Mallama (3rd Trial Blast). The total quantity of explosives

detonated in the blasting round was 205.02 kg whereas the

maximum explosives charge per delay was 34.17 kg.

7. When the trial blasts were conducted beyond 845 m from the

Jambunatheswara Temple, no vibration data was recorded by the

seismographs which were fixed near the temple. The triggering

levels of the instruments were set at sensitive mode viz. 0.30

mm/s.

8. The Fast Fourier Transform (FFT) analysis of vibration data

revealed that the dominant frequency of vibration waves varied

between 7.5 and 31.8 Hz. In most of the cases, the frequencies

were higher than 8 Hz. Only in a very few cases the dominant

frequencies were found to be less than 8 Hz.

9. The safe level of peak particle velocity (PPV) for the

Jambunatheswara Temple was taken as 2.0 mm/s as per the

DGMS Standard (Technical Circular Number 7 of 1997). This

value has been taken into account, considering the importance

and structural sensitivity of the temple.

10. The recorded magnitudes of ground vibration waves

measured inside the Jambunatheswara Temple premises, from all

the eight experimental trial blasts conducted during 10th - 13th

November, 2011, are well within the safe limits.

11. The levels of air overpressure recorded from the different

trial blasts varied between 97.5 and 117.8 dB (L). When the trial

blasts were conducted beyond 845 m distance from the temple,

39

Page 40 no blasting sound could be heard or noticed physically. The

levels of air pressure/noise produced due to blasting were well

within the safe limits.

12. No flyrock were observed in any of the eight experimental

trial blasts conducted during the field investigation.

13. On the basis of the data recorded as well as observations

made during the experimental trials, it may be said, technically

and scientifically, that blasting may be carried out beyond 200 m

distance from the Jambunatheswara Temple without causing any

structural damages, provided that controlled blasting method is

strictly adhered to (Tables 3 & 4).

14. Based on the field observations, ground vibration and air

overpressure data recorded as well as their subsequent analysis,

the following zones are classified for conducting blasting

operations surrounding the Jambunatheswara Temple.

200 - 300 m from the Jambunatheswara Temple

300 - 500 m from the Jambunatheswara Temple

Beyond 500 m distance from the Jambunatheswara Temple

15.Within the distance of 200 - 300 m from the temple,

controlled blasting with 6m blasthole depth and 115 mm

blasthole diameter is recommended. Within300 - 500 m,

blasthole depth of 6 - 8 m and 115 mm diameter is

recommended. Beyond 500 m distance from the temple, the

maximum recommended blasthole depth is 10 m for 115 drill

hole diameter.

16. The recommended blast design parameters, controlled

measures for ground vibration, flyrock, noise/air overpressure

for the safety of the Jambunatheswara Temple are prescribed in

Sections 7 & 8. The recommendations should be followed

strictly, in letter and spirit.

17. In the present condition, the altitudes (Reduced Level/RL) of

the working benches of the different iron ore mines located near

the Jambunatheswara Temple are in a higher level than the

temple. Most of the mines are also having free faces of the

working benches facing towards the temple. However, when the

altitudes of these mines become on the same level or lower than

the temple in future, it is recommended to reassess the impact of

40

Page 41 blast-induced ground vibration on the temple.”

47.NIT undertook scientific investigation to assess the impact of blasting

operations carried out in surrounding iron ore mines on the stability of

Jambunatheswara temple. The objectives of the study undertaken by NIT are

enumerated hereunder:

(a)To study the blasting operations carried out in iron

ore mines in the surroundings of the

Jambunatheswara Temple.

(b)To monitor blast vibrations.

(c)To establish the ground vibrations propagation

equation.

(d)To determine the Safe Radial Distance from the

Temple up to which blasting activity may be

permitted.

(e)To specify the blast design parameters and pattern

to be followed, with details like,

- Maximum explosive charge per hole

- Type of initiation and the detonators to be used

- Maximum number of holes per round

- Maximum explosive charge per delay, to ensure

PPV to be below 2mm/s for the Historical Temple

as per the DGMS Technical Circular-7 of 1997.

- Type of muffling to control fly rock

- Methods of limiting the air blast (noise)

- Any other measures.

48.The investigation conducted by NIT covered Aarpee Iron Ore Mines,

Shankalapuram Iron Ore Mine of M/s. RBSSN, Jambunatheswara Iron Ore

41

Page 42 Mine of M/s. Mysore Mineral Limited and Kariganur Iron Ore Mine. In all

13 blasts were conducted in these mines in the presence of their

representatives and these blasts were monitored at least at two different

locations by using blast vibration monitors, MINIMATE DS-077 and

MINIMATE PLUS. On the basis of these investigations, NIT suggested that

mining activity with drilling and blasting could be permitted up to a distance

of 300 meters from Jambunatheswara temple with a cap on usage of

maximum explosive charge delay of 44 kg. Dr. V. R. Sastry, Professor of

Mining Engineering, NIT submitted a detailed report to the Committee along

with a number of photographs. The conclusions and recommendations

contained in that report are reproduced below:

“CONCLUSIONS AND RECOMMENDATIONS

Conclusions

Based on the investigations carried out on blasting operations

in iron ore mines around Sri Jambunatheswara Temple, the

following conclusions are drawn:

Studies were carried out in four iron ore mines, namely Smt.

R. Mallamma, ARPEE Iron Ore Mines. Sankalapuram Iron

Ore Mine - RBSSN, Jambunatha Halli Iron Mine -Mysore

Minerals Ltd., and Kariganur Iron Ore Mine - KMMI.

In total, 13 blasts were carried out in four mines.

Blasts were conducted in different benches and locations,

representing different strata conditions.

Diameter of blastholes used in all the blasts was 110mm.

Depth of the blastholes was varying from 6m to 10m.

Number of Blastholes varied from 6 to 14.

42

Page 43 Explosive charge per hole varied from 21.75kg to 40.56kg.

Total explosive charge per blast varied from 208.2kg to

570.5kg.

Shock tube system of initiation was used for achieving down

the hole initiation and also the surface delays.

Hole to Hole initiation was provided in all the blasts.

Sri Jambunatheswara Temple is an ancient Temple and,

therefore, a Peak Particle Velocity of 2mm/s was considered

as the Threshold value, to maintain stability of the Temple.

Ground vibrations and noise levels from each blast were

monitored using five (5) units of Blast Vibration Monitors,

MNIMATE-007 and MINIMATE PLUS of Instantel,

Canada, at six (6) different locations.

Three monitors were used to record blast vibrations at East

entrance. North entrance, and West side of Sri

Jambunatheswara Temple.

The recordings indicated ground vibrations of less than

2mm/s Peak Particle Velocity near the Temple.

There was no sign of any fly rock (occurring from any of the

13 blasts) at the Temple.

Ground Vibrations Propagation Equation was established

(combined for all mines) for the site as V = 598.2(D/VW)151

Based an the investigations carried out it could be concluded

that a safe distance of 300m be maintained from Sri Jambunatheswara Temple for

carrying out blasting operations.

Maximum explosive charges per delay to be used for

conducting the blasts at various distances from the Temple

are provided in Table-9.

Individual blasthole to blasthole delay system, as practiced

presently, should be continued to maintain safety of the

Temple.

Recommendations

Proper blast design results in lower ground vibrations.

The depth of blastholes may be maintained as 8-12m. Shorter

43

Page 44 benches of less than 8m result in higher ground vibration

levels, as stiffness of bench increases.

Each blast should be conducted with a clear free face, to

avoid confinement of blasts.

It is recommended to continue the bottom hole initiation as

practiced.

Blast layouts should be planned in such a way that the

progress of initiation in the blast round is away (opposite)

from the Temple structure.

It is recommended to use a maximum of eight (8) blastholes

per round, when the blast site is 300m away from the

Temple.

It is advisable to continue the system of muffling by covering

all the blastholes in the blast round with 25kg sand bags, to

minimize the fly rock problem.

It is advisable to implement smaller, meticulously planned

and safer blasts, rather than bigger blasts without having

much control on the fragmentation process, leading to higher

intensity of ground vibrations.

Care should be taken to avoid over confinement blastholes by

applying sufficient delay time between blastholes in the blast

round. It is advisable to provide a clear delay of 8ms/m

between blastholes in the blast layout.

It is recommended to follow the following blast pattern at

300m distance or more from the Temple:

Bench height : 8m

Depth of holes : 8.5-9m

Burden : 2.5 -3.5m

Spacing : 3m - 4.5m

Pattern of holes : Rectangular

Initiation :Straight line pattern/V- pattern

No. of rows : 2

44

Page 45 No. of holes : 8

Width of blast area : With single row-2.5-3.5m

Length of blast area : 24 - 36m

In-Hole initiation : Shock Tube System

Delay system : Shock Tube system

Charge per hole : 44kg (Maximum)

Max. charge / delay: 44kg

Initiation Pattern: : Straight line pattern

V-pattern

Diagonal pattern (in case free

end available)

The layouts of the blasts conducted during the investigations

may be continued, with hole to hole individual delays, as shown in Fig. 29.”

49.The Committee analysed the aforesaid reports, considered the

recommendations made therein and submitted its report to this Court in two

volumes. Parts IV and V of the main report, which contain discussions and

recommendations read as under:

“IV. DISCUSSIONS:

The Committee unanimously agrees that the mining

operations carried out using blasting operations in the near

proximity, at a distance of less than 200 m from the Subject

temple, have already caused irreparable damages to the

temple and the eco-environs of its immediate neighborhood

as enumerated in detail in Annexure-I (A), (B), (C) and (D)

and expresses its serious concern towards the need of

addressing all the issues responsible for such an adverse

impact and resorting to make sincere efforts required so that

the temple and its immediate environs regain their original

aesthetic and architectural grandeur, sanctity and pristine

45

Page 46 eco-environs. In the light of the above, the Technical Reports

submitted by the various agencies are reviewed and discussed

as a prerequisite for making specific recommendations.

1. The Study on Jambunatheswara Temple Surroundings - submitted by Karnataka

Remote Sensing Application Centre, ISRO, Bangalore (Annexure-IV) deals with

the mining activities carried out in a radius of 1km and 2km. It also illustrates the

damage caused to the subject temple and its immediate environs. The agency has

used the imageries of 2008. It would have been prudent if it had compared the 2008

imageries with the present/latest one. The agency could have also offered valuable

data and comments on two of the very significant issues viz.

1) Compare the vegetation of 2008 vis-a-vis 2011, and

2) Specific disturbances to drainage system in the area,

caused due to mining.

In spite of these short comings, the study by the KSRSAC

has clearly brought out some significant facts. It emphatically

establishes that the mining area is located within a horizontal

distance of 55 m from the temple premises on the eastern

side. There are also mining areas in the south and west of the

temple within one Km radius. The effects recorded under

“Mining” (page 1-2) of the Report (Annexure-IV) highlights

that the mining and related activities have undoubtedly

affected the architecturally sensitive temple and its eco-

environs. Data provided in the table indicates that more than l/4th (89.66

hectares out of 314.12 hectares) of the area within 1 Km radius and l/5th of the area

(275.26 hectares out of 1256.56 hectares) within 2 Km radius have been directly

affected due to mining and related activities, thus seriously affecting the land

use pattern. It has also brought to light the intentional measures taken by the

mining authorities to divert rain water due to the disturbed drainage system to avoid

further damage to the subject temple resulting in erosion of the sub-soil during the

post monsoon period. Loss of vegetation cover as also dried up tanks due to

disturbances caused to the natural drainage system is also highlighted.

Thus, the Report substantiates the statements of Respondent

no. 9 (Annexure-I) in so far as

(1) The mining activities have been conducted from a

distance of 55 m from the subject temple in dire

violation of the provisions of Section 20 of the

Karnataka Ancient and Historical Monuments and

Archaeological Sites and Remains Act, 1961 and

subsequent amendment in 1991 which prohibits mining

and construction activities within the Prohibited and

Regulated Areas;

(2) The mining activities have adversely affected the

temple and

46

Page 47 (3) They have also adversely affected the immediate

environs of the temple to a great extent.

