CASES ON CONSERVATION HERITAGE

1. Surendra Kumar Singh v. State of Bihar 1991 Supp (2) SCC 628
(M.N. Venkatachaliah and R.M. Sahai)

Ban of Stone Quarrying Operations in the Vicinity of the Protected Hills

              Ten petitioners filed this special leave petitions against the interlocutory orders of Patna High Court which held that the three hills Ramshlla, Prethilla and Brahmyoni has been declared and protected as monuments and no stone crushing industry should allowed to be located within such one and half kilometer area. Any stone-crushing industries located within such one and half kilometer area should be shifted. This measure was intended to prevent illegal quarrying on and consequent declaration of hills.

                The petitioners claimed that they are already outside the protected area and should not be shifted further by the artificial extension of the area brought by the High Court. The High Court in their final order observed regarding interveners that they have no grievance as to the loss of business in view of earmarking of 5.85 acres of land. The Court asked to apply for settle of such land before District Magistrate for the allotment of equivalent to the land upon their crushers was operated.

                The Supreme Court doubted the eight petitioners regarding their genuine of their stone crushing operations in the vicinity of the protected hills and dismissed the petitions allowing them to approach the High Court. The two petitioners who were interveners before the High Court agreed to shift their industries provided if they get electric supply at new sites. The Court directed State Electricity Board to help the petitioners by providing electricity facility.

2. Rajeev Mankotia v. The Secretary to the President of India, AIR 1997 2766
(K. Ramaswamy and .B. Patnaik JJ.)

Ancient Monuments and Archeological Sites and Remains Act,1958-Sec.4

Conversion of historical Viceregal Lodge into Tourist Resort.

Mr. Rajeev Mankotia filed this Public Interest Litigation against the decision of the Cabinet of Central Government to convert Viceregal Lodge of Simla into a tourist hotel. Viceregal Lodge was built in 1868 in harbinger of colonial part with architecturally grandeur and beauty of Elizabeth Era. Three historical meetings between colonial administration and Indian leaders took place to discuss the issue of Indian independence under the leadership of Mahatma Gandhiji. The Viceroys (Governor Generals) used this building as summer camp from April to October. After independence it was renamed as 'Rashtrapati Niwas' .The Presidents of India stayed therein till the Second President Dr. Sarvapalli Radhakrishna handed over to Indian institute of Advanced Studies in the year 1964.

              The respondent argued through their counter affidavit that Union of India had decided to use a part of the area for commercial purpose and the rest of the main building to maintain and restore the glory of the Viceregal Lodge. The Ministry of Tourism has encouraged a scheme of heritage resorts which essentially means preservation of old properties and their use is limited commercial manner so as to ensure that the properties would not crumble. The respondents in their second counter affidavit contended that they have decided that the main Viceregal Lodge with a part of the appurtenant land should be preserved and maintained as national museum and the surrounding land should be handed over to Ministry of Tourism for the development of tourist resort. When the Court asked the respondent what would be the appurtenant land of the lodge. The respondent submitted to the Court that the appurtenant land consist of 24.27 acres.

           However the petitioner stated that the area of Viceregal Lodge consists of 90 acres which included ancillary buildings that constituted the whole of estate of the lodge. These buildings were not included in the heritage area. I t also submitted by the petitioners that requires repairs for the upkeep of the said building and to be notified as a protected monument. The Court finally decided that the Government of India should notify the entire area of Viceregal Lodge as a protected monument and Government complied with that. The Court also directed that the Government should provide necessary budget for effecting repairs and restoring to the building and proper maintenance to be undertaken. The Court further directed that the Government of India to maintain all national monuments under the respective Acts.

3. Niyamvedi v.Government of India v. Government of India,
Kerala High Court, W.A. No. 1427/ 1994-B6 Nov. 1995
(Shanmugam J.,)

Ancient Monuments and Archeological Sites and Remains Act of 1958.
Ancient Monuments Preservation Act, 1904.

