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K. GURUPRASAD RAO V/S STATE OF KARNATAKA & ORS. 2013 (8) SCALE 629

ABSTRACT

In this case of K. Guruprasad Rao v. State of Karnataka & Ors., protection of ancient monuments was given precedence over development. 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. The issue of preservation and protection of ancient and historical monuments has been a matter of concern for the Governments and private individuals alike. This judgement in this case, kept in mind the idea of sustainable development. The ordered, there shall be no mining activities within 1 kilometer (core zone) of the temple or the monument. In the buffer zone, that is the next 1 kilometer, mining activities can be performed by with under the supervision of the expert agencies.

  • PRIMARY DETAILS OF THE CASE
  • BRIEF FACTS OF THE CASE

K. Guruprasad Rao was the appellant and respondents were the State of Karnataka, M/s. Aarpee Iron Ore Mines, Superintending Archaeologist (Archaeological Survey of India), 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 & M/s Kariganur Mineral Mining.
The Jambunatheshwara Temple or Jambunatha Temple was built in 1540 on Jambunath Hill which falls in Hospet Taluk, District Bellary (Karnataka). The water of the well in the temple is considered to have medicinal values and therefore, considered as sacred. It is situated 4.5. km from Taluk Hospet on a hillock at a height of 800 ft. and is surrounded by a range of hillocks rich in good iron-ore. This temple is a Protected Monument by the Government of Karnataka under Section 4 of the Karnataka Act. 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 a notification dated 13.9.1991. The State Government of Karnataka, by a notification dated 7.12.1996, declared an area within the radius of 200 m from the periphery Jambunatheswara temple as ‘Safe Zone’ where mining was not allowed.
M/s. Aarpee Iron Ore Mines, Bellary (Respondent 4) was granted a mining lease for a period of 30 years in an area of 182.45 hectares near Jambunatheswara temple for extraction of iron ore. Later the lease extended for another 30 years. The lessee was also granted permission under Section 2 of the Forest (Conservation) Act, 1980 to undertake mining operations over forest measuring 101.51 hectares.
In 2003, in an inspection, the Director of Ancient Monuments, in the presence of Senior Geologist, Department of Mines and Geology, Karnataka found that mining activities were damaging the structure of the temple and a letter dated 15.7.2003 was sent to the Assistant Commissioner, Endowments to take action for stopping the mining activities within a radius of 1 Km from the temple. Accordingly, the Assistant Commissioner sent letter dated 29.9.2003 to M/s. Aarpee Iron Ore Mines. He also issued notice dated 16.1.2004 informing the latter that if the needful is not done, action will be taken under Section 133 Cr.P.C. During this time, the Ministry of Environment and Forests, Government of India also accorded permission to M/s. Aarpee Iron Ore Mines to increase the production of iron ore from 0.6 million tonnes per annum to 1.5 million tonnes per annum.
The appellant 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 and for issue of a mandamus to stop mining activity within 1Km 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.
Due to the “opencast and mechanized blasting” which results in loud explosion with deafening sound, dust get spread to all the nearby places. Due to the dust the outer wall of the temple has turned brown on account of the soil residue settling on the walls. The water of the well, 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. 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.
The Respondent 4 pleaded that the writ petition should not be entertained 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 and 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.
The High Court accepted the report and dismissed the writ petition without dealing with any of the issues raised by the appellant.

  • ISSUES INVOLVED IN THE CASE

Should mining be stopped within a radius of 1 Kilometer from the temple?

