# ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF M.P. & ORS

- **Citation:** [2014] 7 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2014-05-09
- **Case number:** Civil Appeal No. B 5529 of 2014
- **Bench:** Surinder Singh Nijjar, A.K.Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/archeological-survey-of-india-v-state-of-m-p-ors-30141
- **Pages:** 47

## Headnote

Madhya
Pradesh
Ancient
Monuments
and
A
B
Archaeological Sites and Remains Act, 1964 - s. 19 -
Ancient and Historical Monuments and Archaeological Sites C
and Remains Act, 1958 - ss. 2, 3 - Protection of ancient
monuments - Writ petitions by Archeological Survey of India
(AS/) and a public spirited person -
Preservation and
protection of Bade Baba Jain Temple in Kundalpur, M.P.
constructed somewhere in 6-7th Century A.O. on the ground o
that the temples are protected ancient monuments of national
importance under the 1958 Act and Jain Temple Trust is
carrying out illegal construction and damaging the Temple -
Order of High Court that original temple declared to be an
ancient monument does not survive, idol of 'Bade Baba', an E
ancient monument, alone survives - Idol of 'Bade Baba'
governed by 1964 Act, thus, AS/ has no jurisdiction over it -
Directions issued to the Trust to obtain permission from State
Government to raise construction of temple to preserve and
protect idol of Bade Baba - On appeal, held: Order passed F
by the High Court upheld - 1964 Act (State Act) is applicable
and monuments are not covered by 1958 Act (Central Act) -
AS/ has no jurisdiction, archaeological site being governed
by 1964 Act, thus, State Government has jurisdiction over the
Temple -
Temples recorded as 'private' temples in the
Register of the year 1956. maintained by AS/, thus, not G
intended to be taken over as monuments of national
importance - Further, when the existing dome and outside
structure of the temple which housed Bade Baba idol had
1
H
2
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A become totally dilapidated and it needed re-construction,
outer structure of the temple was constructed though it was not
the replica of the old structure as a/so the rituals were
performed at the time of temporary shifting of the idol - This
was as per Jain Agamas - However, High Court did not look
B into the aspect of construction by the trust - Certain directions
issued to the competent authorities as regards the nature of
construction and its appropriate solution -
Ancient
Monuments Preservation Act, 1904 - s. 3 - Heritage -
Ancient monuments.
c
ASl-appellant and M-public spirited person filed two
writ petitions before the High Court seeking preservation
and/or protection of Bade Baba Jain Temple situated in
Kundalpur in MP since the Jain Temple Trust
(respondents 9 to 11) was carrying out illegal
D construction and thereby vandalizing the Bade Baba Jain
Temple even when they are protected ancient
monuments under the Ancient and Historical Monuments
and Archaeological Sites and Remains Act, 1958 and the
Rules of 1959. The High Court disposed of the writ
E petitions holding that the question of preservation and/
or protecting of the monuments does not arise since the I
original temple which was declared to be an ancient
monument by virtue of Notification issued under Section I
3 of Ancient Monuments Protection Act, 1904 does not
F survive rather the idol of 'Bade Baba' which is an ancient
monument, alone survives. Further, the idol of 'Bade
Baba' is governed by the local Act, M.P. Ancient
Monuments and Archeological Sites and Remains Act
1964 and thus, ASI has no jurisdiction over it. Hence, the
G instant appeals.
Dismissing the appeals, the Court
HELD: 1. ASI has no jurisdiction in the matter and the
archaeological site in question is governed by the
H Madhya
Pradesh
Ancient
Monuments
and
ARCHEOLOGICAL SURVEY OF !NOIA v. STATE OF
3
M.P.
Archaeological Sites and Remains Act, 1964, over which
A
it is the State Government authorities who are competent
to play their statutory role in accordance with the
provisions of the 1964 Act. [Para 58) [46-H, 47-A]
2.1. The Ancient & Historical Monuments &
8
Archeological Sites & Remains (Declaration of National
Importance) Act, 1951 as well as the Ancient and
Historical Monuments and Archaeological Sites and
Remains Act, 1958 are the post-Constitution Acts. In both
the Acts, the Parliament has used the expression 'Cent

## Text

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[2014] 7 S.C.R. 1
ARCHEOLOGICAL SURVEY OF INDIA
V.
STATE OF M.P. & ORS.
(Civil Appeal No.5529/2014)
MAY 09, 2014
[SURINDER SINGH NIJJAR AND A.K.SIKRI, JJ.]
