K. GURUPRASAD RAO v. STATE OF KARNATAKA AND OTHERS

[G.S. SINGHVI, J.] "IV. DISCUSSIONS: A

The Committee unanimously agrees that the mining operations carried out using blastir.g operations in the near proximity, at a distance of less than 200 m from the Subject temple, have already caused irreparable damages to the 8 temple and the eco-environs of its immediate neighborhood as enumerated in detail in Annexure-1 (A}, (B), (C) and (D) and expresses its serious concern towards the need of addressing all the issues responsible for such an adverse impact and resorting to make sincere C efforts required so that the temple and its immediate environs regain their original aesthetic and architectural grandeur, sanctity and pristine eco-environs. In the light of the above, the Technical Reports submitted by the various agencies are reviewed and discussed as a prerequisite for making specific recommendations. D

1. The Study on Jambunatheswara Temple Surroundings - submitted by Karnataka Remote Sensing Application Centre, ISRO, Bangalore (Annexure-IV) deals with the mining activities carried out in a radius of 1km and 2km. It E also illustrates the damage caused to the subject temple and its immediate environs. The agency has used the imageries of 2008. It would have been prudent if it had compared the 2008 imageries with the presenUlatest one. The agency could have also offered valuable data and f comments on two of the very significant issues viz.

(1) Compare the vegetation of 2008 vis-a-vis 2011, and

(2) Specific disturbances to drainage system in G the area, caused due to mining.

In spite of these short comings, the study by the KSRSAC has clearly brought out some significant facts. It emphatically establishes that the mining area is located H

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E Thus, the Report substantiates the statements of Respondent no. 9 (Annexure-1) in so far as

(1) The mining activities have been conducted from a distance of 55 m from the subject temple in dire F violation of the provisions of Section 20 of the Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 and subsequent amendment in 1991 which prohibits mining and construction activities within the Prohibited and Regulated Areas: G (2) The mining activities have adversely affected the temple and

(3) They have also adversely affected the immediate H environs of the temple to a great extent.

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[G.S. SINGHVI, J.]

2. The Conservation Plan for Jambunatha Temple A prepared by Indian National Trust for Art and Cultural Heritage, Bangalore Chapter (Annexure-111) substantiates in its entirety the observations made by Respondent No. 9 in the Technical Report (Annexure-l(A), (B) and (C) and the subsequent Affidavit (Annexure-l(D) with regard to the B damages caused to the subject temple due to mining and related activities. The deteriorations caused as observed during the comprehensive survey inspection have been enumerated under three broad categories, as stated below: c (1) defects due to movements and vibrations, deflection of beam and plinth stone members, tilts of columns, bulging -of walls, cracked stone members, material failure and missing parts; D (2) changes to surfaces, finishes, moisture problem, rising dampness, water seepage, human inflicted problem, lost or missing details, material deterioration, drainage systems, presence of fungi, algae, termites and insects, vegetation growth, changes to surrounding condition and missing portions due to deterioration;

(3) space dimensions and configurations, additions, blocking of openings, false facade, changes to basic plan, topography of the surrounding land, bad re-pointing, bad cleaning techniques, insensitive and out of context additions and finishes (Annexure- 111 - Chapter Ill, page 30-100).

In Chapter IV of the said report (Annexure-111 - pages G 101-109), a further analysis of the deteriorations are enumerated along with the inferences drawn based on which, the Report has suggested detailed conservation plan under short-term measures (immediate measures), long term measures and the requisite budgetary estimate H

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A for an amount of Rs.3,43, 19, 160 (Rupees three crore forty three lakhs, nineteen thousand, one hundred and sixty) only for executing the same in order to bring the temple to its original condition so as to regain its past glory (Chapter V, pp. 110-114). B

3. The Reports submitted by Central Institute of Mining and Fuel Research, Dhanbad (Annexure-V) and National Institute of Technology, Kamataka, Surathkal (Annexure-VI), based on Technical field investigations conducted during the 2nd and 3rd weeks of November, 20t¹, are very helpful c in arriving at the safe blasting parameters to avoid damage to Jambunatheswara temple situated near Hospet, Kamataka. However, these reports only partially contribute to understand and assess the damages caused to the subject temple due to the mining activities that have already D taken place in the immediate neighborhood of the temple. In this connection, it is submitted that, the site inspection by the Respondent No. 9 and subsequently by the Committee, have established beyond any doubt that damages have been caused to the Jambunatha Temple E due to the impact of the mining using blasting operations in the near proximity. In view of the sensitive nature of the temple, which has already suffered significantly, it was suggested that it was not advisable to conduct any more blasting vibration monitoring tests in the near vicinity of the temple.

It was further suggested that conducting any such blasting vibration monitoring tests in a far of place quite away from the temple, will in no way establish any new scientific proof regarding the impact of mining using blasting operations on the Jambunatha temple.

The mining operations carried out using blasting operations in the near proximity of the subject temple within a distance of less than 200 M have already caused irreparable

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[G.S. SINGHVI, J.] damages and need to be addressed on priority.

In the above context, the investigating agencies have admittedly conducted all these experimental blasting beyond two hundred meters whereas the study conducted by Karnataka Remote Sensing Application Centre, ISRO, B Bangalore (Annexure-IV) has indicated that one of the mines exists within a horizontal distance of 55 meters from the temple premises on the eastern side. Thus, the impact of mining with blasting operations which have already been carried out at a distance between 55 meters and 200 c meters (290 meters as in case of the nearest blasting conducted by CIMFR, Dhanbad) cannot be fully understood and assessed scientifically by the present investigations.

These trial blasts have been conducted as per the blast design parameters normally practiced in each mine which are as per the specifications stipulated by the controlling authorities, viz., Indian Bureau of Mines and other agencies and appear to have been conducted under ideal laboratorv conditions. Many of the trial blasts have been conducted at locations having free faces of the working benches. Obviously. the results of the investigations show minimum or no impact on the architecturally sensitive temple especially when the blasts are conducted at locations having no 'free surface'. On the basis of the data recorded as well as observations made during the experimental blasts, it is said, "technically and scientifically that blasting may be carried out beyond 200 meters distance from Jambunatheswara temple without causing any structural damages provided that controlled blasting method is strictly adhered to (Anne:~ure-V - Tables G 3 and 4) and 'follow the following blast pattern at 300 meters or more from the temple (Annexure-VI - page 88). The data recorded as well as observations made during the experimental blasts, admittedly and essentially are based on individual blasts and the investigating agencies H

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A have not either considered or evaluated cumulative or compounded impact of the multiple blastings taking place simultaneously at varying distances and altitudes. It is a matter of common perception that the collective impact of many less/non harmful individual entities could be severe B and lethal in effect. probably not requiring any scientific or technical confirmation.

The CIMFR Report (Annexure-V - page 7) significantly adds that "in the present condition. the altitudes c (Reduced Level/RU of the working benches of the different iron ore mines located near Jambunatheswara temple are in a higher level than the temple. Most of the mines are also having free surfaces of the working benches facing towards the temple. However, when the altitudes of these mines become on the same level or lower than the temple in future. it is recommended to reassess the impact of blast-induced ground vibration on the temple". By this. it may be construed that one cannot assess the impact of blast-induced ground vibrations on the temple when· such blasts are made on the same level or lower than the level of the temple which have already been done as observed by the Respondent No. 9 and the members of the Committee during their field visits respectively.

Another significant aspect of the Report of- the F CIMFR, Dhanbad is that in the very introductory page (Annexure-V - page 1) it has added a Note stating that "It is hoped that the recommendations will be implemented to get the optimum results without hampering the production, productivity ahd safety. The recommendations G are the guidelines, which should be implemented in letter and spirit.

"Since the day-to-day blasting operations are not under the control of CIMFR, the research team will not be H

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[G.S. SINGHVI, J.] held responsible for any untoward incident caused by A blasting".

