Supreme Court of India
K. GURUPRASAD RAOversusSTATE OF KARNATAKA AND OTHERS
- Citation
- 2013 INSC 397
- Decided
- 1 July 2013
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
Mining operations in the vicinity of protected ancient monuments are regulated solely by the Ancient Monuments Acts and their rules, and without a licence under those statutes the mining is illegal, allowing the Court to impose a ban and create core and buffer zones.
Summary
The Supreme Court heard a public‑interest writ petition seeking the cancellation of a mining lease and a ban on mining within one kilometre of the 16th‑century Jambunatha Temple, a protected monument in Karnataka. The petition challenged mining activities that were alleged to have caused structural damage to the temple through blasting, despite the lease holder’s claim that the operations were authorized under the Mines and Minerals (Development and Regulation) Act, 1957. The Court held that mining near protected monuments is governed exclusively by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the Karnataka Ancient and Historical Monuments Act, 1961, not by the 1957 mining Act, and that no licence under the monument statutes had been obtained. It rejected the res judicata defence, accepted the expert committee’s recommendation to create a Core Zone (total mining ban) and a Buffer Zone (controlled mining), and ordered the State to implement the conservation plan and fund. The appeal was allowed, setting aside the High Court’s dismissal.
Issues considered
- The applicability of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the Karnataka Ancient and Historical Monuments Act, 1961 versus the Mines and Minerals (Development and Regulation) Act, 1957 to mining operations near a protected monument.
- Whether the mining lease holder possessed a valid licence under the monument statutes to conduct mining in the regulated area.
- The relevance of the doctrine of res judicata to the present writ petition.
- The admissibility of the expert committee’s recommendations despite contrary views of other technical experts.
- The permissibility of imposing a ban on mining in the Core Zone under the principle of sustainable development and the right to development.
Legislation cited
- Air (Prevention and Control of Pollution) Act, 1981
- Ancient Monuments and Archaeological Sites and Remains Act, 1958s. 2(a), s. 2(i), s. 2(o), s. 38(1), s. 38(2), s. 4(1)
- Environment (Protection) Act, 1986
- Forest (Conservation) Act, 1980
- Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961s. 10, s. 2(1), s. 31(1), s. 31(2)(a), s. 4
- Mineral Concession Rules, 1960
- Mineral Conservation and Development Rules, 1988
- Mines and Minerals (Development and Regulation) Act, 1957s. 4(1), s. 5(1), s. 6(1), s. 7(1), s. 8(1), s. 8(2)
- Water (Prevention and Control of Pollution) Act, 1974
Subjects
ancient monument protectionmining leaseprotected areaenvironmental lawsustainable developmentres judicataexpert committeepublic interest litigationright to developmentheritage conservation
Judgment
(2013] 11 S.C.R. 581
K. GURUPRASAD RAO A
v.
STATE OF KARNATAKA AND OTHERS
(Civil Appeal No. 4823 of 2013)
JULY 01, 2013
B
[G.S. SINGHVI AND RANJANA PRAKASH DESAI, JJ.]
Ancient Monuments and Archaeological Sites and
Remains Act, 19581 Karnataka Ancient and Historical
Monuments and Archaeological Sites and Remains Act, 1961 C
- Rules framed under - Mining operations - In the protected
area around 'Protected Monuments' declared under the
Central and the State Acts - Permissibility - Extent of - Writ
petition in public interest praying for cancellation of mining
lease and stopping of mining operations within a radius of one D
kilometer from Jambunatha Temple which was declared as a
protected monument under State Act - Objection to the
petition on the ground that the mining operation was in terms
of the Mines and Minerals (Development and Regulation)
Act, 1957 and the Rules framed thereunder - Petition E
dismissed by High Court - Appeal to Supreme Court -
Constitution of Expert Committee by the Court - The
Committee gave a finding that the mining activities using
blasting operations at a distance of less than 200 meters from
the temple has already caused irreparable damage to the F
temple - The Committee made suggestions 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 expert body/agency
- Held: Mining operations in the vicinity of protected ancient G
and historical monuments and archaeological sites are
regulated by 1958 Act (Central Act) or the State Act. (1961 Act)
and Rules made thereunder, and not by 1957 Act or the rules
581 H
582 SUPREME COURT REPORTS (2013) 11 S.C.R.
A made thereunder - In the present case mining operations
were without permission under 1958 and ~961 Acts and the
Rules framed thereunder - Hence cannot be allowed to
operate mines in the protected/regulated area -
Recommendation of Expert Committee accepted and State
B Government directed to implement the recommendations -
Direction to Expert Committee to undertake similar exercise,
as in the present case, in respect of other protected
monuments in the State, having mining operations in their
vicinity and submit its report to State Government - Central
c Government also directed to appoint an Expert Committee to
examine impact of mining on protected monuments under
1958 Act- Ancient Monuments and Archaeological Sites and
Remains Rules, 1959 - r. 10 - Karnataka Ancient and
Historical Monuments and Archaeological Sites and
0 Remains Rules, 1966 - rr. 11 to 15 - Mines and Minerals
(Development and Regulation) Act, 1957 - Mineral
Concession Rules, 1961 - Mineral Conservation and
Development Rules, 1988 - Constitution of India - Directive
Principles - Art. 49.
E Protection of Ancient Monuments - Mining activities
around protected ancient monuments - Ban on - Effect of -
On right to development - Held: Right to developmental
includes whole spectrum of civil, cultural, economic, political
and social process for the improvement of people's well being
F and realization of their full potential - In view of the principle
of sustainable development, the protection of ancient
monuments has necessarily to be kept in mind, while carrying
out development activities - Principle of sustainable
development.
G
Public Interest Litigation - Power of Supreme Court - To
issue directions, which may appear to be contrary to the
statutes - Scope of.
Res Judicata - Applicability of - Held: In absence of
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 583
record of the previous proceedings, principle of res judicata A
cannot be applied in the present case.
Jambunatha Temple, which was built in the year 1540
on Jambunath Hill in the State of Kerala, was declared as
a 'Protected Monument' by the Government of- Karnataka
8
u/s. 4 of Karnataka Ancient and Historical Monuments
and Archaeological Sites and Remains Act, 1961. By a
Notification dated 13.9.1991 an area of 9 acres 12 cents
on all four sides of the Temple was declared as a
'Protected Area'. By another Notification dated 7.12.1996, C
the State Government declared an area within the radius
of 200 meters from the periphery and precincts of the
Temple a 'Safe Zone' where no mining activity could be
conducted. The Director of Ancient Monuments after
inspecting the Temple in 2003, found that mining activity
was causing damage to the structure of the Temple. D
Thereafter, notice was issued by Asstt. Commissioner
Endowments to Respondent No. 4, (mining lease-holder)
to stop mining activities within a radius of one kilometer
from the temple. On the other hand Ministry of
Environment and Forests, of Central Government E
accorded permission to respondent No. 4 to increase the
production of ironore from 0.6 million tonnes per annum
to 1.5 million tonnes.
The appellant filed writ petition before High Court in F
public interest and prayed for cancellation of mining lease
granted to respondent No. 4 and for issuing mandamus
to the official respondent to stop mining activity within a
radius of one kilometer from the temple. He also sought
for direction to the official of Archaeological Survey of G
India (respondent No.9) to take steps for restoration of the
Temple to its original state.
Respondent No. 4 filed objection stating that the
petition was barred by res judicata as a writ petition with
similar prayer was dismissed by the High Court and that H
584. SUPREME COURT REPORTS [2013] 11 S.C.R.
A order had attained finality. He further took the plea that
no blasting operations were being conducted within 200
meters radius of the temple and precautionary measures
were taken to prevent any damage to the temple. High
Court directed official respondents to submit a report as
B to whether the area on which respondent No. 4 was
carrying on mining operation was located within the
prohibitory distance of 200 meters. The report was
submitted stating that no mining was done within 200
meters radius of the Temple. The High Court, accepting
c the report, dismissed the writ petition. Hence the present
appeal.
Objections were filed in the appeal that the mining
was being done as per the provisions of the Mines and
Minerals (Development and Regulations) Act, 1957, the
D Mineral Concession Rules, 1961 and Minerals
Conservation and Development Rules, 1988.
During pendency of the appeal, the Court directed
respondent No. 9 to inspect the site of the temple. After
E inspection of the site on behalf of respondent No. 9,
Inspection report was submitted showing damage
caused to the Temple due to mining activities. The Court
also ordered impleadment of the Superintending
Archaeologist of the State of Karnataka, and other mining
F industries doing mining operations in the area and stayed
the mining operations within a radius of 2 kilometers from
the temple.
