K. Guruprasad Rao Vs. State of Karnataka and others

[Civil Appeal No. 4823 of 2013 arising out of SLP (C) No. 20180 of 2010]

G.S. SINGHVI, J.

1. Leave granted.

2. With the hope of their immortalization, several Emperors, Kings and other rich people got built temples, churches, mosques and other buildings in different parts of the world including India. Many of these structures are not only marvels of architecture, but also represent the culture and heritage of the particular place and period. With the passage of time, these structures acquired the status of historical monuments, the preservation and protection of which has become a herculean task for successive generations. Legislations in other countries

3. The issue of preservation and protection of ancient and historical monuments has been a matter of concern for the Governments and private individuals alike. In his work titled Preserving Archaeological Sites and Monuments, Henry Cleere, World Heritage Coordinator, International Council on Monuments and Sites, Paris and Visiting Professor, Institute of Archaeology UCL, London has mentioned that the first law on the subject was enacted in Sweden in 1666 and professional agencies were set up to implement the same. Several other countries enacted similar legislative instruments in 17th and 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 Act came into force. Their pre- hispanic civilizations were highly symbolic for the cultural identities of the countries that emerged after the independence struggles in Latin America during the first half of the nineteenth century, just as its Hellenic past grandeur was the material expression of Greek national identity. It is therefore not surprising that preservation of the remains of these cultures was given a high priority by the new nations. In 1821, Mexico passed the first law to preserve and protect the country's archaeological heritage. In the same year Peru shook itself free from Spanish rule and in 1822 a Supreme Decree was published, forbidding any trade in ancient relics.

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

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

6. The inter-war period saw legislative protection being progressively amended and expanded in many parts of the world. New antiquities laws were enacted in Denmark, Greece, and the United Kingdom in the 1930s. Two major statutes, covering the protection of the cultural and natural heritage respectively, were promulgated in Italy by the Fascist regime just before the outbreak of World War II; interestingly, both are still force in 2001.

7. The 1897 Japanese law was extended to all "national treasures" in 1929. The current legislation relating to the cultural heritage in Peru stems from a basic law passed in 1929, and a 1927 law covers the cultural heritage of Bolivia.

8. The creation of the USSR and the introduction of a socialist constitution led to state ownership of all cultural property being declared in a fundamental law of October 1918. (Unlike the laws of countries emerging from colonial domination, this was motivated for ideological reasons rather than in the interests of cultural identity.) The antiquities legislation of all the countries of the post-World War II socialist bloc of central and eastern Europe, as well as that of other socialist countries such as the People's Republic of China, North Korea, Vietnam, and Cuba, were modeled on the basic Soviet legislation.

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

10. The second half of the twentieth century witnessed a continuous process of extending and improving heritage legislation across the globe. New or amended laws have been adopted by national legislatures of at least one country each year. At the international level work began between the two World Wars by the League of Nations which resulted in organization by the United Nations Educational, Scientific and Cultural Organization (UNESCO) of two important international conventions designed to protect and preserve the cultural heritage, whether cultural, natural, or portable. Regional bodies such as the Council of Europe prepared similar conventions.

11. In 1972, UNESCO held the World Heritage Convention. One of the decisions taken in that convention was to appoint World Heritage Committee with the task of identifying the World Heritage Sites which were in danger. This was intended to increase the international awareness about the threat posed to certain World Heritage Sites and to encourage counteractive measures. In the case of natural sites, ascertained dangers include the serious decline in the population of an endangered or other valuable species or the deterioration of natural beauty or scientific value of a property by man-made activities such as logging, pollution, human settlement, mining, agriculture and major public works.

Ascertained dangers for cultural properties include serious deterioration of materials, structure, ornaments or architectural coherence and the loss of historical authenticity or cultural significance. Potential dangers for both cultural and natural sites include development projects, armed conflicts, insufficient management systems or changes in the legal protective status of the property. In the case of cultural sites gradual changes due to geology, climate or environment can also be potential dangers.

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

13. In 1898, the question of antiquarian exploration and research, and the necessity of taking steps for the protection of monuments and relics of antiquity within the territory controlled by the British, received the attention of the then Government. After consulting the Local Governments, the competent legislature enacted the Ancient Monuments Preservation Act, 1904 (for short, 'the 1904 Act'). The anxiety of the Government to protect monuments which were under its control and also those which were in the hands of private owners is reflected in paragraph 3 of the Statement of Objects and Reasons contained in the Bill which led to the enactment of the 1904 Act. The same reads as under:

"3. The first portion of the Bill deals with protection of "Ancient monuments" an expression which has been defined in clause 2 (now section 2). The measure will apply only to such of these as are from time to time expressly brought within its contents though being declared to be "protected monuments". A greater number of more famous buildings in India are already in possession or under the control of the Government; but there are others worthy of preservation which are in the hands of private owners. Some of these have already been insured or are fast falling into decay.

