K.Guruprasad Rao vs State Of Karnataka & Ors

4. By the outbreak of World War I in 1914 almost every European country (with the notable exception of Belgium) and most of the major countries around the world had some form of antiquities protection and preservation legislation. Legislation had also been introduced by European colonial powers in many of their overseas territories; in some cases, such as France, the metropolitan statutes were enforced in their colonies.

5. The Treaty of Versailles saw more new nations being created in Europe, and here once again preservation legislation was introduced soon after their constitutions had been approved, usually based on the systems of the major countries such as Austria-Hungary from which they had been formed.

9. The former colonial territories of Africa and Asia introduced protective legislation, often modeled on that of their former overlords, as soon as they achieved independence. The former British colonies in particular adopted similar laws, based on what became known as the "Westminster Model" constitution. The legislation of the British Raj was retained until improved legislative protection of the cultural heritage of India was introduced.

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 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 concerned States.

c) Any other condition relating to the manner of carrying out the mining operation or the construction which the Director- General may specify in the licence for ensuring the safety and appearance of, and the maintenance of the approach and access to the protected monument.”

The facts

24. Jambunatheshwara Temple or Jambunatha Temple for whose protection the appellant has been making efforts for last many years was built in 1540 on Jambunath Hill which falls in Hospet Taluk, District Bellary (Karnataka). The temple was built with massive granite blocks in typical trabeate system, characterized by the predominant use of columns and beams as main load bearing members. It is situated 4.5. kilometers southeast of Taluk Hospet, District Bellary (Karnataka) on a hillock at a height of 800 ft. and is surrounded by a range of hillocks rich in good iron-ore. The main temple facing east, consists of a garbhagriha, a sukanasi and an antarala surrounded by a closed ambulatory passage, a navaranga with two entrance mandapas and a maha ranga mandapa all enclosed by a high parakara. The temple rises over a high double adhishthana with ornate mouldings which is typical of Vijayanagara style and period. The wall of the garbhagriha and antarala is decorated with kumuda panjaras set between a pair of pilasters. The ornate eave is decorated with kudu with human heads and kirtimukhas at the top. The sanctum houses a sivalinga over a circular peetha. There are several subsidiary structures surrounding the main temple. There are modern structures built around the temple for the sake of pilgrims and devotees. To the south of the temple are two sub-shrines dedicated to Veerabhadra and Brahma respectively in front of which is a well which gets water through a perennial source from the hillock and serves the needs of the temple and pilgrims. The water from this well is believed to have medicinal and curative properties and hence considered very sacred by the pilgrims. The temple has superstructure built of brick and lime mortar over its sanctum and entrance mandapas. The pillars in the navaranga and maha ranga mandapas are typical of Vijayanagara period with their cubical mouldings depicting carvings of various divinities of Saiva, Sakta and other sects, besides social themes.

25. The temple was declared as a Protected Monument by the Government of Karnataka under Section 4 of the Karnataka Act. By notification dated 13.9.1991, an area of 9 acres 12 cents in Survey No.198 surrounded by Survey No.115-B on all four sides of the temple was declared as ‘Protected Area’. By another notification dated 7.12.1996, the State Government declared an area within the radius of 200 meters from the periphery and precincts of Jambunatheswara temple as ‘Safe Zone’ where no mining activity could be conducted.

26. On 5.4.1952, Shri R. Gangadharappa was granted a mining lease for an area measuring 182.45 hectares near Jambunatheswara temple for extraction of iron ore for a period of 30 years. The lease was renewed on 4.2.1982 for a further period of 30 years in the name of his legal heir Sri R.Pampapathy. During the currency of lease (extended period), Sri R. Pampapathy died and his wife R.Mallamma was permitted to carry on the mining operations in the name of M/s. Aarpee Iron Ore Mines, Bellary (respondent No.4). The lessee was also granted permission under Section 2 of the Forest (Conservation) Act, 1980 (for short, ‘the 1980 Act’) to undertake mining operations over forest measuring 101.51 hectares.

28. While the officers of the Karnataka Government entrusted with the task of protecting ancient monuments were taking steps to curb the mining activities within a radius of one kilometer from the temple, the Ministry of Environment and Forests, Government of India accorded permission to respondent No.4 to increase the production of iron ore from 0.6 million tonnes per annum to 1.5 million tonnes per annum.

31. After taking cognizance of the averments contained in the writ petition, the Division Bench of the High Court directed respondent Nos.2, 3, 8, 10, 12 and 13 (in the writ petition) to submit a report as to whether the area on which respondent No.4 is carrying on mining operation was located within the prohibitory distance of 200 meters specified in the notification issued by the State Government under the Karnataka Act. The concerned respondents inspected the site and submitted a report stating therein that no mining was being done within 200 meters from the temple. The relevant portions of the report are extracted below:

33. The appellant has questioned the order of the High Court primarily on the ground of non-consideration of the factual assertion made by him about the mining activity of respondent No.4 within 200 meters of the temple by Wagon Blasting Method. He has also pointed out that as per the report submitted before the High Court, respondent No.4 had dug mining pit at 130 meters from the temple resulting in erosion of the soil in and around the temple.