The Court further appointed an Expert Committee.
The Committee further took help from Central Institute of
G Mining and Fuel Research for determination of safe
blasting parameters to avoid damage to the Temple, and
National Institute of Technology, Karnataka for
assessment of the impact of the blasting operations
carried out in iron-ore mines on the Temple and safe
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 585
limiting distance for blasting activity in mines. The two A
institutes after carrying out scientific investigations
submitted their reports to the Expert Committee.
Thereafter the Committee submitted its report to the
Court. The objections to the report of the Expert
Committee were also filed. B
Allowing the appeal, the Court
HELD: 1. There is no valid ground to entertain the
objection of res judicata because the official and private C
respondents have not filed the pleadings -0f Writ Petition
on the same issue, which is said to have been dismissed
by the High Court and without going 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 dismissed by the High Court. [Para 63] (662-G-H] D
2.1. None of the provisions contained in the Mines
and Minerals (Development and Regulations) Act, 1957
and the Rules framed thereunder regulate mining
operations/activities in the vicinity of ancient and E
historical monuments and archaeological sites. This
subject is exclusively governed by the Ancient
Monuments and Archaeological Sites and Remains, Act,
1957 and similar enactments made by the State
Legislatures including the Karnataka Ancient and F
Historical Monuments and Archaeological Sites and
Remains Act, 1961. 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 G
framed rules for grant of permission/licence in the
prescribed form to undertake any mining operations in a
protected and/or regulated area. Rule 10 of the Ancient
Monuments and Archaeological Sites and Remains
Rules,1959 which has been framed under Section 38 of
the 1958 Act and Rules 11 to 15 of the Karnataka Ancient H
586 SUPREME COURT REPORTS [2013] 11 S.C.R.
·A and Historical Monuments and Archaeological Sites and
Remains Rules, 1966 provide that no person shall
undertake any mining operations in a regulated area
other than on the strength of a licence granted by the
competent authority, i.e., the Director. The material placed
B on record of this appeal does not show that the private
respondents have obtained such licence under the
Karnataka Rules for permission to undertake mining
operations within the prohibited and/or regulated area.
Therefore, they cannot be allowed to operate mines in the
C protected and/or regulated area. [Para 68) [665-B-E]
2.2. The plea of the private respondents that the
report of the Expert Committee should not be accepted
because the same is contrary to the recommendations
made by the two expert bodies i.e. Central Institute of
0
Mining and Fuel Research (CIMFR) and National Institute
of Technology, Karnataka (NIT) is not acceptable because
the Committee had thoroughly scrutinised the reports
se,nt by the two expert bodies, then decided that the area
surrounding the temple should be divided into two
E 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
expert body/agency. [Para 69) (665-F-H; 666-A]
F 2.3. The Expert Committee availed the services of
Indian National Trust for Arts and Cultural Heritage
(INTACH), Bangalore, Karnataka Remote Sensing
Application Centre, ISRO, CIMFR, Dhanbad and NIT. In
paragraph IV of its report under the heading
G 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
H neighbourhood. The Committee noted that the study
K. GURUPRASAD RAO v. STATE OF KARNATAKA 587
submitted by Karnataka Remote Sensing Application A
Centre, ISRO, Bangalore dealt with the mining activities
carried out within 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 INTACH, B
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 c
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 0
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 E
show minimum or no impact on architecturally sensitive
temple. The Committee 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 the temple because the data
recorded by the expert bodies were based on F
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 G
leaseholders had already caused substantial damage to
the protected monument and the surrounding
environment. [Para 87) [688-G-H; 689-A-H]
2.4. The detailed reasons recorded by the Committee, H
588 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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 plea that the
recommendations made by the Expert Committee should
B be rejected. [Para 88] [690-A-B]
2.5. 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
C 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
D 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
E extensive damage due to such operations. [Para 88] [690-
C-E]
2.6. The plea that ban on mining operations/activities
in the Core Zone would adversely impact iron ore supply
F and will also cause financial loss to the leaseholders as
well as the State is liable to be rejected, keeping in view
larger public interest and the interest of future
generations. This Court has often used the principle of
sustainable development to balance the requirement of
G 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
deve~opment includes the whole spectrum of civil,
cultural, economic, political and social process, for the
H
K. GURUPRASAD .RAO v. STATE OF KARNATAKA 589
improvement of peoples well being and realization of A
their full potential. [Para 89] [690-F-H; 691-A]
Indian Council for Enviro-Legal Action vs. Union of India
(1996) 5 SCC 281: 1996 (1) Suppl. SCR 507; Ve/fore
Citizens' Welfare Forum vs. Union of India (1996) 5 SCC 647:
B
1996 (5) Suppl. SCR 241; Amritlal Athubhai Shah vs. Union
Government of India (1976) 4 SCC 108: 1977 (1) SCR 372
- relied on.
2.7. Thus, the protection of ancient monuments has
necessarily to be kept in mind while carrying out C
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. Therefore, the D
recommendations and suggestions made by the Expert
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, E
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. [Para 91] [693-G-H; 694-A-B]
2.8. The plea that mining can be permitted beyond the
distance of 300 meters from the temple by using Ripper F
Dozer and Rock Breaker machines (as the use of Ripper
Dozer and Rock Breaker will not produce vibration which
may cause harm to the temple), is not liable to be
accepted. The Expert Committee has already indicated
that mining in the Buffer Zone may be permitted with G
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. [P~ 92] [694-C-E] H
590 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 2.9. The report of the Expert 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
s the conservation plan for the 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. [Para
93] [694-F-G]
c 3.1. With a view to ensure that other protected
monuments in the State do not suffer the fate of the
temple, it is directed that the Expert Committee appointed
by this Court shall undertake similar exercise in respect
<>f other protected monuments in the State, in whose
D 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
E report submitted by the Committee shall be considered
by the Government within next two months and
appropriate order be passed. [Para 94] [694-H; 695-A-C]
3.2. Government of India will also appoint an expert
F committee/group to examine the impact of mining on the
monuments declared as protected monuments under the
1958 Act and take necessary remedial measures. [Para
95] [695-D]
Bandhua Mukti Morcha vs. Union of India (1984) 3 SCC
G 161: 1984 (2) SCR 67; Rural Litigation and Entitlement
Kendra vs. State of UP (1985) 2 SCC 431: 1985 (3) SCR
169; State of Bihar vs. Murad Ali Khan (1988) 4 SCC 655:
1988 (3) Suppl. SCR 455; Tarun Bharat Sangh vs. Union of
India 1992 Supp (2) SCC 448; M.C. Mehta vs. Union of India
H (1996) 8 SCC 462: 1996 (2) Suppl. SCR 806; M.C. Mehta
"""'
K. GURUPRASAD RAO v. STATE OF KARNATAKA 591
(Taj Trapezium Matter) vs. Union of India (1997) 2 SCC 353: A
1996 (10) Suppl. SCR 973; M.C. Mehta (Taj Trapezium
Pollution) vs. Union of India (2001) 9 sec 235; M.C. Mehta
vs. Union of India (2004) 12 SCC 118: 2004 (3) SCR 128;
Ambica Quarry Works vs. State of Gujarat (·1987) 1 SCC 213:
1987 (1) SCR 562; M.C. Mehta vs. Union of India (2009) 6 B
SCC 142; Supreme Court Bar Association vs. Union of India
(1998) 4 SCC 409: 1998 (2) SeR 795; M.C. Mehta vs. Union
of India (1987) 1 SCC 395: 1987 (1) SCR 819; Orissa Mining
Corporation Ltd. vs. Ministry of Environment and Forest 2013
(6) sec 476 - relied on.
c
Essar Oil Ltd. vs. Halar Utkarsh Samiti (2004) 2 SCC
392: 2004 (1) SCR 808 - referred to.
Case Law Reference:
2004 (1) SCR 808 Paras 70, 73 D
1996 (1) Suppl. SCR 507 Para 71
1996 (5) Suppl. SCR 241 Para 72
1984 (2) SCR 67 Para 74 E
1985 (3) SCR 169 Para 75
1988 (3) Suppl. SCR 455 Para 76
1992 Supp (2) sec 448 Para 77
F
1996 (2) Suppl. SCR 806 Para 78
1996 (10) Suppl. SCR 973 Para 79
(2001 > 9 sec 235 Para 80
G
2004 (3) SCR 128 Para 81
1987 (1) SCR 562 Para 81
(2009) 6 sec 142 Para 82
H
592 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 1998 (2) SCR 795 Para 84
1987 (1) SCR 819 Para 85
2013 (6) sec 476 Para 90
1977 (1) SCR 372 Para 90
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4823 of 2013.