The preservation of these is the chief object of the clause of the Bill now referred to and the provisions of the Bill are in general accordance with the policy enunciated in section 23 of the Religious Endowments Act, 1863 (20 of 1863), which recognises and saves the right of the Government "to prevent injury to and preserve buildings remarkable in their antiquity and for their - historical or architectural value or required for the convenience of the public". The power to intervene is at present limited to cases to which section 3 of the Bengal Regulation 19 of 1810 or section 3 of the Madras Regulation VII of 1817 applies. In framing the present Bill the Government

Has aimed at having the necessity of good will and securing the cooperation of the owners concerned and it hopes that the action which it is proposed to take may tend rather to the encouragement than to the suppression of private effort. The Bill provides that the owner or the manager of the building which merits greater care than it has been receiving may be invited to enter into an agreement for its protection and that in the event of his refusing to come to terms the collector may proceed to acquire it compulsorily or take proper course to secure its application.

It has been made clear that there is to be no resort to compulsory acquisition in the case the monument is used in connection with religious observances or in other case until the owner has had an opportunity of entering into an agreement of the kind indicated above; and it is expressly provided that the monument maintained by the Government under the proposed Act, shall not be used for any purpose inconsistent with its character or with purpose of its foundation, and that, so far as is compatible with the object in view the public shall have access to it free of charge.

By the 4th proviso of clause 11 (now section 10) it is laid down that in assessing the value of the monument for the purpose of compulsory acquisition under the Land Acquisition Act, 1894 (1 of 1894) its archaeological, artistic or historical merits shall not be taken into account. The object of the Government as purchaser being to preserve at the public expense and for the public benefit an ancient monument with all its associations, it is considered that the value of those associations should not be paid for."

14. Under the Government of India Act, 1935 the subject "Ancient and historical monuments; archaeological monuments; archaeological sites and remains" was included in Entry 15 of the Federal List. This was done keeping in view the provisions of the 1904 Act which was applicable to all ancient monuments and objects of archaeological, historical or artistic interest.

15. The members of the Constituent Assembly, which was entrusted with the task of drafting the Constitution, were very much aware of the necessity of protecting the monuments and places/objects of artistic or historic importance but they were also conscious of the fact that the Central Government alone may not be in a position to take measures for the protection of ancient and historical monuments across the vast territory of the country. Therefore, it was decided that the States should be burdened with the responsibility of protecting the ancient and historical monuments within their territories. This is the reason why the subject relating to ancient monuments and archaeological sites and remains has been distributed into three different entries:

1. Entry 67 of the Union List - Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.

2. Entry 12 of the State List - Ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance.

3. Entry 40 of the Concurrent List - Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance.

16. By incorporating Article 49 in the Directive Principles of State Policy, the framers of the Constitution made it obligatory for the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

17. Since the 1904 Act governed all ancient monuments whether falling in the Central field or the State field and all executive powers were vested in the Central Government, it was felt that a separate legislation should be enacted by Parliament to exclusively deal with ancient monuments of national importance falling under Entry 67 of List I of the Seventh Schedule and the archaeological sites and remains falling under Entry 40 of List III. For achieving this object, Parliament enacted the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short, 'the 1958 Act), the preamble of 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 sculptures, carvings and other like objects."

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

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

(a) "ancient monument" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock, sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes--

(i) the remains of an ancient monument,

(ii) the site of an ancient monument,

(iii)such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and

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

(i) "protected area" means any archaeological site and remains which is declared to be national importance by or under this Act.

(j) "protected monument" means any ancient monument which is declared to be of national importance by or under this Act.

4. Power of Central Government to declare ancient monument, etc., to be of national 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 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 and remains, as the case may be.

(2) Any person interested in any such ancient monument or archaeological site and remains may, within two months after the issue of the notification, objects to the declaration of the monument, or the 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 Gazette, the ancient monument or the archaeological site 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 the fact that the ancient monument or archaeological site and remains to which it relates is of national importance for the purposes of this Act.

38. Power to make rules-

(1) The Central Government may, by notification, in the Official Gazette and subject to the condition of previous publication, make rule for carrying out the purposes of this Act.

(2)In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(a) the prohibition or regulation by licensing or otherwise of mining, quarrying, excavating, blasting or any operation of a like nature near a protected monument or the construction of buildings on land adjoining such monument and the removal of unauthorised buildings."