2. The Conservation Plan for Jambunatha Temple prepared by

Indian National Trust for Art and Cultural Heritage, Bangalore Chapter (Annexure-

III) substantiates in its entirety the observations made by Respondent No. 9 in the

Technical Report (Annexure-I(A), (B) and (C) and the subsequent Affidavit

(Annexure-I(D) with regard to the damages caused to the subject temple due to

mining and related activities. The deteriorations caused as observed during the

comprehensive survey inspection have been enumerated under three broad

categories, as stated below:

(1) defects due to movements and vibrations,

deflection of beam and plinth stone members, tilts of

columns, bulging of walls, cracked stone members,

material failure and missing parts;

(2) changes to surfaces, finishes, moisture problem,

rising dampness, water seepage, human inflicted

problem, lost or missing details, material deterioration, drainage

systems, presence of fungi, algae, termites and insects, vegetation

growth, changes to surrounding condition and missing portions due to

deterioration;

(3) space dimensions and configurations, additions,

blocking of openings, false facade, changes to basic

plan, topography of the surrounding land, bad re-

pointing, bad cleaning techniques, insensitive and out of context

additions and finishes (Annexure-III - Chapter III, page 30-100).

In Chapter IV of the said report (Annexure-III - pages

101-109), a further analysis of the deteriorations are

enumerated along with the inferences drawn based on which,

the Report has suggested detailed conservation plan under

short-term measures (immediate measures), long term

measures and the requisite budgetary estimate for an amount

of Rs.3,43,19,160 (Rupees three crore forty three lakhs, nineteen thousand,

one hundred and sixty) only for executing the same in order to bring the

temple to its original condition so as to regain its past glory (Chapter V, pp.

110-114).

3. The Reports submitted by Central Institute of Mining and Fuel

Research, Dhanbad (Annexure-V) and National Institute of Technology,

Karnataka, Surathkal (Annexure-VI), based on Technical field investigations

conducted during the 2

nd

and 3

rd

weeks of November, 2011, are very helpful in

arriving at the safe blasting parameters to avoid damage to Jambunatheswara

temple situated near Hospet, Karnataka. However, these reports only partially

contribute to understand and assess the damages caused to the subject temple

due to the mining activities that have already taken place in the immediate

neighborhood of the temple. In this connection, it is submitted that, the site

inspection by the Respondent No. 9 and subsequently by the Committee, have

established beyond any doubt that damages have been caused to the

47

Page 48 Jambunatha Temple due to the impact of the mining using blasting operations

in the near proximity. In view of the sensitive nature of the temple, which has

already suffered significantly, it was suggested that it was not advisable to

conduct any more blasting vibration monitoring tests in the near vicinity of the

temple.

It was further suggested that conducting any such

blasting vibration monitoring tests in a far of place quite

away from the temple, will in no way establish any new

scientific proof regarding the impact of mining using blasting

operations on the Jambunatha temple.

The mining operations carried out using blasting operations in

the near proximity of the subject temple within a distance of

less than 200 M have already caused irreparable damages

and need to be addressed on priority.

In the above context, the investigating agencies have

admittedly conducted all these experimental blasting beyond

two hundred meters whereas the study conducted by

Karnataka Remote Sensing Application Centre, ISRO,

Bangalore (Annexure-IV) has indicated that one of the mines

exists within a horizontal distance of 55 meters from the

temple premises on the eastern side. Thus, the impact of

mining with blasting operations which have already been

carried out at a distance between 55 meters and 200 meters

(290 meters as in case of the nearest blasting conducted by

CIMFR, Dhanbad) cannot be fully understood and assessed

scientifically by the present investigations.

These trial blasts have been conducted as per the blast design

parameters normally practiced in each mine which are as per the specifications

stipulated by the controlling authorities, viz., Indian Bureau of Mines and

other agencies and appear to have been conducted under ideal laboratory

conditions. Many of the trial blasts have been conducted at locations having

free faces of the working benches. Obviously, the results of the investigations

show minimum or no impact on the architecturally sensitive temple especially

when the blasts are conducted at locations having no ‘free surface’. On the

basis of the data recorded as well as observations made during the

experimental blasts, it is said, “technically and scientifically that blasting may

be carried out beyond 200 meters distance from Jambunatheswara temple

without causing any structural damages provided that controlled blasting

method is strictly adhered to (Annexure-V - Tables 3 and 4) and ‘follow the

following blast pattern at 300 meters or more from the temple (Annexure-VI -

page 88). The data recorded as well as observations made during the

experimental blasts, admittedly and essentially are based on individual blasts

and the investigating agencies have not either considered or evaluated

cumulative or compounded impact of the multiple blastings taking place

simultaneously at varying distances and altitudes. It is a matter of common

perception that the collective impact of many less/non harmful individual

entities could be severe and lethal in effect, probably not requiring any

48

Page 49 scientific or technical confirmation.

The CIMFR Report (Annexure-V - page 7) significantly adds that "in

the present condition, the altitudes (Reduced Level/RL) of the working

benches of the different iron ore mines located near Jambunatheswara temple

are in a higher level than the temple. Most of the mines are also having free

surfaces of the working benches facing towards the temple. However, when

the altitudes of these mines become on the same level or lower than the temple

in future, it is recommended to reassess the impact of blast-induced ground

vibration on the temple”. By this, it may be construed that one cannot assess

the impact of blast-induced ground vibrations on the temple when such blasts

are made on the same level or lower than the level of the temple which have

already been done as observed by the Respondent No. 9 and the members of

the Committee during their field visits respectively.

Another significant aspect of the Report of the

CIMFR, Dhanbad is that in the very introductory page

(Annexure-V - page 1) it has added a Note stating that “It is

hoped that the recommendations will be implemented to get

the optimum results without hampering the production,

productivity and safety. The recommendations are the

guidelines, which should be implemented in letter and spirit.

“Since the day-to-day blasting operations are not under

the control of CIMFR, the research team will not be held

responsible for any untoward incident caused by blasting”.

This clearly indicates that nobody will ensure that

these recommendations/ guidelines will be implemented in

letter and spirit especially in the absence of a vigilant and

effective management system to monitor the day-to-day

mining operations. The ill- effects of the mining activities that

have already taken place in the recent past in and around

Jambunatha temple is a clear illustration reflecting this

phenomenon.

The Committee opines that the spirit and sanctity of

Jambunatheshwara temple, continuously being worshipped from the day of its

consecration till today, lies as much in its location as in the form, design and

ornamentation of the Structural complex constructed during the Vijayanagara

Period in around 1540 A.D. The spirit and sanctity are enhanced due to the

locational significance of the Subject temple which is of primary importance.

Jambunatheshwara is but one of the thousand and odd names of the

manifestations of Lord Shiva, who according to Hindu Mythology and belief,

is Kailasanatha - the lord of Kailasa Mountains. For this reason, for a staunch

believer of Hinduism, all the hilltops are but a replica of Kailasa Mountains.

Any damage caused to the immediate pristine environs of a temple located

amidst such picturesque lush green landscape of the hill ranges, affects the

very sentiments and beliefs of the pilgrims and devotees thronging to the

temple, as it adversely affects the very abode of the lord.

49

Page 50 This significance of the location of the temple has yet

another facet as it is situated in the Peripheral Zone of the

Hampi World Heritage Site, which is included in the World

Heritage List of UNESCO. The subject temple forms an

integral part of the Vijayanagara architecture, hardly at a

distance of about 4.5 kms from Ananatasayana temple, a

centrally protected monument. Integration of Natural

Heritage with the Built Heritage is one of the criteria for

enlisting Hampi in the List of World Heritage Sites.

Jambunatha temple, with the backdrop of lush green hill

ranges, is one fine example for such harmonious integration.

It is mandatory on the part of the State and the Central

Governments to maintain the integrity and authenticity of the

Site as Signatories to the World Heritage Convention of the

UNESCO.

Further, it is significant to note that most of the

ambitious 16th Century Vijayanagara temple projects in and

around Vijayanagara capital city which are distinguished by

vast and lofty enclosures entered through towered gateways,

approached by long and broad chariot streets or winding

flight of steps following the natural contour of the hills,

mandapas with elaborately ornamented pillars etc., are

located on the hill tops. Hanuman temple on the Anjanadri

Hill, Virabhadra temple on the Matanga Hill, Raghunatha

temple on the Malyavanta Hill and the group temples of

different periods on the Hemakuta Hill are only a few such

examples within the Core Zone of the World Heritage Site.

Sri Jambunatheshwara temple on the Jambunatha Hill and Sri

Kumaraswamy temple near Sandur are other such temples in

the peripheral area of the greater medieval Capital city of

Vijayanagara. This place was also entry point to the

Vijayanagarpattana, the capital of Vijayanagara empire.

Location of such temples for the 'Guardian Deities' on

strategically located hilly landmarks of the region endowed

with tranquil, picturesque and serene atmosphere of high

altitudes, considered as 'abodes of cosmic energy', is part of

the very concept of designing 'Cosmic Cities embodying

complex yet sacred geometry' derived from the canonical

texts of the ancient lore.

Thus the immediate environs of the Subject temple, is

pregnant with all the aesthetic, serene, sacred and

multifaceted symbolic values.

50

Page 51 The 'macro' studies by the high level panel set up by

the Union Government and the Indian Council for Forestry

Research and Education (ICFRE) and the Environmental

Engineering Research Institute (NEERI), which have

submitted their reports to the Hon'ble Apex Court in a

separate Case pending before the Apex Court, have vividly

brought out the adverse impact of mining and related

activities in the entire State of Karnataka in general. In its

Macro-Environment Impact Assessment report on Bellary,

the ICFRE again has highlighted the environmental fall out of

mining emphasizing the need to commission a feasibility

study to bring in superior underground mining technologies to

minimize the adverse impacts.

An overview of the multi-faceted hazardous impact of

mining activities in the context of the Bellary District, State

of Karnataka is illustrated in the following extract.

'Environmental Engineering Research Institute

(NEERI) found that suspended air particles at many locations

in the district were far above the national health standards.

According to NEERI's report, the dust hanging in the air of

Bellary due to rampant mining is a serious health hazard. The

area has high incidence of lung infections, heart ailments and

cancer. However, the Karnataka State Pollution Control

Board (KSPCB) has been tardy in issuing notices to mine-

owners under existing laws (including the Air Act, 1981 and

the Water Act, 1974). Mining has adversely affected the

forest areas, including the 'reserved' forest areas, in Bellary

District. Dumping of waste material has caused erosion of the

topsoil of the region. Species of wildlife such as the Egyptian

vulture, yellow throated bulbul, white backed vulture and

four-horned antelopes have vanished due to depletion in the

forest cover on account of mining. Rainwater that used to

earlier flow down hillocks and replenishes underground

aquifers now picks dust along the way, contaminating water

and degrading soil, making farming difficult. Studies point

towards a fast rate of siltation in the Tungabhadra reservoir

due to the deposition of waste material generated from

mining'.

The report on the 'Study of Jambunatheshwara temple

Surroundings' by the Karnataka Remote Sensing Centre

(KSRSAC), commissioned by the present Committee is a

micro study addressing a similar issue concentrating mainly

51

Page 52 on the land use/land cover highlighting the area occupied by

mining and mining related activities within the radius of 1 km

and 2 km from the temple.

V. RECOMMENDATIONS:

In the light of the above observations and with due

considerations to

(i)the historical, religious, architectural, sculptural and

aesthetic values of the Subject temple, forming an

integral part of the cultural Heritage of the

Vijayanagara period (the masterpieces situated in the

nearby Hampi in the same Taluk of Hospet which have

been declared as 'World Heritage' in due recognition of

their 'Out Standing Universal Values');

(ii)the utmost symbolic and spiritual significance of the

immediate pristine environs with lush green landscape

of the hill ranges amidst which the said temple is

located;

(iii)as also the recommendations regarding the safe

blasting parameters to avoid damage to the temple,

(iv)the dire necessity of resorting to the ideology of

sustainable mining and

(v)the absence of any vigilant and effective management

systems to monitor the adverse impact of the mining

activities,

the committee recommends as follows. For the purpose

of convenience and easy apprehension of the

Recommendations of the Committee, the area

surrounding the Subject temple up to 2km has been

divided into two Zones namely,

I.CORE ZONE: comprising the temple along with area

protected under legal provisions in vogue and the area

further beyond it in all directions up to a distance of

1km;

II.BUFFER ZONE: comprising the area further beyond

the CORE ZONE in all directions up to a distance of 2

km from the protected area and 1 Km from the Core

Zone.