Madhya
Pradesh
Ancient
Monuments
and
A
B
Archaeological Sites and Remains Act, 1964 - s. 19 -
Ancient and Historical Monuments and Archaeological Sites C
and Remains Act, 1958 - ss. 2, 3 - Protection of ancient
monuments - Writ petitions by Archeological Survey of India
(AS/) and a public spirited person -
Preservation and
protection of Bade Baba Jain Temple in Kundalpur, M.P.
constructed somewhere in 6-7th Century A.O. on the ground o
that the temples are protected ancient monuments of national
importance under the 1958 Act and Jain Temple Trust is
carrying out illegal construction and damaging the Temple -
Order of High Court that original temple declared to be an
ancient monument does not survive, idol of 'Bade Baba', an E
ancient monument, alone survives - Idol of 'Bade Baba'
governed by 1964 Act, thus, AS/ has no jurisdiction over it -
Directions issued to the Trust to obtain permission from State
Government to raise construction of temple to preserve and
protect idol of Bade Baba - On appeal, held: Order passed F
by the High Court upheld - 1964 Act (State Act) is applicable
and monuments are not covered by 1958 Act (Central Act) -
AS/ has no jurisdiction, archaeological site being governed
by 1964 Act, thus, State Government has jurisdiction over the
Temple -
Temples recorded as 'private' temples in the
Register of the year 1956. maintained by AS/, thus, not G
intended to be taken over as monuments of national
importance - Further, when the existing dome and outside
structure of the temple which housed Bade Baba idol had
1
H
2
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A become totally dilapidated and it needed re-construction,
outer structure of the temple was constructed though it was not
the replica of the old structure as a/so the rituals were
performed at the time of temporary shifting of the idol - This
was as per Jain Agamas - However, High Court did not look
B into the aspect of construction by the trust - Certain directions
issued to the competent authorities as regards the nature of
construction and its appropriate solution -
Ancient
Monuments Preservation Act, 1904 - s. 3 - Heritage -
Ancient monuments.
c
ASl-appellant and M-public spirited person filed two
writ petitions before the High Court seeking preservation
and/or protection of Bade Baba Jain Temple situated in
Kundalpur in MP since the Jain Temple Trust
(respondents 9 to 11) was carrying out illegal
D construction and thereby vandalizing the Bade Baba Jain
Temple even when they are protected ancient
monuments under the Ancient and Historical Monuments
and Archaeological Sites and Remains Act, 1958 and the
Rules of 1959. The High Court disposed of the writ
E petitions holding that the question of preservation and/
or protecting of the monuments does not arise since the I
original temple which was declared to be an ancient
monument by virtue of Notification issued under Section I
3 of Ancient Monuments Protection Act, 1904 does not
F survive rather the idol of 'Bade Baba' which is an ancient
monument, alone survives. Further, the idol of 'Bade
Baba' is governed by the local Act, M.P. Ancient
Monuments and Archeological Sites and Remains Act
1964 and thus, ASI has no jurisdiction over it. Hence, the
G instant appeals.
Dismissing the appeals, the Court
HELD: 1. ASI has no jurisdiction in the matter and the
archaeological site in question is governed by the
H Madhya
Pradesh
Ancient
Monuments
and
ARCHEOLOGICAL SURVEY OF !NOIA v. STATE OF
3
M.P.
Archaeological Sites and Remains Act, 1964, over which
A
it is the State Government authorities who are competent
to play their statutory role in accordance with the
provisions of the 1964 Act. [Para 58) [46-H, 47-A]
2.1. The Ancient & Historical Monuments &
8
Archeological Sites & Remains (Declaration of National
Importance) Act, 1951 as well as the Ancient and
Historical Monuments and Archaeological Sites and
Remains Act, 1958 are the post-Constitution Acts. In both
the Acts, the Parliament has used the expression 'Central
Government'. The Parliament is 'deemed to be aware C
about the concept and meaning of the term 'Central
Government' under the Constitution. Therefore, the
submission that the expression 'Central Government'
should be read so as to include 'local Government'
cannot be accepted. [Para 39) [32-D-E]
D
2.2. The appellant lost sight of the relevant provisions
of 1951 Act; and that not only there is a central legislation
enacted under Entry 67 of the Union List, but State
Legislation as well in the form of 1964 Act enacted by the
E
State Legislature under Entry 12 of the State List. In order
to be covered under the provisions of the 1958 Act, it was
necessary that the monument in question should be
declared to be of national importance as defined under
Section 2. The High Court rightly held that in terms of F
Sections 2 and 3 of the said Act, the monuments must be
referable to part I of the Schedule. Part I of the Schedule
clearly contemplated a declaration by the Central
Government or monuments whose possession was taken
over by the Central Government. However, in the instant G
case, neither there is any notification by the Central
Government nor has the possession ever been taken by
the Central Government. [Para 42) [35-G-H; 36-A-C]
2.3. It is to be noted that 1958 Act was enacted for the
preservation of ancient and historical monuments and
H
4
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A archaeological sites. Vide section 39, the 1958 Act
repealed the Ancient & Historical Monuments &
Archeological Sites & Remains (Declaration of National
Importance) Act, 1951 and Section 126 of the States
Reorganization Act 1956. The enactment is a
B comprehensive legislation dealing with the meaning of
"ancient monuments" and "owner" in Section 2(a) and
2(g) respectively. Under Section 2(j) "protected
monument" means any monument which is declared to
be of national importance under the 1958 Act. Section 3
c specifically declared certain ancient monuments to be
deemed to be of national importance which were so
declared under the previous enactment of 1951. Further
Section 4 of the Act empowered the Central Government
to declare certain monuments to be of national
0 importance. Section 9 provides that if any owner fails or
refuses to enter into an agreement under Section 6 for
maintenance, the Central Government may make an
order on any or all matters covered under Section 6(2) of
the Act and the same shall be binding on the owner. It is
thus, to be noted that the 1958 Act replaced the 1951 Act
E and covered only the ancient monuments which were
declared to be of national importance. Since the Central
Government has not declared the said Bade Baba Temple
to be an ancient monument vide the 1913 & 1914
notifications under the 1904 Act, and nor was it declared
F to be of national importance even under the 1951 Act, the
same fell outside the purview of the 1958 Act as well.