19. In exercise of the powers conferred by Section 38 of the 1958 Act, the Central Government made the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (for short, 'the 1959 Rules'). Rules 2(f), 10, 31 to 35 of the 1959 Rules read as under: "2(f) "prohibited area" or "regulated area" means an area near or adjoining a protected monument which the Central Government has, by notification in the Official Gazette, declared to be a prohibited area, from as the case may be, a regulated area, for purposes of mining operation or construction or both.

10. Permission required for construction etc.

(1) No person shall undertake any construction or mining operation with a protected area except under and in accordance with a permission granted in this behalf by the Central Government.

(2) Every application for permission under sub-rule (1) shall be made to the Central Government in Form I at least three months before the date of commencement of the construction or operation.

31. Notice or intention to declare a prohibited or regulated area-

(1) Before declaring an area near or adjoining a protected monument to be a prohibited area or a regulated area for purposes of mining operation or construction or both, the Central Government shall, by notification in the Official Gazette, give one month's notice of its intention to do so, and a copy of such notification shall be affixed in a conspicuous place near the area.

(2) Every such notification shall specify the limits of the area which is to be so declared and shall also call for objection, if any, from interested persons.

32. Declaration of prohibited or regulated area-After the expiry of one month from the date of the notification under rule 31 and after considering the objectio9ns, if any, received within the said period, the Central Government may declare, by notification in the official Gazette, the area specified in the notification under rule 31, or any part of such area, to be a prohibited area, or as the case may be, a regulated area for purposes of mining operation or construction or both.

33. Effect of declaration of prohibited or regulated area-No person other than an archaeological officer shall undertake any mining operation or any construction--

a) in a prohibited area, or

b) in a regulated area except under and in accordance with the terms and conditions of a licence granted by the Director- General.

34. Application for licence-Every person intending to undertake any mining operation or any construction in a regulated area shall apply to the Director-General in Form VI at least three months before the date of commencement of such operation or construction.

35. Grant or refusal of licence-(1) On receipt of an application under rule 34 the Director-General may grant a licence, or, if he is satisfied that the licence asked for should not be granted, may for reasons to be recorded, refuse to grant a licence.

(2)Every licence granted under sub-rule (1) shall be in Form VIII and be subject to the following conditions, namely-

a) the licence shall not be transferable.

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

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

20. The legislatures of various States including the State of Karnataka enacted separate legislations for protection and preservation of ancient monuments falling under Entry 12 of List II of the Seventh Schedule. The Karnataka Act is titled as "The Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 (for short, 'the Karnataka Act'). The Statement of Objects and Reasons contained in the Bill which led to enactment of the Karnataka Act reads as under: "STATEMENT OF OBJECTS AND REASONS (Karnataka Act No. 7 of 1962) Karnataka Gazette, Extraordinary, dated 1-11-1959 In the new State of Mysore, the following Acts relating to protection and preservation of ancient monuments, etc., are in force:-

(1) The Hyderabad Ancient Monuments Preservation Act, 1337F (Hyderabad Act VIII of 1337 Fasli) is in force in the Hyderabad Area;

(2) The Mysore Ancient Monuments Preservation Act, 1925 (Mysore Act IX of 1925) is in force in the Mysore Area; and

(3) The Ancient Monuments Preservation Act, 1904 (Central Act VII of 1904) is in force in all the areas of the new State of Mysore. The Government of India have advised the State Governments not to take advantage of the provisions of the aforesaid Central Act to protect and preserve monuments and to enact their own laws on the subject. Recently, the Government of India have enacted the Ancient Monuments and Archaeological Sites and Remains Act, 1958 covering matters falling under Entry 67 in the Union List and Entry 40 in Concurrent List of the Seventh Schedule to the Constitution of India. The present Bill seeks to bring about uniformity in the laws relating to protection and preservation of ancient monuments falling under Entry 12 in the State List, that is, ancient and historical monuments other than those declared by or under law made by Parliament to be of national importance. The provisions of the Bill are on the lines of the corresponding provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958."

21. The preamble of the Karnataka Act and Sections 2(1), (10), 4, 31(1) and (2)(a), which have bearing on the disposal of this appeal read as under: Preamble "An act to provide for the preservation of ancient and historical monuments and Archaeological sites and remains and for the protection of sculptures, carvings and other like objects in the State of Karnataka. Whereas, it is expedient to provide for the preservation of ancient and historical monuments and archeological sites and remains in the State of Karnataka other than those declared by or under law made by Parliament to be of national importance, and for the protection of sculptures, carvings and other like objects;" 2. Definitions.-In this Act, unless the context otherwise requires,-

(1) "Ancient monument" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archeological or artistic interest and which has been in existence for not less than one hundred years, and includes.-

(i) the remains of an ancient monument;

(ii) the site of an ancient monument;

(iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument; and

(iv) the means of access to, and convenient inspection of, an ancient monument; xxxx xxxx xxxx

(10) "Protected monument" means an ancient monument which is declared to be protected by or under this Act.