37. On 14.1.2011, the Court ordered impleadment of the Superintending Archaeologist of the State of Karnataka as a party and directed him to file an affidavit on the present status of the temple specifying therein whether the mining activities have already damaged the same. Simultaneously, respondent No.9 was directed to indicate whether other lessees were carrying on mining operations in the vicinity of the temple and disclose their names.

38. By an order dated 11.3.2011, the Court ordered impleadment of M/s. Mysore Minerals Ltd., Smt.R. Mallamma, Sri R.J. Pattabhiramaih, Sri Allam Basavaraj, M/s. R.B.S.S.N. Das, Sri R. Charuchandra, Sri H.N. Prem Kumar and M/s Kariganur Mineral Mining Industries as parties and also stayed mining operations within a radius of 2 kilometers from the temple.

43. On 26.4.2011, the Court appointed a Committee of Experts with a direction that it shall inspect the site of the temple, the area where mining activities were being carried out and submit its report. The relevant portions of that order are extracted below:

44. The Court appointed Committee (for short, ‘the Committee’) held meetings on 6.6.2011 at Hospet, on 8.7.2011 at Mysore and on 27.2.2011, 16.11.2011 and 26.12.2011 at Bangalore. During one of these meetings, the Committee decided to avail of the services of Central Institute of Mining and Fuel Research (CIMFR), Dhanbad, Jharkhand for DETERMINATION OF SAFE BLASTING PARAMETERS TO AVOID DAMAGE TO THE TEMPLE and National Institute of Technology, Karnataka, Surathkal (hereinafter referred to as ‘NIT’) for ASSESSMENT OF THE IMPACT OF BLASTING OPERATIONS CARRIED OUT IN IRON-ORE MINES ON JAMBUNATHESWARA TEMPLE AND SAFE LIMITING DISTANCE FOR BLASTING ACTIVITY IN MINES.

45. CIMFR, Dhanbad carried out scientific investigations from 9th to 13th November, 2011. During that period, eight experimental trial blasts were conducted at four different mines viz. Shankalapuram Iron Ore Mine of M/s. R.B. Seth Shreeram Narsingdas (RBSSN) (Respondent No.18), Aarpee Iron Ore Mine of Smt. R. Mallamma (respondent No.4), Jambunatheswara Iron Ore Mine of M/s. Mysore Minerals Limited (respondent No.15) and Kariganaur Iron Ore Mine of M/s. KMMI. Blast- induced ground vibrations and air overpressure/noise generated during the experimental blasts were monitored using five seismographs. Two seismographs were placed near the Jambunatheswara Temple whereas the remaining three seismographs were placed near the blasting sites. In two rounds of trial blasts conducted nearest to the temple (i.e. in Aarpee Iron Ore Mine of Smt. R. Mallamma), a Sony-make Handycam video camera was used to observe any occurrence of fly rock from the blasts.

13. On the basis of the data recorded as well as observations made during the experimental trials, it may be said, technically and scientifically, that blasting may be carried out beyond 200 m distance from the Jambunatheswara Temple without causing any structural damages, provided that controlled blasting method is strictly adhered to (Tables 3 & 4).

2. The deteriorated WPC over the roof slab shall be removed and replaced with appropriate light weight waterproof treatment in order to relieve the loads.

“Since the day-to-day blasting operations are not under the control of CIMFR, the research team will not be held responsible for any untoward incident caused by blasting”.

Thus the immediate environs of the Subject temple, is pregnant with all the aesthetic, serene, sacred and multifaceted symbolic values.

II. BUFFER ZONE: comprising the area further beyond the CORE ZONE in all directions up to a distance of 2 km from the protected area and 1 Km from the Core Zone.

They are parts of precautionary principle.

Conclusion

50. None of the above provisions have been complied with. In the circumstance, by the present order, we hereby suspend all mining operations in the Aravalli hill range falling in the State of Haryana within the area of approximately 448 sq km in the districts of Faridabad and Gurgaon, including Mewat till the reclamation plan duly certified by the State of Haryana, MoEF and CEC is prepared in accordance with the above statutory provisions contained in various enactments enumerated above as well as in terms of the rules framed thereunder and the guidelines. The said plan shall state what steps are needed to be taken to rehabilitate (including reclamation) followed by status reports on steps taken by the authorities pursuant to the said plan.” (emphasis supplied)

93. In the result, the appeal is allowed and the impugned order is set aside. The report of the Committee is accepted and the State Government is directed to implement the recommendations contained in Part V thereof including the recommendation relating to creation of Corpus Fund of Rs.3,43,19,160 which shall be utilized for implementing the conservation plan for Jambunatheswara temple. However, it is made clear that respondent No.18 shall be free to operate the Beneficiation plant subject to the condition that it shall procure raw material only through E-auction mode.

94. With a view to ensure that other protected monuments in the State do not suffer the fate of Jambunatheswara temple, we direct that the Committee appointed by this Court vide order dated 26.4.2011 shall undertake similar exercise in respect of other protected monuments in the State in whose vicinity mining operations are being undertaken and submit report to the State Government within a maximum period of nine months. The State Government shall release a sum of Rs.30 lacs in favour of the Committee to meet the expenses of survey, investigation etc. The report submitted by the Committee shall be considered by the Government within next two months and appropriate order be passed.

95. We hope and trust that the Government of India will also appoint an expert committee/group to examine the impact of mining on the monuments declared as protected monuments under the 1958 Act and take necessary remedial measures.