[Para 43] [36-C-H; 37-A-A]
2.4. While this is the position of the Central Act,
G Madhya Pradesh State enacted 1964 Act on 16.4.1964.
H
Section 3 gives power to State Government to declare
ancient monuments to be State-protected monuments or
archaeological sites and remains to be State-protected
Area. Section 5 provides for maintenan~e of the Stat~
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
5
M.P.
protected monuments by entering into an agreement with
A
the owner of the monument. Section 38 of the Act repeals
the Ancient Monument Preservation Act, 1904 in its
application to the State of Madhya Pradesh shall cease
to have effect in relation to ancient and historical
monuments, archaeological sites and remains and all
B
other matters pertaining to the Act. The said enactment
has duly been given assent by the President on 16.4.1964.
[Para 44) [37-8-C]
Joseph Pothen v. State of Kera/a 1965 (2) SCR 868followed.
C
2.5. Even the Register maintained by the
Archaeological Survey of India expressly records that the
Temples were 'private' Temples, and also that no
agreement was required to be entered and could be left o
to be dealt with by the State (as against being declared
'National'). The said Register is of the year 1956 and
constitutes an admission that the said Temples are not
covered by the 1951 Act and were not intended to be
taken over as monuments of national importance. Thus,
E
conclusion arrived at by the High Court, i.e. qua these
temples, it isthe 1964 Act passed by the State Legislature
that would be applicable and the monuments are not
covered by the 1958 Act, is accepted. The submission of
ASG that since the temples are of national importance,
they should be treated as deemed covered by 1958 Act,
cannot be accepted. After all, State Act namely 1964 Act
has received the assent of the President of India. It can
co-exist with the Central Act namely 1958 Act and there
F
is no repugnancy between the two. Accepting the
submission of ASG would amount to rendering the G
provisions of 1964 Act inapplicable even where that Act
applies. It is not possible to accept such a consequence.
[Para 46-47] [37-H; 38-A-E]
3.1. As per the Jain Temple Trust, since the structure
H
6
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A dates back 6th-7th Century, there has been natural wear
and tear of this temple over a period of time. The version
of the Trust, which is not specifically refuted, is that the
temple which housed Bade Baba idol was in fact earlier
demolished and re-built way back in the year 1940. Again
B in the year 1976, the dome fell and a new dome had to
be constructed. Extensive repairs were carried out again
in the year 1992. However, there was a recurring damage
to the main temple building from time to time.
Significantly, the idol of Bade Baba has remained intact.
C There is no quarrel up to this, which means that the main
temple building which houses Bade Baba idol needed
repairs. As per the ASI, it is the ASI under whose
supervision the aforesaid task is to be accomplished,
cannot be accepted. [Para 50 and 51] [39-E-H; 40-A]
D
3.2. As per the Trust, on account of the repeated
cracks which were occurring in the temple and having
regard to the fear that Deity itself was endangered, it was
decided that a new temple must be built. A Deity cannot
be in a dilapidated structure nor should an idol be subject
E to danger. An idol to which energisation rights are
imparted becomes a live Deity which has to be
worshipped on a continued and regular basis thereby
attracting devotees who come and offer prayers.
Therefore, in order to follow the Agamas and keeping in
F view the height of this Deity, it was decided that a temple
be constructed in accordance with the "Nagara" style of
architecture. According to the Trust, the said design is
completely in conformity with the Agamas and was
approved by the Acharyas of the Digamber Jain Sect. In
G fact, in order to ensure that the idol was correctly
removed after proper ceremonies and was installed at a
new place it is stated that the said installation of the Deity
was also undertaken in the presence of the Acharyas and
proper ceremonies were performed. In fact, it became
H
ARCHEOLOGICAL SURVEY OF !NOIA v. STATE OF
7
M.P.
imperative to shift the idol so that outer structure wherein
A
the idol is housed could be reconstructed. That step was
, necessary to protect the idol. [Para 52] [40-C-G]
3.3. It cannot be said that the statute was fragmented
and destroyed. What happened is that on a big piece of
8
stone there was an idol of Bade Baba. On the two sides
of this main idol were two individual idols of Lord
Parswanath. In order to carry out construction in the
temple, without damaging the main idol or the individual
idols of Lord Parswanath the said pieces were dismantled
and removed from the dome to protect them from
C
common damage while the construction in the temple is
carried out. It was assured at the Bar that after the
construction is completed, all the deities namely two
Parswanaths (left and right), two of Pushpavrishtis and
two Chavardaris and two Yaksha and Yakshinis would be
D
placed back at the same spot and in the same form. Bade
Baba idol will be reinstalled in the same manner it existed
earlier. Such a course of action in the exigency of
circumstances, temporarily shifting Bade Baba idol with
assurance to shifting back and installing in the same form
and at the same place it existed earlier, is taken on record,
making the Jain Temple Trust bound by this statement.