52

Page 53 I. CORE ZONE:

1)Total ban of mining with or without blasting but

permitting the mining companies to carry away ore

already extracted from the area by using earth moving

machineries, without causing any damage either to the

temple or to the environs;

2)Implementation of immediate conservation measures,

initiation of short term conservation measures and

arriving at time frame and phasing for long time

conservation measures;

3) Preparation and implementation of Mine Closure Plan and

4)Depositing requisite funds.

II. BUFFER ZONE:

1)Mining with blasting operations strictly

following the recommendations/guidelines formulated

by the investigating agencies (Annexures- V and VI)

IN LETTER AND SPIRIT, implementing the Mine

Closure Plan and attending to the long term

conservation measures to the Subject Temple.

2)Mining in this Zone shall be closely monitored and

guided by the experts from Indian Bureau of Mines,

Directorate General of Mines Safety, Department of

Mines and Geology, Government of Karnataka, Forest

Department, Karnataka State Pollution Control Board,

Archaeologists, Conservation Architects, and any other

scientific agency, if required, for avoiding any possible

adverse impact on the Subject temple and its eco-

environs in the long run.

Accordingly, the Honorable Apex Court may kindly consider

the following:

1. The investigations by CIMFR and NIT (K) have

suggested that, no blasting operations shall be carried

within 300m radius of the Jumbunatheswara Temple.

However, to prevent deposition of air borne dust on

the temple causing discoloration, a 500m thick green

cover ( fast growing tall trees) has to be developed

around 300m zone from the temple. Therefore, no

53

Page 54 mining activity shall be allowed in Core Zone (within l

km radius) of the temple.

2.The existing haul road to the mines and all the

vehicular traffic (other than those of tourists/pilgrims)

shall be diverted away from the temple.

3.The mine managements may be directed to submit

Mine Closure Plans (MCP) giving detailed and well

phased scheme of back filling, plantation and diversion

of drains from catchment area, building of necessary

infrastructure in and around the temple and other

measures required to bring the temple and its

immediate environs to regain their original past glory.

Before doing so, the Mining Companies may be

permitted to carry away the ore already extracted in

the Core Zone by using earth moving machineries.

4. A corpus fund may be created by collecting an amount

of Rs. 3,43,19,160.00 (Rupees three crore forty three

lakhs, nineteen thousand, one hundred and sixty) only

from the mining companies operating within 2km

radius from the temple. This fund may be utilized for

the implementation of all the recommendations

contained in the 'CONSERVATION PLAN for

JAMBUNATHESHWARA TEMPLE, HOSPET'

prepared and submitted by the INTACH, Bangalore

Chapter (November 2011) towards the conservation,

preservation, beautification etc., as an effort towards

the restoration of the original features and the aesthetic

values of the temple to the best possible extent besides

ensuring that the original environment is restored as far

as possible.

5.Pass an order directing M/s Aarpee Iron Ore Mines,

No.24/151, Bellary Road, Hospet-583 201, Bellary

(Dist) to fill the craters (Nishani Pits/ Mine Pits)

caused due to extensive mining in the immediate

proximity of the temple up to the ridge level and plant

saplings of trees following the local flora like Neem,

Tamarind, Pungamia etc., in order to protect the

environs of the temple in its original pristine condition

within three years by preparing a detailed Mine

Closure Plan.

54

Page 55 6.Permitting mining with controlled blasting or without

blasting using Ripper Dozer/ Rock-breaker or any

other machinery and taking adequate measures

towards generation, propagation, suppression and

deposition of airborne dust in the Buffer Zone. Mining

in this zone shall be closely monitored and guided by

the experts from Indian Bureau of Mines, Directorate

General of Mines Safety, Department of Mines and

Geology, Government of Karnataka, Forest

Department Karnataka State Pollution Control Board

and any other scientific agency to avoid any further

damage to the Subject temple and its immediate

environs.

7.Pass such other order or orders, as this Hon'ble Court

deems fit and proper in the facts and circumstances of

the case.”

(emphasis supplied)

50.After the Committee submitted its report, several affidavits were filed

on behalf of the State of Karnataka. Shri Kaushik Mukherjee, Additional

Chief Secretary to Government, Forest, Ecology and Environment

Department, Karnataka filed affidavit dated 18.4.2012 stating that in

compliance of the Court’s order dated 11.3.2011, the State Government had

prohibited all mining operations within a radius of 2 kilometers from

Jambunatheswara temple. He then referred to order dated 5.8.2011 passed

by this Court in SLP(C) Nos. 7366-7367/2010 – Government of A.P. and

others v. M/s. Obalapuram Mining Company Limited for a macro level EIA

study by the Indian Council of Forestry Research and Education in

collaboration with the Wildlife Institute of India, Forest Survey of India and

other experts and the steps taken for implementation of that order. In

55

Page 56 paragraph 8 of his affidavit, Shri Mukherjee has given the details of eight

mining leases falling within the radius of 2 kilometres from Jambunatheswara

temple and averred that four of them come in Category-A and the remaining

four in Category-B, as pointed out by the Central Empowered Committee

constituted by this Court in SLP(C) No.7366/2010 and Writ Petition (C)

No.562/2009 – Samaj Parivartana Samudaya v. State of Karnataka. In

paragraph 12, Shri Mukherjee has given the details of the actions taken by

Karnataka State Pollution Control Board against the defaulting lessees. Shri

G.B. Kongawad, Secretary to Government, Commerce and Industries

Department filed affidavit on 18.4.2012. He has referred to report dated

18.12.2008 of Lokayukta, Karnataka who found that eight leaseholders were

engaged in illegal mining or encroachment. He then averred that the issue of

illegal mining in Karnataka is pending before this Court in Writ Petition(C)

No.562/2009 and mining activities in Districts Bellary, Chitradurga and

Tumkur will be resumed only after compliance of the conditions/directions

which may be imposed/given keeping in view the macro level EIA study

conducted by ICFRE and the recommendations of the Central Empowered

Committee. Shri Anil Kumar Jha, Secretary to Government, Commerce and

Industries Department filed affidavit dated 21.7.2012. According to Shri Jha,

some portion of the leased area falls within 200 meters of Jambunatheswara

temple and renewal of that portion will not be considered now and that

respondent No.15 will also be asked to surrender the area which falls within

56

Page 57 200 meters of Jambunatheswara temple. Shri Jha has also averred that lease

No.1867 granted to one R.J. Pattabhiramaiah had expired on 28.2.2003 and

in the absence of renewal application, that lease does not survive for

consideration. Shri Jha has claimed that as per the estimates prepared by

Indian Bureau of Mines (IBM), about 61.14 million metric tonnes of high

grade iron ore was available within the radius of 2 kilometers from the temple

and if mining activity is not permitted, potential loss will further diminish the

supply of iron ore in the State which is already under severe stress due to the

ban on mining. In addition to these officers, Shri R. Sridharan, Principal

Secretary to Government, Forest, Ecology and Environment Department and

D.R. Veeranna, Additional Director (Minerals), Department of Mines and

Geology have also filed their affidavits.

51.Respondent Nos.4, 15 and 18 filed objections to the report of the

Committee. In the affidavit filed on behalf of respondent No.4, Smt. R.

Mallamma w/o late Shri R. Rampapathy has expressed her willingness to

participate in the conservation plan and to contribute to the estimated

expenses. According to her, respondent No.4 will start closure operation of

Nishani pit/Mine pit, which is adjacent to the temple, within 3 to 5 years as

per the plan approved by IBM. She pleaded that the report submitted by the

Committee should be discarded because it is contrary to the report submitted

by the expert bodies, i.e., CIMFR, Dhanbad and NIT. She claimed that

mining carried out beyond a distance of 200 meters from Jambunatheswara

57

Page 58 temple is not going to cause any structural damage to the temple. Smt.

Mallamma has pleaded that the Core Zone suggested by the Committee is

contrary to the provisions of the 1957 Act, Mineral Concession Rules, 1960

and Mineral Conservation and Development Rules, 1988 inasmuch as the

scheme of these statutes does not contain any restriction on mining up to a

distance of one kilometre from the temple. She has relied upon clause 5 in

Part III of the Mining Lease Deed and pleaded that no distance restriction can

be imposed over and above what has been prescribed in the statutes and the

terms and conditions of lease.

52.In the objections filed on behalf of respondent No.15, the particulars of

the lease granted by the State Government have been given and it has been

averred that litigation emanating from the lease is pending before the Civil

Court at Bangalore and the Karnataka High Court. According to respondent

No.15, the restriction suggested by the Committee will adversely affect the

production of iron ore and will cause serious loss to the country. Respondent

No.15 has also taken the plea that Section 20 of the Karnataka Act restricts

mining activities only within the ‘Protected Area’ and not in other areas.

53.In the objections filed on behalf of respondent No.17, it has been

averred that mining activities are being undertaken in accordance with the

conditions imposed by the State Government and clearance granted by the

Ministry of Environment and Forest, Government of India. According to

respondent No.17, its mine is situated at a minimum distance of about 500

58

Page 59 meters from Jambunatheswara temple and no damage can be caused to the

temple due to mining operations. It is also the case of respondent No.17 that

the recommendations made by the Committee for creating Core Zone and

Buffer Zone should not be accepted because the two expert bodies engaged

by it did not make any such suggestion and even otherwise this would be

contrary to the provisions of the 1957 Act and the Rules framed thereunder.

54.Shri Ajay Saraf has filed affidavit on behalf of respondent No.18. He

has given details of the mining leases awarded by the State Government to

M/s. RBSSN Das and the permission accorded for operating the

Beneficiation Plant. In paragraphs 15 to 18, Shri Saraf has averred as under:

“15. I say that operation of the Applicant's Beneficiation Plant does not in any

manner cause any damage whatsoever to the Shri Jambunatheshwara Temple

or the environment. On the contrary, the Beneficiation Plant is advantageous

to the country and the environment and ecology and is processing low grade

Iron Ore of mines in the State of Karnataka and converting low grade Iron

Ore, which would otherwise be wasted, into usable and valuable higher grade

Iron Ore. I say that beneficiation is not mining nor a mining operation/process.

After completion of mining operations the waste/unusable mined iron ore is

made usable by beneficiation which is a separate benign process for recovery

of Iron Fe from waste/unusable iron ore. Beneficiation may be done in situ in

the mine or anywhere else. Beneficiation is the first step for manufacture of

steel and iron ore pellatisation plants have Beneficiation plants or outsource

the beneficiation.

16. I say that the Beneficiation Plant was expanded in the

year 2010 at an additional cost of Rs.30 crores from 0.9.

MTPA to 5.0 MTPA after due environment clearance from

the Ministry of Forests and Environment & Forests (MOEF),

Government of India and the Karnataka State Pollution

Control Board (KSPCB). Hereto annexed and marked as

Annexure R-5 and Annexure R-6 respectively, are true copies

of the Orders dated 24.12.2009 passed by the MOEF and the

Order dated 12.05.2010 by the KSPCB.