Prohibition of quarrying in the area of Sage Cages

             Niyamavadi is a public spirited organization and interested in the preservation of precious archeological monument of pre-historic ages. The Writ Petition was filed before single judge of Kearala High Court praying for the issue of a Writ of Prohibition prohibiting the respondents from destroying, disfiguring and exporting the stone extracted from Maryur Ancient Sage Cage and for the issue of Mandamus directing the respondents to set the law into motion as provided under Antiquities and Art Treasures Act, 1972 to safeguard the ancient movements for the above purpose. The Single Judge declined to grant relief but only directed the authorities to take special care to see that quarrying is done strictly in accordance with license conditions. The appellant filed this appeal before the Division Bench of Kerala High Court against the decision of Single Judge. The 'sage caves' (Muniyara-Megalithic tombs) and the Eluthupara (pre-historic paintings) are found in the reserve forest area in a huge natural rock concave shape situated 3kms.from the ground level. The Megalithic means monuments erected out of large block of stones as funerary edifices, either sculptural or commemorative. The Court asked Director General Archeological Survey of India, New Delhi to inspect the entire area. The report was submitted accordingly which reveals that the paintings of Elupthupara were protected by the Department Archeology, Government of Kerala in 1976. The majority of them are in the groupings forming a 'cluster zone'. These megalithic tombs known as 'Dolmenoid-cist' situated at different levels and the total number of ancient tombs are more than a hundred. Ancient people selected the hill rock to get the raw material on the spot and away from the residential areas. The report suggested that the blasting operations should not be allowed as the disturbances caused by the blasting will have repercussions on the safety of the monuments as they are situated at different level and will loose the ancient topography forever".

               The Court based on the arrived at a conclusion that the monuments should be protected. The reports clearly satisfy the definition of 'ancient monument' 'antiquity' under the Act. The Court observed "it is the duty of every citizen to protect and preserve the ancient and historic monuments for future generations. It is a basic source of study for the archeologists and is national importance which cannot be permitted in a way interfered or affected. Even if there is possibility of remotest chance of being affected, we feel it is the duty of Court to extend our jurisdiction to protect and preserve there ancient monuments.

                Finally, the Court issued a direction prohibiting the respondents permitting any quarrying operation in the area and asked the respondent to take appropriate steps to declare the sage cases as monuments and antiquity under Archeological Sites and Remains Act of 1958 and the Ancient Monuments Preservation Act, 1904.

4. Ram Sarup v. State of Harayana AIR P&H 205 (S.D. Agarwal and H.S. Bedi)
Ancient Monument and Archeological Sites and Remains Act, 1958.

Stopping the construction in the Vicinity ofBrahma Sarovara at Kurukshetra.

                           Mr. Ram Sarup filed this appeal against the order of Single Judge of the High Court who refused to quash a notification under Section 4 (1) (b) of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963.

                       The appellant proposed to construct three rooms which were extension of his Rice Mill. The area in which the rooms were sought to be constructed had already been declared as controlled area by a notification by the Harayana Government. When the appellant started the construction of said rooms after getting sanction from Municipal Engineer, the District Town Planning reported that the appellant was constructing a building which was against the notification. When the appellant did not stop the work even after repeated show cause notice, the authorities filed the complaint before Chief Judicial Magistrate. The appellant filed writ petition against this complaint before single Judge of then the High Court who upheld the notification. The appellant filed appeal before this Division Bench.

                         The notification has been issued by the Haryana Government, Town and Country Planning Department. The notification declared an area around 'Brahma Sarovar' as controlled area. Once a notification is issued under the Section 4 of the Act, the section 6 of Act places a restriction on a person who intends to erect or re-erect a building in controlled area. No construction can be made under the Act in the controlled area without following the provisions laid down in the Act.The controlled area under section 4 (1) (b) means two kilometer on the outer sides of the boundary of any public institution or an ancient historical monument.

                        Brahma Sarovar is either a public institution or historical monument. The Brahma Sarovar is also known 'Kurukhetra tank'. It is centre of interest for the pilgrims. The long line of trees on the northern and one small and one big island is in the middle of tank. There are temples and places of Puranic and historical interest in these islands. According to Puranas this tank was excavated first by King Kuru long before the epic of Mahabharata. There is also mention about this tank in the Vaman Puran and in the Roman Script.

                     The Court held that the tank is an ancient monument under Ancient Monuments and Archeological Sties and Remains Act, 1958. The Court also observed that the word "public institution" has not defined under the Act. As this monument is placed for public so it would come under 'public institution'.

                     Finally, the Court held that the notification is valid and dismissed the appeal and directed the appellant to appear before the Magistrate, Kurukshetra where the criminal complaint is pending.

5.State of Kerala v. Joseph Anthony , AIR 1994 SC 721 (P.B. Sawant and R.M. Sahai JJ)
Constitution of India- Art. 19(6) Kerala Marine Fishing Regulation Act 1980 - Sec. 4.

Fishery Rights - Not allowing the Banning Mechanized Boats for fishing in the territorial waters

             The State of Kerala and President, Swanthantra Matsya Thozhilali Federation representing fishermen using traditional fishing crafts filed this appeal before the Supreme Court against the decision of the Bench of Kerala High Court.

             The fisherman-population actively fishing engaged in fishing by traditional fishing vessels in the territorial waters. However, in the year 1979 few rich started using purse seine for exploiting the sea by operating costly mechanical fishing vessels. This was directly decreased the income of traditional fishermen by lesser fish catch in their nets. This lead to the conflict between the traditional fishermen and purse -seiners and even caused law and order problem in the State.