[Para 53] [40-H; 40-A-D]
E
Venkatachala Mudaliar v. Sambasiva Mudaliar AIR 1927
Mad 465 - approved.
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
Vinayak Gosavi (1960) 1 SCR 773 -referred to.
F
3.4. As the outside structure had become totally G
dilapidated and there was reasonable danger of its.
collapse which could damage the main deity and othE}r
deities, it became necessary to re-erect the outside
structure of the temple. May be, it would have been better
to construct the same in the same format in which it was
H
8
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A existed earlier. Admittedly, the construction which is
carried out now upto by the Trust that too substantial, is
not the replica of the old structure. The Jain Temple Trust
justified the construction which is being undertaken in
the present manner with the submission that once the
B existing dome and outer structure decayed to such an
extent that the repairs were not possible and it needed
reconstruction, while doing so, the tenets of the Jain
religion are kept in mind and new structure follows Jain
agamas. To this extent, the stand of the Trust appears to
C be correct, viz. the new construction is as per established
Jain culture, as described in Agamas. However, the
appellants submitted that in order to keep the sanctity o'
ancient monument, the construction should have been
on the same pattern of structure but which existed
before demolition. It was also their case that the
D construction of Bade Baba temple should be in sync with
other 57 temples and this sanctity has not been
maintained. The High Court did not specifically looked
into this aspect. [Paras 54 and 57] [41-G-H; 46-D-G]
E
4. The High Court directed the Trust to submit an
application for grant of permission to raise construction
of the Temple to preserve and protect idol of Bade Baba.
Direction is also issued to the State Government to
consider the application, in accordance with law, within a
F period of two months. While considering this application,
1
the competent authority under the 1964 Act would
specifically consider the aforesaid issue/ aspect as well.
The matter is left to the experts/ public functionaries under
the 1964 Act with a hope that they would weigh the
G positions taken by both sides on this limited aspect about
the nature of construction and to find an appropriate
solution. In case the State Government has already taken
a decision on the application of the Jain Temple Trust, but
the aforesaid aspect is not dealt with, the State Government
H is directed to take decision in this behalf within a period
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
9
M.P.
of two months. The Trust can submit that Jains are
A
declared religious minority and therefore, Jain community
enjoys the religious freedom, as a fundamental right,
guaranteed under Article 29 of the Constitution. It is their
case that the Temple Trust had performed-all necessary
rituals as required under the Jain religion and followed at
B
the time of temporary shifting of the idol and also before
deciding to have the outer structure of the temple as per
Agamas while performing these rituals are performed of
Agamas by Suri Mantras. Their plea would also be kept in
mind while taking the dec.ision. Further it is clarified that if c
the Government functionaries approve of the construction,
the appellants would not be allowed to challenge it again.
[Para 58] [47-8-G]
Seshammal v. State of Tamil Nadu referred to (1972) 3
SCR 815: Rajiv Mankotia vs. Secretary to the President of D
India & Ors. (1997) 10 SCC 441: 1997 (3) SCR 421 AS/ vs.
Narender Anand & Ors. (2012) 2 SCC 562: 2012 (1) SCR
260 Kamataka Board of Wakf v. Govt. of India (2004) 10 SCC
779: 2004 (1) Suppl. SCR 255
I "Jainism: its history, principles and precepts, the
E
culture heritage of India at vol 1 pg 400 - referred to.
Case Law Reference:
(1997) 10 sec 441
Referred to
Para 22
F
(2012) 2 sec 562
Referred to
Para 23
(2004) 10 sec 779
Referred to
Para 29
1965 (2) SCR 868
Followed
Para 45
G
AIR 1927 Mad 465
Approved
Para 53
(1960) 1 SCR 773
Ref.erred to
Para 53
(1972) 3 SCR 815
Referred to
Para 57
H
10
SUPREME COURT REPORTS
[2014) 7 S.C.R.
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
B
5529 of 2014.
From the Judgment & Order dated 17.09.2012 in WP No.
1220/2006 of the High Court of M.P. at Jabalpur.
WITH
Civil Appeal No. 5530 of 2014.
Paras Kuhad, ASG., Siddharth Luthra, ASG., Gopal
C · Subramanium, Sushi! Kuamr Jain, Vibha Datta Makhija, Jilin
Chaturvedi, Abhik Chimne, S. Nand Kumar, Gurmohan Singh
Bedi, C.S. Nair, Shreekant N. Terdal, P.C. Jain, Ajay
Choudhary, Puneet Jain, Chhaya Kirti, Ankur Jain, Anubhav
Kumar, Christi Jain, Pratibha Jain, Archie Agnihotri, C. D. Singh
for the appearing parties.