From the Judgment & Order dated 06.08.2009 of the High
c Court of Karnataka at Bangalore in WP No. 9512 of 2009.
U.U. Lalit, G.V. Chandrashekar, N.K. Verma, Sandeep
Narain, Balaji Srinivasan, Jaikriti S. Jadeja, A.D.N. Rao, Anitha
Shenoy, Kiran Suri, S.J. Amith, Nakibur Rahman Barbhuiya,
Ranjana Narayan, Gaurav Sharma, S.K. Kulkuarni, Ankur S.
0 Kulkarni for the appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
E
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
F 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.
G 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
H Preserving Archaeological Sites and Monuments, Henry
K. GURUPRASAD RAO v. STATE OF KARNATAKA 593
[G.S. SINGHVI, J.]
Cleere, World Heritage Coordinator, International Council on A
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 17th and B
18th 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 c
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. o
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 E
was published, forbidding 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.
F
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.
G
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
H
594 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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 heritag~
respectively, were promulgated in Italy by the Fascist regime
just before the outbreak of World War II; interestingly, both are
still force in 2001.
c
7. The 1897 Japanese law was extended to all "national
treasures" in 1929. The current legislation relating to the cultural
heritage in Peru stems from a basic law passed in 1929, and
a 1927 law covers the cultural heritage of Bolivia.
D
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
E 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
bloa of central and eastern Europe, as well as that of other
socialist countries such as the People's Repubiic of China,
F 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
G 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.
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 595
[G.S. SINGHVI, J.)
10. The second half of the twentieth century witnessed a 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
World Wars by the League of Nations which resulted in B
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. C
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
0
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 E
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
F
or cultural significance. Potential dangers for both cultural ard
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 G
also be potential dangers.
12. In India, the legal regime dates back to 18th century.
The Governments of Bengal, Hyderabad, Madras and Mysore
enacted the Bengal Regulation XIX of 1810, the Hyderabad
H
596 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Ancient Monuments Preservation Act VIII of 1337 Fasli, the
Madras Regulation VII of 1817 respectively. In the 19th 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
B 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
C 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
0
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
E "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
F 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
G 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
H remarkable in their antiquity and for their - historical or
K. GURUPRASAD RAO v. STATE OF l<ARNATAKA 597
[G.S. SINGHVI, J.]
architectural value or required for the convenience of the A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
598 SUPREME COURT REPORTS [2013] 11 S.C.R.
A "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.
B
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
C 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
0
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
E 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
F 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
G 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 obligato!Y
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 599
[G.S. SINGHVI, J.]
for the State to protect every monument or place or object of A
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.
B
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 C
importance falling under Entry 67 of List I of the Seventh
Schedule and the archaeological sites and remains falling
under Entry 40 of List Ill. For achieving this object, Parliament
enacted the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 (for short, 'the 1958 Act), the preamble of
0
which reads thus:
"An act to provide for the preservation of ancient and
historical monuments and archaeological sites and
remains of national importance, for the regulation of
archaeological excavations and for the protection of the E
sculptures, carvings and other like objects."
18. Sections 2(a), (i), 0), (4) and 38(1 ), (2)(a) of the 1958
Act read as under:
"2. Definitions- In this Act, unless the context otherwise F
requires-
(a) "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 G
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 monument, H
600 SUPREME COURT REPORTS [2013] 11 S.C.R.
A (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
B (iv) the means of access to, and convenient inspection of
an ancient monument.
(i) "protected area" means any archaeological site and
remains which is declared to be national importance by or
c under this Act.
(j) "protected monument" means any ancient monument
which is declared to be of national importance by or under
this Act.
D 4. Power of Central Gov.ernment to declare ancient
monument, etc., to be of national importance-(1) Where
the Central Government is of opinion that any ancient
monument or archaeological site and remains not included
in section 3 is of national importance, it may, by notification
E in the Official Gazette, give two months' notice of its
intention to declare such ancient monument or
archaeological site and remains to be of national
importance, and a copy of every such notification shall be
affixed in a conspicuous place near the monument or site
F 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
G of the monument, or the archaeological 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 Official
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 601
[G.S. SINGHVI, J.]
Gazette, the ancient monument or the archaeological site A
and remains, as the case may be, to be of national
importance.
· (4) A notification published under sub-section (3) shall,
unless and until it is withdrawn, be conclusive evidence of B
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. Po¥'Jerto make rules-(1) The Central Government may,
by notification, in the Official Gazette and subject to the C
condition of previous publication, make rule 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 D
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 E
construction of buildings on land adjoining 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 F
(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 G
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.
H
602 SUPREME COURT REPORTS (2013] 11 S.C.R.
A 10. Permission required for construction etc. (1) No person
shall undertake any construction or mining operation with
a protected area except under and in accordance with a
permission granted in this behalf by the Central
Government.
B
(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.
c 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
D 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
E 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
F 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
G 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-
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 603
[G.S. SINGHVI, J.J
(a) in a prohibited area, or A
(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 B
undertake any mining operation or any construction in a
regulated area shall apply to the Director-General in Form
VI at least three months before the date of commencement
of such operation or construction.
c
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. D
(2)Every licence granted under sub-rule (1) shall be in Form
VII I and be subject to the following conditions, namely-
(a) the licence shall not be transferable.
E
(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, F
and the maintenance qf 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 G
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 H
604 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 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)
B
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.,
c are in force:-
(1) The Hyderabad Ancient Monuments Preservation Act,
1337F (Hyderabad Act VIII of 1337 Fasli) is in force in the
Hyderabad Area;
D (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
E (Central Act VI I 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
F 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
G 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,
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 605
[G.S. SINGHVI, J.]
ancient and historical monuments other than those A
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
B
Archaeological Sites and Remains Act, 1958."
21. The preamble of the Kamataka Act and Sections 2(1),
(10), 4, 31(1) and (2)(a), which have bearing on the disposal
of this appeal read as under:
c
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
0
other like objects in the State of Karnataka.
Whereas, it is expedient to provide for the preservation of
ancient and historical monuments and archeologjcal sites
and remains in the State of Karnataka other than those
declared by or under law made by Parliament to be of E
national importance, and for the protection of sculptures,
carvings and other like objects;"
2. Definitions.-ln this Act, unless the context otherwise
requires,- F
(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 G
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; H
606 SUPREME COURT REPORTS [2013] 11 S.C.R.
A (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,
8 an ancient monument;
xxxx xxxx xxxx
(10) "Protected monument" means an ancient monument
which is declared to be protected by or under this Act.
c
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
D 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
E 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
F 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,
G
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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 607
[G.S. SINGHVI, J.]
condition of previous publication, make rules for carrying A
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:- B
(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; C
)()()()( )()()()( xxxx"
22. In exercise of the powers conferred by Section 31 of
the Karnataka Act, the State Government framed the Karnataka D
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. - E
{a) xxxx )()()()( )()()()(
(b) "Construction" of any structure includes additions to or
alterations of an existing building;
F
(f) "Mining operation" means any operation for the purpose
of searching for or obtaining minerals and includes
quarrying, excavating minerals and includes quarrying,
excavating, blasting and any operation of the like nature;
G
(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 H
608 SUPREME COURT REPORTS [2013) 11 S.C.R.
A construction or both;
)()()()( )()()()( )()()()(
11. Notice of intention to declare a prohibited or
regulated area. - (1) before declaring an area near or
B
adjoining a protected monument, to be a prohibited area
or a regulated area for purposes or mining operation or
construction or both, the 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
c affixed 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 objections,
if any, from interested persons.
D
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
E declare, by notification in the Official Gazette, the area
specified 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 .
F 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
G
(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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 609
[G.S. SINGHVI, J.]
undertake any mining operation or any construction in a A
regulated area shall apply to the Director in Form· 11 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 B
application 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 C
Ill 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 D
(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 E
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 F
unregulated mining activities/operations in the vicinity of such
monuments and buildings representing heritage and culture of
the past.
The facts
G
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
H
610 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B hillocks rich in good iron-ore. The main temple facing east,
consists of a garbhagriha, a sukanasi and an antarala
surround.ed 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
C 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
D 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
E 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
F 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.
G
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
H No.115-B on all four sides of the temple was declared as
K. GURUPRASAD RAO v. STATE OF KARNATAKA 611
[G.S. SINGHVI, J.]
'Protected Area'. By another notification dated 7 .12.1996, the A
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.
B
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 wasrenewed on 4.2.1982 for a further
period of 30 years in the name of his legal heir Sri c
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 0
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, E
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 F
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. G
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 H
612 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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.