This clearly indicates that nobody will ensure that these recommendations/ guidelines will be implemented in letter and spirit especially in the absence of a vigilant 8 and effective management system to monitor the day-to- day mining operations. The ill- effects of the mining activities that have already taken place in the recent past in and around Jambunatha temple is a clear illustration reflecting this phenomenon. c The Committee opines that the spirit and sanctitv of Jambunatheshwara temple. continuously being worshipped from the day of its consecration till today. lies as much in its location as in the form. design and ornamentation of the Structural complex constructed during the Vijayanaqara Period in around 1540 A.D. The spirit and sanctity are enhanced due to the locational significance of the Subject temple which is of primary importance. Jambunatheshwara is but one of the thousand and odd names of the manifestations of Lord Shiva. who according to Hindu Mythology and belief. is Kailasanatha - the lord of Kailasa Mountains. For this reason. for a staunch believer of Hinduism. all the hilltops are but a replica of Kailasa Mountains. Any damage caused to the immediate pristine environs of a temple located amidst such picturesque lush green landscape of the hill ranges. affects the very sentiments and beliefs of the pilgrims and devotees thronging to the temple. as it adversely affects the very abode of the lord. G This significance of the location of the temple has yet another facet as it is situated in the Peripheral Zone of the Hampi World Heritage Site, which is included in the World Heritage List of UNESCO. The subject temple forms an integral part of the Vijayanagara architecture, hardly at a H

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A distance of about 4.5 kms from Ananatasayana temple, a centrally protected monument. Integration of Natural Heritage with the Built Heritage is one of the criteria for enlisting Hampi in the List of World Heritage Sites. Jambunatha temple, with the backdrop of lush green hill B ranges, is one fine example for such harmonious integration. It is mandatory on the part of the State and the Central Governments to maintain the integrity and authenticity of the Site as Signatories to the World Heritage Convention of the UNESCO. c Further, it is significant to note that most of the ambitious 16th Century Vijayanagara temple projects in and around Vijayanagara capital city which are distinguished by vast and lofty enclosures entered through towered gateways, approached by long and broad chariot streets· or winding flight of steps follqwing the natural contour of the hills, mandapas with elaborately ornamented pillars etc., are located on the hill tops. Hanuman temple on the Anjanadri Hill, Virabhadra temple on the Matanga Hill, Raghunatha temple o_h the Malyavanta Hill and the group temples of different periods on the Hemakuta Hill are only a few such examples within the Core Zone of the World Heritage Site. Sri Jambunatheshwara temple on the Jambunatha Hill and Sri Kumaraswamy temple near Sandur are other such temples in the peripheral area of the greater medieval Capital city of Vijayanagara. This place was also entry point to the Vijayanagarpattana, the capital of Vijayanagara empire. Location of such temples for the 'Guardian Deities' on strategically located hilly landmarks of the region endowed with tranquil, picturesque and serene atmosphere of high altitudes, considered as 'abod~s of cosmic energy', is part of the very concept of designing 'Cosmic Cities embodying complex yet sacred geometry' derived from the canonical texts of the ancient lore. H

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[G.S. SINGHVI, J.]

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

The 'macro' studies by the high level panel set up by the Union Government and the Indian Council for Forestry B Research and Education (ICFRE) and the Environmental Engineering Research Institute (NEERI), which have submitted their reports to the Hon'ble Apex Court in a separate Case pending before the Apex Court, have vividly brought out the adverse impact of mining and related c activities in the entire State of Karnataka in general. In its Macro-Environment Impact Assessment report on Bellary, the ICFRE again has highlighted the environmental fall out of mining emphasizing the need to commission a feasibility study to bring in superior underground mining technologies o to minimize the adverse impacts.

An overview of the multi-faceted hazardous impact of mining activities in the context of the Bellary District, State of Karnataka is illustrated in the following extract. E 'Environmental Engineering Research Institute (NEERI) found that suspended air particles at many locations in the district were far above the national health standards. According to NEERl's report, the dust hanging in the air of Bellary due to rampant mining is a serious F health hazard. The area has high incidence of lung infections, heart ailments and cancer. However, the Karnataka State Pollution Control Board (KSPCB) has been tardy in issuing notices to mine-owners under existing laws (including the Air Act, 1981 and the Water Act, 1974). G Mining has adversely affected the forest areas, including the 'rese¹ ved' forest areas, in Bellary District. Dumping of waste material has caused erosion of the topsoil of the region. Species of wildlife such as the Egyptian vulture, yellow throated bulbul, white backed vulture and four-horned H

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A antelopes have vanished due to depletion in the forest cover on account of mining. Rainwater that used to earlier flow down hillocks and replenishes underground aquifers now picks dust along the way, contaminating water and degrading soil, making farming difficult. Studies point B towards a fast rate of siltation in the Tungabhadra reservoir due to the deposition of waste material generated from mining'.

The report on the 'Study of Jambunatheshwara temple Surroundings' by the Karnataka Remote Sensing c Centre (KSRSAC), commissioned by the present Committee is a micro study addressing a similar issue concentrating mainly on the land use/land cover highlighting the area occupied by mining and mining related activities within the radius of 1 km and 2 km from the temple.

V. RECOMMENDATIONS:

In the light of the above observations and with due considerations to

(i) the historical, religious, architectural, sculptural and aesthetic values of the Subject temple, forming an integral part of the cultural Heritage of the Vijayanagara period (the masterpieces situated in the nearby Hampi in the same Taluk of Hospet which have been declared as 'World Heritage' in due recognition of their 'Out Standing Universal Values');

G - (ii) the utmost symbolic and spiritual significance of the immediate pristine environs with lush green landscape of the hill ranges amidst which the said temple is located;

H (iii) as also the recommendations regarding the safe

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[G.S. SINGHVI, J.] blasting parameters to avoid damage to the A temple,

(iv) the dire necessity of resorting to the ideology of sustainable mining and

the absence of any vigilant and effective B (v) management systems to monitor the adverse impact of the mining activities,

the committee recommends as follows. For the purpose of convenience and easy apprehension of c the Recommendations of the Committee, the area surrounding the Subject temple up to 2km has been divided into two Zones namely,

I. CORE ZONE: comprising the temple along with D area protected under legal provisions in vogue and the area further beyond it in all directions up to a distance of 1km;

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

I. CORE ZONE: F (1) Total ban of mining with or without blasting but permitting the mining companies to carry away ore already extracted from the area by using earth moving machineries, without causing any damage either to the temple or to the environs; G (2) Implementation of immediate conservation measures, initiation of short term conservation measures and arriving at time frame and phasing for long time conservation measures; H

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A (3) Preparation and implementation of Mine Closure Plan and

(4) ·Depositing requisite funds.

II. BUFFER ZONE: B (1) Mining with blasting operations strictly following the recommendations/guidelines formulated by the investigating agencies (Annexures- V and VI} IN LETTER AND SPIRIT, implementing the Mine c Closure Plan and attending to the long term conservation measures to the Subject Temple.

(2) Mining in this Zone shall be closely monitored and guided by the experts from Indian Bureau of Mines, D Directorate General of Mines Safety, Department of Mines and Geology, Government of Karnataka, Forest Department, Karnataka State Pollution Control Board, Archaeologists, Conservation Architects, and any other scientific agency, if E required, for avoiding any possible adverse impact on the Subject temple and its eco-environs in the long run.

Accordingly, the Honorable Apex Court may kindly consider the following: F

1. The investigations by CIMFR and NIT (K} have suggested that, no blasting operations shall be carried within 300m radius of the Jumbunatheswara Temple. However, to prevent deposition of air borne G dust on the temple causing discoloration, a 500m thick green cover (fast growing tall trees) has to be developed around 300m zone from the temple. Therefore, no mining activity shall be allowed in Core Zone (within I km radius) of the temple. H

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[G.S. SINGHVI, J.]

2. The existing haul road to the mines and all the vehicular traffic (other than those of tourists/pilgrims) shall be diverted away from the temple.

3. The mine managements may be directed to submit Mine Closure Plans (MCP) giving detailed and well phased scheme of back filling, plantation and diversion of drains from catchment area, building of necessary infrastructure in and around the temple and other measures required to bring the temple and its immediate environs to regain their c original past glory. Before doing so, the Mining Companies may be permitted to carry away.the ore already extracted in the Core Zone by using earth moving machineries.

4. A corpus fund may be created by collecting an amount of Rs. 3,43, 19, 160.00 (Rupees three crore forty three lakhs, nineteen thousand, one hundred and sixty) only from the mining companies operating within 2km radius from the temple. This fund may be utilized for the implementation of all the recommendations contained in the 'CONSERVATION PLAN for JAMBUNATHESHWARA TEMPLE, HOSPET' prepared and submitted by the INTACH, Bangalore Chapter (November 2011) 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 besides ensuring that the original environment is restored as far as possible. G

5. Pass an order directing Mis Aarpee Iron Ore Mines, No.24/151, Bellary Road, Hospet-583 201, Bellary (Dist) to fill the craters (Nishani Pits/ Mine Pits) H

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A caused due to extensive mining in the immediate proximity of the 1emple up to the ridge level and plant saplings of trees following the local flora like Neem, Tamarind, Pungamia etc., in order to protect the environs of the temple in its original pristine B condition within three years by preparing a detailed Mine Closure Plan.