D
The Judgment 0f the Court was delivered by
A.K.SIKRI, J. 1. Two Writ Petitions, both in the nature of
Public Interest Litigation came to be filed in the High Court of
E Madhya Pradesh, Principal Seat at Jabalpur: In one petition
Archeological Survey of India (ASI) was the petitioner. Other
petition was filed by Mr. Mohammed Azam Khan claiming
himself to be a public spirited person. They were/are concerned
with the Jain Temples which were constructed sometime in 6F 7th Century A.D and scattered over an area of 199.45 acres
in villages Kundalpur, Fatepur and Teergarh in Tehsil Hata,
District Damoh (MP). This cluster of temples include most
famous among them known as the temple of "Bade Baba".
According to the petitioners, even when they are protected
ancient monuments under the Ancient and Historical
G Monuments and Archaeological Sites and Remains Act, 1958
and Rules 1959 framed thereunder, Jain Temple Trust
(respondents 9 to 11) is carrying out illegal construction and
thereby vandalizing the said Bade Baba Jain Temple.
H
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
11
M.P. [A.K.SIKRI, J.]
2. Both these Writ Petitions are disposed of by the High
A
I
Court vide common judgment dated 17.9.2012 holding that the
, original temple which was declared to be an ancient monument
' by virtue of Notification issued under Section 3 of Ancient
Monuments Protection Act, 1904 (hereinafter referred to as
"1904 Act") does not survive and the idol of "Bade Baba" which
B
is an ancient monument, alone survives. The Court has, thus,
held that question of preservation and/or protecting of the
monuments does not arise. In so far as idol of "Bade Baba" is
concerned, the same is governed by the local Act, namely M.P.
Ancient Monuments and Archeological Sites and Remains Act c
1964 (hereinafter referred to as the "1964 Act") and therefore
ASI has no jurisdiction over it. At the same time, keeping in
mind the provisions of Section 19 of 1964 Act which provides
that there cannot be any construction or mining etc. by any
person including the owner or occupier of the said protected
0
area without permission of the State Government, the Jain
Temple Trust will not proceed with the construction without
obtaining the permission of the State Government. Accordingly,
direction is issued to the Trust to submit an application for grant
of permission to raise construction of the temple to preserve
and protect idol of "Bade Baba" and a further direction is issued
to the State Government to consider that application in
accordance with lawwithin a period of 2 months. It is also held
that in case the State Government refuses to grant permission
to raise construction of the temple the trust shall restore the
construction to its position which existed on the date of the
passing of the interim order by the High Court on 20th May
2006.
E
F
3. Obviously, both the writ petitioners were not satisfied
with the aforesaid outcome of their Writ Petition and it is
G
maintained that ASI is the appropriate authority as the temple
and the idol of "Bade Baba" are the protected monuments of
national importance under 1958 Act. The petitioners have also
taken the position that the Trust has materially altered the
character of the temple which was impermissible and therefore
H
12
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A the same be directed to be restored to its original condition
and in so far as the Trust is concerned, it has no right to carry
out any construction thereon. Petitioners also maintain that
1964 Act does not apply and therefore State Government has
no jurisdiction over the said temple. This, in nutshell, is the
B controversy on which we had heard counsel for the parties in
detail.
4. Leave granted in both the SLPs.
5. Let us turn to the factual details at this point. We shall
C traverse these facts from the SLP Paper Book filed by the ASI
by taking note of those facts which are admitted. Wherever
there is a variance of the stand taken by the parties, we shall
be indicating the same as well. Kondalpur Jain Temples,
totaling 58, are located at different levels on the hills of
D Kundalpur starting from the foot hill. According to the Central
Provinces District Gazettes, 1906, Kundalpur is a well-known
sacred place of the Jains and the temples therein are "all square
blocks with domed roofs and pinnacles at the corners. They are
all whitewashed and look very like Muhammdan tombs. The
E principal temple contains a colossal image of Mahariva which
is of 12 feet". According to District Gazetters published in 1974
based on Archaeological Survey of India Volume VII, "there are
58 Digambar Jain Temples. On the circular hill range stand 30
of these temples, all gleaming white and the remaining 28
F temples are situated at the foot of the hill range ... Most of the
ancient temples have been renovated and reconstructed during
the period of last three centuries. The oldest is ... in the middle
of them. It enshrines a colossal red sandstone image of Jain
Tirthankar ..... Secondly on both sides of this image, images of
G Yaksha and Yakshni of Rishabhanatha are noticed. The main
interst of place lies in the beautiful huge images of
Rishabhanatha and two of Parshvanatha in standing posture.
The later are installed on either side of the former. These are
probably of 6th or 7th century A.O." "Kundalgiri as one of the
Nirvarana Kshetras finds mention in Daska Bhakti by Swami
H
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
13
M.P. [A.K.SIKRI, J.]