  • ARGUMENTS OF THE PARTIES

The appellant questioned the order of the High Court on the ground of non-consideration of the factual assertion made 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. 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.
Respondent No.4 plead of res judicata raised before the High Court. They also argued that the mining lease deed executed in its favor 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, the Mineral Concessions Rules, 1960 or the Mineral Conservation and Development Rules, 1988. 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. They also denied that it was doing mining by the Wagon Blasting Method and emphasized that it had employed controlled blasting method.
The court set up different committees for the investigation on the said site and the temple. The investigations by CIMFR and NIT (K) have suggested that, no blasting operations shall be carried within 300m radius of the Jumbunatheswara Temple. No mining activity shall be allowed in Core Zone (within l km radius) of the temple. The mine managements may be directed to submit Mine Closure Plans (MCP) giving detailed and well phased scheme of back filling, plantation and diversion of drains from catchment area, building of necessary infrastructure in and around the temple and other measures required to bring the temple and its immediate environs to regain their original past glory. Before doing so, the Mining Companies may be permitted to carry away the ore already extracted in the Core Zone by using earth moving machineries. A corpus fund may be created by collecting an amount of Rs. 3,43,19,160.00 only from the mining companies operating within 2km radius from the temple. This fund may be utilized for the implementation of all the recommendations contained in the ‘CONSERVATION PLAN for JAMBUNATHESHWARA TEMPLE, towards the conservation, preservation, beautification etc., as an effort towards the restoration of the original features and the aesthetic values of the temple to the best possible extent.
The respondents argued that the restriction suggested by the Committee will adversely affect the production of iron ore and will cause serious loss to the country. The respondents also took the plea that Section 20 of the Karnataka Act restricts mining activities only within the ‘Protected Area’ and not in other areas. 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. They also argued that the recommendations made by the Committee for creating Core Zone and Buffer Zone should not be accepted because the two expert bodies engaged by it did not make any such suggestion and even otherwise this would be contrary to the provisions of the 1957 Act and the Rules framed thereunder.
The appellant argued that the recommendations made by the Committee should be accepted without any modification because the same are based on a comprehensive consideration of the reports of CIMFR, Dhanbad and NIT. He also 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.
The counsel appearing for the State of Karnataka relied upon notification dated 10/12.3.1998 issued under Section 4 of the Karnataka Act read with Rule 11(1) and (2) of the Karnataka Historical and Archaeological Monuments and Archaeological Sites and Remains Rules, 1968 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 highly detrimental to public interest. respondent No.18 relied upon the judgment in Samaj Parivartana Samudaya v. State of Karnataka and argued that in view of the express permission granted 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. 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 and invoked the principle of sustainable development and argued that the Court should strike a balance between the requirement of protecting the temple and the need of iron ore for the State and the country. They emphasized that any unreasonable restriction on mining activities in and around the temple premises will adversely impact the production of steel in the country.

  • LEGAL ASPECTS INVOLVED

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 archaeological sites. This subject is exclusively governed by the 1958 Act and similar enactments made by the State Legislatures including the Karnataka Act. Like the 1958 Act, the Karnataka Act also provides for declaration by the government of any ancient monument as a “Protected Monument”. Both the Central Government and the State Government have framed rules for grant of permission/licence in the prescribed form to undertake any mining operations in a protected and/or regulated area. Rule 10 of the 1959 Rules, which has been framed under Section 38 of the 1958 Act and Rules 11 to 15 of the Karnataka Rules provide that no person shall undertake any mining operations in a regulated area other than on the strength of a licence granted by the competent authority, i.e., the Director. The material placed on record of this appeal does not show that the private respondents have obtained such licence under the Karnataka Rules for 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.

  • JUDGMENT IN BRIEF

The protection of ancient monuments has necessarily to be kept in mind while carrying out development activities. The court ruled that, the recommendations and suggestions made by the Committee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple. 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. The report submitted by the Committee shall be considered by the Government within next two months and appropriate order be passed.

  • COMMENTARY

The abovementioned case discussed the issue of preservation and protection of ancient and historical monuments that has been a matter of concern for the Governments and private individuals alike.
In the following case, a public interest petition was filed against the damage caused by iron ore mining to the 16th century Jambunatheswara temple in Bellary, the district that has been red-marked for predatory mining. Accepting a committee report, the court stopped mining around the protected monument built in granite on an 800-foot hill, and asked the state government to create a corpus of Rs 34 million for its conservation. The committee was also asked to find out other protected monuments in the state that are facing similar danger from mining firms. The apex court also directed the state government to undertake the creation of core zones and buffer zones for the protection of “ancient monuments”. One kilometer area around the temple is core zone and further one kilometer area is the buffer zone. There shall be no mining activities in the core zone and mining activities can be carried out in the buffer zone, but only under the supervision of an “expert body or agency”. With this judgement, the ancient monuments which have a great importance in history and culture, will be protect from the danger caused by the mining firms. Holding this judgement other monuments which are facing the similar danger will also be protected. The need for ensuring protection and preservation of monuments for the benefit of future generations has to be balanced with the benefits which may accrue from mining and other development-related activities. While mining activity is sure to create financial wealth for the leaseholders and the state, the immense cultural and historical wealth cannot be ignored and every effort has to be made to protect the temple.

  • IMPORTANT CASES REFERRED
  1. Bandhua Mukti Morcha vs Union of India
  2. Enviro-Legal Action vs Union of India
  3. Essar Oil Ltd. vs Halar Utkarsh Samiti
  4. Government of A.P. and Ors vs M/s. Obalapuram Mining Company Limited
  5. M.C. Mehta vs Union of India & Ors
  6. N.D. Jayal vs Union of India
  7. Rural Litigation and Entitlement Kendra v. State of U.P
  8. Samaj Parivartana Samudaya & Ors vs State of Karnataka & Ors.
  9. State of Bihar v. Murad Ali Khan
  10. Tarun Bharat Sangh v. Union of India
  11. Welfare Forum vs Union of India

AUTHOR

Rituparna Patra (National University of Study and Research in Law)