6. · Permitting mining with controlled blasting or without blasting using Ripper Dozer/ Rock-breaker or any other machinery and taking adequate measures c towards generation, propagation, suppression and deposition of airborne dust in the Buffer Zone. Mining in this zone shall be closely monitored and guided by the experts from Indian Bureau of Mines, Directorate General of Mines Safety, Department D of Mines and Geology, Government of Karnataka, Forest Department Karnataka State Pollution Control Board and any other scientific agency to avoid any further damage to the Subject temple and its immediate environs. E

7. Pass such other order or orders, as this Hon'ble Court deems fit and proper in the facts and circumstances of the case."

F (emphasis supplied)

50Copy pinpoint50. After the Committee submitted its report, several affidavits were filed on behalf of the State of Karnataka. Shri Kaushik Mukherjee, Additional Chief Secretary to Government, Forest, Ecology and Environment Department, Karnataka filed G affidavit dated 18.⁴.2012 stating that in compliance of the Court's order dated 11.3.2011, the State Government had prohibited all mining operations within a radius of 2 kilometers from Jambunatheswara temple. He then referred to order dated H 5.8.2011 passed by this Court in SLP(C) Nos. 7366-7367/2010

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[G.S. SINGHVI, J.] - Government of A.P. and others v. M/s. Obalapuram Mining A Company Limited for a macro level EIA study by the Indian Council of Forestry Research and Education in collaboration with the Wildlife Institute of India, Forest Survey of India and other experts and the steps taken for implementation of that order. In paragraph 8 of his affidavit, Shri Mukherjee has given B the details of eight mining leases falling within the radius of 2 kilometres from Jambunatheswara temple and averred that four of them come in Category-A and the remaining four in Category-B, as pointed out by the Central Empowered Committee constituted by this Court in SLP(C) No.7366/2010 C and Writ Petition (C) No.562/2009 - Samaj Parivartana Samudaya v. State of Karnataka. In paragraph 12, Shri Mukherjee has given the details of the actions taken by Karnataka State Pollution Control Board against the defaulting lessees. Shri G.B. Kongawad, Secretary to Government, D Commerce and Industries Department filed affidavit on 18.⁴.2012. He has referred to report dated 18.12.2008 of Lokayukta, Karnataka who found that eight leaseholders were engaged in illegal mining or encroachment. He then averred that the issue of illegal mining in Karnataka is pending before this E Court in Writ Petition(C) No.562/2009 and mining activit[es in Districts Bellary, Chitradurga and Tumkur will be resumed only after compliance of the conditions/directions which may be imposed/given keeping in view the macro level EIA study conducted by ICFRE and the recommendations of the Central F Empowered Committee. Shri Anil Kumar Jha, Secretary to Government, Commerce and Industries Department filed affidavit dated 21.7.2012. According to Shri Jha, some portion of the leased area falls within 200 meters of Jambunatheswara temple and renewal of that portion will not be considered now G and that respondent No.15 will also be asked to surrender the area which falls within 200 meters of Jambunatheswara temple. Shri Jha has also averred that lease No.1867 granted to one R.J. Pattabhiramaiah had expired on 28.².2003 and in the absence of renewal application, that lease does not survive for H

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A consideration. Shri Jha has claimed that as per the estimates prepared by Indian Bureau of Mines (IBM), about 61.14 million metric tonnes of high grade iron ore was available within the radius of 2 kilometers from the temple and if mining activity is not permitted, potential loss will further diminish the supply of iron ore in the State which is already under severe stress due to the ban on mining. In addition to these officers, Shri R. Sridharan, Principal Secretary to Government, Forest, Ecology and Environment Department and D.R. Veeranna, Additional Director (Minerals), Department of Mines and Geology have also filed their affidavits.

51Copy pinpoint51. Respondent Nos.⁴, 15 and 18 filed objections to the report of the Committee. In the affidavit filed on behalf of respondent No.⁴, Smt. R. Mallamma w/o late Shri R. D Rampapathy has expressed her willingness to participate in the conservation plan and to contribute to the estimated expenses. According to her, respondent No.⁴ will start closure operation of Nishani pit/Mine pit, which is adjacent to the temple, within 3 to 5 years as per the plan approved by IBM. She pleaded that the report submitted by the Committee should be discarded because it is contrary to the report submitted by the expert bodies, i.e., CIMFR, Dhanbad and NIT. She claimed that mining carried out beyond a distance of 200 meters from Jambunatheswara temple is not going to cause any structural damage to the temple. Smt. Mallamma has pleaded that the Core Zone suggested by the Committee is contrary to the provisions of the 1957 Act, Mineral Concession Rules, 1960 and Mineral Conservation and Development Rules, 1988 inasmuch as the scheme of these statutes does not contain any restriction on mining up to a distance of one kilometre from the temple. She has relied upon clause 5 in Part Ill of the Mining Lease Deed and pleaded that no distance restriction can be imposed over and above what has been prescribed in the statutes and the terms and conditions of lease.

52Copy pinpoint52. In the objections filed on behalf of respondent No.15,

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[G.S. SINGHVI, J.] the particulars of the lease granted by the State Government A have been given and it has been averred that litigation emanating from the lease is pending before the Civil Court at Bangalore and the Karnataka High Court. According to respondent No.15, the restriction suggested by the Committee will adversely affect the production of iron ore and will cause B serious loss to the country. Respondent No.15 has also taken the plea that Section 20 of the Karnataka Act restricts mining activities only within the 'Protected Area' and not in other areas.

53Copy pinpoint53. In the objections filed on behalf of respondent N·o.17, c it has been averred that mining activities are being undertaken in accordance with the conditions imposed by the State Government and clearance granted by the Ministry of Environment and Forest, Government of India. According to respondent No.17, its mine is situated at a minimum distance 0 of about 500 meters from Jambunatheswara temple and no damage can be caused to the temple due to mining operations. It is also the, case of respondent No.17 that the recommendations made by the Committee for creating Core Zone and Buffer Zone should not be accepted because the two 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.

54Copy pinpoint54. Shri Ajay Saraf has filed affidavit on behalf of respondent No.18. He has given details of the mining leases awarded by the State Government to Mis. RBSSN Das and the permission accorded for operating the Beneficiation Plant. In paragraphs 15 to 18, Shri Saraf has averred as under:

"15. I say that operation of the Applicant's Beneficiation G Plant does not in any manner cause any damage whatsoever to the Shri Jambunatheshwara Temple or the environment. On the contrary, the Beneficiation Plant is advantageous to the country and the environment and ecology and is processing low grade Iron Ore of mines in H

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A the State of Karnataka and converting low grade Iron Ore, which would otherwise be wasted, into usable and valuable higher grade Iron Ore. I say that beneficiation is not mining nor a mining operation/process. After completion of mining operations the waste/unusable mined iron ore is made B usable by beneficiation which is a separate benign process for recovery of Iron Fe from waste/unusable iron ore. Beneficiation may be done in situ in the mine or anywhere else. Beneficiation is the first step for manufacture of steel and iron ore pellatisation plants have c Beneficiation plants or outsource the beneficiation.

16. I say that the Beneficiation Plant was expanded in the year 2010 at an additional cost of Rs.30 crores from 0.9. MTPA to 5.0 MTPA after due environment clearance from the Ministry of Forests and Environment & Forests D (MOEF), Government of India and the Karnataka State Pollution Control Board (KSPCB). Hereto annexed and marked as Annexure R-5 and Annexure R-6 respectively, are true copies of the Orders dated 24.12.2009 passed by the MOEF and the Order dated 12.05.2010 by the E KS PCB.