Pujyabada of fifth or sixth century A.O. and in Prakrit
A
Nivayukandan .... it is one of the most ancient and sacred
Nivarana Kshetras of the Jains. On another small temple date
of Samvat 1505 (1444 A.O.) is given."
6. As pointed out above, the most sacred temple among
B
these is the temple of Bade Baba. This monument was
declared as protected ancient monument by Central Provinces
Government vide gazette notification dated 16. 7.1913/
30.11.1914 under the Ancient Monuments Protection Act, 1904
(for short the Act of 1904). As per the ASI, by virtue of Section
2, read with Part I of the Ancient and Historical Monuments and
C
Archaeological Sites and Remains Act 1951 (for short the
Central Act of 1951) all ancient and historical monuments in
part A and B States which before the commencement of the
1951 Act have either been declared by the Central Government
to be a protected monument within the meaning of the 1904
D
Act or which have been taken possession by the Central
Government as protected monuments were declared to be
ancient and historical monuments of national importance.
7. It is also stated by the ASI that the 1958 Act, particularly
E
Section 3, specifically declared that all ancient and historical
monuments which have been declared by the Central Act of
1951 or by Section 126 of the State Reorganizations Act, 1956
to be of national importance, shall be deemed to be ancient
and historical monuments declared to be of national importance
F
for the purposes of 1958 Act. Vide S.O.No.1147 dated
15.5.1991 published in Gazette of India dated 25.5.1991, the
Central Government gave one month notice of its intention to
declare areas up to 100 meters from protected limits and
further beyond up to 200 meters near or adjoining protected
G
monuments to be prohibited and regulated areas respectively
for the purposes of both mining operations and construction.
S.O.No.1764 dated 16.6.1992 was issued in exercise of the
powers conferred under Rule 32 of 1959 Rules declaring that
the area of 100 meters from the limit of protected' areas as the
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14
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A prohibited area and 200 meters from the prohibited area as
the regulated area and in such areas construction/mining activity
were barred. According to ASI since Bade Baba temple and
Jain Temples on the hills of Kundalpur are protected under
national monuments, they would be covered by the Notification
B dated 16.6.1992.
8. The then Conservation Assistant, Sagor on 5th June
1995 wrote to the Jain Temple Trust stating that no construction
activities can be undertaken on the protected monuments
C without the permission of the competent authority. It was
pointed out in this Notice that a foundation laid near Bade Baba
was illegal. Since construction was still going on, the
Superintendent Archaeologist Bhopal sent a telegram dated
13.6.1995 to the Collector, Damoh informing him about serious
D violations committed by the Jain Trust disregarding the
provision of 1958 Act and 1959 Rules. Another letter dated
19.9.1995 was written by the Superintendent Archaeologist
Bhopal to Jain Trust to desist from committing those violations.
E
9. While the ASI was pointing out these so called
illegalities,
Secretary
Department
of
Revenue,
M.P.(Respondent No.2) issued orders dated 5.4.1999 whereby
be handed over the said Jain Temples including Bade Baba
temple to respondents 9 to 11 (Jain Trust) with certain
F conditions. According to the ASI this Notification is issued
under 1964 Act is void as the monuments is covered by 1958
Act which is the Central Act and that gives exclusive jurisdiction
to ASI.
10. An extensive inspection was carried out by the
G Assistant Superintendent Archaeologist of the ASI on the basis
of which he submitted a written report bringing out large scale
violations allegedly committed by the Jain Trust. It was
specifically reported that the members of the Trust ignoring the
historical significance and antiquarian value of the temples,
H were destroying the pristine beauty and ancient ambience of
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
15
M.P. [A.K.SIKRI, J.]
the monument by cutting and adding new construction within the
A
prohibited/protected area. In particular it was reported that the
Bade Baba Ka temple had suffered tremendous damage and
more than 80% of the temple had been destroyed.
11. This provoked the then Director General, ASI to write
B
a letter dated 1.7.1999 to the Chief Secretary of the M.P.
Government highlighting, what ASI termed as the vandalism
being done at Bade Baba temple by the Jain Trust. However,
no response was received. After a lull of almost six and half
year, the ASI approached the High Court by filing the Writ
Petition, wherein impugned orders are passed.
C
12. This Writ Petition as well as other Writ Petition which
was already filed in the year 2006, were contested by the State
Government as well as the Jain Trust. The State Government
maintained that the structure in question was covered by the o
State Act i.e. 1964 Act and therefore ASI was unnecessarily
intervening in the matter. The State Government also defended
its Notification dated 5.4.1999 whereby management of the
temples was given to respondents 9 to 11 i.e. Jain Temple
Trust.
