IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 OP.No. 19428 of 1997(K) ----------------------- PETITIONER(S): --------------- M.P.BHASKARAN, PRESIDENT OF MADAI SREE VADUKUNDA SIVAKSHETRA PUNARNIRMANA SAMITHI, P.O.PAYANGADI, KANNUR, KERALA. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) RESPONDENT(S): --------------- 1. STATE OF KERALA, NOTICE FOR WHOM MAY BE SERVED ON THE CHIEF SECRETARY TO GOVT., TRIVANDRUM. 2. THE MANAGING DIRECTOR, KERALA CLAYS & CERAMIC PRODUCTS LTD., PAPPINISSERY, KANNUR DIST. 3. THE DISTRICT COLLECTOR, KANNUR. ADV. SRI.A.M.SHERIFF, R2 G.P. SRI. M.R.SABU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 19428/97. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE PROCESSION PUBLISHED IN DAILY DTD.2.4.96. P2. COPY OF THE ACCOUNT OF THE POORAMKULI PUBLISHED IN MATHRUBHOOMI DAILY DTD.13.4.95. P3. COPY OF THE ONE OTHER ACCOUNT OF THADAKAM PUBLISHED IN MATHRUBHUMI DTD.28.4.93. P4. COPY OF THE RESOLUTION DTD.20.7.94. P5. COPY OF THE NOTIFICATION DTD.31.8.94. P6. COPY OF THE REPRESENTATION DTD.30.1.95 TO CHIEF MINISTER. P7. COPY OF THE REPRESENTATION TO THE GOVT. DTD.5.2.95. P8. COPY OF THE LETTER TO GOVT. DTD.6.2.95. P9. COPY OF THE REPRESENTATION DTD.14.2.95 TO THE GOVT. P10. COPY OF THE REPRESENTATION DTD.14.2.95. P11. COPY OF THE REPRESENTATION DTD.14.2.95 TO THE GOVT. P12. COPY OF THE NEWS ITEM DTD.3.2.96. P13. COPY OF THE NEWS ITEM DTD.20.3.95. P14. COPY OF THE REPRESENTATION DTD.1.2.95 TO THE CHIEF MINISTER. P15. COPY OF THE LETTER TO SECRETARY TO GOVT. DTD.2.6.96 P16. COPY OF THE REPORT OF THE HIGH LEVEL COMMITTEE. P17. COPY OF THE COMMUNICATION DTD.15..5.95 BY SHRI.P.O.P.MOHAMMED. P18. COPY OF THE LETTER DTD.15.10.93. P19. COPY OF THE REPORT FROM THE MUSEUM ASST. DTD.11.2.96. P20. COPY OF THE RELEVANT PAGES REPORT REGARDING MADAI GRAMA PANCHAYAT. P21. COPY OF THE COMMUNICATION DTD.2.6.97 BY THE GOVT. P22. COPY OF THE LEASE DEED DTD.3.7.64. P23. COPY OF THE PROCEEDINGS DTD.7.5.93 BY R3. RESPONDENTS' EXHIBITS: R2A. COPY OF THE LICENCE DTD.5.5.97. B. COPY OF THE OBJECTION TO Ext.P16 REPORT. C. COPY OF THE LETTER DTD.29.11.68. ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 19428 of 1997 ================== Dated this the 15th day of December, 2008 J U D G M E N T The petitioner is the President of the Madai Sree Vadukunda Sivakshethram Punarnirmana Samithi, which is a society registered under the Societies Registration Act, established for the purpose of protecting the Madai Sree Vadukunda Sivakshethram temple. That temple is an ancient temple which is one of the 108 Siva temples stated to have been founded by His Holiness Parasurama. It has a chequered history. It withstood the invasions of Hyderali and others. It has not only religious importance but also of archaeological importance, which are narrated in detail in the original petition. I am not reiterating the same in this judgment in so far as the same may not be necessary for the disposal of this original petition. Suffice it to say that the same would prove that the temple is of great religious and archaeological importance. 2. The petitioner is now aggrieved by Exts.P5 and P21 proceedings of the Government of Kerala, whereby certain lands near the temple are proposed to be acquired for the purpose of o.p.19428/97 2 mining operations by the 2nd respondent herein. Ext.P5 is the notification issued for acquisition. Because of the objections raised by the people of the locality against such acquisition, the Government convened a meeting of all persons interested in the matter and, by Ext.P15 minutes of the meeting, decided to appoint a High Level committee compromising of (1), the Additional Chief Secretary, (2), the Chairman of the Pollution Control Board and (3), the District Collector Kannur, to go into the question in every aspect and to file a report. A report is stated to have been submitted, whereby it has been directed that mining activities shall be only beyond 300 meters from the temple. Subsequently, by Ext.P21, the Government directed the District Collector that since the stay against acquisition has been vacated, the District Collector shall continue with further proceedings for acquisition of the land. The petitioner now submits that the entire proceedings are vitiated since it would result practically in the destruction of the ancient Siva temple. It is further pointed out that when the Kerala State Mineral Development Corporation Ltd. applied for consent for establishing a mining project in the very same survey numbers covered by o.p.19428/97 3 Ext.P5 notification, by Ext.P24, the Pollution Control Board refused to give consent on the ground that the proposed site is unsuitable for the purpose on account of likely adverse environmental impact of the proposed project and the existence of two temples close to the mining project. In the above circumstances, the petitioner seeks the following reliefs: “i) to issue a Writ of certiorari or any other appropriate Writ order or direction quashing the scheme of land acquisition set out in Ext.P5 and P21. ii) to issue a Writ of Mandamus or any other appropriate Writ order or direction directing the 3rd respondent to take necessary and adequate site to prevent the blasting and mining operations within a radius of 300 metres from Madai Sree Vadakunda Sivakshethram and the temple pond. iii) to issue a Writ of Mandamus or any other appropriate writ order or direction directing the 2nd respondent not to proceed within a radius of 300 metres from Madai Sree Vadakunda Sivakshethram and the temple pond.” 3. The respondents oppose the prayers of the petitioner. 