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Judgment
R. Subbiah,J.
This writ petition is filed as public interest litigation to issue a writ of Mandamus, to direct the first Respondent to protect the Ancient Monument
namely Jain abode at Keezhavazhavu and the hillock from the extinction and to ensure proper protection of the abode.
This writ petition is filed as public interest litigation contending that the Keezhavazhavu Jain abode is a protected monument under the Ancient
Monuments and Archaeological Sites and Remains Act, 1958. The ancient monument in Keezhavazhu village namely Jain abode of 2nd century
A.d with Jain relief and frescoes of 9th Century A.D had important Tamil Brahmi inscription The tamil Brahmi inscriptions are of historic
importance in the evolution of Tamil Language, Tamil Brahmi or Tamizhi. The sixth Respondent granted lease to the seventh Respondent for
quarrying minerals to an extent of 8.60 hectares approximately 21.24 acres. On 30.11.2007, the Keezhavazhavu Panchayat Council had passed a
resolution to prevent quarrying at the Jain abode in Keezhavazhavu and on 14.01.2008, the villages of Keezhavazhavu had made a representation
to the Chief Minister of Tamil Nadu. The Deputy Director of Minerals sent a reply stating that 300 meters safety distance would be maintained
from the ancient monument while carrying out the quarrying operations. The third Respondent also made a representation to stop the quarrying of
Keezhavazhavu Jain monument in order to protect the Jain abode and Brahmi inscriptions. Since the representations made by the Petitioner did not
fetch any result, the present writ petition has been filed.
Pending the writ petition, this Court by order dated 05.01.2009 appointed Mr. M. Ajmal Khan and Mr. K. Srinivasan, learned Counsel as
Advocate Commissioners to inspect the site and file their reports.
The Advocate Commissioners who have inspected the site filed their reports stating that the draft notification issued in G.O. Ms. No. 424,
Home Department (Education) dated 19.03.1921 which was confirmed by notification No. 76, dated 14.07.1921 would show the entire area
measuring to an extent of 51.77 acres comprising in survey No. 226/1 Keezhavazhu village has been declared in the notification as protected
monument and hence the same should be declared as protected area. Further, in the report, it has been stated that the seventh Respondent
TAMIN had undertaken that they were carrying on the quarrying operations within the area of 8.60.5 hectares (21.275 Acres) on the eastern side
of the monument in S. No. 226/1 and the blasting operation is said to be undertaken by them scientifically using FRACT AG, a chemical used for
demolition and splitting of rock formations. It is claimed by the officials of the seventh Respondent that the blasting operation is being done without
emitting any noise and the same will not in any way affect the monument which is situated 300 meters away from the blasting/quarrying operations.
It is further stated in the report that when the Commissioners posed a question to the officials of TAMIN that whether there would be any damage
to the monument after a decade or so, if the blasting operation is carried on continuously for over years together, they were not in a position to
answer their query.
The 7th Respondent/TAMIN filed its counter affidavit stating that it commenced the quarrying operations in the year 2007 by leaving the
maximum radial safety distance of 300 meters + 10 meters from the monument site which is prescribed as enough to be left in case of open cast
working even if heavy explosives are used in the quarry operations as per Regulation 164 of the Metalliferous Mines Regulation 1961 and as the
maximum safety distance prescribed in the Ancient Monuments and Archaeological sites and Remains Rules, 1958.
The sixth Respondent, the District Collector who has filed his objection to the report of the Advocate Commissioners stating that the distance
between the actual location of the Archaeological importance and to the boundary of the protected area on the western side is 120 meters. The
distance between the actual location of the Archaeological importance and to the boundary of the protected area on the northern side is 135
meters. The distance between the actual location of the Archaeological importance and to the boundary of the protected area on the southern side
is 70 meters. But the distance between the actual Archaeological importance and the eastern side of the protected area is 1075 mts. Hence, the
ASI has not adopted any norms or rules to fix the distance between the actual Archaeological importance and the boundary of the protected
monuments on all sides equally.
The fourth Respondent/Archaeological Survey of India, has filed a counter affidavit stating that no quarrying activities should be undertaken
within the protected/prohibited area even in regulated zone and a site plan marking the protected/regulated zones of the monument with survey
numbers were sent to the District Collector, Madurai, vide letters dated 17.11.2006 and 26.12.2006 and other local revenue authorities to stop
the illegal quarrying vide letter dated 11.12.2007. It is further stated that the entire hillock containing the above inscriptions and Jaina beds is a
centrally protected monument and governed by AM & ASR Act, 1958 and Rules 1959 and it is maintained by the Archaeological Survey of India.
We have heard the submissions made by the learned Counsel for the respective parties and perused the materials available on record.
It is the contention of the learned Counsel for the Petitioner that if quarrying operation is allowed to continue, it would cause damage to the Jain
abode which has been declared as ancient monument in the year 1921.
Per contra, it is the contention of the seventh Respondent that they are maintaining the safety distance between the ancient monument and the
quarrying site, therefore, no damage would be caused to the ancient monument. Moreover, according to the Respondents, the entire extent of
51.77 acres is not the hillock area. Therefore, the prayer of the writ Petitioner cannot be entertained when they are prepared to maintain safety
distance from the ancient monument.
In view of the submissions made by the respective parties, the question that falls for consideration is that whether the entire hillock area can be
construed as ancient monument or protected area or as contended by the learned Counsel for the Respondents that the quarrying operations can
be allowed by maintaining safety distance from the ancient monument.
A close reading of Section 2(a) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 gives the answer for this
question. Section 2(a) of the Act reads as follows:
2(a) ""ancient monument"" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock, sculpture, inscription
or monolith, which is of historical, archaeological or or artistic interest and which has been in existence for not less than one hundred years, and
includes:-
i) the remains of an ancient monument,
ii) the site of an ancient monument,
iii) such portion of land adjoining the site of ancient monument as may be required for fencing or covering in or otherwise preserving such
monument, and
iv) the means of access to, and convenient inspection of an ancient monument;
Article 49 of the Constitution of India mandates the State Government to protect monuments and places and objects of national importance,
which reads as follows:
49.Protection of monuments and places and objects of national importance - It shall be the obligation of the State to protect very monument or
place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation
,disfigurement, destruction, removal, disposal or export, as the case may be.
Thus there is an obligation on the part of the Respondents to preserve the area intact without causing any damage to the place as a whole.
The close reading of the said provision would show that the entire land adjacent to the site of ancient monument is required for fencing or
covering in or otherwise preserving such monument. In view of the meaning envisaged in Section 2 of the Act, we are not inclined to accept the
submissions made by the learned Counsel for the seventh Respondent since that they are maintaining the safety distance of 300 meters, the
quarrying operations can be permitted, we find that there is no substance in the said submission. Moreover, the Archaeological Survey of India
filed the counter affidavit stating that they have addressed a letter to the District Collector to stop the quarrying operations in the said site. Hence,
we are of the opinion, the quarrying operations cannot be allowed in the entire hillock of Keezhavazhu village comprised in S. No. 226/1 to an
extent of 51.77 acres. This Court while entertaining the writ petition, having notified the grant of quarrying lease to the 7th Respondent and the
quarry site is coming within the notified area and in order to protect the ancient heritage, granted interim order prohibiting the 7th Respondent from
doing mining operations. The modification sought for to vary the said order was dismissed by this Court by its interim order dated 23.09.2008.
Thus, it is evident that the 7th Respondent is not doing quarrying operations all these years.
In view of the above, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.