13. The Jain Temple Trust also took the position on the
same lines as was taken by the State Government. It added
that if any direction is required under the law i.e. under 1964
Act, the Trust was ready to submit an application for obtaining
the permission to raise construction before taking any
construction work. It was also argued by the respondents that
the main temple was no more existing which had crumbled due
E
F
to natural decay; being a very old temple of 6-7 Century A.O. It
was only the Bade Baba idol which survives and the entire
effort on the part of the Trust was to restore the said idol to its
G
original form and to build a structure of very high quality, whereby
said idol could be safely kept, which will facilitate the public to
worship the Bade Baba idol.
14. As stated in the beginning, the High Court while
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·
16
SUPREME COURT REPORTS
(2014] 7 S.C.R.
A rendering the impugned judgment has accepted the case set
up by the State Government as well as Jain Temple Trust and
rejected the pleas raised by the appellants.
15. Mr. Paras Kuhad and Mr. Sidharth Luthra, learned
B Additional Solicitor Generals argued the matter on behalf of the
Archaeological Survey of India. Mr. P.C.Jain, Advocate made
his submissions on behalf of,the appellant in the other appeal.
These submissions were rebutted by Ms.Vibha Dutta Makhija,
learned senior counsel appearing for the State of Madhya
Pradesh as well as Mr. Gopal Subramaniam, learned senior
C counsel who appeared on behalf of the Jain Temple Trust.
16. Mr. Kuhad opened his submissions by pointing out that
magnificence, importance, glory and architectural grandeur of
these Kundalpur Jain Temples which has already been taken
D note of in the beginning. Thereafter, he referred to Notification
dated 20th November 1914 passed under Section 3 of the
1904 Act which was duly published in the Central Provinces
District Gazette, as well as Notification dated 16. 7.1913 which
was issued by Public Works Department of Central Provinces.
E He further submitted that even as per the case set up by the
Jain Temples Trust these 58 temples are in the nature of one
of the most important heritages of the country which was built
anywhere between 6th-11th Century and Bade Baba idol
between 6th to 7th Century. It was submitted by him that the
F Scriptures of the 6th Century contain a reference to this temple;
that the said temples have withstood the vagaries of time for
more than 10-14 centuries; that the temples are built in ancient
Nagar Shaili and are all square blocks with domed roofs and
Pinnacles at the corners and they are all white washed and look
very like Muhammadan Tombs; that the idol of Bade Baba was
G always flanked by the idols of Parasnathji on the sides and
Yaksha and Yakshi at the top and bottom; that the sculpture thus
consisted of seven idols carved/placed in a certain way
historically.
H
17. According to Mr. Kuhad, however, this sanctity of the
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
17
M.P. [A.K.SIKRI, J.]
Bade Baba idol was tempered when on 17th January 2006 this
A
idol was removed from the ancient temple and the ancient
temple ceased to exist thereafter. The sculpture now stands
divided whereby idol of Bade Baba is separated from the idols
of Parasnathji"on the sides and Yaksha and Yakshni at the top
and bottom. Currently all the seven idols stand separated and
B
installed/stored at different locations. This according to Mr.
Kuhad amounts not only to vandalizing the Bade Baba but
destroying the very sanctity of the said idol and the manner in
which it was placed in the temple.
18. Coming to the legal aspects of the matter, Mr. Kuhad c
argued that Sectio.n 2( 1) of the Act of 1904 defines "Ancient
Monument" as any structure, erection or monument. .. whfch is
of historical, archaeological or artistic interests, or any remains
thereof, and includes: (a) the site of an Ancient Monuments; and
(b) a portion of land adjoining the site of an Ancient Monument
D
as may required for fencing or otherwise preserving such
monument; and (c) the means of access to Ancient Monument.
Section 3 of the said Act (as originally enacted) read as under:
"Section 3: - Protected monuments. - (1) The local
Government may, by notification in the Local Official
Gazette, declare an ancient monument to be a protected
monument within the meaning of this Act."
.
Thus, according to the learned ASG the temple in question
is clearly covered by the definition of "Ancient Monuments"
which is the protected monument under Section 3 of the Act
by virtue of Notifications 1913 and 1914 referred to above.
E
F
19. In an endeavour to show that it is the 1958 Act which
applies to the temple in question, the learned ASG referred to
G
the provisions of Government of India Act 1935 as well as
Government of India (Adaptation of Indian Laws) Order, 1937
to give effect to Federalism and other constitutional changes
brought about by the Government of India Act, 1935. On that
basis, he argued that Notification dated 20th November 1914
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18
SUPREME COURT REPORTS
(2014] 7 S.C.R.
A was in fac~ of Notification of the Central Government under 1904
Act. The expression "Local Govt." was defined under Section
2(1) of the General Clauses Act of 1868 as meaning 'the
person authorized by law to administer executive government
in the part of British India in which the Act containing such
B expression shall operate. Thus, at the relevant times, the
expression "Local Government" did not mean Provincial Govt.
(as it came to be understood after 1935) but meant, the
authority authorized by law to administer the Executive Govt.
in that part of British India. Every such Authority, inspective of
C its designation, represented the same constitutional authority,
namely the Crown/Her Majesty's exercising its executive
powers through its different arms. The Adaptation Order 1937
added Section (Bab) to the Act of 1897 and it provided that
the 'Central Government' shall mean in relation to anything done
D before the commencement of Part Ill of Act of 1935, the
Governor General in Council, or the authority competent at the
relevant date to exercisa the functions corresponding to those
subsequently exercised by the Governor-General in Council.