17. I say that the reliance by Respondent No.14 on the State

59

Page 60 Government's letter No. CI 135 EMM 76, dated 18.08.1978,

to suggest that iron ore mining operations are prohibited

within a radius of 2 kms near and around National

Monuments of Archaeological importance is wholly

erroneous. I say that it can never be assumed or

countenanced that for 33 years, the State Government has

repeatedly and continuously been illegally granting iron ore

mining leases from the year 1978 till date in areas falling in a

radius between 300 metres and 2 kms near and around

National Monuments of Archaeological importance and/or

that MOEF, Indian Bureau of Mines (IBM), Director of

Mines and Geology, Director General of Mine Safety,

Central Pollution Control Board, State Pollution Control

Boards, Archaeological Survey of India have permitted

mining leases and mining operations between 300 metres and

2 kms of the Shri Jambunatheshwara Temple and/or any

other Temple in the State of Karnataka and/or India in

contravention of such prohibition. These permissions have

been in accordance with the consistent policy of MOEF,

Indian Bureau of Mines (IBM), Director of Mines and

Geology, Director General of Mine Safety, Central Pollution

Control Board and Archaeological Survey of India, on iron

ore and other mining in all states. Hereto annexed and

marked as Annexure R-7 is a true copy of the State

Government's letter No. CI 135 EMM 76, dated 18.07.1978.

18. Similarly, it cannot be assumed or countenanced that the

State Government has itself violated its own letter No. CI

135 EMM 76, dated 18.08.1978. I say that the reliance by

Respondent No. 14 viz the Director, Department of

Archeology, on the State Government's decision in CI 135

EMM 76, dated 18.08.1978, by the then Under Secretary to

all Deputy Commissioners of the Districts and

Superintending Archaeologists, Archaeological Survey of

India regarding the State Government decision not to grant

mining lease and PL lease for removal of building stones near

and around National Monuments of Archaeological

importance within a radius of 2 kms is only in respect of

mining of stones and not Iron Ore. For iron ore mining leases

the prohibited zone is a radius of 100 metres and the

restricted/regulated zone is a radius of 200 metres vide the

Notification dated 16.06.1992 issued by the competent

authority viz. the Department of Culture, Government of

India and Archaeological Survey of India. Copy of the

60

Page 61 Notification, dated 16.06.1993 is hereto annexed as

Annexure R-8.”

Arguments

55. Shri G.V. Chandrashekar, learned counsel for the appel-

lant argued that the recommendations made by the Committee should be ac-

cepted without any modification because the same are based on a com-

prehensive consideration of the reports of CIMFR, Dhanbad and NIT. Shri

Chandrashekar referred to the discussion part of the report prepared by the

Committee to show that experiments conducted by CIMFR, Dhanbad did not

provide sound basis for determining the impact of blasting on the protected

monument. He pointed out that CIMFR had prepared the report by conduct-

ing isolated blasts at different sites on different dates and argued that the im-

pact of such blasts is insignificant and cannot help in deciding whether or not

the temple has suffered damages on account of multiple blasts simultaneously

conducted by different leaseholders. Shri Chandrashekhar also pointed out

that the report prepared by NIT is inconclusive because the agency did not

have the benefit of judging the impact of multiple blasting on Jambunathesh-

wara temple. Learned counsel pointed out that the report submitted by re-

spondent No.9 clearly shows that extensive damage has been caused to the

temple and its surroundings due to unabated blasting carried out by the lease-

holders. Shri Chandrashekar submitted that the recommendations made by the

Committee should be accepted because the same were made by the Commit-

61

Page 62 tee after threadbare examination of the reports of CIMFR and NIT. In the

end, the learned counsel argued that the restrictions prescribed under the

1958 Act and the Karnataka Act are not conclusive and the Court should ac-

cept the recommendations made by the Committee, as was done in M.C. Me-

hta v. Union of India (1996) 8 SCC 462 and other cases.

56. Ms. Anitha Shenoy, learned counsel appearing for the

State of Karnataka relied upon notification dated 10/12.3.1998 issued under

Section 4 of the Karnataka Act read with Rule 11(1) and (2) of the Karnataka

Historical and Archaeological Monuments and Archaeological Sites and Re-

mains Rules, 1968 and argued that the Court should not accept the recom-

mendations of the Committee because restriction on mining within 2 kilo-

metres from Jambunatheswara temple will not only be ultra vires the statutory pro-

visions contained in the 1957 Act and the Rules framed thereunder, but will also be highly detri-

mental to public interest. She extensively referred to the reports of CIMFR, Dhanbad and NIT and

argued that the recommendations made by the two expert bodies should be accepted because the

same are in consonance with the provisions of the 1957 Act and the terms and conditions on which

leases were granted to the private respondents.

57. Shri A.D.N. Rao learned counsel appearing for the Min-

istry of Environment and Forests, Government of India and respondent No.9

argued that the Committee had rightly refused to base its recommendations on

the reports of CIMFR, Dhanbad and NIT because the survey and trial blasts

were conducted by the two bodies under ideal conditions and not conditions

similar to those in which the lessees had simultaneously operated mines till

62

Page 63 the passing of interim orders by this Court. Shri Rao also referred to the affi-

davits dated 2.10.2010 and 17.2.2011 filed by respondent Nos. 9 and 14 re-

spectively and argued that respondent No.4 was carrying on mining activities

in the vicinity of temple by using Wagon Blasting Method which resulted in

substantial damage to the temple.

58. Shri U.U. Lalit, learned senior counsel appearing for re-

spondent No.18 relied upon the judgment in Samaj Parivartana Samudaya v.

State of Karnataka 2013(6) SCALE 90 and argued that in view of the express

permission granted by the three-Judge Bench for operation of mines in Dis-

trict Bellary subject to certain conditions, the appellant cannot seek any other

restriction on mining activities beyond a distance of 200 meters from Jambu-

natheswara temple. He pointed out that the two leases granted to respondent

No.18 are at a distance of 790 meters and 1.09 kilometres respectively from

the temple and the Beneficiation Plants are at a distance of 1.14 kilometres.

He then submitted that respondent No.18 does not have blasting permission

and only Ripper Dozer is employed for excavation of the mineral, which is

then taken to the Beneficiation Plant through the conveyer belt. Shri Lalit

emphasized that the reports submitted by respondent No.9 and the two expert

bodies engaged by the Committee have not found respondent No.18 respons-

ible for causing any damage to the structure of the temple and argued that it

should be allowed to continue mining by Ripper Dozer and Rock Breaker.

He placed before the Court the papers showing photographs of Ripper Dozer

63

Page 64 and Rock Breaker machines and submitted that mining by these machines will

not cause any damage to the temple or surrounding environment. Shri Lalit

also filed xerox copy of report prepared by Central Institute of Mining and

Fuel Research, Regional Centre, Nagpur which was prepared at the instance

of respondent No.18. He further submitted that building of the temple may

have been damaged due to passage of time, lack of maintenance by the con-

cerned government departments and agencies or due to use of explosives in

its close proximity by respondent No.4 and others. He invited the Court’s at-

tention to paragraph 4 of the affidavit filed on behalf of the State Government

to show that the Government of Karnataka has taken an in-principle decision

not to renew any lease falling within 200 meters of the temple. Shri Lalit then

highlighted the mechanism employed in the Beneficiation Plant and submitted

that the operation of the plant will not affect the temple. Shri Lalit placed be-

fore the Court papers showing the photographs of Ripper Dozer and Rock

Breaker.

59. Shri Altaf Ahmed, learned senior counsel appearing for

respondent No.2 argued that his client does not have any objection to the ac-

ceptance of the recommendations made by the Committee, provided that the

same is made applicable to all the lessees.

60. Shri Jaideep Gupta, learned senior counsel appearing for

respondent No.15 advocated for acceptance of the report of the Committee

subject to appropriate modification in the light of the recommendations made

64

Page 65 by the expert bodies. Shri Gupta invoked the principle of sustainable devel-

opment and argued that the Court should strike a balance between the re-

quirement of protecting the temple and the need of iron ore for the State and

the country. Shri Gupta emphasised that any unreasonable restriction on min-

ing activities in and around the temple premises will adversely impact the pro-

duction of steel in the country. In support of his argument/submission, Shri

Gupta relied upon the judgment in N.D. Jayal v. Union of India (2004) 9 SCC

362.

61. Ms. Kiran Suri, learned counsel appearing for respondent

No.4 and respondent No.17, Allam Basavaraj relied upon report dated

27.5.2009 filed before the High Court to show that at the time of inspection,

no mining activities were conducted in the mining pit located within 150

meters of the temple and in terms of G.O. No. 712/1996 issued by the Gov-

ernment of Karnataka, no mining was permitted within 100 meters of the

temple. Learned counsel emphasized that at the time of inspection carried out

pursuant to the direction given by the Director of Mines and Geology, it was

found that respondent No.4 was carrying on mining at a distance of 1.4 kilo-

metres from the temple. Ms. Suri relied upon the lease deeds executed in fa-

vour of respondent No.4, permission granted under Regulation 164(1)(b) of

Metalliferous Mines Regulations, 1961, letter dated 11.4.2007 issued by the

Department of Mines and Geology permitting respondent No.4 to continue

the mining activities and argued that no further restriction should be imposed

65

Page 66 on its mining activities by relying upon the recommendations of the Commit-

tee. Ms. Suri laid considerable emphasis on the fact that respondent No.4 has

not undertaken mining operations by using heavy explosives. Learned coun-

sel also pointed out that on being directed by the Department of Mines and

Geology, respondent No.4 had constructed a protection wall around the

temple and submitted that now there is no possibility of any damage to the

temple on account of the blasting undertaken by respondent No.4. Ms. Suri

argued that the recommendations made by the Committee are liable to be re-

jected because the same are contrary to the provisions of 1957 Act and the

Rules made thereunder. As regards respondent No.17, Ms. Suri argued that

mining activities were being undertaken as per the plan approved by IBM and

there is no possibility of such activity causing any damage to the temple.

Consideration

62. We have given serious thought to the arguments/submis-

sions of the learned counsel for the parties and carefully perused the records

including the affidavits/objections filed in response to the recommendations

made by the Committee. We have also gone through the written arguments

filed by the appellant and some of the respondents.

63. Before dealing with the arguments/submissions of the

learned counsel, we consider it proper to mention that even though in their

counter affidavits some of the official respondents and respondent No.4 have

66

Page 67 raised an objection to the maintainability of the appeal on the ground that re-

lief similar to the one prayed for by the appellant had been sought in Writ Pe-

tition No.27067/1998 filed before the High Court by way of public interest

litigation, which was dismissed on 7.8.2000, the same was not pressed during

the course of arguments. That apart, we do not find valid ground to entertain

the objection of res judicata because the official and private respondents

have not filed the pleadings of Writ Petition No.27067/1998 and without go-

ing through the same, it is not possible for this Court to record a finding that

the appellant should be non-suited because a similar petition had been dis-

missed by the High Court.

64. The 1957 Act was enacted by Parliament to provide for

development and regulation of mines and minerals under the control of Union.

The backdrop in which the 1957 Act was enacted is discernible from the

Statement of Objects and Reasons contained in the Mines and Minerals (Reg-

ulation and Development) Bill, which reads as under:

“Under the Government of India Act, 1935, the subject “Ancient

and historical monuments; archaeological monuments; archae-

ological sites and remains” fell within Entry 15 of the Federal

List. Under the Constitution, this subject has been distributed

under three different heads, namely,--

Entry 67, Union List – Ancient and historical monuments and re-

cords, and archaeological sites and remains, declared by or un-

der law made by Parliament to be of national importance.

Entry 12, State List – Ancient and historical monuments and re-

cords other than those declared by or under law made by Parlia-

ment to be of national importance, and

67

Page 68 Entry 40, Concurrent List – Archaeological sites and remains

other than those declared by or under law made by Parliament to

be of national importance.”

65. Sections 4(1), 5(1) and 6(1) which postulate grant of

prospecting licences and leases and contain certain restrictions read as under:

“Section 4(1) of the Act prohibits any kind of mining or related

activity in any area without a license for that regard under the

Act and its rules. Section 4A also allows the Central government

to terminate prospecting or mining leases in various

circumstances.

Section 5(1) provides that a state government can grant

reconnaissance permit, prospecting licence or mining lease only

to an Indian National or a company and only on satisfaction of

rules made under the Act. Section 5(2) prohibits the state

government from granting a mining license unless it is satisfied

that there is evidence to show that the area for which the lease is

applied for has been prospected earlier and there is a mining

plan duly approved.