4. Power of Government to declare ancient monuments to be protected monuments.-

(1) Where the Government is of opinion that any ancient monument should be declared as a protected monument, it may, by notification in the Official Gazette, give two months' notice of its intention to declare such ancient monument to be a protected monument and a copy of every such notification shall be affixed in a conspicuous place near the monument.

(2) Any person interested in any such ancient monument may within two months after the issue of the notification, object to the declaration of the monument to be a protected monument.

(3) On the expiry of the said period of two months, the Government may, after considering the objections, if any, received by it, declare by notification in the Official Gazette, the ancient monument to be a protected monument.

(4) A notification published under sub-section (3) shall, unless and until it is withdrawn, be conclusive evidence of the fact that the ancient monument to which it relates is a protected monument for the purposes of this Act.

31. Power to make rules.-

(1) The Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

22. In exercise of the powers conferred by Section 31 of the Karnataka Act, the State Government framed the Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Rules, 1966 (for short, 'the Rules'). Rules 2(b), (f) and (g), 11, 12, 13, 14 and 15 of the Rules read as under:

"2.Definitions. â€“ In these rules, unless the context otherwise requires. â€“

(a) xxxx xxxx xxxx

(b) "Construction" of any structure includes additions to or alterations of an existing building;

(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) "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 construction or both; xxxx xxxx xxxx 11. Notice of intention to declare a prohibited or regulated area. â€“

(1) before declaring an area near or 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 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. 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 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.

13. Effect of declaration of prohibited or regulated area. - No person other than the Director shall undertake any mining operation or any construction. â€“

(a) in a prohibited area, or (b) in a regulated area, except under and in accordance with the terms and conditions of licence granted by the Director.

14. Application for licence. - Every person intending to undertake any mining operation or any construction in a regulated area shall apply to the Director in Form II at least three months before the date of commencement of such operation or construction.

15. Grant or refusal of licence. â€“

(1) On receipt of an 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 III and be subject to the following conditions, namely:-

(a) the licence shall not be transferable;

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

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

23. Unfortunately, the greed of the present generation has taken toll not only of various national assets including historical and ancient monuments and like many wild life species, a number of monuments have become extinct because of unregulated mining activities/operations in the vicinity of such monuments and buildings representing heritage and culture of the past. The facts

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.

27. In May, 2003, the Director of Ancient Monuments inspected the temple in the presence of Senior Geologist, Department of Mines and Geology, Karnataka and found that the mining activity was causing damage to the structure of the temple. Thereupon he wrote letter dated 15.7.2003 to the Assistant Commissioner, Endowments to take action for stopping the mining activities within a radius of one kilometer from the temple. Accordingly, the Assistant Commissioner sent letter dated 29.9.2003 to respondent No.4. He also issued notice dated 16.1.2004 to respondent No.4 informing the latter that if the needful is not done, action will be taken under Section 133 Cr.P.C.

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

29. The appellant, who is an Advocate by profession and is practicing at Hospet, Bellary, felt that unless mining activities are stopped in the vicinity of the temple, a centuries old ancient monument may be totally destroyed. Therefore, he filed Writ Petition No.9512/2009 before the Karnataka High Court in public interest and prayed for cancellation of the mining lease granted to respondent No.4 and for issue of a mandamus to the official respondents to stop mining activity within one kilometer from the temple. He further prayed for issue of a direction to Superintending Archaeologist, Archaeological Survey of India (respondent No.9) to take steps for restoration of the temple to its original state. In paragraphs 1, 2, 5 and 6 of the writ petition, the appellant made the following averments:

"1. The fourth respondent herein was granted permission for mining in Sy. No 115 in Jambhunathahalli, Hospet by the Director of Mines and Geology, the second respondent herein. In January, 2008 the Ministry of Environment and Forest has given permission for expansion of mining activity. The lease area of the mine is about 101.51 hectares. Copy of the mining lease is produced at ANNEXURE-A. The central Government has given environmental clearance for the mining operations on the basis of wrong information furnished by the third respondent. Copy of the permission given by the Ministry of Environment and Forests and for renewal of the mining lease is produced at ANNEXURE- B.