29. The appellant, who is an Advocate by profession and
8 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
c 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
D 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,
E 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
F 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
G 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 613
-
[GS. SINGHVI, J.]
January 2008, the fourth respondent also obtained A
clearance for enhancement of production capacity of iron
ore production from the Ministry of Environment and
Forests. Copy of the permission is produced at
ANNEXURE-0.
B
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. Thi_s type of blasting is not being c
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
0
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 E
have cracked and may collapse if mining activities
continue.
6. Inside the temple, there is a well. The waterin the well
is said to contain many medicinal properties. In fact,
devotees throng to the temple to collect the water. F
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." G
30. Respondent No.4 filed objections and pleaded that the
writ petition should not be entertained because Writ Petition
No.2706711998 filed with similar prayer was dismissed by the
High Court on 7.8.2000 and that order has become final. It was H
614 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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 belated.
B
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
C 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
D meters from the temple. The relevant portions of the report are
extracted below:
"Sub:- Brief report regarding mining activities of Mis. R.
Mallamma M.L.No.1806 Hospet Taluk, Bellary District.
E 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.
F 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
G 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.
H After verifying available records in the office the
K. GURUPRASAD RAO v. STATE OF KARNATAKA 615
[G.S. SINGHVI, J.]
Government order NO.Cl.65.MMM.96 Dt. 07.12.1996 A
state that mining operations should beyond 200 meters
away from the periphery of the temple.(Copy enclosed)
It further submitted that on 12.10.2007 this Office in the
presence of revenue department and police department 8
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 C
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, D
(copy enclosed).
Again it is submitted that on 30.08.2008 notice was issued
to the said lessee. (Copy enclosed).
E
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. F
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 G
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.
H
616 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 34. Notice of the special leave petition out of which this
appeal arises was 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.
B 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
c 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
D 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
E 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
F and emphasized that it had employed controlled blasting
method.
36. After hearing the learned counsel for the parties, this
Court passed order dated 8.11.2010 and directed respondent
No.9 to personally inspect the site of the temple and the area
G 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
H to surrounding mining activities. Thereupon the firm carried out
K. GURUPRASAD RAO v. STATE OF KARNATAKA 617
[G.S. SINGHVI, J.]
detailed inspection along with concerned officials in November A
and summarised the outcome of inspection in the following
words:
"PHYSICAL OBSERVATIONS
B
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 c
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 D
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 E
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. F
8. The wide gaps between the stone members were
observed to be filed with cement mortar.
9. It is observed that recently stone members were
observed to be cleaned with chemical wash. G
10. WPC over the roof slab was observed to be
severely deteriorated in the form of hapazardous
cracks.
H
618 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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.
B 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."
c
"Peripheral structures:
1. Ab.sence of plinth protection was observed alround
the building.
D 2. Severe growth of vegetation was observed alround
the building.
3. Inclined cracks were observed in masonry wall at
various locations.
E 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.
F
6. Damp patches were observed in masonry wal.ls at
various locations.
7. Deterioration of WPC was observed over the roof
slab."
G
"Inferences:
Following inferences are drawn, based on the detailed
inspection:
H 1. The visible distress observed in stone members of
K. GURUPRASAD RAO v. STATE OF KARNATAKA 619
[G.S. SINGHVI, J.]
structure is essentially due to one or the combination of A
following factors:
Prolonged age effect.
Disturbance caused to the structure due to
nearby mining activities. B
Inadequate/ineffective maintenance over a
period of time.
2. Severe cracks observed in peripheral structures C
are mainly due to disturbances caused by
surrounding mining activities and inadequate
maintenance over a period of time."
"Recommendations:
D
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 E
activities away from temple, atleast 1 km radius
around the temple to minimize the- possible
vibration.
Further, it is recommended to take up the F
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 G
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 H
620 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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."
B
The report prepared by respondent No.9 is accompanied by
several photographs which provide visual evidence of the
damage caused to the temple due to mining activities.
c 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
0
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,
E 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.
F
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
G 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
H questioned on the ground that similar issue had been raised
K. GURUPRASAD RAO v. STATE OF KARNATAKA 621
[G.S. SINGHVI, J.]
before the High Court in Writ Petition No. 27027 of 1998 and A
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 B
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 C
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.
D
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. E
42. One significant aspect of the pleadings which deserves
to be mentioned at this stage is that the State of Kamataka and
its officers have taken contradictory stands on the issue of the
nature of mining operations undertaken by respondent No.4.
While respondent Nos. 1 to 3 and 5 have claimed that F
respondent No.4 has been carrying out mining by controlled
blasting in accordance with the permission granted by the
Director General of Mines Safety and not by the Wagon Blasting
Method, in affidavit dated 14.2.2011 filed by him, Shri B.M.
Chikkamaregowda, Deputy Director, Department of G
Archaeology and Museums, Kamalapur, Hospet Taluk, Bellary
District has unequivocally contradicted this by making the
following statement:
"4. I further humbly submit that, during the inspection, it was H
622 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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
c semi-circular pattern surroundi.ng 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
D
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
E 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
F 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),
G 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 Museums,
Government of Karnataka who was present during the
H inspection has informed that no such permission has been
K. GURUPRASAD RAO v. STATE OF KARNATAKA 623
[G.S. SINGHVI, J.]
given by the Department for carrying out mining operation A
within the notified zones. As per the records made
available by the State, Department of Archaeology, as
early as 3rd March 2004, the Deputy Director, Department
of Archaeology and Museums, Government of Karnataka,
posted at Kamalapura had written to his Directorate office 8
in Mysore that during his spot inspection along with Shri
T.M. Manjunathaiah, Technical Assistant, on 27th February
2004 witnessed the mining activity going 9n in the vicinity
of the temple by using explosives (wagon blasting). He also
informed that the felt tremors due to the explosion in the c
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 D
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 E
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
F
which was seen by the visiting team on 29th 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 G
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.
H
624 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
8 Maha Ranga Mamlapa portions;
2. A few pillars have gone out of plumb-Plate Vl(a);
3. Concussion fractures in the capital portion of the
pillar in Maha Ranga Mandapa Plate VI (b);
c
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:
D
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
E
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; ·
F
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
G and due to growth of vegetation.
8. I respectfully submit that again in the month of June 2007
on 1\)th a joint inspection by Tahsildar, Hospet, Deputy
Director, Mines and Geology, Government of Karnataka;
H Deputy Director, State Archaeology, Government of
K. GURUPRASAD RAO v. STATE OF KARNATAKA 625
[G.S. SINGHVI, J.] ·
· Karnataka; Revenue Inspector, Hospet; Taluk Surveyor A
inspected the temple in Survey Number 198 and mining
activities in Survey Number 115 ns 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 B
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 C
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 0
temple and the mining activity has led for the dumping of
the mine waste on 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 E
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.
F
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 G
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.
H
626 SUPREME COURT REPORTS [2013) 11 S.C.R.
I. 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
B 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
c blocks, in trabeate system, is attributed to several factors
which are as under;
(b) Aging and lack of periodic maintenance by the
concerned department;
D (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
E State Archaeology Department, Government of Karnataka
and other local authorities and also as observed by the
Respondent ahd other officials, mining activities using
explosives in the close proximity of the protected temple
has also contributed to a extent for it& present detracted
condition."
F
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
G 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
H undertaken before passing of stay orders by this Court on
K. GURUPRASAD RAO v. STATE OF KARNATAKA 627
[G.S. SINGHVI, J.]
09.07.2010 and 18.02.2011, the Committee. comprising A
the following is constituted:
1 -The Director, Directorate of
Archaeology & Museums,
Government of Karnataka, Karnataka
Exhibition Authority Complex, Convenor B
Mysore570 010.
2 The Superintending Archaeologist,
Archaeological Survey of India,
Bangalore Circle, 5th Floor, 'F' Wing,
Kendriya Sadan, Koramangala, c
Bangalore 560 034. (Along with the Member
team of experts from ASI)
3 Geological Survey of India, State Unit
of Karnataka & Goa, Vasudha
Bhavan, Kumaraswamy Layout, D
Member
Bangalore 560 078.
4 Shri A.B.Morappanavar, IFS, Dept.
of Ecology & Environment, Regional
Director and Deputy Conservator of E
Forest, #01, Charanti Matt Building,
Shivalaya Road, Sadashivanagar, Member
Belgaum 590001.'