Section 6(1) limits the maximum area for which one or more

mining licences can be granted to one person to 10 sq. km, for

prospecting license to 25 sq. km. and for reconnaissance permit

to 10,000 sq. km. Section 7(1) provides that a reconnaissance

permit or prospecting licence cannot be granted for more than 3

years and if renewed cannot exceed 5 years in total. Section 8(1)

and 8(2) provide that a mining lease can be granted for a

maximum of 30 years and can be renewed for a period not

exceeding 20 years.”

66. The Mineral Concession Rules, 1960 were framed by

the Central Government under Section 13 of the 1957 Act. The provisions

contained in Chapters II and III of these Rules regulate grant of reconnais-

sance permits and prospecting licences in respect of land in which the miner-

als vest in the government. Chapter IV contains provisions relating to grant of

68

Page 69 mining leases in respect of land in which the minerals vest in the government.

Chapter V contains the procedure for obtaining a prospecting licence or min-

ing lease in respect of land in which the minerals vest in a person other than

the government. Chapter VIII contains miscellaneous provisions.

67. The Mineral Conservation and Development Rules,

1988 which were framed by the Central Government under Section 18 of the

1957 Act are divided into ten chapters. Chapter III of these Rules, which re-

late to mining operations, provide for submission of mining plan and approval

thereof by the competent authority as a condition precedent for commence-

ment of mining operations.

68. None of the provisions contained in the 1957 Act and

the Rules framed thereunder regulate mining operations/activities in the vicin-

ity of ancient and historical monuments and archaeological sites. This subject

is exclusively governed by the 1958 Act and similar enactments made by the

State Legislatures including the Karnataka Act. Like the 1958 Act, the

Karnataka Act also provides for declaration by the government of any ancient

monument as a “Protected Monument”. Both the Central Government and the

State Government have framed rules for grant of permission/licence in the

prescribed form to undertake any mining operations in a protected and/or reg-

ulated area. Rule 10 of the 1959 Rules, which has been framed under Section

38 of the 1958 Act and Rules 11 to 15 of the Karnataka Rules provide that no

person shall undertake any mining operations in a regulated area other than on

69

Page 70 the strength of a licence granted by the competent authority, i.e., the Director.

The material placed on record of this appeal does not show that the private

respondents have obtained such licence under the Karnataka Rules for per-

mission to undertake mining operations within the prohibited and/or regulated

area. Therefore, they cannot be allowed to operate mines in the protected

and/or regulated area.

69. The argument of learned counsel for the private respond-

ents that the report of the Committee should not be accepted because the

same is contrary to the recommendations made by the two expert bodies

sounds attractive but, on a wholesome consideration, we do not find any merit

in it because the Committee had thoroughly scrutinised the reports sent by the

two expert bodies, i.e., CIMFR, Dhanbad and NIT and then decided that the

area surrounding the temple should be divided into two zones, i.e., Core Zone

and Buffer Zone and there shall be total ban on mining within the Core Zone

while mining be permitted in the Buffer Zone under the supervision of an ex-

pert body/agency.

70. At this stage, we may mention that in June 1972, the

United Nations organised a conference on ‘Human Environment’ at Stock-

holm, Sweden. The declaration issued at the end of that conference, which is

called as the Stockholm Declaration, has been aptly described by this Court

in Essar Oil Ltd. v. Halar Utkarsh Samiti (2004) 2 SCC 392 as ‘magna carta

70

Page 71 of our environment’. Some of the principles enunciated in the Stockholm De-

claration are:

“Principle 2

The natural resources of the earth, including the air, water, land,

flora and fauna and especially representative samples of natural

ecosystems, must be safeguarded for the benefit of present and

future generations through careful planning or management, as

appropriate.

Principle 4

Man has a special responsibility to safeguard and wisely manage

the heritage of wildlife and its habitat, which are now gravely

imperilled by a combination of adverse factors. Nature

conservation, including wildlife, must therefore receive

importance in planning for economic development.

Principle 8

Economic and social development is essential for ensuring a

favorable living and working environment for man and for

creating conditions on earth that are necessary for the

improvement of the quality of life.

Principle 11

The environmental policies of all States should enhance and not

adversely affect the present or future development potential of

developing countries, nor should they hamper the attainment of

better living conditions for all, and appropriate steps should be

taken by States and international organizations with a view to

reaching agreement on meeting the possible national and

international economic consequences resulting from the

application of environmental measures.”

Though the Stockholm Conference recognised the links between environment

and development but little was done to integrate this concept for international

action until 1987 when the Brundtland Report, Our Common Future was

71

Page 72 presented to the United Nations General Assembly. The Brundtland Report

stimulated debate on development policies and practices in developing and in-

dustrialised countries alike and called for an integration of our understanding

of the environment and development into practical measures of action. In

1992, Earth Summit was held in Rio de Janeiro, Brazil. The declaration is-

sued at the end of the summit dealt with environmental needs, environmental

protection, environmental degradation, etc. The World Summit on Sustainable

Development was held in Johannesburg, South Africa in 2002 for the purpose

of evaluating the results achieved after the Rio Summit. This summit gave an

opportunity to build on the knowledge gained over the past decade and

provided a new impetus for commitments of resources and specific action to-

wards global sustainability.

71. In Indian Council for Enviro-Legal Action v. Union of In-

dia (1996) 5 SCC 281, this Court described the principle of sustainable devel-

opment in the following words:

“While economic development should not be allowed to take

place at the cost of ecology or by causing widespread

environment destruction and violation; at the same time the

necessity to preserve ecology and environment should not

hamper economic and other developments. Both development

and environment must go hand in hand, in other words, there

should not be development at the cost of environment and vice

versa, but there should be development while taking due care

and ensuring the protection of environment.”

72

Page 73 72. In Vellore Citizens’ Welfare Forum v. Union of India

(1996) 5 SCC 647, this Court acknowledged that the traditional notion of

conflict between ecology and development is no longer acceptable and sus-

tainable development is the answer.

73. In Essar Oil Ltd. v. Halar Utkarsh Samiti (supra) this

Court referred to the Stockholm Declaration and observed:

“This, therefore, is the aim, namely, to balance economic and

social needs on the one hand with environmental considerations

on the other. But in a sense all development is an environmental

threat. Indeed, the very existence of humanity and the rapid

increase in the population together with consequential demands

to sustain the population has resulted in the concreting of open

lands, cutting down of forests, the filling up of lakes and

pollution of water resources and the very air which we breathe.

However, there need not necessarily be a deadlock between

development on the one hand and the environment on the other.

The objective of all laws on environment should be to create

harmony between the two since neither one can be sacrificed at

the altar of the other.”

74. We may now notice some of the judgments which have

bearing on the scope of the Court’s power to issue directions but which may

appear to be contrary to the statutes operating in the particular field. In

Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161, this Court con-

sidered whether a letter addressed to a Judge of this Court could be treated as

a writ petition under Article 32 of the Constitution and whether directions

could be issued for release of an indeterminate number of citizens who were

73

Page 74 held as bonded labourers. While dealing with the scope of Article 32 of the

Constitution, this Court observed:

“........ It will be seen that the power conferred by clause (2) of

Article 32 is in the widest terms. It is not confined to issuing the

high prerogative writs of habeas corpus, mandamus, prohibition,

certiorari and quo warranto, which are hedged in by strict

conditions differing from one writ to another and which to quote

the words spoken by Lord Atkin in United Australia Limited v.

Barclays Bank Ltd. 1941 AC 1:(1939) 2 KB 53 in another

context often “stand in the path of justice clanking their

mediaeval chains”. But it is much wider and includes within its

matrix, power to issue any directions, orders or writs which may

be appropriate for enforcement of the fundamental right in

question and this is made amply clear by the inclusive clause

which refers to in the nature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari. It is not only the high

prerogative writs of mandamus, habeas corpus, prohibition, quo

warranto and certiorari which can be issued by the Supreme

Court but also writs in the nature of these high prerogative writs

and therefore even if the conditions for issue of any of these high

prerogative writs are not fulfilled, the Supreme Court would not

be constrained to fold its hands in despair and plead its inability

to help the citizen who has come before it for judicial redress,

but would have power to issue any direction, order or writ

including a writ in the nature of any high prerogative writ. This

provision conferring on the Supreme Court power to enforce the

fundamental rights in the widest possible terms shows the

anxiety of the Constitution-makers not to allow any procedural

technicalities to stand in the way of enforcement of fundamental

rights. The Constitution-makers clearly intended that the

Supreme Court should have the amplest power to issue whatever

direction, order or writ may be appropriate in a given case for

enforcement of a fundamental right. But what procedure shall be

followed by the Supreme Court in exercising the power to issue

such direction, order or writ? That is a matter on which the

Constitution is silent and advisedly so, because the Constitution-

makers never intended to fetter the discretion of the Supreme

Court to evolve a procedure appropriate in the circumstances of

a given case for the purpose of enabling it to exercise its power

of enforcing a fundamental right. Neither clause (2) of Article 32

nor any other provision of the Constitution requires that any

74

Page 75 particular procedure shall be followed by the Supreme Court in

exercising its power to issue an appropriate direction, order or

writ. The purpose for which the power to issue an appropriate

direction, order or writ is conferred on the Supreme Court is to

secure enforcement of a fundamental right and obviously

therefore, whatever procedure is necessary for fulfilment of that

purpose must be permissible to the Supreme Court.

……….It is for this reason that the Supreme Court has evolved

the practice of appointing commissions for the purpose of

gathering facts and data in regard to a complaint of breach of a

fundamental right made on behalf of the weaker sections of the

society. The report of the Commissioner would furnish prima

facie evidence of the facts and data gathered by the

Commissioner and that is why the Supreme Court is careful to

appoint a responsible person as Commissioner to make an

enquiry or investigation into the facts relating to the complaint. It

is interesting to note that in the past the Supreme Court has

appointed sometimes a District Magistrate, sometimes a District

Judge, sometimes a professor of law, sometimes a journalist,

sometimes an officer of the Court and sometimes an advocate

practising in the Court, for the purpose of carrying out an

enquiry or investigation and making report to the Court because

the Commissioner appointed by the Court must be a responsible

person who enjoys the confidence of the Court and who is

expected to carry out his assignment objectively and impartially

without any predilection or prejudice. Once the report of the

Commissioner is received, copies of it would be supplied to the

parties so that either party, if it wants to dispute any of the facts

or data stated in the report, may do so by filing an affidavit and

the court then consider the report of the Commissioner and the

affidavits which may have been filed and proceed to adjudicate

upon the issue arising in the writ petition. It would be entirely for

the Court to consider what weight to attach to the facts and data

stated in the report of the Commissioner and to what extent to

act upon such facts and data.”

(emphasis supplied)

75. In Rural Litigation and Entitlement Kendra v. State of U.P

(1985) 2 SCC 431, this Court was called upon to consider whether there

should be ban on lime stone quarries which had threatened life of the people

75

Page 76 residing in Mussoorie Hill range forming part of the Himalayas and surround-

ing environment. On 11.8.1983, the Court appointed a committee consisting

of Shri D.N. Bhargav, Controller General, Indian Bureau of Mines, Nagpur,

Shri M.S. Kahlon, Director General of Mines Safety and Col. P. Mishra,

Head of the Indian Photo Interpretation Institute (National Remote Sensing

Agency) for the purpose of inspecting the lime stone quarries referred to in

the writ petition and the list submitted by the Government of Uttar Pradesh.

The committee inspected most of the lime stone quarries and submitted three

reports and divided the lime stone quarries into three categories, i.e., A, B

and C. The committee noted that mining operations in the quarries categor-

ised as A did not gravely impact the environment and life of the people

whereas the quarries comprised in the other two categories had adversely im-

pacted the environment. After taking into consideration the report of the

Bhargav Committee, the Court directed closure of all lime stone quarries in

category C. As regards category B quarries, the Court appointed another

committee headed by Shri D.Bandyopadhyay, Secretary, Ministry for Rural

Development and issued several directions. While dealing with the question

of hardship to the quarry owners, the Court observed:

“The consequence of this Order made by us would be that the

lessees of lime stone quarries which have been directed to be

closed down permanently under this Order or which may be

directed to be closed down permanently after consideration of

the Report of the Bandyopadhyay Committee, would be thrown

out of business in which they have invested large sums of money

and expended considerable time and effort. This would

76

Page 77 undoubtedly cause hardship to them, but it is a price that has to

be paid for protecting and safeguarding the right of the people to

live in healthy environment with minimal disturbance of

ecological balance and without avoidable hazard to them and to

their cattle, homes and agricultural land and undue affectation of

air, water and environment.”