2. The fourth respondent also obtained permission for adopting a system of deep hole blasting for the mining area from the Directorate General of Mines Safety. Copy of the permission letter is produced at ANNEXURE-C. In January 2008, the fourth respondent also obtained clearance for enhancement of production capacity of iron ore production from the Ministry of Environment and Forests. Copy of the permission is produced at ANNEXURE-D.

5. The mining operation conducted by the fourth respondent among others consists of blasting, which is done by wagon blasting even though permission is given for "opencast and mechanized blasting". The lessee in question has been using wagon blasting. This type of blasting is not being used and is not in vogue. The wagon blasting results in loud explosion with a deafening sound. The dust spreads to all the nearby places. On account of this, the temple has suffered the most. The column of the outer walls of the temple has turned brown on account of the soil residue settling on the walls. The explosion also causes tremors, which is felt as far as Hospet. The residents of Hospet also feel the intensity of the tremor. Needless to say, the temple, which is almost 100 meters from the mining area is bearing the brunt of these activities. The walls of the temple have cracked and may collapse if mining activities continue. 6. Inside the temple, there is a well. The water in the well is said to contain many medicinal properties. In fact, devotees throng to the temple to collect the water. However, in recent years, the water has turned brown because of the dust. The number of devotees who come to visit the temple has also been reduced to a large extent on account of mining activities and the dust pollutes the nearby areas."

30. Respondent No.4 filed objections and pleaded that the writ petition should not be entertained because Writ Petition No.27067/1998 filed with similar prayer was dismissed by the High Court on 7.8.2000 and that order has become final. It was further pleaded that no blasting operations were being conducted within 200 meters radius of the temple and precautionary measures have been taken to prevent any damage to the temple. An additional plea taken by respondent No.4 was that the writ petition was highly belated.

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

"Sub:- Brief report regarding mining activities of M/s. R. Mallamma M.L.No.1806 Hospet Taluk, Bellary District.

Ref: Head Office Telephone Message Dt. 28.05.2009.

With reference to above subject as per the directions inspected M.L.No. 1806 area along with J.E of this Office on 28.05.2009.

At time of inspection assistance mines Manager Sri. Phanikumar present on this spot. is observed that mining lease area of M.LNo. 1806 is just running adjust to the periphery of Sri. Jambunatheshwar Temple. (Sy.No. 198).

It is also observed at the time of inspection there was no mining activity in a mining pit which is located at 130 Mtr. from the temple. At present in the said lease mining operation are going on at about 1 Km. away towards East from the temple.

After verifying available records in the office the Government order NO.CI.65.MMM.96 Dt. 07.12.1996 state that mining operations should beyond 200 meters away from the periphery of the temple.(Copy enclosed)

It further submitted that on 12.10.2007 this Office in the presence of revenue department and police department carried out joint inspection of M/s. R. Mallamma leased area and issued a notice to the said lease stating that they should not carry out any mining activity within 300 Mtrs. from the periphery of the temple.

Further, according to the direction from the Director of Mines and Geology vide letter No. Department of Mines and Geology/ML/1806/Permit/2007-08/6481 dated 22.02.2008 inspection was carried out and report was submitted stating that said lessee is carrying out mining activity 1.7 km. away from the periphery of the temple, (copy enclosed).

Again it is submitted that on 30.08.2008 notice was issued to the said lessee. (Copy enclosed). This report is submitted for your kind information and further necessary action."

32. The High Court accepted the report and dismissed the writ petition without dealing with any of the issues raised by the appellant.

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

34. Notice of the special leave petition out of which this appeal arises was issued on 9.7.2010 and respondent Nos.1 to 3 and 6 to 8 were directed to ensure that no mining activity is undertaken or continued at the site in question.

35. In the statement of objections filed on behalf of respondent No.4, the plea of res judicata raised before the High Court has been reiterated and it has been averred that no mining activity is being conducted within the Safe Zone declared by the State of Government. According to respondent No.4, the mining lease deed executed in its favour restricts mining operation within a distance of 50 meters from any public structure and in the absence of any other prohibition under the Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'the 1957 Act'), the Mineral Concessions Rules, 1960 or the Mineral Conservation and Development Rules, 1988, the Court cannot prohibit the carrying on of the mining operations within a radius of one kilometer from the temple in question.

Respondent No.4 pointed out that several other leaseholders are carrying operation within a distance of one kilometer from the temple. Respondent No.4 also relied upon report dated 9.4.2007 prepared by Deputy Director of Mines and Geology who had inspected the site and pleaded that no damage was done to the temple due to mining operations. Respondent No.4 denied that it was doing mining by the Wagon Blasting Method and emphasized that it had employed controlled blasting method.