5 Deputy Director, Department of
Mines & Geology, Government of F
Karnataka, College Road, Hospet
583 201 (Dist.Bellary) Member
6 Prof.C.S.Vadudevan, Asst.
Professor, Department of Ancient
History & Archaeology, Kannada G
University, Hampi{Vidyaranya) -583
276 (Hospet Taluk, Bellary Dist.) Member
7 Sri Pankaj Modi, Conservation
Architect, Indian National Trust for Art
& Cultural Heritage, Karnataka H
628 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Chapter, 166, Kattariguppe Water
Tank Road, 4th Cross, 4th Block, 3rd
Phase, Banashankari Ill stage,
Bangalore 560 085. Member
8 The Deputy Director, Directorate of
B Archaeology & Museums,
Government of Karnataka,
Kamalapuram 583221. (Hospet Member
Taluk, Bellary Dist.) Secretary
c 9 A representative of Directorate General of Mines
Safety (DGMS), Dhanbad, Jharkhand For mine
safety
10 A representative of Indian Bureau of
For Mining
Mines, Nagpur, Maharashtra
technology
D
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
E 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
F Bangalore. During one of these meetings, the Committee
decided to avail of the services of Central Institute of Mining
and 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
G '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
H from 9th to 13th November, 2011. During that period, eight
K. GURUPRASAD RAO v. STATE OF KARNATAKA 629
[G.S. SINGHVI, J.]
experimental trial blasts were conducted at four different mines A
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
8
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 C
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, D
Dhanbad sent a detailed report to the Committee along with
photographs. The Executive Summary of that report reads as
under:
"EXECUTIVE SUMMARY
E
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 F
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 G
controlled blasting operations can be permir.ed 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 H
630 SUPREME COURT REPORTS [2013) 11 S.C.R
A 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.
B
1. Eight trial blasts were conducted during the period of
the field investigation. Two blasts were conducted at
Shankalapuram Iron Ore Mine of Mis R. B. Seth Shreeram
Narsingdas (RBSSN), three blasts at Aarpee Iron Ore
Mine of Smt. R. Mallamma, two blasts at
c Jambunatheswara Iron Ore Mine of Mis 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
D 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
E 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 tl•e blasts was 115 mm. The total explosive
charge varied between 106.20 and 407.50 kg. The
F 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-
G 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 631
[G.S. SINGHVI, J.]
the vibration monitoring stations from the blasting locations A
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 B
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 C
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 recqrded near the Eastern Gate of the temple.
The trial blast was conducted at the 2nd Bench (Nishant D
PitJ.'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.
E
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. F
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 G
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
H
632 SUPREME COURT REPORTS (2013] 11 S.C.R.
A 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
B
measured inside the Jambunatheswara Temple premises,
from all the eight experimental trial blasts conducted during
1Oth - 13th November, 2011, are well within the safe limits.
11. The levels of air overpressure recorded from the
c 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, 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.
D
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
E
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
F
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
G blasting operations surrounding the Jambunatheswara
Temple.
200 - 300 m from the Jambunatheswara Temple
300 - 500 m from the Jambunatheswara Temple
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 633
[G.S. SINGHVI, J.]
Beyond 500 m distance from the Jambunatheswara A
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, B
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 par~meters, controlled C
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
spi~. D
17. In the present condition, the altitudes{Reduced Levell
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 E
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 blast-
induced ground vibration on the temple." F
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 G
hereunder:
(a) To study the blasting operations carried out in iron
ore mines in the surroundings of the
Jambunatheswara Temple.
H
634 SUPREME COURT REPORTS [2013] 11 S.C.R.
A (b) To monitor blast vibrations.
(c) To establish the ground vibrations propagation
equation.
(d) To determine the Safe Radial Distance from the
B Temple up to which blasting activity may be
permitted.
(e) To specify the blast design parameters and pattern
to be followed, with details like,
c Maximum explosive charge per hole
Type of initiation and the detonators to be used
Maximum number of holes per round
D
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
E
Methods of limiting the air blast (noise)
Any other measures.
48. The investigation conducted by NIT covered Aarpee
F Iron Ore Mines, Shankalapuram Iron Ore Mine of Mis. RBSSN,
Jambunatheswara Iron Ore 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
G different locations by using blast vibration monitors, MINI MATE
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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 635
[G.S. SINGHVI, J.]
maximum explosive charge delay of 44 kg. Dr. V. R. Sastry, A
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:
B
"CONCLUSIONS AND RECOMMENDATIONS
Conclusions
Based on the investigations carried out on blasting
operations in iron ore mines around Sri Jambunatheswara C
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 - D
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. E
Diameter of blastholes used in all the blasts was 11 Omm.
Depth of the blastholes was varying from 6m to 1Om.
Number of Blastholes varied from 6 to 14. F
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 G
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, H
636 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 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
B monitored using five (5) units of Blast Vibration Monitors,
MNIMATE-007 and MINIMATE PLUS of lnstantel, Canada,
at six (6) different locations.
'
Three monitors were used to record blast vibrations at
East entrance. North entrance, and West side of Sri
c Jambunatheswara Temple.
The recordings indicated ground vibrations of less than
2mm/s Peak Particle Velocity near the Temple.
D 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(0/
VW)151
E
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.
F
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.
G presently, should be continued to maintain safety of the
Temple.
Recommendations
H Proper blast design results 'in lower ground vibrations.
K. GURUPRASAD RAO v. STATE OF KARNATAKA 637
[G.S. SINGHVI, J.]
The depth of blastholes may be maintained as S-12m. A
Shorter benches of less than Sm 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. B
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) C
from the Temple structure.
It is recommended to use a maximum of eight (S)
blastholes per round, when the blast site is 300m away
from the Temple. o
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 E
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 F
by applying sufficient delay time between blastholes in the
blast round. It is advisable to provide a clear delay of Sms/
m between blastholes in the blast layout.
It is recommended to follow the following blast pattern at G
300m distance or more from the Temple:
Bench height : Sm
Depth of holes : S.5-9m
H
638 SUPREME COURT REPORTS [2013) 11 S.C.R.
A Burden : 2.5 -3.5m
Spacing : 3m-4.5m
Pattern of holes Rectangular
B Initiation :Straight line patternN- pattern
No. of rows :2
No. of holes :8
c Width of blast area ·: With single row-2.5-3.Sm
Length of blast area : 24 - 36m
In-Hole initiation : Shock Tube System
D Delay system : Shock Tube system
Charge per hole : 44kg (Maximum)
Max. charge I delay : 44kg
E Initiation Pattern: : Straight line pattern
V-pattern
Diagonal pattern (in case free end
F available)
The layouts of the blasts conducted during the
investigations may be continued, with hole to hole
individual delays, as shown in Fig. 29."
G 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:
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 639
[G.S. SINGHVI, J.]
"IV. DISCUSSIONS: A
The Committee unanimously agrees that the mining
operations carried out using blastir.g operations in the near
proximity, at a distance of less than 200 m from the Subject
temple, have already caused irreparable damages to the 8
temple and the eco-environs of its immediate
neighborhood as enumerated in detail in Annexure-1 (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 C
efforts required so that the temple and its immediate
environs regain their original aesthetic and architectural
grandeur, sanctity and pristine 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. D
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 E
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 presenUlatest one.
The agency could have also offered valuable data and f
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 G
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 H
640 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B activities have undoubtedly affected the architecturally
sensitive temple and its eco-environs. Data provided in the
table indicates that more than I/4th (89.66 hectares out of
314.12 hectares) of the area within 1 Km radius and I/5th
of the area (275.26 hectares out of 1256.56 hectares)
c 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
D
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.
E Thus, the Report substantiates the statements of
Respondent no. 9 (Annexure-1) in so far as
(1) The mining activities have been conducted from
a distance of 55 m from the subject temple in dire
F 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:
G
(2) The mining activities have adversely affected the
temple and
(3) They have also adversely affected the immediate
H environs of the temple to a great extent.
K. GURUPRASAD RAO v. STATE OF KARNATAKA 641
[G.S. SINGHVI, J.]
2. The Conservation Plan for Jambunatha Temple A
prepared by Indian National Trust for Art and Cultural
Heritage, Bangalore Chapter (Annexure-111) substantiates
in its entirety the observations made by Respondent No.
9 in the Technical Report (Annexure-l(A), (B) and (C) and
the subsequent Affidavit (Annexure-l(D) with regard to the B
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: c
(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;
D
(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, E
changes to surrounding condition and missing
portions due to deterioration;
(3) space dimensions and configurations, additions,
blocking of openings, false facade, changes to F
basic plan, topography of the surrounding land, bad
re-pointing, bad cleaning techniques, insensitive
and out of context additions and finishes (Annexure-
111 - Chapter Ill, page 30-100).