(emphasis supplied)

76.In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655, this Court

observed:

“The state to which the ecological imbalances and the

consequent environmental damage have reached is so alarming

that unless immediate, determined and effective steps were

taken, the damage might become irreversible. The preservation

of the fauna and flora, some species of which are getting extinct

at an alarming rate, has been a great and urgent necessity for the

survival of humanity and these laws reflect a last ditch battle for

the restoration, in part at least, a grave situation emerging from a

long history of callous insensitiveness to the enormity of the

risks to mankind that go with the deterioration of environment.

The tragedy of the predicament of the civilised man is that

‘Every source from which man has increased his power on earth

has been used to diminish the prospects of his successors. All his

progress is being made at the expense of damage to the

environment which he cannot repair and cannot foresee’. In his

foreword to International Wild Life Law, H.R.H. Prince Philip,

the Duke of Edinburgh said:

‘Many people seem to think that the conservation of

nature is simply a matter of being kind to animals and en-

joying walks in the countryside. Sadly, perhaps, it is a

great deal more complicated than that ….

… As usual with all legal systems, the crucial requirement

is for the terms of the conventions to be widely accepted

and rapidly implemented. Regretfully progress in this dir-

ection is proving disastrously slow ….’

77

Page 78 ‘Environmentalists’ conception of the ecological balance in

nature is based on the fundamental concept that nature is ‘a

series of complex biotic communities of which a man is an inter-

dependent part’ and that it should not be given to a part to tres-

pass and diminish the whole. The largest single factor in the de-

pletion of the wealth of animal life in nature has been the ‘civil-

ised man’ operating directly through excessive commercial hunt-

ing or, more disastrously, indirectly through invading or destroy-

ing natural habitats.”

77.In Tarun Bharat Sangh v. Union of India 1992 Supp (2) SCC 448, this

Court considered whether mining in the area popularly known as ‘Sariska

Tiger Park’, which was declared as Game Reserve under the Rajasthan Wild

Animals and Birds Protection Act, 1951 as a reserve forest under Sections 29

and 30 of the Rajasthan Forest Act, 1953 and as a sanctuary under Section 35

of the Wildlife (Protection) Act, 1972 should be banned because the same

was impairing environment and wild life. At one stage, the Court thought of

imposing total ban on mining activities but, keeping in view some technical

difficulties, it was decided to constitute a Committee headed by former Chief

Justice of Delhi High Court to ensure enforcement of the notifications issued

under various statutes. Simultaneously, the Court passed an interlocutory

order and directed that no mining operation of any kind shall be carried on

within the protected area.

78.In M.C. Mehta v. Union of India (1996) 8 SCC 462, this Court

considered the impact of mining operations on the ecologically sensitive areas

of Badkal Lake and Surajkund in Haryana. After taking cognizance of the

78

Page 79 reports submitted by Haryana Pollution Control Board and an expert body,

namely, National Environmental Engineering Research Institute (NEERI), the

Court accepted the same with certain modifications. Paragraph 8 of the

judgment which depicts consideration of the recommendations of NEERI

reads thus:

“We are, therefore, of the view that in order to preserve

environment and control pollution within the vicinity of the

two tourist resorts it is necessary to stop mining in the area.

The question, however, for consideration is what should be

the extent of the said area? NEERI in its report has

recommended that 200 metre green belts be developed at 1

km radius all around the boundaries of the two lakes. It is

thus obvious that 1200 metres are required for the green

belts. Leaving another 800 metres as a cushion to absorb the

air and noise pollution generated by the mining operations,

we are of the view that it would be reasonable to direct the

stoppage of mining activity within two km radius of the

tourist resorts of Badkal and Surajkund. We, therefore, order

and direct as under:

1. There shall be no mining activity within two km radius of

the tourist resorts of Badkal and Surajkund. All the mines

which fall within the said radius shall not be reopened.

2. The Forest Department of the State of Haryana and in

particular the Chief Conservator and the District Forest

Officer, Faridabad shall undertake to develop the green belts

as recommended by NEERI with immediate effect. The

NEERI has also suggested the development plan and the type

of trees to be planted. We direct the Chief Conservator of

Forests, Haryana, District Forest Officer, Faridabad and all

other officers concerned of the Forest Department to start the

plantation of trees for developing the green belts and make all

efforts to complete the plantations of trees before the

monsoons (1996).

3. We direct the Director, Mining and Geology, Haryana, the

Haryana Pollution Control Board to enforce all the

79

Page 80 recommendations of NEERI contained in para 6.1 of its

report (quoted above) so far as the mining operations in the

State of Haryana are concerned. All the mine-operators shall

be given notices to implement the said recommendations.

Failure to comply with the recommendations may result in the

closure of the mining operations.

4. We further direct that no construction of any type shall be

permitted now onwards within 5 km radius of the Badkal lake

and Surajkund. All open areas shall be converted into green

belts.

5. The mining leases within the area from 2 km to 5 km

radius shall not be renewed without obtaining prior “no

objection” certificate from the Haryana Pollution Control

Board as also from the Central Pollution Control Board.

Unless both the Boards grant no objection certificate the

mining leases in the said area shall not be renewed.”

79.In M.C. Mehta (Taj Trapezium Matter) v. Union of India (1997) 2

SCC 353, this Court considered whether the foundries, chemical-hazardous

industries and the refinery at Mathura should be closed down because they

were threat to the very existence of Taj Mahal. In the course of judgment, the

Court referred to the reports of various expert bodies including NEERI and

the Central Pollution Control Board which unequivocally pointed out the

damage caused to the monument by the industries and proceeded to order

closure of industries, which were not in a position to make change over to the

natural gas by recording the following observations:

“The Taj, apart from being a cultural heritage, is an industry by

itself. More than two million tourists visit the Taj every year. It

is a source of revenue for the country. This Court has monitored

this petition for over three years with the sole object of

preserving and protecting the Taj from deterioration and damage

due to atmospheric and environmental pollution. It cannot be

80

Page 81 disputed that the use of coke/coal by the industries emits

pollution in the ambient air. The objective behind this litigation

is to stop the pollution while encouraging development of

industry. The old concept that development and ecology cannot

go together is no longer acceptable. Sustainable development is

the answer. The development of industry is essential for the

economy of the country, but at the same time the environment

and the ecosystems have to be protected. The pollution created

as a consequence of development must be commensurate with

the carrying capacity of our ecosystems.

Based on the reports of various technical authorities mentioned

in this judgment, we have already reached the finding that the

emissions generated by the coke/coal consuming industries are

air pollutants and have damaging effect on the Taj and the

people living in the TTZ. The atmospheric pollution in TTZ has

to be eliminated at any cost. Not even one per cent chance can

be taken when — human life apart — the preservation of a

prestigious monument like the Taj is involved. In any case, in

view of the precautionary principle as defined by this Court, the

environmental measures must anticipate, prevent and attack the

causes of environmental degradation. The “onus of proof” is on

an industry to show that its operation with the aid of coke/coal is

environmentally benign. It is, rather, proved beyond doubt that

the emissions generated by the use of coke/coal by the industries

in TTZ are the main polluters of the ambient air.”

(emphasis supplied)

80.In M.C. Mehta (Taj Trapezium Pollution) v. Union of India (2001) 9

SCC 235, the Court considered the report of NEERI on the issue of pollution

caused by the brick kilns operating in the Taj Trapezium and issued the

following directions:

“(1) All licensed brick kilns within 20 km radial distance of

Taj Mahal and other significant monuments in Taj Trapezium

and Bharatpur Bird Sanctuary shall be closed and stop

operating w.e.f. 15-8-1996. We direct the State of U.P. to

render all possible assistance to the licensed brick kiln-

81

Page 82 owners in the process of relocation beyond Taj Trapezium, if

the owners so desire. The closure order is, however,

unconditional.

(2) We direct the District Magistrate and the Superintendent

of Police concerned to close all unlicensed and unauthorised

brick kilns operating in the Taj Trapezium with immediate

effect. The U.P. Pollution Control Board (Board) shall file a

compliance report within two months.

(3) No new licences shall be issued for the establishment of

brick kilns within 20 km radial distance from Taj Mahal,

other monuments in Taj Trapezium and Bharatpur Bird

Sanctuary.”

81.In M.C. Mehta v. Union of India (2004) 12 SCC 118, the Court

considered several interlocutory applications filed in the matter by which this

Court had stopped mining operations near Badkal Lake and Surajkund. After

considering various reports submitted by the expert bodies, the Court

observed:

“The mining operation is hazardous in nature. It impairs ecology

and people’s right to natural resources. The entire process of

setting up and functioning of mining operation requires utmost

good faith and honesty on the part of the intending entrepreneur.

For carrying on any mining activity close to township which has

tendency to degrade environment and is likely to affect air, water

and soil and impair the quality of life of inhabitants of the area,

there would be greater responsibility on the part of the

entrepreneur. The fullest disclosures including the potential for

increased burdens on the environment consequent upon possible

increase in the quantum and degree of pollution, has to be made

at the outset so that the public and all those concerned including

authorities may decide whether the permission can at all be

granted for carrying on mining activity. The regulatory

authorities have to act with utmost care in ensuring compliance

of safeguards, norms and standards to be observed by such

entrepreneurs. When questioned, the regulatory authorities have

to show that the said authorities acted in the manner enjoined

82

Page 83 upon them. Where the regulatory authorities, either connive or

act negligently by not taking prompt action to prevent, avoid or

control the damage to environment, natural resources and

people’s life, health and property, the principles of

accountability for restoration and compensation have to be

applied.

Development and the protection of environment are not enemies.

If without degrading the environment or minimising adverse ef-

fects thereupon by applying stringent safeguards, it is possible to

carry on development activity applying the principles of sustain-

able development, in that eventuality, development has to go on

because one cannot lose sight of the need for development of in-

dustries, irrigation resources and power projects etc. including

the need to improve employment opportunities and the genera-

tion of revenue. A balance has to be struck. We may note that to

stall fast the depletion of forest, a series of orders have been

passed by this Court in T.N. Godavarman case 1991 Supp (2)

SCC 665 regulating the felling of trees in all the forests in the

country. Principle 15 of the Rio Conference of 1992 relating to

the applicability of precautionary principle, which stipulates that

where there are threats of serious or irreversible damage, lack of

full scientific certainty shall not be used as a reason for postpon-

ing cost-effective measures to prevent environmental degrada-

tion, is also required to be kept in view. In such matters, many a

times, the option to be adopted is not very easy or in a strait-

jacket. If an activity is allowed to go ahead, there may be irre-

parable damage to the environment and if it is stopped, there

may be irreparable damage to economic interest. In case of

doubt, however, protection of environment would have preced-

ence over the economic interest. Precautionary principle requires

anticipatory action to be taken to prevent harm. The harm can be

prevented even on a reasonable suspicion. It is not always neces-

sary that there should be direct evidence of harm to the environ-

ment.”

The Court then referred to the provisions of the 1957 Act, the Rules framed

thereunder as also the laws enacted by Parliament for protection of

environment and forests and observed:

“The Aravallis, the most distinctive and ancient mountain chain

83

Page 84 of peninsular India, mark the site of one of the oldest geological

formations in the world. Heavily eroded and with exposed

outcrops of slate rock and granite, it has summits reaching 4950

feet above sea level. Due to its geological location, the Aravalli

range harbours a mix of Saharan, Ethiopian, peninsular, oriental

and even Malayan elements of flora and fauna. In the early part

of this century, the Aravallis were well wooded. There were

dense forests with waterfalls and one could encounter a large

number of wild animals. Today, the changes in the environment

at Aravalli are severe. Though one finds a number of tree species

in the hills, timber-quality trees have almost disappeared.