36. After hearing the learned counsel for the parties, this Court passed order dated 8.11.2010 and directed respondent No.9 to personally inspect the site of the temple and the area in which mining activities were going on prior to 9.7.2010 and submit a report indicating whether such activities had affected the temple. In compliance of that order, respondent No.9 made reference to M/s. CIVIL- AID Technoclinic Private Limited, Bangalore to assess the structural stability of the monument due to surrounding mining activities. Thereupon the firm carried out detailed inspection along with concerned officials in November and summarised the outcome of inspection in the following words: "PHYSICAL OBSERVATIONS Main Temple Structure:

1. Visible settlement of foundation system was observed alround the temple at various locations.

2. Non alignment was observed in plinth level stone beams in most of the locations.

3. Wide gaps were observed between the stone panel joints in most of the locations.

4. Cracks were observed in stone panels at isolated locations.

5. Wide gaps were observed in stone members at beam bearing regions in most of the locations.

6. Non alignment was observed in stone beams between the spans at ceiling level in most of the locations.

7. Cracks were observed in stone capital below the beam bearing region at various locations.

8. The wide gaps between the stone members were observed to be filed with cement mortar.

9. It is observed that recently stone members were observed to be cleaned with chemical wash.

10. WPC over the roof slab was observed to be severely deteriorated in the form of hapazardous cracks.

11. Wide cracks were observed along the stone beam line over the roof slab.

12. Severe undulations were observed over the roof slab in most of the locations.

13. Accumulation of dead leaves and growth of vegetation was observed over the roof slab at various locations.

14. No visible abnormalities was observed in well."

"Peripheral structures:

1. Absence of plinth protection was observed alround the building.

2. Severe growth of vegetation was observed alround the building.

3. Inclined cracks were observed in masonry wall at various locations.

4. Severe separation cracks were observed at the interface of wall and slab junction.

5. Debonding and spalling of plaster was observed in masonry wall at various locations. 6. Damp patches were observed in masonry walls at various locations.

7. Deterioration of WPC was observed over the roof slab."

"Inferences: Following inferences are drawn, based on the detailed inspection:

1. The visible distress observed in stone members of structure is essentially due to one or the combination of following factors:

â€¢ Prolonged age effect. â€¢ Disturbance caused to the structure due to nearby mining activities.

â€¢ Inadequate/ineffective maintenance over a period of time.

2. Severe cracks observed in peripheral structures are mainly due to disturbances caused by surrounding mining activities and inadequate maintenance over a period of time." "Recommendations:

Following recommendations are made, based on the above inferences:

1. In view of the severity of the structural/functional distress and considering structural type of temple structure, it is recommended to carryout mining activities away from temple, atleast 1 km radius around the temple to minimize the possible vibration. Further, it is recommended to take up the appropriate restoration of the structure, considering long term durability and safety of the structure after carrying out detailed scientific study of the structure.

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

3. The possible endanger to temple structure due to water storage depression in nearby in mining area shall be avoided by creating suitable drainage facility with appropriate benching and pitching to avoid possible collapse of disturbed hillock towards temple structure.

4. Periodic maintenance of the temple structure shall be adhered regularly." The report prepared by respondent No.9 is accompanied by several photographs which provide visual evidence of the damage caused to the temple due to mining activities.

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

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

39. After service of notice, respondent No.4 filed statement of objections on 31.8.2010, respondent Nos. 1 to 3 and 5 filed their objections on 24.9.2011, respondent No.9 filed affidavit dated 2.10.2010, respondent No.7 filed counter affidavit dated 5.1.2011, respondent No.14 filed affidavit dated 17.2.2011 and respondent No.18 filed counter affidavit dated 15.4.2011.

40. In the statement of objections filed on behalf of respondent No.4, the maintainability of the appeal has been questioned on the ground that similar issue had been raised before the High Court in Writ Petition No. 27027 of 1998 and the same was dismissed vide order dated 7.8.2000. Respondent No.4 has also accused the appellant of seeking the Court's intervention after a long time gap of 27 years. On merits, the case of respondent No.4 is that mining activity is being done strictly in accordance with the provisions of the 1957 Act, the Mineral Concession Rules, 1960 and the Mineral Conservation and Development Rules, 1988 and they do not contain any prohibition on mining operations within a radius of one kilometer from the temple. Respondent No.4 has also relied upon report dated 9.4.2007 prepared by Deputy Director of Mines and Geology and averred that no damage has been caused to the temple due to mining operations. It is also the case of respondent No.4 that mining is being done by controlled blasting and not by Wagon Blasting Method.