In Chapter IV of the said report (Annexure-111 - pages G
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 H
642 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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).
B
3. The Reports submitted by Central Institute of Mining and
Fuel Research, Dhanbad (Annexure-V) and National
Institute of Technology, Kamataka, Surathkal (Annexure-VI),
based on Technical field investigations conducted during
the 2nd and 3rd weeks of November, 20t1, are very helpful
c in arriving at the safe blasting parameters to avoid damage
to Jambunatheswara temple situated near Hospet,
Kamataka. 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
D
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 Jambunatha Temple
E
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
F 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
G 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
H of less than 200 M have already caused irreparable
K. GURUPRASAD RAO v. STATE OF KARNATAKA 643
[G.S. SINGHVI, J.]
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, B
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 c
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 D
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 laboratorv conditions. Many of the trial blasts have
been conducted at locations having free faces of the E
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 F
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 (Anne:~ure-V - Tables G
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 H
644 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B and lethal in effect. probably not requiring any scientific or
technical confirmation.
The CIMFR Report (Annexure-V - page 7)
significantly adds that "in the present condition. the altitudes
c (Reduced Level/RU 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
D 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
E
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
F 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 ahd safety. The recommendations
G 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 645
[G.S. SINGHVI, J.]
held responsible for any untoward incident caused by A
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 8
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. c
The Committee opines that the spirit and sanctitv 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 D
the Vijayanaqara 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 E
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 F
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.
G
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 H
646 SUPREME COURT REPORTS [2013] 11 S.C.R.
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
B 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.
c
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
D towered gateways, approached by long and broad chariot
streets· or winding flight of steps follqwing 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 o_h the Malyavanta Hill and the
E
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
F
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
G
and serene atmosphere of high altitudes, considered as
'abod~s 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.
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 647
[G.S. SINGHVI, J.]
Thus the immediate environs of the Subject temple, A
is pregnant with all the aesthetic, serene, sacred and
multifaceted symbolic values.
The 'macro' studies by the high level panel set up by
the Union Government and the Indian Council for Forestry B
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 c
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 o
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.
E
'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 NEERl's report, the dust hanging
in the air of Bellary due to rampant mining is a serious F
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). G
Mining has adversely affected the forest areas, including
the 'rese1 ved' 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 H
648 SUPREME COURT REPORTS (2013] 11 S.C.R.
A 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
B 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
c Centre (KSRSAC), commissioned by the present
Committee is a micro study addressing a similar issue
concentrating mainly 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
D
the temple.
V. RECOMMENDATIONS:
In the light of the above observations and with due
E 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
F 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');
G - (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;
H (iii) as also the recommendations regarding the safe
K. GURUPRASAD RAO v. STATE OF KARNATAKA 649
[G.S. SINGHVI, J.]
blasting parameters to avoid damage to the A
temple,
(iv) the dire necessity of resorting to the ideology of
sustainable mining and
the absence of any vigilant and effective B
(v)
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 c
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 D
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 E
distance of 2 km from the protected area and 1 Km
from the Core Zone.
I. CORE ZONE:
F
(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; G
(2) Implementation of immediate conservation
measures, initiation of short term conservation
measures and arriving at time frame and phasing
for long time conservation measures;
H
650 SUPREME COURT REPORTS [2013] 11 S.C.R.
A (3) Preparation and implementation of Mine Closure
Plan and
(4) ·Depositing requisite funds.
II. BUFFER ZONE:
B
(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
c 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,
D 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
E 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:
F
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
G 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 mining activity shall be allowed in
Core Zone (within I km radius) of the temple.
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 651
[G.S. SINGHVI, J.]
2. The existing haul road to the mines and all the A
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 B
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 c
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 D
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 E
recommendations contained in the
'CONSERVATION PLAN for
JAMBUNATHESHWARA TEMPLE, HOSPET'
prepared and submitted by the INTACH, Bangalore
Chapter (November 2011) towards the F
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. G
5. Pass an order directing Mis Aarpee Iron Ore Mines,
No.24/151, Bellary Road, Hospet-583 201, Bellary
(Dist) to fill the craters (Nishani Pits/ Mine Pits)
H
652 SUPREME COURT REPORTS [2013] 11 S.C.R.
A caused due to extensive mining in the immediate
proximity of the 1emple 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
B condition within three years by preparing a detailed
Mine Closure Plan.
6. · Permitting mining with controlled blasting or without
blasting using Ripper Dozer/ Rock-breaker or any
other machinery and taking adequate measures
c 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
D
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.
E
7. Pass such other order or orders, as this Hon'ble
Court deems fit and proper in the facts and
circumstances of the case."
F (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
G 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
H 5.8.2011 passed by this Court in SLP(C) Nos. 7366-7367/2010
K. GURUPRASAD RAO v. STATE OF KARNATAKA 653
[G.S. SINGHVI, J.]
- Government of A.P. and others v. M/s. Obalapuram Mining A
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 paragraph 8 of his affidavit, Shri Mukherjee has given B
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 C
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, D
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 E
Court in Writ Petition(C) No.562/2009 and mining activit[es 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 F
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 G
and that respondent No.15 will also be asked to surrender the
area which falls within 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 H
654 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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
C 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.
D 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
E 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 temple is not going to cause any structural
F 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
G restriction on mining up to a distance of one kilometre from the
temple. She has relied upon clause 5 in Part Ill 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.
H 52. In the objections filed on behalf of respondent No.15,
K. GURUPRASAD RAO v. STATE OF KARNATAKA 655
[G.S. SINGHVI, J.]
the particulars of the lease granted by the State Government A
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 B
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 N·o.17, c
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 0
of about 500 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 E
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 F
awarded by the State Government to Mis. 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 G
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 H
656 SUPREME COURT REPORTS (2013] 11 S.C.R.
A 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
B 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
c 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
D (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
E KS PCB.
17. I say that the reliance by Respondent No.14 on the
State Government's letter No. Cl 135 EMM 76, dated
18.08.1978, to suggest that iron ore mining operations are
F 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
G 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,
H Central Pollution Control Board, State Pollution Control
K. GURUPRASAD RAO v. STATE OF KARNATAKA 657
[G.S. SINGHVI, J.]
Boards, Archaeological Survey of India have permitted A
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 Kamataka and/or India in
contravention of such prohibition. These permissions have
been in accordance with the consistent policy of MOEF, B
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 C
Government's letter No. Cl 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. D
Cl 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 Cl 135
EMM 76, dated 18.08.1978, by the then Under Secretary
to all Deputy Commissioners of the Districts and E
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 Archaeoiogical
importance within a radius of 2 kms is only in respect of F
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 G
India and Archaeological Survey of India. Copy of the
Notification, dated 16.06.1993 is hereto annexed as
Annexure R-8."
H
658 SUPREME COURT REPORTS [2013) 11 S.C.R.
A Arguments
55. Shri G.V. Chandrashekar, learned counsel for the
appellant argued that the recommendations made by the
Committee should be accepted without any modification
because the same are based on a comprehensive
8
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.
C He pointed out that CIMFR had prepared the report by
conducting isolated blasts at different sites on different dates
and argued that the impact of such blasts is insignificant and
cannot help in deciding whether or not the temple has suffered
damages on account of multiple blasts simultaneously.
o 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 Jambunatheshwara temple.
Learned counsel pointed out that the report submitted by
respondent No.9 clearly shows that extensive damage has been
E caused to the temple and its surroundings due to unabated
blasting carried out by the leaseholders. Shri Chandrashekar
submitted that the recommendations made by the Committee
should be accepted because the same were made by the
Committee after threadbare examination of the reports of
F 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 accept the
recommendations made by the Committee, as was done in
M.C. Mehta v. Union of India (1996) 8 SCC 462 and other
G 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 659
[G.S. SINGHVI, J.]
Monuments and Archaeological Sites and Remains Rules, 1968 A
and argued that the Court should not accept the
recommendations of the Committee because restriction on
mining within 2 kilometres from Jambunatheswara temple will
not only be ultra vires the statutory provisions contained in the
1957 Act and the Rules framed thereunder, but will also be B
highly detrimental 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 C
which leases were granted to the private respondents.
57. Shri A.D.N. Rao learned counsel appearing for the
Ministry of Environment and Forests, Government of India and
respondent No.9 argued that the Committee had rightly refused D
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 the passing of interim orders
E
by this Court. Shri Rao also referred to the affidavits dated
2.10.2010 and 17.2.2011 filed by respondent Nos. 9 and 14
respectively 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
F
temple.