Despite the increase of population resulting in increase of

demand from the forest, it cannot be questioned nor has it been

questioned that to save the ecology of the Aravalli mountains,

the laws have to be strictly implemented. The notification dated

7-5-1992 was passed with a view to strictly implement the

measures to protect the ecology of the Aravalli range. The

notification was followed more in its breach.

In the aforesaid background, any mining activity on the area

under plantation under the Aravalli Project cannot be permitted.

The grant of leases for mining operation over such an area would

be wholly arbitrary, unreasonable and illogical.”

The Court then referred to the report prepared by the Central Mine Planning

and Design Institute Limited on Aravalli and accepted the same. The Court

finally referred to the judgment in Ambica Quarry Works v. State of Gujarat

(1987) 1 SCC 213 and refused to modify order dated 6.5.2002 by which

mining activities were banned but appointed a Monitoring Committee for

suggesting recommencement of mining in individual cases.

82.In M.C. Mehta v. Union of India (2009) 6 SCC 142, this Court

considered the question of whether in view of Section 4A of the 1957 Act, it

would be appropriate to exercise power under Article 32 read with Article

84

Page 85 142 for suspending mining operations in the Aravalli Hills. After taking

cognizance of the fact that indiscriminate mining had resulted in large scale

environmental degradation in the area and the arguments of the senior counsel

appearing on behalf of the leaseholders, the Court observed:

“44. We find no merit in the above arguments. As stated

above, in the past when mining leases were granted, requisite

clearances for carrying out mining operations were not

obtained which have resulted in land and environmental

degradation. Despite such breaches, approvals had been

granted for subsequent slots because in the past the

authorities have not taken into account the macro effect of

such wide-scale land and environmental degradation caused

by the absence of remedial measures (including rehabilitation

plan). Time has now come, therefore, to suspend mining in

the above area till statutory provisions for restoration and

reclamation are duly complied with, particularly in cases

where pits/quarries have been left abandoned.

45. Environment and ecology are national assets. They are

subject to intergenerational equity. Time has now come to

suspend all mining in the above area on sustainable

development principle which is part of Articles 21, 48-A and

51-A(g) of the Constitution of India. In fact, these articles

have been extensively discussed in the judgment in M.C.

Mehta case (2004) 12 SCC 118 which keeps the option of

imposing a ban in future open.

46. Mining within the principle of sustainable development

comes within the concept of “balancing” whereas mining

beyond the principle of sustainable development comes

within the concept of “banning”. It is a matter of degree.

Balancing of the mining activity with environment protection

and banning such activity are two sides of the same principle

of sustainable development. They are parts of precautionary

principle.

47. At this stage, we may also note that under Section 13(2)

(qq) of the 1957 Act, rules have been framed for

rehabilitation of flora and other vegetation destroyed by

85

Page 86 reason of any prospecting or mining operations. Under

Section 18 of the 1957 Act, rules have been framed for

conservation and systematic development of minerals in India

and for the protection of environment by preventing or

controlling pollution caused by prospecting or mining

operations which also form part of the Mineral Concession

Rules, 1960 and the Mineral Conservation and Development

Rules, 1988.

48. Under Rule 27(1)(s)(i) of the Mineral Concession Rules,

1960 every lessee is required to take measures for planting of

trees not less than twice the number destroyed by mining

operations. Under the Mineral Conservation and

Development Rules, 1988, vide Rule 34, mandatory

provisions for reclamation and rehabilitation of lands are

made for every holder of prospecting licence or mining lease

to be undertaken and that work has to be completed by the

lessee/licensee before abandoning the mine or prospect.

49. Similarly, under Rule 37 of the Mineral Conservation and

Development Rules, 1988 the lessee/licensee has to calibrate

the air pollution within permissible limits specified under the

EP Act, 1986 as well as the Air (Prevention and Control of

Pollution) Act, 1981. Under the said Rules of 1988, the most

important guidelines are Guidelines 25.26.3, 25.26.4, 25.26.5

and 25.26.6. These guidelines deal with reclamation,

planning and implementation, restoration strategy, principles

of rehabilitation, rehabilitation of mined-out sites and

methods of reclamations (see Handbook of Environment &

Forest Legislations, Guidelines and Procedures in India by

Ravindra N. Saxena and Sangita Saxena at pp. 1555-62). It

may be noted that there are two steps to be taken in the

method of reclamation, namely, technical reclamation and

biological reclamation. The most important aspect of the

above guidelines is making of a rehabilitation plan.

Conclusion

50. None of the above provisions have been complied with.

In the circumstance, by the present order, we hereby suspend

all mining operations in the Aravalli hill range falling in the

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Page 87 State of Haryana within the area of approximately 448 sq km

in the districts of Faridabad and Gurgaon, including Mewat

till the reclamation plan duly certified by the State of

Haryana, MoEF and CEC is prepared in accordance with the

above statutory provisions contained in various enactments

enumerated above as well as in terms of the rules framed

thereunder and the guidelines. The said plan shall state what

steps are needed to be taken to rehabilitate (including

reclamation) followed by status reports on steps taken by the

authorities pursuant to the said plan.”

(emphasis supplied)

83.In N.D. Jayal v. Union of India (supra), on which reliance was placed

by Shri Jaideep Gupta, this Court considered the issues relating to safety and

environmental protection arising out of the construction of Tehri Dam. Some

of the observations made in that judgment are extracted below:

“Before adverting to other issues, certain aspects pertaining

to the preservation of ecology and development have to be

noticed. In Vellore Citizens' Welfare Forum v. Union of India

(1996) 5 SCC 647 and in M.C. Mehta v. Union of India

(2002) 4 SCC 356 it was observed that the balance between

environmental protection and developmental activities could

only be maintained by strictly following the principle of

“sustainable development”. This is a development strategy

that caters to the needs of the present without negotiating the

ability of upcoming generations to satisfy their needs. The

strict observance of sustainable development will put us on a

path that ensures development while protecting the

environment, a path that works for all peoples and for all

generations. It is a guarantee to the present and a bequeath to

the future. All environment-related developmental activities

should benefit more people while maintaining the

environmental balance. This could be ensured only by strict

adherence to sustainable development without which life of

the coming generations will be in jeopardy.

The right to development cannot be treated as a mere right to

economic betterment or cannot be limited as a misnomer to

87

Page 88 simple construction activities. The right to development

encompasses much more than economic well-being, and

includes within its definition the guarantee of fundamental

human rights. The “development” is not related only to the

growth of GNP. In the classic work, Development As

Freedom, the Nobel prize winner Amartya Sen pointed out

that “the issue of development cannot be separated from the

conceptual framework of human right”. This idea is also part

of the UN Declaration on the Right to Development. The

right to development includes the whole spectrum of civil,

cultural, economic, political and social process, for the

improvement of peoples' well-being and realization of their

full potential. It is an integral part of human rights. Of course,

construction of a dam or a mega project is definitely an

attempt to achieve the goal of wholesome development. Such

works could very well be treated as integral component for

development.”

84.In Samaj Parivartana Samudaya v. State of Karnataka (supra), this

Court was called upon to consider whether all mining and other related

activities undertaken in the forest areas of Andhra Pradesh and Karnataka in

violation of order dated 12.12.1996 passed in W.P.(C) No.202/1995 and the

1980 Act should be stopped. After entertaining the writ petition filed under

Article 32, the Court appointed a committee known as the Central

Empowered Committee and asked it to submit a report on the allegations of

illegal mining in Bellary region of the State by M/s. Bellary Iron Ore Pvt.

Ltd., M/s. Mahabaleswarapa and Sons, M/s. Ananthapur Mining Corporation

and M/s. Obulapuram Mining Company Pvt. Ltd. Subsequently, the scope of

inquiry of the Central Empowered Committee was extended to all the mining

activities in District Bellary. In furtherance of Court directions, the Central

Empowered Committee filed various reports. During the course of hearing,

88

Page 89 the leaseholders raised several objections to the reports of the Central

Empowered Committee including the one that in view of the scheme of the

1957 Act, the 1980 Act and the Environment (Protection) Act, 1986, the

Central Empowered Committee could not have recommended taking of any

step or measure beyond what is contemplated by the scheme of these statutes.

Their argument was controverted by the learned Amicus who pointed out that

the reports of the Central Empowered Committee revealed mass destruction

of forest wealth and plundering of scarce natural resources which resulted in

irreparable ecological and environmental damage and destruction and such

activities need consideration by the Court beyond the limitations set out in the

statutes. After considering the rival arguments and adverting to the judgments

in Bandhua Mukti Morcha v. Union of India (supra), M.C. Mehta v. Union of

India (1987) 1 SCC 395, Taj Trapezium Pollution (supra), Supreme Court

Bar Association v. Union of India (1998) 4 SCC 409, the Court observed:

“The mechanism provided by any of the Statutes in question

would neither be effective nor efficacious to deal with the

extraordinary situation that has arisen on account of the large

scale illegalities committed in the operation of the mines in

question resulting in grave and irreparable loss to the forest

wealth of the country besides the colossal loss caused to the

national exchequer. The situation being extraordinary the

remedy, indeed, must also be extraordinary. Considered

against the backdrop of the statutory schemes in question, we

do not see how any of the recommendations of the CEC, if

accepted, would come into conflict with any law enacted by

the legislature. It is only in the above situation that the Court

may consider the necessity of placing the recommendations

made by the CEC on a finer balancing scale before accepting

the same. We, therefore, feel uninhibited to proceed to

exercise our constitutional jurisdiction to remedy the

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Page 90 enormous wrong that has happened and to provide adequate

protection for the future, as may be required.”

(emphasis supplied)

In paragraph 41, the Bench dealt with the question whether the

recommendations of the Central Empowered Committee with regard to

categorization, reclamation and rehabilitation (R&R) plans, reopening of

categories ‘A’ and ‘B’ mines with conditions and continued closure of

category ‘C’ mines should be accepted and answered the same in the

following words:

“In the light of the discussions that have preceded sanctity of

the procedure of laying information and materials before the

Court with regard to the extent of illegal mining and other

specific details in this regard by means of the Reports of the

CEC cannot be in doubt. Inter-generational equity and

sustainable development have come to be firmly embedded in

our constitutional jurisprudence as an integral part of the

fundamental rights conferred by Article 21 of the

Constitution. In enforcing such rights of a large number of

citizens who are bound to be adversely affected by

environmental degradation, this Court cannot be constrained

by the restraints of procedure. The CEC which has been

assisting the Court in various environment related matters for

over a decade now was assigned certain specified tasks

which have been performed by the said body giving sufficient

justification for the decisions arrived and the

recommendations made. If the said recommendations can

withstand the test of logic and reason which issue is being

examined hereinafter we will have no reason not to accept

the said recommendations and embody the same as a part of

the order that we will be required to make in the present

case.”

However, the three-Judge Bench did not deal with the issue relating to impact

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Page 91 of mining operations on ancient monuments. As a matter of fact, vide order

dated 3.9.2012, the Bench made it clear that the direction given by it for

operation of ‘Category A’ mines will be subject to any order passed in

Jambunathahalli Temple case.

85.Although, the aforesaid judgments were rendered on the petitions filed

under Article 32 of the Constitution, we have no hesitation to hold that the

ratio thereof can be aptly applied for deciding the appeals arising out of the

petitions filed under Article 136 of the Constitution. In two of these cases,

i.e., Bandhua Mukti Morcha v. Union of India (supra) and M.C. Mehta v.