41. The thrust of the objections, affidavits and counter affidavits filed by other respondents is that mining is being done as per the provisions of the 1957 Act and the Rules framed thereunder and there is no legal justification for imposing any restriction in violation of that Act and the Rules.

42. One significant aspect of the pleadings which deserves to be mentioned at this stage is that the State of Karnataka and its officers have taken contradictory stands on the issue of the nature of mining operations undertaken by respondent No.4. While respondent Nos. 1 to 3 and 5 have claimed that respondent No.4 has been carrying out mining by controlled blasting in accordance with the permission granted by the Director General of 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 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 observed that the mining activity has been carried out to the east south-east of the temple at a distance of less than 100 meters from the periphery of the temple and extending further to the east and south-east Plate IV (a) & (b). It appears that initially the mining was carried out nearer to the temple continually over a period of decades which has resulted in the formation of a huge crater at about a distance of 100 meters from the temple on the east and later on the mining activity has been extended further east clearly indicated by the stepped terrace formation in a semi-circular pattern surrounding the crater Plate V (a) & (b). Now only a high and narrow ridge divides the temple and the crater. Due to continuous mining, the depth of the crater has reached almost the level of the temple foundation and has become the source of accumulation of rain water as well as rise in sub-soil water level. This has resulted in the underground seepage of water towards the temple which is evidenced by dampness in some of the subsidiary shrines on the southern side.

5. I further submit that as per the Gazette Notification, an area of 9 aces 12 cents in Survey Number 198 surrounded by on all four sides by Sy.No.115-B, has been declared as protected area and in the absence of clear demarcation of the protected boundary, it could not be ascertained whether the mining activity encroached the protected area also. However, it is certain that the mining activity was carried out in the prohibited area within a distance of 80. As per the provisions of the Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1991 (Karnataka Act of 1962), under Section 20, no construction or mining, quarrying, excavating, Wasting or any operation of a like nature is permitted without the permission of the Government.

The Director, Department of Archaeology and Museums, Government of Karnataka who was present during the inspection has informed that no such permission has been given by the Department for carrying out mining operation within the notified zones. As per the records made available by the State, Department of Archaeology, as early as 3rd March 2004, the Deputy Director, Department of Archaeology and Museums, Government of Karnataka, posted at Kamalapura had written to his Directorate office in Mysore that during his spot inspection along with Shri T.M. Manjunathaiah, Technical Assistant, on 27th February 2004 witnessed the mining activity going on in the vicinity of the temple by using explosives (wagon blasting). He also informed that the felt tremors due to the explosion in the temple while he was inspecting the temple. He also noticed cracks on the walls and roof due to the impact of the explosion. He reported that the lessee who was carrying out the mining was doing repairs in the form of plastering and cement coating to cover up the cracks on the ancient temple.

He informed the temple priests about the damage being caused due to such unscientific methods of repair which had affected the architectural style of the ancient temple and asked them to stop at once such works. He has recorded in his letter that the temple is getting seriously damaged due to mining activity and the temple is wholly discoloured.

6. I further humbly state that this discoloration is obviously due to the accumulation of the deposit of the mineral dust which was seen by the visiting team on 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 inside the temple.

7. I further submit that a close inspection of various parts of the temple by Respondent No.9 along with Shri M.V. Visveswara, Deputy Superintending Archaeologist cum Site Manager, World Heritage Site, Hampi revealed that the temple has suffered:

1. Settlement in its foundation in the Navaranga and Maha Ranga Mamlapa portions; 2. A few pillars have gone out of plumb-Plate VI(a);

3. Concussion fractures in the capital portion of the pillar in Maha Ranga Mandapa Plate VI (b);

4. Extended arms of the capital and beams have broken at some places Plate VII (a) and (b);

5. Widening of joints on the wall portions both horizontal and vertical:

6. Discoloration of the stucco of the superstructure over the entrance mandapas and sanctum Plate VIII and IX;

7. Development of cracks over the roof and the longitudinal as well as peripheral ridge, especially near the joints Plate X (a) and (b);

8. Dampness due to seepage of water capillary action and due to growth of vegetation;

9. Development of cracks over the roof and the longitudinal as well as peripheral ridge, especially near the joints;

10. Dampness due to seepage of water capillary action and due to growth of vegetation.

8. I respectfully submit that again in the month of June 2007 on 16th a joint inspection by Tahsildar, Hospet, Deputy Director, Mines and Geology, Government of Karnataka; Deputy Director, State Archaeology, Government of Karnataka; Revenue Inspector, Hospet; Taluk Surveyor inspected the temple in Survey Number 198 and mining activities in Survey Number 115 as per the instructions of the Deputy Commissioner, Bellary, was carried out and they have confirmed and recorded in their joint inspection report that

(i) the cracks were developed in the temple due to mining;

(ii) mining activities was carried out in the near proximity of the temple and the (iii) if temple is not conserved and mining activities are not stopped, the temple may get affected severely.