The Adaptation Order, 1937 also submitted to term 'Local
E Government' occurring under the Act of 1904 by the term
·central Government'. Mr. Kuhad submitted that a reading of
the definition of Central Government as inserted by the
Adaptation Order 1937 makes it clear that the authority i.e. the
Local Government, that was competent upto the year 1937, t"
F exercise the functions that came to be subsequently exercised
by the Governor General in Council, was in fact. the Central
Government, at that point of time. He also referred to the
definitions of 'British India' and 'Local Government' under the
Act of 1868, a'nd pointed out that the 'Local Government' was
G the authority that was competent to exercise the powers under
the Act prior to 1937. With the separation of powers brought
about by the Act of 1935, the Governor General in Council
came to be known as the Central Government, and thus the
term 'Local Government' was substituted by 'Central
Government'
H
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
19
M.P. [A.K.SIKRI, J.]
20. Taking this line of argument further, he submitted that
A
under the Constitution of India the legislative powers -of the
Union as well as State are demarcated in the form of three
separate entries in List I, List II and List Ill and the entries in
List I are in the exclusive domain of the Union. He referred to
Entry 67 of List I which pertains to "Ancient and historical
monuments and records, and archaeological sites and
remains, (declared by or under law made by Parliament) to be
B
of national importance. His submission was that since the
monument was in question was ancient monument of national
importance and was so declared by the 1951 Act, it comes c
under the jurisdiction of the Central Government. He specifically
drew attention to the provisions of Sections 2,3 and Item 1 of
Part 1 of the Schedule to the Act of 1951 Act in this behalf. He
also referred to Section 3 of the 1958 Act which provides that
all ancient monuments declared under the 1951 Act to be of
0
national importance and shall be deemed to be ancient and
historical of national importance for the purpose of 1958 Act
as well. According to him, this legal position clearly suggests
that the Jain Temples at Kundalpur would be covered by 1958
Act and ASI has the jurisdiction to deal with these temples
which are not only ancient and historical but are of national
E
importance referring to Notification dated 16th July 1992. He
/submitted that no construction by any person can be raised
within the prohibited/regulated area without the permission of
the ASI and therefore under this Notification dated 16th June
1992, an area of 100 meter from the boundary of the Ancient
Monument is declared as a Prohibited Area and an additional
area of 200 m starting from the boundary of Prohibited Area
is declared as a Regulated Area. Therefore the Jain Temple
Trust was violating the provisions of the aforesaid Notification
F
as well as 1958 Act and 1959 Rules framed thereunder and
G
was exposing itself to the penalties that are provided under
Section 30 of the 1958 Act
21. Apart from making the aforesaid legal submissions,
the learned ASG also submitted that even the ground reality was
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20
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A that the ASI has been exercising consistent control over these
58 Kundalpur Jain Temples. It was for this reason that in its
survey carried out by ASI under1904 Act these were notified
as ancient monument of great historical archaeological and
artistic importance and notified as protected monument under
B 1904 Act. However, the Central Provincial Government decided
that "no agreement need be taken from the owner as these
temples are well looked after by the Jain Community". On 24th
September 1956, ASI supplied an abstract of the list of the
Ancient Protected Monuments entered in their Central Register
c which includes the 58 Jain temples. In the year 1974, the ASI
again carried out a survey of the Jain Temples and published
the said survey in the Damo District Gazetteers. The result of
the survey was also entered in Vol.VII of the ASI maintained in
respect of Ancient Monuments. Several attempts were made
0 by ASI to prevent destruction of Bade Baba temple and raising
of a new temple on the hills. The order dated 5th April 1999
issued by Government of M.P. also unequivocably state that the
monuments would be subject to the regulatory control of the laws
of Archaeological Survey of India.
E
22. Another submission of learned ASG was that in any
case, protected monuments are deemed to be of national
importance and once that is so, they are covered by the 1958
Act over which ASI will have the exclusive jurisdiction. Reference
was made to the judgment in the case of Rajiv Mankotia vs.
F Secretary to the President of India & Ors. (1997) 10 SCC 441
wherein this Court held as under:
G
H
"It would, therefore, be manifest that all ancient and
historical monuments and all archaeological sites and
remains or any structure, erection or monument or any
tumulus or place of interment shall be deemed to be
ancient and historical monument or archaeological sites
and remains of national importance and shall be so
declared for the purpose of Ancient Monuments Act if they
have existed for a century; and in the case of a State
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF
21
M.P. [A.K.SIKRI, J.]
monument, of State importance covered by the
~
appropriate State Act. The point of reference to these
provisions is that an ancient monument is of historical,
cultural or archaeological or sculptural or monolithic or
artistic interest existing for a century and is of national
importance or of State importance.