             Hence, the State Government enacted the Kerala Marine Fishing Regulation Act in 1980 to regulate fishing by vessels in the sea along the coast line of the State. The State Government issued two fresh notifications under section 4 of the Act after the re-examination of the earlier notification which were declared as invalid by the High Court in Kerala Jospeh v. State of Kerala ILR (1985) 1 Ker. 402. The first notification specified the area along the entire coast line of the State but not beyond the territorial waters for the purpose of the use of fishing gear. The second notification prohibited the pursue seine, ring reine, pelagic and mid water trawl gear for fishing in territorial waters along entire coast line of the State. These notifications were again challenged before the High court by the users of purse seine boats and nets. The Court in appeal held that the notifications null and void and totally prohibited the use of pursue seine nets beyond 10 kms. from the baseline from which the breadth of the territorial sea is measured, as an unreasonable restriction under Art. 19(6) of the Constitution. Against this order the present two writs were filed.

            Appellants contended that the High Court has erred in law in holding that restriction placed on the users of the pursue seine boats were unreasonable. The respondent operator of mechanized gears argued that they should be allowed to fish within territorial waters as the operating mechanisms were not fit for off shore and deep sea fishing.
            However, the Court rejected contentions of the respondent this contention by saying that they did not ordinarily form part of fishermen population. They looked upon fishing as a business not as a means of livelihood and they could always replace or convert them for deep sea fishing.
           The Court further held that ban on fishing by merchandised nets is necessary to not only protect the source of livelihood of fishermen but also the pelagic fish wealth within the territorial waters from depletion and eventual total destruction. The court observed that the State is enjoined under Art.46 of the Constitution in particular to protect the poor fishermen population. The Court further propounded that the respondents were not prohibited from fishing within the territorial waters but are only prohibited from using certain type of nets. Therefore restriction put by the notification were not unreasonable restriction within the meaning of Art. 19(6) of the Constitution.

6. Dhanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Co. Ltd. 1991 (2) SCC 539
(Ranganathan J.)
Environment Impact of a New Thermal Plant

                The Dhanu Taluka Environment protection Group filed an appeal before Supreme Court against the order of Bombay High Court. The two petitioners filed writ petitions before Bombay High Court challenging clearance by the State of Maharashtra and Central Govt. decision of a proposal of the Bombay Sub Urban Electricity Supply Co. Ltd. (BSES) for construction of a thermal power plant over an area of 800 hectares or in Dahanu Maharashtra. After some hearing the High Court passed an order adjourning the hearing so that the Government of India would consider the plea of the two petitioners. The Central Government reaffirmed its decision to clear the project. The High Court relying on the affidavit dismissed the writ petitions.Finally the petitioner approached the Supreme Court.

                 The petitioners argued that the Appraisal Committee for Thermal Power Stations after examining various aspects and considered the Dahanu is unsuitable and listed nine reason for their conclusion. The Government cleared the project despite the opinion of the committee without any reasons for rejecting the committee's report. The petitioners also argued that clearance in respect of the site in question had been issued contrary to the Environment Guidelines for Thermal Power Plant's 1987. The petitioner stressed as two guidelines which said:

1. Thermal power plats should not be located within 25 kms. of the outer peripheries of metropolitan cities, national parks and wildlife sanctuaries an ecologically sensitive areas like tropical forests.

2. To protect Coast areas a distance of 500 meters from High Tide line (HTL) and a buffer zone of 5km. of seashore should be kept from any thermal power stations.

The petitioner pointed out that the committee had decided against the location as it chickoo gardens and forest area which are near to proposed power station.

The respondent argued that the committee's report consisted of minutes and ex cathedra pronouncements and also argued the committee's findings cannot be treated as conclusive or binding on the central Government. Moreover, the decision was based much on the State Expert Committee which had gone into the matter in detail.

The Court after considering facts and circumstances and arguments of the parties held that the distances mentioned in the policy only intended as a safeguard against the possible pollution effects; it cannot be treated a rigid and an inflexible irrespective of local conditions. It is, therefore, quite natural for the Government of India to decide that the site could be cleared subject to stringent to conditions to prevent the danger of pollution. The Court held that it is true that the plant is located within the 5kms of the sea but, it is impossible to rigidly apply this standard in the context of the present project. The Court directed the Central and State Governments to monitor the constructions of the buildings under the scheme to ensure that no building of the thermal power station comes up within a distance of 500 meters from the HTL. The Court propounded that the Central Government gave clearance to the thermal power station after fully considering all relevant aspects including environment pollution. However, the Court directed to the Government that condition requiring Flue Gas Desulphurisation (FGD) plant should not be relevant without a full consideration of the consequences. The petitioners should be provided within an opportunity of being heard in case of the Government decides for the proposed changes.