K. Guruprasad Rao v. State Of Karnataka And Others

Order

1. Today the matter has been listed for consideration of the application filed by Respondent 4 for vacating interim order dated 9-7-2010 (2012) 12 SCC 722 (2).

2. In the writ petition filed by him before the High Court, the petitioner had made the following prayers:

“(I) Declare the mining activity conducted by the fourth respondent as illegal;

(II) Direct the authorities concerned to cancel the mining lease dated 4-2-1982 granted to the fourth respondent;

(III) Direct the respondents to take steps to stop the mining activity in the vicinity of 1 sq km of the temple; and

(IV) Direct the 9th respondent to take all necessary steps to restore the temple to its original state.”

3. The Division Bench of the High Court dismissed WP No. 9512 of 2009 the writ petition by relying upon the averments contained in the affidavits filed on behalf of the official respondents that the mining undertaken by Respondent 4 will not affect Jambunatheswara Temple.

4. Notice of the special leave petition was issued on 9-7-2010 (2012) 12 SCC 722 (2) and Respondents 1 to 3 and 6 to 8 were directed to ensure that no mining activities are undertaken or continued at the site in question.

5. By an order dated 8-11-2010 (2012) 12 SCC 725, Respondent 9, Superintending Archaeologist, Archaeological Survey of India was directed to personally inspect the site of Jambunatheswara Temple situated at Jambunathanahally, Hospet Taluka, District Bellary as also the area in which mining activities were carried prior to the stay order (2012) 12 SCC 722 (2) of this Court and submit a report indicating therein whether such activities are affecting the temple. In compliance with the Court's order, Respondent 9 constituted a team to inspect the site. A report based on the inspection was filed before this Court.

6. On 14-1-2011 (2012) 12 SCC 726, Superintending Archaeologist, State of Karnataka was ordered to be impleaded as a party and he was directed to file an affidavit on the present status of the temple in question specifying as to whether or not the mining activities have already damaged the temple. Simultaneously, Respondent 9 was asked to indicate whether any other mining activities are being carried out in the vicinity of the temple and if so, who are the licensees?

7. After the last date of hearing, affidavits have been filed by the parties including the Superintending Archaeologist, State of Karnataka and Shri M.V Visweswara, Deputy Superintending Archaeologist, Archaeological Survey of India.

8. We have heard the learned counsel for the parties.

9. Ms Kiran Suri, learned counsel for Respondent 4 referred the reports and affidavits filed on behalf of the Forest and Mines Department, Government of Karnataka as also the affidavit of the Archaeological Department of the Government of Karnataka and submitted that the interim order (2012) 12 SCC 722 (2) may be vacated because her client is suffering loss of crores of rupees every day due to cessation of the mining activities. An alternative submission made by Ms Suri is that in view of the report submitted by Respondent 9, her client should be allowed to undertake mining activities in an area beyond one kilometre from the temple, more so because three other miners are carrying on mining operations within a radius of 500 m to 1 km.

10. Both, the learned Additional Solicitor General and Shri A.D.N Rao, learned counsel representing the Archaeological Survey of India submitted that the interim order (2012) 12 SCC 722 (2) may not be vacated or modified because extensive damage has already been caused to the temple, which was built more than 500 years ago.

11. We have given serious thought to the entire matter. A perusal of the report submitted by Respondent 9 shows that as on date the structure of the temple has got the following features:

Main temple structure:

(1) Visible settlement of foundation system was observed all round the temple at various locations.

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

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

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

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

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

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

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

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

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

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

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

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

(14) No visible abnormalities were observed in well.

Peripheral structures:

(1) Absence of plinth protection was observed all round the building.

(2) Severe growth of vegetation was observed all round the building.

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

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

(5) Debonding and spalling of plaster was observed in masonry wall at various locations.

(6) Damp patches were observed in masonry walls at various locations.

(7) Deterioration of WPC was observed over the roof slab.

12. The Committee, which inspected the site included the Deputy Director, Department of Archaeology and Museums, Karnataka, had drawn the following inference and made certain recommendations, which are extracted below:

“Inferences:

Following inferences are drawn, based on the detailed inspection:

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

(i) Prolonged age effect.

(ii) Disturbance caused to the structure due to nearby mining activities.

(iii) Inadequate/Ineffective maintenance over a period of time.

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

Recommendations:

The following recommendations are made, based on the above inferences:

(1) In view of the severity of the structural/functional distress and considering structural type of temple structure, it is recommended to carry out mining activities away from the temple, at least 1 km radius around the temple to minimise the possible vibration.

Further, it is recommended to take up the appropriate restoration of the structure, considering long term durability and safety of the structure after carrying out detailed scientific study of the structure.

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

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

(4) Periodic maintenance of the temple structure shall be adhered to regularly.”

In view of the aforesaid report, we do not find any justification to vacate the ad interim order. Consequently, the prayer on behalf of Respondent 4 is declined.

13. At this stage, we may notice that in the supplementary affidavit filed on 17-2-2011, Shri M.V Visweswara, Deputy Superintending Archaeologist, Archaeological Survey of India has made the following prayer:

“(1) Setting up of an Experts Committee comprising Archaeologists, Conservation Architects, Geologists, Structural Engineers, University Professors and Hwhama, Hospet, under the Chairmanship of the Director, Department of Archaeology, Government of Karnataka, under whose jurisdiction the subject temple falls, to make a thorough impact assessment study for assessing the extent of damages caused not only to the subject temple, but also to the pristine immediate environs of this magnificent edifice of the Vijayanagara period and suggest detailed short, mid and long-term conservation/preservation measures for safeguarding the temple along with its eco-environs to the posterity to be taken up and executed in a phased manner.

(2) Recover all such expenditure to be met with in connection with the above works from Respondent 4, and

(3) The Secretary to the Government of Karnataka, Department of Commerce and Industries in its Letter No. CI/135.EMM/76 dated 18-8-1978 has directed the Director of Mines and Geology, Government of Karnataka not to grant mining lease and PL for removal of building stones near and around the national monuments of archaeological importance within a radius of 2 km. From these policies. In the light of the above directions, the mining operations be strictly banned within a radius of 2 km.”

14. Ms Anitha Shenoy, learned counsel for the State of Karnataka submitted that she will get in touch with the Director (Mines and Geology), Government of Karnataka and inform the Court on the next date as to how many persons are carrying on mining activities within the radius of two kilometres from Jambunatheswara Temple, which is said to have been built in 1504 A.D

15. The learned Additional Solicitor General, learned counsel representing the Archaeological Survey of India and the learned Standing Counsel for the State of Karnataka should, after consulting their respective officers, indicate to the Court the composition of the Committee which may be constituted in terms of the suggestion made in the affidavit of Shri M.V Visweswara.

16. List the case on 4-3-2011.

Court Masters