17. I say that the reliance by Respondent No.14 on the State Government's letter No. Cl 135 EMM 76, dated 18.08.1978, to suggest that iron ore mining operations are prohibited within a radius of 2 kms near and around National Monuments of Archaeological importance is wholly erroneous. I say that it can never be assumed or countenanced that for 33 years, the State Government has repeatedly and continuously been illegally granting iron ore mining leases from the year 1978 till date in areas falling in a radius between 300 metres and 2 kms near and around National Monuments of Archaeological importance and/or that MOEF, Indian Bureau of Mines {IBM), Director of Mines and Geology, Director General of Mine Safety, H Central Pollution Control Board, State Pollution Control

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[G.S. SINGHVI, J.] Boards, Archaeological Survey of India have permitted A mining leases and mining operations between 300 metres and 2 kms of the Shri Jambunatheshwara Temple and/or any other Temple in the State of Kamataka and/or India in contravention of such prohibition. These permissions have been in accordance with the consistent policy of MOEF, B Indian Bureau of Mines (IBM), Director of Mines and Geology, Director General of Mine Safety, Central Pollution Control Board and Archaeological Survey of India, on iron ore and other mining in all states. Hereto annexed and marked as Annexure R-7 is a true copy of the State C Government's letter No. Cl 135 EMM 76, dated 18.07.1978.

18. Similarly, it cannot be assumed or countenanced that the State Government has itself violated its own letter No. D Cl 135 EMM 76, dated 18.08.1978. I say that the reliance by Respondent No. 14 viz the Director, Department of Archeology, on the State Government's decision in Cl 135 EMM 76, dated 18.08.1978, by the then Under Secretary to all Deputy Commissioners of the Districts and E Superintending Archaeologists, Archaeological Survey of India regarding the State Government decision not to grant mining lease and PL lease for removal of building stones near and around National Monuments of Archaeoiogical importance within a radius of 2 kms is only in respect of F mining of stones and not Iron Ore. For iron ore mining leases the prohibited zone is a radius of 100 metres and the restricted/regulated zone is a radius of 200 metres vide the Notification dated 16.06.1992 issued by the competent authority viz. the Department of Culture, Government of G India and Archaeological Survey of India. Copy of the Notification, dated 16.06.1993 is hereto annexed as Annexure R-8."

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A Arguments

55Copy pinpoint55. Shri G.V. Chandrashekar, learned counsel for the appellant argued that the recommendations made by the Committee should be accepted without any modification because the same are based on a comprehensive 8 consideration of the reports of CIMFR, Dhanbad and NIT. Shri Chandrashekar referred to the discussion part of the report prepared by the Committee to show that experiments conducted by CIMFR, Dhanbad did not provide sound basis for determining the impact of blasting on the protected monument. C He pointed out that CIMFR had prepared the report by conducting isolated blasts at different sites on different dates and argued that the impact of such blasts is insignificant and cannot help in deciding whether or not the temple has suffered damages on account of multiple blasts simultaneously. o conducted by different leaseholders. Shri Chandrashekhar also pointed out that the report prepared by NIT is inconclusive because the agency did not have the benefit of judging the impact of multiple blasting on Jambunatheshwara temple. Learned counsel pointed out that the report submitted by respondent No.9 clearly shows that extensive damage has been E caused to the temple and its surroundings due to unabated blasting carried out by the leaseholders. Shri Chandrashekar submitted that the recommendations made by the Committee should be accepted because the same were made by the Committee after threadbare examination of the reports of F CIMFR and NIT. In the end, the learned counsel argued that the restrictions prescribed under the 1958 Act and the Karnataka Act are not conclusive and the Court should accept the recommendations made by the Committee, as was done in M.C. Mehta v. Union of India (1996) 8 SCC 462 and other G cases.

56Copy pinpoint56. Ms. Anitha Shenoy, learned counsel appearing for the State of Karnataka relied upon notification dated 10/12.3.1998 issued under Section 4 of the Karnataka Act read with Rule 11 (1) and (2) of the Karnataka Historical and Archaeological H

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[G.S. SINGHVI, J.] Monuments and Archaeological Sites and Remains Rules, 1968 A and argued that the Court should not accept the recommendations of the Committee because restriction on mining within 2 kilometres from Jambunatheswara temple will not only be ultra vires the statutory provisions contained in the 1957 Act and the Rules framed thereunder, but will also be highly detrimental to public interest. She extensively referred to the reports of CIMFR, Dhanbad and NIT and argued that the recommendations made by the two expert bodies should be accepted because the same are in consonance with the provisions of the 1957 Act and the terms and conditions on which leases were granted to the private respondents.

57Copy pinpoint57. Shri A.D.N. Rao learned counsel appearing for the Ministry of Environment and Forests, Government of India and respondent No.9 argued that the Committee had rightly refused to base its recommendations on the reports of CIMFR, Dhanbad and NIT because the survey and trial blasts were conducted by the two bodies under ideal conditions and not conditions similar to those in which the lessees had simultaneously operated mines till the passing of interim orders by this Court. Shri Rao also referred to the affidavits dated 2.10.2010 and 17.².2011 filed by respondent Nos. 9 and 14 respectively and argued that respondent No.⁴ was carrying on mining activities in the vicinity of temple by using Wagon Blasting Method which resulted in substantial damage to the temple.

58Copy pinpoint58. Shri U.U. Lalit, learned senior counsel appearing for respondent No.18 relied upon the judgment in Samaj Parivartana Samudaya v. State of Karnataka 2013(6) SCALE 90 and argued that in view of the express permission granted by the three-Judge Bench for operation of mines in District Bellary subject to certain conditions, the appellant cannot seek any other restriction on mining activities beyond a distance of 200 meters from Jambunatheswara temple. He pointed out that the two leases granted to respondent No.18 are at a distance H

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A of 790 meters and 1.09 kilometres respectively from the temple and the Beneficiation Plants are at a distance of 1.14 kilometres. He then submitted that respondent No.18 does not have blasting permission and only Ripper Dozer is employed for excavation of the mineral, which is then taken to the B Beneficiation Plant through the conveyer belt. Shri Lalit emphasized that the reports submitted by respondent No.9 and the two expert bodies engaged by the Committee have not found respondent No.18 responsible for causing any damage to the structure of the temple and argued that it should be c allowed to continue mining by Ripper Dozer and Rock Breaker. He placed before the Court the papers showing photographs of Ripper Dozer and Rock Breaker machines and submitted that mining by these machines will not cause any damage to the temple or surrounding environment. Shri Lalit also filed xerox copy of report prepared by Central Institute of Mining and Fuel Research, Regional Centre, Nagpur which was prepared at the instance of respondent No.18. He further submitted that building of the temple may have been damaged due to passage of time, lack of maintenance by the concerned government departments and agencies or due to use of explosives in its close proximity by respondent No.⁴ and others. He invited the Court's attention to paragraph 4 of the affidavit filed on behalf of the State Government to show that the Government of Karnataka has taken an in-principle decision not to renew any lease falling within 200 meters of the temple. Shri Lalit then highlighted the mechanism employed in the Beneficiation Plant and submitted that the operation of the plant will not affect the temple. Shri Lalit placed before the Court papers showing the photographs of Ripper Dozer and Rock Breaker. G

59Copy pinpoint59. Shri Altaf Ahmed, learned senior counsel appearing for respondent No.² argued that his client does not have any objection to the acceptance of the recommendations made by the Committee, provided that the same is made applicable to all the lessees. H

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[G.S. SINGHVI, J.]

60Copy pinpoint60. Shri Jaideep Gupta, learned senior counsel appearing for respondent No. 15 advocated for acceptance of the report of the Committee subject to appropriate modification in the light of the recommendations made by the expert bodies. Shri Gupta invoked the principle of sustainable development and argued that the Court should strike a balance between the requirement of protecting the temple and the need of iron ore for the State and the country. Shri Gupta emphasised that any unreasonable restriction on mining activities in and around the temple premises will adversely impact the production of steel in the country. In support of his argument/submission, Shri Gupta C relied upon the judgment in N.O. Jayal v. Union of India (2004) 9 sec 362.

61Copy pinpoint61. Ms. Kiran Suri, learned counsel appearing for respondent No.⁴ and respondent No.17, Allam Basavaraj relied 0 upon report dated 27.5.2009 filed before the High Court to show . that at the time of inspection, no mining activities were conducted in the mining pit located within 150 meters of the temple and in terms of G.O. No. 712/1996 issued by the Government of Karnataka, no mining was permitted within 100 E meters of the temple. Learned counsel emphasized that at the time of inspection carried out pursuant to the direction given by the Director of Mines and Geology, it was found that respondent No.⁴ was carrying on mining at a distance of 1.⁴ kilometres from the temple. Ms. Suri relied upon the lease deeds executed in favour of respondent No.⁴, permission granted under Regulation 164(1)(b) of Metalliferous Mines Regulations, 1961, letter dated 11.⁴.2007 issued by the Department of Mines and Geology permitting respondent No.⁴ to continue the mining activities and argued that no further restriction should be imposed on its mining activities by relying upon the recommendations of the Committee. Ms. Suri laid considerable emphasis on the fact that respondent No.⁴ has not undertaken mining operations by using heavy explosives. Learned counsel also pointed out that on being directed by the H

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A Department of Mines and Geology, respondent No.⁴ had constructed a protection wall around the temple and submitted that now there is no possibility of any damage to the temple on account of the blasting undertaken by respondent No.⁴. Ms. Suri argued that the recommendations made by the Committee B are liable to be rejected because the same are contrary to the provisions of 1957 Act and the Rules made thereunder. As regards respondent No.17, Ms. Suri argued that mining activities were being undertaken as per the plan approved by IBM and there is no possibility of such activity causing any c damage to the temple.