4. In the counter affidavit filed on behalf of the 1st respondent, in paragraph 6, it is stated thus: “6. The allegations in paragraph 9, are not fully correct. It is true that the land and properties belonging to Super Clays and Minerals Mining Company Pvt. Ltd., Pappinisseri were taken over by the Government under the provisions of Super Clays and Minerals Mining Company Pvt. Ltd., (Acquisition of Undertakings) Act 1983 and the same has been vested in Kerala Clays and Ceramics Products Ltd., (Respondent No.2). This take over included the mining lease for mining China clay in Madayi over an extent of 21.55 acres of property. The lease was granted on 24.9.1981 and it is valid for 20 years. The temples are located far away from the mines and the mining activity of o.p.19428/97 4 the Company do not affect the activities there. A meeting was convened by the Chief Secretary to the Government on 22.5.1995 and at the said meeting, a High Level Committee was constituted by the Government as per G.O.Rt.No.532/95/ID dated 23.6.1995 to go into all the aspects. The report of the High Level Committee was received by the Government during January, 1996. The views of Respondent No.2 on the recommendations of the High Level Committee were also submitted to the Government. The petitioner alleges that one of the recommendations of the Committee is that mining activities should be restricted to a distance of beyond 300 metres from around a temple and the temple pond. It is submitted that for regulated blasting the minimum distance is 50 metres and not 300 metres as alleged by the petitioner. The mining activities including blasting operations have been going on for several years and the said mining activities and blasting operations have not caused any damage either to the temple or the temple pond. It is submitted that most of the other recommendations of the Committee were accepted by Respondent No.2 and necessary actions were taken. It is submitted that the objections submitted by the Hindu Religious and Charitable Endowment Administration are totally irrelevant as far as the proposal for acquisition of land is concerned. It is submitted that these objections were submitted to the Director, Kerala Minerals Exploration Corporation against their proposed Lignite Project. It is further submitted that the major portion of the land which is proposed to be acquired for mining is more than 300 metres away from the temple and temple pond. In between the temple and the land proposed to be acquired, there exists the land of Respondent No.2 in respect of which Respondent No.2 has a mining lease. It is submitted that in this property mining is already going on and also Respondent No.2 could start mining at any time.” According to the respondents, in view of the High Level Committee Report, nothing further requires to be done in this matter. 5. The 2nd respondent submits that even the High Level Committee report cannot be implemented and that they have submitted objection to the same, which are liable to be considered by the Government. According to them, the restriction o.p.19428/97 5 of mining within 300 meters is without authority of law. Regarding Ext.P24 they would submit that the same is not applicable to the 2nd respondent in so far as the same has been issued in respect of an application by the Kerala State Mineral Development corporation Ltd. 6. I have considered the rival contentions in detail. 7. The fact that the Siva temple is of religious and archaeological importance is not disputed by anybody before me. Therefore it is beyond all shadow of doubt that the same should be preserved at all costs. Since the High Level Committee feels the same way, I am of opinion that the further proceedings pursuant to Exts.P5 and P21 shall be strictly in accordance with the recommendations of the High Level Committee. In fact since the company of which the 2nd respondent is the Managing Director, is also owned by the 1st respondent-State, the 2nd respondent cannot have any objection against that report in view of the fact that the Committee itself had been convened by consensus of all parties concerned. Further the 2nd respondent cannot start mining operations except by obtaining fresh consent in respect of the area proposed to be acquired. Accordingly, I o.p.19428/97 6 dispose of this original petition with the following directions: While acquiring the land in question, the recommendations of the High Level Committee shall be scrupulously followed. If the respondents still intend to acquire the property and start mining operations, the same shall only be after obtaining fresh consent in respect of the additional properties sought to be acquired taking into account Ext.P24 also. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.19428/97 7 S.SIRI JAGAN, J. ================ O.P.No.19428 of 1997-K ================ J U D G M E N T 15th December, 2008