9. I further humbly submit that Shri Subramanian, Senior Geologist, Geological Survey of India, Bangalore, who visited the site along with Respondent No.9, who viewed the site from geological point of view, has opined that because of intense mining activity fine dust particles are deposited on south, south east and north gopuras of the temple and the mining activity has led for the dumping of the mine waste on the eastern and north eastern part of the temple which has led for artificial drainage on the eastern boundary of the temple. One of the benches of the mine on the north eastern part of the nala (drainage) has led for flooding and soil erosion in and around the temple. As the temple is in lower elevation, the mine is in the upper elevation, road cutting on the upper elevation has lead for debris movement on the southern part of the temple.

10. I further humbly submit that the Principal Design Engineer, Shri Mohan Kumar, BE (Civil); ME (structure), MIE, CH. Eng who was accompanying the team has opined from the point of view of structural engineering, that the visible distress observed in stone members of structure is essentially due to one or the combination of following factors namely Prolonged age effect: Disturbance caused to the structure due to nearby mining activities; Inadequate/Ineffective maintenance over a period of time.

11. I further humbly submit that since the mining has been stopped for quite some time, the actual impact of the blasting/mining on the temple, intensity of the explosion, tremor and vibration as also the precise dust accumulation by using appropriate scientific instruments could not be ascertained. However, even in the absence of above data, the onsite condition clearly brings out the following.

(a) The present condition of the temple which was constructed in around 1500 AD, using massive granite blocks, in trabeate system, is attributed to several factors which are as under;

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

(d) As repeatedly pointed out by the Deputy Director of State Archaeology Department, Government of Karnataka and other local authorities and also as observed by the Respondent and other officials, mining activities using explosives in the close proximity of the protected temple has also contributed to a extent for it & present detracted condition."

43. On 26.4.2011, the Court appointed a Committee of Experts with a direction that it shall inspect the site of the temple, the area where mining activities were being carried out and submit its report. The relevant portions of that order are extracted below: "For the purpose of undertaking a comprehensive exercise for evaluation of the damage, if any, caused on Jambunatheswara temple due to mining activities undertaken before passing of stay orders by this Court on 09.07.2010 and 18.02.2011, the Committee comprising the following is constituted:

The Director, Directorate of Archaeology & Museums, Government of Karnataka, Karnataka Exhibition Authority Complex, Mysore570 010.

Convenor

The Superintending Archaeologist, Archaeological Survey of India, Bangalore Circle, 5th Floor, `F' Wing, Kendriya Sadan, Koramangala, Bangalore 560 034. (Along with the team of experts from ASI)

Member

Geological Survey of India, State Unit of Karnataka & Goa, Vasudha Bhavan, Kumaraswamy Layout, Bangalore 560 078.

Member

Shri A.B.Morappanavar, IFS, Dept. of Ecology & Environment, Regional Director and Deputy Conservator of Forest, #01, Charanti Matt Building, Shivalaya Road, Sadashivanagar, Belgaum - 590001

Member

Deputy Director, Department of Mines & Geology, Government of Karnataka, College Road, Hospet 583 201 (Dist.Bellary)

Member

Prof.C.S.Vadudevan, Asst. Professor, Department of Ancient History & Archaeology, Kannada University, Hampi(Vidyaranya) -583 276 (Hospet Taluk, Bellary Dist.)

Member

Sri Pankaj Modi, Conservation Architect, Indian National Trust for Art & Cultural Heritage, Karnataka Chapter, 166, Kattariguppe Water Tank Road, 4th Cross, 4th Block, 3rd Phase, Banashankari III stage, Bangalore 560 085

Member

The Deputy Director, Directorate of Archaeology & Museums, Government of Karnataka, Kamalapuram 583221. (Hospet Taluk, Bellary Dist.)

Member Secretary

A representative of Directorate General of Mines Safety (DGMS), Dhanbad, Jharkhand

For mine safety

A representative of Indian Bureau of Mines, Nagpur, Maharashtra

For Mining technology

The Committee shall inspect the site of the temple and the area where mining activities were being carried out, evaluate the impact of the mining activities on the temple from all possible angles keeping in view the relevant statutory provisions including the Environment Protection Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Poll