Consideration

62Copy pinpoint62. We have given serious thought to the arguments/ submissions of the learned counsel for the parties and carefully D perused the records including the affidavits/objections filed in response to the recomn;iendations made by the Committee. We have also gone through the written arguments filed by the appellant and some of the respondents.

63Copy pinpoint63. Before dealing with the arguments/submissions of the learned counsel, we consider it proper to mention that even though in their counter affidavits some of the official respondents and respondent No.⁴ have raised an objection to the maintainability of the appeal on the ground that relief similar to the one prayed for by the appellant had been sought in Writ Petitipn No.27067/1998 filed before the High Court by way of public interest litigation, which was dismissed on 7.8.2000, the same was not pressed during the course of arguments. That apart, we do not find valid ground to entertain the objection of res judicata because the official and private respondents have not filed the pleadings of Writ Petition No.27067/1998 and without going through the same, it is not possible for this Court to record a finding that the appellant should be non-suited because a similar petition had been dismissed by the High H Court.

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[G.S. SINGHVI, J.]

64Copy pinpoint64. The 1957 Act was enacted by Parliament to provide A for development and regulation of mines and minerals under the control of Union. The backdrop in which the 1957 Act was enacted is discernible from the Statement of Objects and Reasons contained in the Mines and Minerals (Regulation and Development) Bill, which reads as under: B

"Under the Government of India Act, 1935, the subject "Ancient and historical monuments; archaeological monuments; archaeological sites and remains" fell within Entry 15 of the Federal List. Under the Constitution, this subject has been distributed under three different heads, namely.-

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

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

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

65Copy pinpoint65. Sections 4(1), 5(1) and 6(1) which postulate grant of F prospecting licences and leases and contain certain restrictions read as under:

"Section 4(1) of the Act prohibits any kind of mining or related activity in any area witho.ut a license for that regard G . under. the Act and its rules. Section 4A also allows the

Central government to terminate prospecting or mining leases in various circumstances.

Section 5(1) provides that a state government can grant H

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A reconnaissance permit, prospecting licence or mining lease only to an Indian National or a company and only on satisfaction of rules made under the Act. Section 5(2) prohibits the state government from granting a mining license unless it is satisfied that there is evidence to show 8 that the area for which the lease is applied for has been prospected earlier and there is a mining plan duly approved.

Section 6(1) limits the maximum area for which one or c more mining licences can be granted to one person to 1O sq. km, for prospecting license to 25 sq. km. and for reconnaissance permit to 10,000 sq. km. Section 7(1) provides that a reconnaissance permit or prospecting licence cannot be granted for more than 3 years and if renewed cannot exceed 5 years in total. Section 8(1) and D 8(2) provide that a mining lease can be granted for a maximum of 30 years and can be renewed for a period not exceeding 20 years."

66Copy pinpoint66. The Mineral Concession Rules, 1960 were framed by the Central Government under Section 13 of the 1957 Act. The provisions contained in Chapters II and Ill of these Rules regulate grant of reconnaissance permits and prospecting licences in respect of land in which the minerals vest in the government. Chapter IV contains provisions relating to grant of mining leases in respect of land in which the minerals vest in the government. Chapter V contains the procedure for obtaining a prospecting licence or mining lease in respect of land in which . the minerals vest in a person other than the government. Chapter VIII contains miscellaneous provisions. G

67Copy pinpoint67. The Mineral Conservation and Development Rules, 1988 which were framed by the Central Government under Section 18 of the 1957 Act are divided into ten chapters. Chapter Ill of these Rules, which relate to mining operations, H provide for submission of mining plan and approval thereof by

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[G.S. SINGHVI, J.] the competent authority as a condition precedent for commencement of mining operations.

68Copy pinpoint68. 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 c Monument". Both the Central Government and the State Government have framed rules for grant of permission/licence in the prescribed form to undertake any mining operations in a protected and/or regulated area. Rule 10 of the 1959 Rules, which has been framed under Section 38 of the 1958 Act and 0 Rules 11 to 15 of the Kamataka Rules provide that no person shall undertake any mining operations in a regulated area other than on the strength of a licence granted by the competent authority, i.e., the Director. The material placed on record of this appeal does not show that the private respondents have 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.

69Copy pinpoint69. The argument of learned counsel for the private respondents that the report of the Committee should not be accepted because the same is contrary to the recommendations made by the two expert bodies sounds attractive but, on a wholesome consideration, we do not find any merit in it because the Committee had thoroughly scrutinised the reports sent by the two expert bodies, i.e., CIMFR, Dhanbad and NIT and then decided that the area surrounding the temple should be divided into two zones, i.e., Core Zone and Buffer Zone and there shall be total ban on mining within the Core Zone while mining be permitted in the H

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A Buffer Zone under the supervision of an expert body/agency.

70Copy pinpoint70. At this stage, we may mention that in June 1972, the United Nations organised a conference on 'Human Environment' at Stockholm, Sweden. The declaration issued at 8 the end of that conference, which is called as the Stockholm Declaration, has been aptly described by this Court in Essar Oil Ltd. v. Halar Utkarsh Samiti (2004) 2 SCC 392 as 'magna carta of our environment'. Some of the principles enunciated in the Stockholm Declaration are: c "Principle 2

The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Principle 4

Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development. F Principle 8

Economic and social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.

Principle 11

The environmental policies of all States should enhance and not adversely affect the present or future development

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[G.S. SINGHVI, J.] potential of developing countries, no'r should they hamper the attainment of better living conditions for all, and appropriate steps sho·uld be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures."

Though the Stockholm Conference recognised the links between environment and development but little was done to integrate this concept for international action until 1987 when c the Brundtland Report, Our Common Future was presented to the United Nations General Assembly. The Brundtland Report stimulated debate on development policies and practices in developing and industrialised countries alike and called for an integration of our understanding of the environment and 0 development into practical measures of action. In 1992, Earth Summit was held in Rio de Janeiro, Brazil. The declaration issued at the end of the summit dealt with environmental needs, environmental protection, environmental degradation, etc. The World Summit on Sustainable Development was held in E Johannesburg, South Africa in 2002 for the purpose of evaluating the results achieved after the Rio Summit. This summirgave-an-opportunity to build on the knowledge gained over the past decade and provided a new impetus for commitments of resources and specific action towards global F sustainability.

71Copy pinpoint71. In Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281, this Court described the principle of sustainable development in the following words: G "While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both H

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A development and environment must go hand in hand. in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment." B

72Copy pinpoint72. In Ve/lore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647, this Court acknowledged that the traditional notion of conflict between ecology and development is no longer acceptable and sustainable development is the answer.

c 73. In Essar Oil Ltd. v. Halar Utkarsh Samiti (supra) this Court referred to the Stockholm Declaration and observed:

"This; therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on th_e other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other."