58. Shri U.U. Lalit, learned senior counsel appearing for
respondent 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 G
by the three-Judge Bench for operation of mines in District
Bellary subject to certain conditions, the appellant cannot seek
any other restriction on mining activities beyond a distance of
200 meters from Jambunatheswara temple. He pointed out that
the two leases granted to respondent No.18 are at a distance H
660 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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 responsible for causing any damage
to the structure of the temple and argued that it should be
c allowed to continue mining by Ripper Dozer and Rock Breaker.
He placed before the Court the papers showing photographs
of Ripper Dozer 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
D 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 concerned government
E departments and agencies or due to use of explosives in its
close proximity by respondent No.4 and others. He invited the
Court's attention 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
F 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 before the Court papers showing the
photographs of Ripper Dozer and Rock Breaker.
G
59. Shri Altaf Ahmed, learned senior counsel appearing
for respondent No.2 argued that his client does not have any
objection to the acceptance of the recommendations made by
the Committee, provided that the same is made applicable to
all the lessees.
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 661
[G.S. SINGHVI, J.]
60. Shri Jaideep Gupta, learned senior counsel appearing A
for respondent No. 15 advocated for acceptance of the report
of the Committee subject to appropriate modification in the light
of the recommendations made by the expert bodies. Shri
Gupta invoked the principle of sustainable development and
argued that the Court should strike a balance between the B
requirement of protecting the temple and the need of iron ore
for the State and the country. Shri Gupta emphasised that any
unreasonable restriction on mining activities in and around the
temple premises will adversely impact the production of steel
in the country. In support of his argument/submission, Shri Gupta C
relied upon the judgment in N.O. Jayal v. Union of India (2004)
9 sec 362.
61. Ms. Kiran Suri, learned counsel appearing for
respondent No.4 and respondent No.17, Allam Basavaraj relied 0
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
Government of Karnataka, no mining was permitted within 100 E
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
kilometres from the temple. Ms. Suri relied upon the lease F
deeds executed in favour 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 on its mining activities by relying G
upon the recommendations of the Committee. Ms. Suri laid
considerable emphasis on the fact that respondent No.4 has
not undertaken mining operations by using heavy explosives.
Learned counsel also pointed out that on being directed by the H
662 SUPREME COURT REPORTS [2013] 11 S.C.R..
A 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
B are liable to be rejected 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
c damage to the temple.
Consideration
62. We have given serious thought to the arguments/
submissions of the learned counsel for the parties and carefully
D perused the records including the affidavits/objections filed in
response to the recomn;iendations made by the Committee. We
have also gone through the written arguments filed by the
appellant and some of the respondents.
E 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 raised an objection to
the maintainability of the appeal on the ground that relief similar
F to the one prayed for by the appellant had been sought in Writ
Petitipn 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
G res judicata because the official and private respondents have
not filed the pleadings of Writ Petition No.27067/1998 and
without going 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 dismissed by the High
H Court.
K. GURUPRASAD RAO v. STATE OF KARNATAKA 663
[G.S. SINGHVI, J.]
64. The 1957 Act was enacted by Parliament to provide A
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 (Regulation and
Development) Bill, which reads as under: B
"Under the Government of India Act, 1935, the subject
"Ancient and historical monuments; archaeological
monuments; archaeological sites and remains" fell within
Entry 15 of the Federal List. Under the Constitution, this C
subject has been distributed under three different heads,
namely.-
Entry 67, Union List - Ancient and historical monuments
and records, and archaeological sites and remains,
declared by or under law made by Parliament to be of D
national importance.
Entry 12, State List-Ancient and historical monuments
and records other than those declared by or under law
made by Parliament to be of national importance, and E
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 F
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 witho.ut a license for that regard G
. 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 H
664 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
8 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
c more mining licences can be granted to one person to 1O
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
D
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
E the Central Government under Section 13 of the 1957 Act. The
provisions contained in Chapters II and Ill of these Rules
regulate grant of reconnaissance permits and prospecting
licences in respect of land in which the minerals vest in the
government. Chapter IV contains provisions relating to grant of
F 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 mining lease in respect of land in which .
the minerals vest in a person other than the government.
Chapter VIII contains miscellaneous provisions.
G
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 Ill of these Rules, which relate to mining operations,
H provide for submission of mining plan and approval thereof by
K. GURUPRASAD RAO v. STATE OF KARNATAKA 665
[G.S. SINGHVI, J.]
the competent authority as a condition precedent for A
commencement of mining operations.
68. None of the provisions contained in the 1957 Act and
the Rules framed thereunder regulate mining operations/
activities in the vicinity of ancient and historical monuments and B
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 c
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 regulated area. Rule 10 of the 1959 Rules,
which has been framed under Section 38 of the 1958 Act and 0
Rules 11 to 15 of the Kamataka Rules provide that no person
shall undertake any mining operations in a regulated area other
than on 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 E
obtained such licence under the Karnataka Rules for
permission 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 F
respondents 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 G
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 H
666 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Buffer Zone under the supervision of an expert body/agency.
70. At this stage, we may mention that in June 1972, the
United Nations organised a conference on 'Human
Environment' at Stockholm, Sweden. The declaration issued at
8 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 of our environment'. Some of the principles enunciated
in the Stockholm Declaration are:
c "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
D 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
E 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.
F
Principle 8
Economic and social development is essential for ensuring
a favorable living and working environment for man and for
G 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
H and not adversely affect the present or future development
K. GURUPRASAD RAO v. STATE OF KARNATAKA 667
[G.S. SINGHVI, J.]
potential of developing countries, no'r should they hamper A
the attainment of better living conditions for all, and
appropriate steps sho·uld 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 B
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 c
the Brundtland Report, Our Common Future was presented to
the United Nations General Assembly. The Brundtland Report
stimulated debate on development policies and practices in
developing and industrialised countries alike and called for an
integration of our understanding of the environment and 0
development into practical measures of action. In 1992, Earth
Summit was held in Rio de Janeiro, Brazil. The declaration
issued at the end of the summit dealt with environmental needs,
environmental protection, environmental degradation, etc. The
World Summit on Sustainable Development was held in E
Johannesburg, South Africa in 2002 for the purpose of
evaluating the results achieved after the Rio Summit. This
summirgave-an-opportunity to build on the knowledge gained
over the past decade and provided a new impetus for
commitments of resources and specific action towards global
F
sustainability.
71. In Indian Council for Enviro-Legal Action v. Union of
India (1996) 5 SCC 281, this Court described the principle of
sustainable development in the following words:
G
"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 H
668 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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."
B
72. In Ve/lore 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 sustainable development is the answer.
c 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
D considerations on th_e 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
E
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
F 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
G in the particular field. In Bandhua Mukti Morcha v. Union of
India (1984) 3 SCC 161, this Court considered 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 669
[G.S. SINGHVI, J.]
number of citizens who were held as bonded labourers. While A
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
B
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 q'uote 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 C
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 D
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 E
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 F
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 G
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
H
670 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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 particular procedure
c 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
D 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
E 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
F 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
G 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
H making report to the Court because the Commissioner
K. GURUPRASAD RAO v. STATE OF KARNATAKA 671
[G.S. SINGHVI, J.]
appointed by the Court must be a responsible person who A
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 B
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 C
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) 0
75. In Rural Litigation and Entitlement Kendra v. State of
U.P (1985) 2 sec 431, this Court was called upon to consider
whether there should be ban on lime stpne quarries which had
threatened life ofthe people residing in Mussoorie Hill range
forming part of the Himalayas and surrounding environment. On E
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 F
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, Band C. The committee noted that G
mining operations in the quarries categorised as A did not
gravely impact the environment and life of the people whereas
the quarries comprised in the other two categories had
adversely impacted the environment. After taking into
consideration the report of the Bhargav Committee, the Court H
672 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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
c 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 undoubtedly
cause hardship to them. but it is a price that has to be paid
D
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."
E
(emphasis supplied)
76. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655,
this Court observed: ·
F
"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
G 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
H mankind that go with the deterioration of environment. The
K. GURUPRASAD RAO v. STATE OF KARNATAKA 673
[G.S. SINGHVI, J.]
tragedy of the predicament of the civilised man is that A
'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 B
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 enjoying .walks in the countryside. Sadly,
perhaps, it is a great deal more complicated than
c
that ....
. . . As 1:1sual with all legal systems, the crucial
requirement is for the terms of the conventions to
be widely accepted and rapidly implemented. D
Regretfully progress in this direction is proving
disastrously slow .... '
'Environmentalists' conception of the ecological balance
in nature is based on the fundamental concept that nature E
is 'a series of complex biotic communities of which a man
is an interdependent part' and that it should not be given
to a part to trespass and diminish the whole. The largest
single factor in the depletion of the wealth of animal life in
nature has been the 'civilised man' operating directly
F
through excessive commercial hunting or, more
disastrously, indirectly through invading or destroying
natural habitats."