Union of India (1987) 1 SCC 395, this Court evolved an innovative

mechanism for enforcing the fundamental rights of bonded labourers and

those who became victims of the operation of hazardous industries. In the

next three cases filed by Mr. M.C. Mehta, the Court considered the impact of

mining on national assets like water bodies (Badkal Lake and Surajkund in

Haryana), the Taj Mahal and the Aarvali Hills, availed the services of expert

bodies and accepted their reports for issuing directions to check pollution and

environmental degradation. In the second case, the Court ordered closure of

all licensed brick kilns operating within a 20 kilometers radial distance of the

Taj Mahal, Taj Trapezium and Bharatpur Bird Sanctuary. The law which

regulated the brick kilns did not contain any such restriction, but in larger

public interest, namely, protection of a national monument and a bird

sanctuary, this Court used its power to order closure of all the licensed brick

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Page 92 kilns. In the third case, the Court considered and unequivocally rejected the

plea that the mines which were operating under the licences granted in

accordance with the 1957 Act and the Rules framed thereunder cannot be

closed under the Court’s order and held that all mining operations in the

Aarvali Hills shall be suspended. In the last mentioned case, which relates to

the mines operating in three districts of Karnataka, the Court gave multiple

directions for protecting the environment, ecology and forest wealth.

86.The affidavit filed by respondent No.14 on 14.2.2011 gives a vivid

description of the mining activities taking place in the vicinity of the temple

by using Wagon Blasting Method. Shri T.M. Manjunathaiah (Technical

Assistant) reported that during the course of inspection of the temple, he felt

tremors due to the explosion and also noticed cracks on the walls and roof

due to the impact of the explosion and that the lessee was doing repairs in the

form of plastering and cement coating to cover up the cracks on the temple.

Respondent No.14 also referred to two inspections carried out by

Superintending Archaeologist, Archaeological Survey of India and a team of

officers of the Government of Karnataka, who noticed large scale damage to

the structure of the temple. This affidavit totally belies the stand of

respondent No.4 that mining was done by Controlled Blasting and not by

Wagon Blasting Method.

87.On its part the Committee availed the services of INTACH, Bangalore

Chapter, Karnataka Remote Sensing Application Centre, ISRO, CIMFR,

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Page 93 Dhanbad and NIT. In paragraph IV of its report under the heading

DISCUSSIONS, the Committee unanimously agreed that the mining

operations carried out using blasting operations at a distance of less than 200

meters from the temple have already caused irreparable damage to the temple

and the eco-environs of its immediate neighbourhood. The Committee noted

that the study submitted by Karnataka Remote Sensing Application Centre,

ISRO, Bangalore dealt with the mining activities carried out in a radius of one

kilometer and two kilometers and illustrated the damage caused to the temple

and its immediate environs. The Committee then discussed the conservation

plan prepared by Indian National Trust for Arts and Cultural Heritage,

Bangalore and observed that a sum of Rs.3,43,19,160 would be required for

bringing the temple to its original condition so that the same may regain its

past glory. The Committee then noted that the investigating agencies, i.e.,

CIMFR, Dhanbad and NIT had conducted experimental blasts beyond 200

meters whereas Karnataka Remote Sensing Application Centre had indicated

that one of the mines exists within a horizontal distance of 55 meters from the

temple premises on the eastern side and, thus, the impact of blasting operation

cannot be fully understood and assessed scientifically by the present

investigation. The Committee also observed that many of the trial blasts

conducted by the investigating agencies had locations having free faces of the

working benches and opined that the result of such investigation would show

minimum or no impact on architecturally sensitive temple. The Committee

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Page 94 finally declined to accept the suggestions given by CIMFR, Dhanbad and NIT

to restrict the mining operations/activities only up to a distance of 200 to 300

meters from Jambunatheswara temple because the data recorded by the

expert bodies were based on experimental blasts conducted at individual sites

and there was no evaluation/assessment of the cumulative or compounded

impact of multiple blasting at different places and altitudes. The Committee

noted that the mining operations involving multiple blasting by different

leaseholders had already caused substantial damage to the protected

monument and the surrounding environment.

88.In our view, the detailed reasons recorded by the Committee, which

have been extracted hereinabove, for not accepting the recommendations of

the expert bodies about the distance up to which mining should not be

allowed are correct and those recommendations cannot be relied upon for

accepting the argument of the learned counsel for the State and the private

respondents that the recommendations made by the Committee should be

rejected. We may hasten to add that the Committee’s recommendations are

not in conflict with the provisions of the 1957 Act and the Rules framed

thereunder. The 1959 Rules and the Karnataka Rules provide for grant of

permission/licence for mining in the prohibited/regulated/protected area but

the documents produced before this Court do not show that the competent

authority had granted permission/licence to any of the private respondents for

undertaking mining operations which have the effect of damaging the temple

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Page 95 in question. That apart, the distance criteria prescribed in the 1958 Act, the

Karnataka Act and the Rules framed thereunder has little or no bearing on

deciding the question of restricting the mining operations near the protected

monument which has already suffered extensive damage due to such

operations.

89.The argument of learned counsel for the State and the private

respondents that ban on mining operations/activities in the Core Zone would

adversely impact iron ore supply and will also cause financial loss to the

leaseholders as well as the State appears quite attractive but, keeping in view

larger public interest and the interest of future generations, we do not think

that this would be a very heavy price to be paid by some individuals and the

State. This Court has often used the principle of sustainable development to

balance the requirement of development and environmental protection and

issued several directions for protection of natural resources including air,

water, forest, flora and fauna as also wildlife. The Court has also recognized

that the right to development includes the whole spectrum of civil, cultural,

economic, political and social process, for the improvement of peoples well

being and realization of their full potential.

90.In Orissa Mining Corporation Ltd. v. Ministry of Environment and

Forest (Writ Petition (C) No.180/2011) decided on 18.4.2013, this Court

recognized the customary and cultural rights of indigenous people living in

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Page 96 Kalahandi and Rayagada Districts of Orissa. While considering challenge to

order dated 24.8.2010 passed by the Ministry of Environment and Forests

whereby the application made by the petitioner for grant of permission for

diversion of 660.749 hectares of forest land for mining of bauxite ore in

Lanjigarh Bauxite Mines in two Districts of the State was rejected, the three

Judge Bench extensively referred to Saxena Committee report, which covered

several issues including violation of the rights of tribal groups including

primitive tribal groups and the dalit population and proceeded to observe:

“The customary and cultural rights of indigenous people have

also been the subject matter of various international

conventions. International Labour Organization (ILO)

Convention on Indigenous and Tribal Populations

Convention, 1957 (No.107) was the first comprehensive

international instrument setting forth the rights of indigenous

and tribal populations which emphasized the necessity for

the protection of social, political and cultural rights of

indigenous people. Following that there were two other

conventions ILO Convention (No.169) and Indigenous

and Tribal Peoples Convention, 1989 and United Nations

Declaration on the rights of Indigenous Peoples (UNDRIP),

2007, India is a signatory only to the ILO Convention

(No. 107).

Apart from giving legitimacy to the cultural rights by

1957 Convention, the Convention on the Biological Diversity

(CBA) adopted at the Earth Summit (1992) highlighted

necessity to preserve and maintain knowledge, innovation

and practices of the local communities relevant for

conservation and sustainable use of bio-diversity, India is a

signatory to CBA. Rio Declaration on Environment and

Development Agenda 21 and Forestry principle also

encourage the promotion of customary practices conducive to

conservation. The necessity to respect and promote the

inherent rights of indigenous peoples which derive from

their political, economic and social structures and from

their cultures, spiritual traditions, histories and philosophies,

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Page 97 especially their rights to their lands, territories and

resources have also been recognized by United Nations in the

United Nations Declaration on Rights of Indigenous Peoples.

STs and other TFDs residing in the Scheduled Areas have a

right to maintain their distinctive spiritual relationship with

their traditionally owned or otherwise occupied and used

lands.”

The Bench then referred to the provisions of the Forest Rights Act, 2006, the

rules framed thereunder as also the guidelines issued by the Ministry of Tribal

Welfare, referred to the judgment of this Court in Amritlal Athubhai Shah v.

Union Government of India (1976) 4 SCC 108, which recognized the power

of the State Government to reserve any particular area for bauxite mining for

a public sector corporation, and observed:

“Religious freedom guaranteed to STs and the TFDs under

Articles 25 and 26 of the Constitution is intended to be a

guide to a community of life and social demands. The above

mentioned Articles guarantee them the right to practice and

propagate not only matters of faith or belief, but all those

rituals and observations which are regarded as integral part of

their religion. Their right to worship the deity Niyam-Raja

has, therefore, to be protected and preserved.

Gram Sabha has a role to play in safeguarding the

customary and religious rights of the STs and other TFDs

under the Forest Rights Act. Section 6 of the Act confers

powers on the Gram Sabha to determine the nature and

extent of “individual” or “community rights”. In this

connection, reference may also be made to Section 13 of

the Act coupled with the provisions of PESA Act, which

deal with the powers of Gram Sabha. Section 13 of the

Forest Rights Act reads as under:

“13. Act not in derogation of any other law. – Save

as otherwise provided in this Act and the

provisions of the Panchayats (Extension of the

Scheduled Areas) Act, 1996 (40 of 1996), the

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Page 98 provisions of this Act shall be in addition to and not

in derogation of the provisions of any other law for

the time being in force.”

PESA Act has been enacted, as already stated, to provide

for the extension of the provisions of Part IX of the

Constitution relating to Panchayats to the Scheduled Areas.

Section 4(d) of the Act says that every Gram Sabha shall be

competent to safeguard and preserve the traditions,

customs of the people, their cultural identity, community

resources and community mode of dispute resolution.

Therefore, Grama Sabha functioning under the Forest

Rights Act read with Section 4(d) of PESA Act has an

obligation to safeguard and preserve the traditions and

customs of the STs and other forest dwellers, their cultural

identity, community resources etc., which they have to

discharge following the guidelines issued by the Ministry of

Tribal Affairs vide its letter dated 12.7.2012.”

91.When seen in this light, the protection of ancient monuments has

necessarily to be kept in mind while carrying out development activities. The

need for ensuring protection and preservation of the ancient monuments for

the benefit of future generations has to be balanced with the benefits which

may accrue from mining and other development related activities. In our

view, the recommendations and suggestions made by the Committee for

creation of Core Zone and Buffer Zone appropriately create this balance.

While mining activity is sure to create financial wealth for the leaseholders

and also the State, the immense cultural and historic wealth, not to mention

the wealth of information which the temple provides cannot be ignored and

every effort has to be made to protect the temple.

92.Before concluding, we may deal with the submission of Shri Lalit that

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Page 99 mining can be permitted beyond the distance of 300 meters from the temple

by using Ripper Dozer and Rock Breaker machines. According to the

learned senior counsel, the use of Ripper Dozer and Rock Breaker will not

produce vibration which may cause harm to the temple. In our view, this

submission does not merit acceptance because in paragraph 6 of the

suggestions made by it, the Committee appointed by the Court has already

indicated that mining in the Buffer Zone may be permitted with controlled

blasting or without blasting by using Ripper Dozer/Rock Breaker or any other

machinery and taking adequate measures towards generation, propagation,

suppression and deposition of airborne dust to be closely monitored by

experts from IBM etc.

93.In the result, the appeal is allowed and the impugned order is set aside.

The report of the Committee is accepted and the State Government is directed

to implement the recommendations contained in Part V thereof including the

recommendation relating to creation of Corpus Fund of Rs.3,43,19,160 which

shall be utilized for implementing the conservation plan for Jambunatheswara

temple. However, it is made clear that respondent No.18 shall be free to

operate the Beneficiation plant subject to the condition that it shall procure

raw material only through E-auction mode.

94.With a view to ensure that other protected monuments in the State do

not suffer the fate of Jambunatheswara temple, we direct that the Committee

appointed by this Court vide order dated 26.4.2011 shall undertake similar

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Page 100 exercise in respect of other protected monuments in the State in whose

vicinity mining operations are being undertaken and submit report to the State

Government within a maximum period of nine months. The State

Government shall release a sum of Rs.30 lacs in favour of the Committee to

meet the expenses of survey, investigation etc. The report submitted by the

Committee shall be considered by the Government within next two months

and appropriate order be passed.

95.We hope and trust that the Government of India will also appoint an

expert committee/group to examine the impact of mining on the monuments

declared as protected monuments under the 1958 Act and take necessary

remedial measures.

……………………………………J.

(G.S. SINGHVI)

NEW DELHI; ……………………………………J.

JULY 01, 2013 (RANJANA PRAKASH DESAI)

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