74Copy pinpoint74. We may now notice some of the judgments which have bearing on the scope of the Court's power to issue directions but which may appear to be contrary to the statutes operating in the particular field. In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161, this Court considered whether a letter addressed to a Judge of this Court could be treated as a writ petition under Article 32 of the Constitution and whether directions could be issued for release of an indeterminate H

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[G.S. SINGHVI, J.] number of citizens who were held as bonded labourers. While A dealing with the scope of Article 32 of the Constitution, this Court observed:

"........ It will be seen that the power conferred by clause (2) of Article 32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto, which are hedged in by strict conditions differing from one writ to another and which to q'uote the words spoken by Lord Atkin in United Australia Limited v. Barclays Bank Ltd. 1941 AC 1:(1939) 2 KB 53 in another context often "stand in the path of justice clanking their mediaeval chains". But it is much wider and includes within its matrix, power to issue any directions, orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is not only the high prerogative writs of mandamus. habeas corpus. prohibition. quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress. but would have power to issue any direction. order or writ including a writ in the nature of any high prerogative writ. This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the G Constitution-makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. The Constitution-makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be H

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A appropriate in a. given case for enforcement of a fundamental right. But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ? That is a matter on which the Constitution is silent and advisedly so, because the B Constitution-makers never intended to fetter the discretion of the Supreme Court to evolve a procedure appropriate in the circumstances of a given case for the purpose of enabling it to exercise its power of enforcing a fundamental right. Neither clause (2) of Article 32 nor any other provision of the Constitution requires that any particular procedure c shall be followed by the Supreme Court in exercising its power to issue an appropriate direction, order or writ. The purpose for which the power to issue an appropriate direction, order or writ is conferred on the Supreme Court 'is to secure enforcement of a fundamental right and obviously therefore, whatever procedure is necessary for fulfilment of that purpose must be permissible to the Supreme Court .

... ... .... It is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of a fundamental right made on behalf of the weaker sections of the society. The report of the Commissioner would furnish prima facie evidence of the facts and data gathered by the Commissioner and that is why the Supreme Court is careful to appoint a responsible person as Commissioner to make an enquiry or investigation into the facts relating to the complaint. It is interesting to note that in the past the Supreme Court has appointed sometimes a District Magistrate, sometimes a District Judge, sometimes a professor of law, sometimes a journalist, sometimes an officer of the Court and sometimes an advocate practising in the Court, for the purpose of carrying out an enquiry or investigation and making report to the Court because the Commissioner

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[G.S. SINGHVI, J.] appointed by the Court must be a responsible person who enjoys the confidence of the Court and who is expected to carry out his assignment objectively and impartially without any predilection or prejudice. Once the report of the Commissioner is received, copies of it would be supplied to the parties so that either party, if it wants to dispute any of the facts or data stated in the report, may do so by filing an affidavit and the court then consider the report of the Commissioner and the affidavits which may have been filed and proceed to adjudicate upon the issue arising in the writ petition. It would be entirely for the Court C to consider what weight to attach to the facts and data stated in the report of the Commissioner and to what extent to act upon such facts and data."

(emphasis supplied) 0

75Copy pinpoint75. In Rural Litigation and Entitlement Kendra v. State of U.P (1985) 2 sec 431, this Court was called upon to consider whether there should be ban on lime stpne quarries which had threatened life ofthe people residing in Mussoorie Hill range forming part of the Himalayas and surrounding environment. On E 11.8.1983, the Court appointed a committee consisting of Shri D.N. Bhargav, Controller General, Indian Bureau of Mines, Nagpur, Shri M.S. Kahlon, Director General of Mines Safety and Col. P. Mishra, Head of the Indian Photo Interpretation Institute (National Remote Sensing Agency) for the purpose of inspecting the lime stone quarries referred to in the writ petition and the. list submitted by the Government of Uttar Pradesh. The committee inspected most of the lime stone quarries and submitted three reports and divided the lime stone quarries into three categories, i.e., A, Band C. The committee noted that mining operations in the quarries categorised as A did not gravely impact the environment and life of the people whereas the quarries comprised in the other two categories had adversely impacted the environment. After taking into consideration the report of the Bhargav Committee, the Court H

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A directed closure of all lime stone quarries in category C. As regards category B quarries, the Court appointed another committee headed by Shri D.Bandyopadhyay, Secretary, Ministry for Rural Development and issued several directions. While dealing with the question of hardship to the quarry B owners, the Court observed:

"The consequence of this Order made by us would be that the lessees of lime stone quarries which have been directed to be closed down permanently under this Order c or which may be directed to be closed down permanently after consideration of the Report of the Bandyopadhyay Committee, would be thrown out of business in which they have invested large sums of money and expended considerable time and effort. This would undoubtedly cause hardship to them. but it is a price that has to be paid D for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle. homes and agricultural land and undue affectation of air. water and environment." E (emphasis supplied)

76Copy pinpoint76. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655, this Court observed: · F "The state to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate, has been a great and urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks to mankind that go with the deterioration of environment. The

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[G.S. SINGHVI, J.] tragedy of the predicament of the civilised man is that A 'Every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee'. In his foreword to International Wild Life B Law, H.R.H. Prince Philip, the Duke of Edinburgh said:

'Many people seem to think that the conservation of nature is simply a matter of being kind to animals and enjoying .walks in the countryside. Sadly, perhaps, it is a great deal more complicated than c that ....

. . . As 1:1sual with all legal systems, the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented. D Regretfully progress in this direction is proving disastrously slow .... '

'Environmentalists' conception of the ecological balance in nature is based on the fundamental concept that nature is 'a series of complex biotic communities of which a man is an interdependent part' and that it should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the 'civilised man' operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying natural habitats."

77Copy pinpoint77. In Tarun Bharat Sangh v. Union of India 1992 Supp (2)sec 448, this Court considered whether mining in the area popularly known as 'Sariska Tiger Park', which was declared as Game Reserve under the Rajasthan Wild Animals and Birds Protection Act, 1951 as a reserve forest under Sections 29 and 30 of the Rajasthan Forest Act, 1953 and as a sanctuary under Section 35 of the Wildlife (Protection) Act, 1972 should be H

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A banned because the same was impairing environment and wild life. At one stage, the Court thought of imposing total ban on mining activities but, keeping in view some technical difficulties, it was decided to constitute a Committee headed by former Chief Justice of Delhi High Court to ensure enforcement of the B notifications issued under various statutes. Simultaneously, the Court passed an interlocutory order and directed that no mining operation of any kind shall be carried on within the protected area.

c 78. In M.C. Mehta v. Union of India (1996) 8 SCC 462, this Court considered the impact of mining operations on the ecologically sensitive areas of Badkal Lake and Surajkund in Haryana. After taking cognizance of the reports submitted by Haryana Pollution Control Board and an expert body, namely, National Environmental Engineering Research Institute (NEERI), 0 the Court accepted the same with certain modifications. Paragraph 8 of the judgment which depicts consideration of the recommendations of NEERI reads thus:

"We are, therefore, of the view that in order to preserve environment and control pollution within the vicinity of the two tourist resorts it is necessary to stop mining in the area. The question, however, for consideration is what should be the extent of the said area? NEERI in its report has recommended that 200 metre green belts be developed at 1 km radius all around the boundaries of the two lakes. It is thus obvious that 1200 metres are required for the green belts. Leaving another 800 metres as a cushion to absorb the air and noise pollution generated by the mining operations, we are of the view that it would be reasonable to direct the stoppage of mining activity within two km radius of the tourist resorts of Badkal and Surajkund. We, therefore, order and direct as under:

1. There shall be no mining activity within two km radius of the tourist resorts of Badkal and Surajkund. All the H

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[G.S. SINGHVI, J.] mines which fall within the said radius shall not be reopened.

2. The Forest Department of the State of Haryana and in particular the Chief Conservator and the District Forest Officer, Faridabad shall undertake to develop the green belts as recommended by NEER! with immediate effect. The NEER! has also suggested the development plan and the type of trees to be planted. We direct the Chief Conservator of Forests, Haryana, District Forest Officer, Faridabad and all other officers concerned of the Forest c Department to start the plantation of trees for developing the green belts and make all efforts to complete the plantations of trees before the monsoons (1996).

3. We direct the Director, Mining and Geology, Haryana, the Haryana Pollution Control Board to enforce all the recommendations of NEER! contained in para 6.¹ of its report (quoted above) so far as the mining operations in the State of Haryana are concerned. All the mine-operators shall be given notices to implement the said recommendations. Failure to comply with the recommendations may result in the closure of the mining operations.

4. We further direct that no construction of any type shall be permitted now onwards within 5 km radius of the Badkal F lake and Surajkund. All open areas shall be converted into green belts.