77. In Tarun Bharat Sangh v. Union of India 1992 Supp
(2)sec 448, this Court considered whether mining in the area G
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 H
674 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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.
c 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 reports submitted by
Haryana Pollution Control Board and an expert body, namely,
National Environmental Engineering Research Institute (NEERI),
0
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
E 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
F 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
G 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 675
[G.S. SINGHVI, J.]
mines which fall within the said radius shall not be A
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 B
belts as recommended by NEER! with immediate effect.
The NEER! 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 c
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 D
recommendations of NEER! 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 E
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 F
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 G
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."
H
676 SUPREME COURT REPORTS [2013] 11 S.C.R.
· A 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
B 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
c 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
D
object of preserving and protecting the Taj from
deterioration and damage due to atmospheric and
environmental pollution. It cannot be 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
E 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
F 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.
G 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
H atmospheric pollution in TTZ has to be eliminated at any
K. GURUPRASAD RAO v. STATE OF KARNATAKA 677
[G.S. SINGHVI, J.]
cost. Not even one per cent chance can be taken when A
- 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 B
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." C
(emphasis supplied)
80. In M.C. Mehta (Taj Trapezium Pollution) v. Union of
India (2001) 9 sec 235, the Court considered the report of
NEERI on the issue of pollution caused by the brick kilns D
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 E
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-
owners in the process of relocation beyond Taj Trapezium,
if the owners so desire. The closure order is, however, F
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 G
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,
H
678 SUPREME COURT REPORTS [2013) 11 S.C.R.
A other monuments in Taj Trapezium and Bharatpur Bird
Sanctuary."
81. In M.C. Mehta v. Union oflndia (2004) 12 SCC 118,
the Court considered several interlocutory applications filed in
s 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
c 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
D 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,
E 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
F standards to be observed by such entrepreneurs. When
questioned, the regulatory authorities have to show that the
said authorities acted in the manner enjoined upon them.
Where the regulatory authorities, either connive or act
negligently by not taking prompt action to prevent, avoid
G 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 679
[G.S. SINGHVI, J.]
enemies. If without degrading the environment or A
minimising adverse effects thereupon by applying stringent
safeguards, it is possible to carry on development activity
applying the principles of sustainable development, in that
eventuality, development has to go on because one cannot
lose sight of the need for development of industries, B
irrigation resources and power projects etc. including the
need to improve employment opportunities and the
generation 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. c
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 D
scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent
environmental degradation, 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 straitjacket. If an activity E
is allowed to go ahead, there may be irreparable 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
precedence over the economic interest. Precautionary F
principle requires anticipatory action to be taken to prevent
harm. The harm can be prevented even on a reasonable
suspicion. It is not always necessary that there should be
direct evidence of harm to the environment."
The Court then referred to the provisions of the 1957 Act, G
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 H
680 SUPREME COURT REPORTS [2013) 11 S.C.R.
A chain 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,
B 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
c 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
D
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.
E 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."
F
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)
-G 1 sec 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,
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 681
[G.S. SINGHVI, J.]
this Court considered the question of whether in view of Section A
4A of the 1957 Act, it would be appropriate to exercise power
under Article 32 read with Article 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 B
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, c
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
0
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 E
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 F
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. G
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 co~cept of "banning". It is a ~atter of degree. H
682 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 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. ·
B 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
reason of any prospecting or mining operations. Under
Section 18 of the 1957 Act, rules have been framed for
c 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
D 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
E 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
F 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
G 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;
H restoration strategy, principles of rehabilitation,
K. GURUPRASAD RAO v. STATE OF KARNATAKA 683
[G.S. SINGHVI, J.]
rehabilitation of mined-out sites and methods of A
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 B
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. C
In the circumstance. by the present order. we hereby
suspend all mining operations in the Aravalli hill range
falling in the 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 D
certified by the State of Harvana. 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 E
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) F
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 G
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 Ve/lore Citizens' Welfare Forum v.
Union of India (1996) 5 SCC 647 and in M.C. Mehta v. H
684 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
8 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
c 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.
D
The right to development cannot be treated as a mere right
to economic betterment or cannot be limited as a
misnomer to simple construction activities. The right to
development encompasses much more than economic
E 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
F 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
G 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."
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 685
[G.S. SINGHVI, J.]
84. In Samaj Parivartana Samudaya v. State of A
Kamataka {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 B
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 C
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 o
of hearing, 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 E
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 F
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. G
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 H
686 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 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
B 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
c 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
D
enormous wrong that has happened and to provide
adequate protection for the future. as may be required."
(emphasis supplied)
E 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
F 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
G 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
H number of citizens who are bound to be adversely affected
K. GURUPRASAD RAO v. STATE OF KARNATAKA 687
[G.S. SINGHVI, J.]
by environmental degradation, this Court cannot be A
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 B
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 c
be required to make in the present case."
However, the three-Judge Bench did not deal with the issue
relating to impact 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 D
'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 E
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 F
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 G
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 H
688 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B licensed brick 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
c the Aarvali Hills shall be suspended. In the last mentioned case,
which relates to the mines operating in three districts of
Kamataka, 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
0
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
E 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
F Archaeologist, Archaeological Survey of India and a team of
officers of the Government of Kamataka, 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.
G 87. On its part the Committee availed the services of
INTACH, Bangalore Chapter, Karnataka Remote Sensing
Application Centre, ISRO, CIMFR, Dhanbad and NIT. In
paragraph IV of its report under the heading DISCUSSIONS,
the Committee unanimously agreed that the mining operations
H carried out using blasting operations at a distance of less than
K. GURUPRASAD RAO v. STATE OF KARNATAKA 689
[G.S. SINGHVI, J.]
200 meters from the temple have already caused irreparable A
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 B
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 C
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 D
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 f!'lces E
of the working benches and opined that the result of such
investigation would show minimum or no impact on
architecturally sensitive temple. The Committee finally declined
to accept the suggestions given by CIMFR, Dhanbad and NIT
to restrict the mining operations/activities only up to a distance F
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 G
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.
H
690 SUPREME COURT R~PORTS [2013] 11 S.C.R.
A 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
B 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.
c 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
o undertaking mining operations which have the effect of
damaging the temple in question. That apart, the distance
criteria prescribed in the 1958 Act, the Kamataka Act and the
Rules framed thereunder has little or no bearing on deciding
the question of restricting the mining operations near the
E 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
F 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
G 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
H Court has also recognized that the right to development includes
K. GURUPRASAD RAO v. STATE OF KARNATAKA 691
[G.S. SINGHVI, J.]
the whole spectrum of civil, cultural, economic, political and A
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) B.
decided on 18.4.2013, this Court recognized the customary
and cultural rights of indigenous people living in 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 C
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 D
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) E
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 F
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 G
ILO Convention (No. 107).
Apart from giving legitimacy to the cultural rights by 1957
Convention, the Convention on the Biological Diversity
(CSA) adopted at the Earth Summit (1992) highlighted
H
692 SUPREME COURT REPORTS [2013] 11 S.C.R.
A necessity to preserve and maintain knowledge, innovation
and practices of the local communities relevant for
conservation and sustainable use of bio-diversity, lridia is
a signatory to CBA. Rio Declaration on Environment and
Development Agenda 21 and Forestry principle also
B 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
c philosophies, 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
D 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
E the judgment of this Court in Amritlal Athubhai Shah v. Union
Govemmentoflndia (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:
F "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,
G 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
H
K. GURUPRASAD RAO v. STATE OF KARNATAKA 693
[G.S. SINGHVI, J.]
customary and religious rights of the STs and other TFDs A
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 B
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 c
of the Panchayats (Extension of the Scheduled
Areas) Act, 1996 (40of1996). the 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."
D
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 E
traditions, customs of the people, their cultural identity,
community resources and community mode o(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 F
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 G
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
H
694 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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.
c ~2. 13efore concluding, we may deal with the submission
of Shri Lalit that 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
D 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
E 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
F 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
G 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.
H 94. With a view to ensure that other protected monuments
K. GURUPRASAD RAO v. STATE OF KARNATAKA 695
[G.S. SINGHVI, J.]
in the State do not suffer the fate of Jambunatheswara temple, A
we direct that the Committee appointed by this Court vide order
dated 26.4.2011 shall undertake similar 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 B
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. c
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.
D
K.K.T. Appeal allowed.
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