5. The mining leases within the area from 2 km to 5 km radius shall not be renewed without obtaining prior "no G objection" certificate from the Haryana Pollution Control Board as also from the Central Pollution Control Board. Unless both the Boards grant no objection. certificate the mining leases in .the said area shall not be renewed." H

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· A 79. In M.C. Mehta (Taj Trapezium Matter) v. Union of India (1997) 2 SCC 353, this Court considered whether the foundries, chemical-hazardous industries and the refinery at Mathura should be closed down because they were threat to the very existence of Taj Mahal. In the course of judgment, the B Court referred to the reports of various expert bodies including NEERI and the Central Pollution Control Board which unequivocally pointed out the damage caused to the monument by the industries and proceeded to order closure of industries, which were not in a position to make change over to the natural c gas by recording the following observations:

"The Taj, apart from being a cultural heritage, is an industry by itself. More than two million tourists visit the Taj every year. It is a source of revenue for the country. This Court has monitored this petition for over three years with the sole object of preserving and protecting the Taj from deterioration and damage due to atmospheric and environmental pollution. It cannot be disputed that the use of coke/coal by the industries emits pollution in the ambient air. The objective behind this litigation is to stop the pollution while encouraging development of industry. The old concept that development and ecology cannot go together is no longer acceptable. Sustainable development is the answer. The development of industry is essential for the economy of the country, but at the same time the environment and the ecosystems have to be protected. The pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystems.

G Based on the reports of various technical authorities mentioned in this judgment. we have already reached the finding that the emissions generated by the coke/coal consuming industries are air pollutants and have damaging effect on the Taj and the people living in the TTZ. The H atmospheric pollution in TTZ has to be eliminated at any

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[G.S. SINGHVI, J.] cost. Not even one per cent chance can be taken when A - human life apart - the preservation of a prestigious monument like the Taj is involved. In any case, in view of the precautionary principle as defined by this Court, the environmental measures must anticipate, prevent and attack the causes of environmental degradation. The "onus B of proof' is on an industry to show that its operation with the aid of coke/coal is environmentally benign. It is, rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of the ambient air." C

(emphasis supplied)

80. In M.C. Mehta (Taj Trapezium Pollution) v. Union of India (2001) 9 sec 235, the Court considered the report of NEERI on the issue of pollution caused by the brick kilns D operating in the Taj Trapezium and issued the following directions:

"(1) All licensed brick kilns within 20 km radial distance of Taj Mahal and other significant monuments in Taj Trapezium E and Bharatpur Bird Sanctuary shall be closed and stop ·operating w.e.f. 15-8-1996. We direct the State of U.P. to render all possible assistance to the licensed brick kiln- owners in the process of relocation beyond Taj Trapezium, if the owners so desire. The closure order is, however, F unconditional.

(2) We direct the District Magistrate and the Superintendent of Police concerned to close all unlicensed and unauthorised brick kilns operating in the Taj Trapezium G with immediate effect. The U.P. Pollution Control-Board (Board) shall file a compliance report within two months.

(3) No new licences shall be issued for the establishment of brick kilns within 20 km radial distance from Taj Mahal, H

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A other monuments in Taj Trapezium and Bharatpur Bird Sanctuary."

81. In M.C. Mehta v. Union oflndia (2004) 12 SCC 118, the Court considered several interlocutory applications filed in s the matter by which this Court had stopped mining operations near Badkal Lake and Surajkund. After considering various reports submitted by the expert bodies, the Court observed:

"The mining operation is hazardous in nature. It impairs ecology and people's right to natural resources. The entire c process of setting up and functioning of mining operation requires utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and is likely to affect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that the public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs. When questioned, the regulatory authorities have to show that the said authorities acted in the manner enjoined upon them. Where the regulatory authorities, either connive or act negligently by not taking prompt action to prevent, avoid or control the damage to environment, natural resources and people's life, health and property, the principles of accountability for restoration and compensation have to be applied.

Development and the protection of environment are not H

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[G.S. SINGHVI, J.] enemies. If without degrading the environment or minimising adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, development has to go on because one cannot lose sight of the need for development of industries, irrigation resources and power projects etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. We may note that to stall fast the depletion of forest, a series of orders have been passed by this Court in T.N. c Godavarman case 1991 Supp (2) SCC 665 regulating the felling of trees in all the forests in the country. Principle 15 of the Rio Conference of 1992 relating to the applicability of precautionary principle, which stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation, is also required to be kept in view. In such matters, many a times, the option to be adopted is not very easy or in a straitjacket. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary F principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment."

The Court then referred to the provisions of the 1957 Act, G the Rules framed thereunder as also the laws enacted by Parliament for protection of environment and forests and observed:

"The Aravallis, the most distinctive and ancient mountain H

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A chain of peninsular India, mark the site of one of the oldest geological formations in the world. Heavily eroded and with exposed outcrops of slate rock and granite, it has summits reaching 4950 feet above sea level. Due to its geological location, the Aravalli range harbours a mix of Saharan, B Ethiopian, peninsular, oriental and even Malayan elements of flora and fauna. In the early part of this century, the Aravallis were well wooded. There were dense forests with waterfalls and one could encounter a large number of wild animals. Today, the changes in the environment at Aravalli c are severe. Though one finds a number of tree species in the hills, timber-quality trees have almost disappeared. Despite the increase of population resulting in increase of demand from the forest, it cannot be questioned nor has it been questioned that to save the ecology of the Aravalli mountains, the laws have to be strictly implemented. The D notification dated 7-5-1992 was passed with a view to strictly implement the measures to protect the ecology of the Aravalli range. The notification was followed more in its breach.

E In the aforesaid background, any mining activity on the area under plantation under the Aravalli Project cannot be permitted. The grant of leases for mining operation over such an area would be wholly arbitrary, unreasonable and illogical." F The Court then referred to the report prepared by the Central Mine Planning and Design Institute Limited on Aravalli and accepted the same. The Court finally referred to the judgment in Ambica -Quarry Works v. State of Gujarat (1987) -G 1 sec 213 and refused to modify order dated 6.5.2002 by which mining activities were banned but appointed a Monitoring Committee for suggesting recommencement of mining in individual cases.

82. In M.C. Mehta v. Union of India (2009) 6 SCC 142, H

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[G.S. SINGHVI, J.] this Court considered the question of whether in view of Section A 4A of the 1957 Act, it would be appropriate to exercise power under Article 32 read with Article 142 for suspending mining operations in the Aravalli Hills. After taking cognizance of the fact that indiscriminate mining had resulted in large scale environmental degradation in the area and the arguments of the B senior counsel appearing on behalf of the leaseholders, the Court observed:

"44. We find no merit in the above arguments. As stated above, in the past when mining leases were granted, c requisite clearances for carrying out mining operations were not obtained which have resulted in land and environmental degradation. Despite such breaches, approvals had been granted for subsequent slots because in the past the authorities have not taken into account the 0 macro effect of such wide-scale land and environmental degradation caused by the absence of remedial measures (including rehabilitation plan). Time has now come, therefore, to suspend mining in the above area till statutory provisions for restoration and reclamation are duly complied with, particularly in cases where pits/quarries have been left abandoned.

45. Environment and ecology are national assets. They are subject to intergenerational equity. Time has now come to suspend all mining in the above area on sustainable development principle which is part of Articles 21, 48-A and 51-A(g) of the Constitution of India. In fact, these articles have been extensively discussed in the judgment in M.C. Mehta case (2004) 12 SCC 118 which keeps the option of imposing a ban in future open. G

46. Mining within the principle of sustainable development comes within the concept of "balancing" whereas mining beyond the principle of sustainable development comes within the co~cept of "banning". It is a ~atter of degree. H

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A Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of precautionary principle. ·

B 47. At this stage, we may also note that under Section 13(2)(qq) of the 1957 Act, rules have been framed for rehabilitation of flora and other vegetation destroyed by reason of any prospecting or mining operations. Under Section 18 of the 1957 Act, rules have been framed for c conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of the Mineral Concession Rules, 1960 and the Mineral Conservation and D Development Rules, 1988.

48. Under Rule 27(1 )(s)(i) of the Mineral Concession Rules, 1960 every lessee is required to take measures for planting of trees not less than twice the number destroyed by mining operations. Under the Mineral Conservation and E Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation and rehabilitation of lands are made for every holder of prospecting licence or mining lease to be undertaken and that work has to be completed by the lessee/licensee before abandoning the mine or prospect.

49. Similarly, under Rule 37 of the Mineral Conservation and Development Rules, 1988 the lessee/licensee has to calibrate the air pollution within permissible limits specified under the EP Act, 1986 as well as the Air (Prevention and Control" of Pollution) Act, 1981. Under the said Rules of 1988, the most important guidelines are Guidelines 25.26.3, 25.26.⁴, 25.26.5 and 25.26.6. These guidelines deal with reclamation, planning and implementation; restoration strategy, principles of rehabilitation,

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[G.S. SINGHVI, J.] rehabilitation of mined-out sites and methods of reclamations (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at pp. 1555-62). It may be noted that there are two steps to be taken in the method of reclamation, namely, technical reclamation and biological reclamation. The most important aspect of the above guidelines is making of a rehabilitation plan.

Conclusion

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

(emphasis supplied) F

83. In N.D. Jayal v. Union of India (supra), on which reliance was placed by Shri Jaideep Gupta, this Court considered the issues relating to safety and environmental protection arising out of the construction of Tehri Dam. Some G of the observations made in that judgment are extracted below:

"Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Ve/lore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647 and in M.C. Mehta v. H

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A Union of India (2002) 4 SCC 356 it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of "sustainable development". This is a development strategy that caters to the needs of the 8 present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is c a guarantee to the present and a bequeath to the future. All environment-related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development without which life of the coming generations will be in jeopardy. D The right to development cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. The right to development encompasses much more than economic well-being, and includes within its definition the guarantee of fundamental human rights. The "development" is not related only to the growth of GNP. In the classic work, Development As Freedom, the Nobel prize winner Amartya Sen pointed out that "the issue of development cannot be separated from the conceptual framework of human right". This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples' well-being and realization of their full potential. It is an integral part of human rights. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be ·treated as integral component for development." H

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[G.S. SINGHVI, J.]

"The mechanism provided by any of the Statutes in H

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A question would neither be effective nor efficacious to deal with the extraordinary situation that has arisen on account of the large scale illegalities committed in the operation of the mines in question resulting in grave and irreparable loss to the forest wealth of the country besides the colossal B loss caused to the national exchequer. The situation being extraordinary the remedy. indeed. must also be extraordinary. Considered against the backdrop of the statutory schemes in question. we do not see how any of the recommendations of the CEC. if accepted. would c come into conflict with any law enacted by the legislature. It is only in the above situation that the Court may consider the necessity of placing the recommendations made by the CEC on a finer balancing scale before accepting the same. We. therefore. feel uninhibited to proceed to exercise our constitutional jurisdiction to remedy the D enormous wrong that has happened and to provide adequate protection for the future. as may be required."

(emphasis supplied)

E In paragraph 41, the Bench dealt with the question whether the recommendations of the Central Empowered Committee with regard to categorization, reclamation and rehabilitation (R&R) plans, reopening of categories 'A' and 'B' mines with conditions and continued closure of category 'C' mines should F be accepted and answered the same in the following words:

"In the light of the discussions that have preceded sanctity of the procedure of laying information and materials before the Court with regard to the extent of illegal mining and other specific details in this regard by means of the G Reports of the CEC cannot be in doubt. Inter-generational equity and sustainable development have come to be firmly embedded in our constitutional jurisprudence as an integral part of the fundamental rights conferred by Article 21 of the Constitution. In enforcing such rights of a large H number of citizens who are bound to be adversely affected

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[G.S. SINGHVI, J.] by environmental degradation, this Court cannot be constrained by the restraints of procedure. The CEC which has been assisting the Court in various environment related matters for over a decade now was assigned certain specified tasks which have been performed by the said body giving sufficient justification for the decisions. arrived and the recommendations made. If the said recommendations can withstand the test of logic and reason which issue is being examined hereinafter we will have no reason not to accept the said recommendations and embody the same as a part of the order that we will c be required to make in the present case."

However, the three-Judge Bench did not deal with the issue relating to impact of mining operations on ancient monuments. As a matter of fact, vide order dated 3.9.2012, the Bench made it clear that the direction given by it for operation of D 'Category A' mines will be subject to any order passed in Jambunathahalli Temple case.

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A kilometers radial distance of the Taj Mahal, Taj Trapezium and Bharatpur Bird Sanctuary. The law which regulated the brick kilns did not contain any such restriction, but in larger public interest, namely, protection of a national monument and a bird sanctuary, this Court used its power to order closure of all the B licensed brick kilns. In the third case, the Court considered and unequivocally rejected the plea that the mines which were operating under the licences granted in accordance with the 1957 Act and the Rules framed thereunder cannot be closed under the Court's order and held that all mining operations in c the Aarvali Hills shall be suspended. In the last mentioned case, which relates to the mines operating in three districts of Kamataka, the Court gave multiple directions for protecting the environment, ecology and forest wealth.

86. The affidavit filed by respondent No.14 on 14.².2011 0 gives a vivid description of the mining activities taking place in the vicinity of the temple by using Wagon Blasting Method. Shri T.M. Manjunathaiah (Technical Assistant) reported that during the course of inspection of the temple, he felt tremors E due to the explosion and also noticed cracks on the walls and roof due to the impact of the explosion and that the lessee was doing repairs in the form of plastering and cement coating to cover up the cracks on the temple. Respondent No.14 also referred to two inspections carried out by Superintending F Archaeologist, Archaeological Survey of India and a team of officers of the Government of Kamataka, who noticed large scale damage to the structure of the temple. This affidavit totally belies the stand of respondent No.⁴ that mining was done by Controlled Blasting and not by Wagon Blasting Method.

G 87. On its part the Committee availed the services of INTACH, Bangalore Chapter, Karnataka Remote Sensing Application Centre, ISRO, CIMFR, Dhanbad and NIT. In paragraph IV of its report under the heading DISCUSSIONS, the Committee unanimously agreed that the mining operations H carried out using blasting operations at a distance of less than

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[G.S. SINGHVI, J.] 200 meters from the temple have already caused irreparable damage to the temple and the eco-environs of its immediate neighbourhood. The Committee noted that the study submitted by Karnataka Remote Sensing Application Centre, ISRO, Bangalore dealt with the mining activities carried out in a radius of one kilometer and two kilometers and illustrated the damage caused to the temple and its immediate environs. The Committee then discussed the conservation plan prepared by Indian National Trust for Arts and Cultural Heritage, Bangalore and observed that a sum of Rs.3,43, 19, 160 would be required for bringing the temple to its original condition so that the same may regain its past glory. The Committee then noted that the investigating agencies, i.e., CIMFR, Dhanbad and NIT had conducted experimental blasts beyond 200 meters whereas Karnataka Remote Sensing Application Centre had indicated that one of the mines exists within a horizontal distance of 55 D meters from the temple premises on the eastern side and, thus, the impact of blasting operation cannot be fully understood and assessed scientifically by the present investigation. The Committee also observed that many of the trial blasts conducted by the investigating agencies had locations having free f!'lces of the working benches and opined that the result of such investigation would show minimum or no impact on architecturally sensitive temple. The Committee finally declined to accept the suggestions given by CIMFR, Dhanbad and NIT to restrict the mining operations/activities only up to a distance of 200 to 300 meters from Jambunatheswara temple because the data recorded by the expert bodies were based on experimental blasts conducted at individual sites and there was no evaluation/assessment of the cumulative or compounded impact of multiple blasting at different places and altitudes. The G Committee noted that the mining operations involving multiple blasting by different leaseholders had already caused substantial damage to the protected monument and the surrounding environment. H

690 SUPREME COURT R~PORTS [2013] 11 S.C.R.

A 88. In our view, the detailed reasons recorded by the Committee, which have been extracted hereinabove, for not accepting the recommendations of the expert bodies about the distance up to which mining should not be allowed are correct and those recommendations cannot be relied upon for B accepting the argument of the learned counsel for the State and the private respondents that the recommendations made by the Committee should be rejected. We may hasten to add that the Committee's recommendations are not in conflict with the provisions of the 1957 Act and the Rules framed thereunder. c The 1959 Rules and the Karnataka Rules provide for grant of permission/licence for mining in the prohibited/regulated/ protected area but the documents produced before this Court do not show that the competent authority had granted permission/licence to any of the private respondents for o undertaking mining operations which have the effect of damaging the temple in question. That apart, the distance criteria prescribed in the 1958 Act, the Kamataka Act and the Rules framed thereunder has little or no bearing on deciding the question of restricting the mining operations near the protected monument which has already suffered extensive damage due to such operations.

89. The argument of learned counsel for the State and the private respondents that ban on mining operations/activities in the Core Zone would adversely impact iron ore supply and will also cause financial loss to the leaseholders as well as the State appears quite attractive but, keeping in view larger public interest and the interest of future generations, we do not think that this would be a very heavy price to be paid by some individuals and the State. This Court has often used the principle of sustainable development to balance the requirement of development and environmental protection and issued several directions for protection of natural resources including air, water, forest, flora and fauna as also wildlife. The H Court has also recognized that the right to development includes

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