Civil Appeal No. 5529 of 2014 (Arising out of SLP (Civil) No. 9923 of 2013) and Civil Appeal No. 5530 of 2014 (Arising out of SLP (Civil) No. 12537/2013. Case: Archaeological Survey of India Vs State of M.P. and Ors.. Supreme Court (India)

Case NumberCivil Appeal No. 5529 of 2014 (Arising out of SLP (Civil) No. 9923 of 2013) and Civil Appeal No. 5530 of 2014 (Arising out of SLP (Civil) No. 12537/2013
CounselFor Appellant: Paras Kuhad, ASG., Siddharth Luthra, ASG., Gopal Subramanium, Sushil Kumar Jain, Adv., Vibha Datta Makhija, Sr. Adv., Jitin 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, ...
JudgesSurinder Singh Nijjar and Arjan Kumar Sikri, JJ.
IssueAncient and Historical Monuments and Archaeological Sites and Remains Act, 1958 - Sections 2, 3, 4, 5, 6, 6(2), 9, 30, 38, 39, 39(2); Ancient Monuments Protection Act, 1904 - Sections 4(6), 2, 2(1), 2(3), 3, 4, 5, 5(3), 10A, 14, 15, 16, 17, 18, 19; Madhya Pradesh Ancient Monuments and Archeological Sites and Remains Act, 1964 - Sections 19, 37;...
Judgement DateMay 09, 2014
CourtSupreme Court (India)


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 Madhya Pradesh, Principal Seat at . 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 6-7th 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 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.

  2. Both these Writ Petitions are disposed of by the High 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 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 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 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 law within 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.

  3. Obviously, both the writ Petitioners were not satisfied with the aforesaid outcome of their Writ Petition and it is 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 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 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 traverse these facts from the SLP Paper Book filed by the ASI by talking 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. Kundalpur Jain Temples, totaling 58, are located at different levels on the hills of 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 Muhammadan tombs. The principal temple contains a colossal image of Mahavira which is of 12 feet". According to District Gazetteers 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 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 the middle of them. It enshrines a colossal red sandstone image of Jain Tirthankar...Secondly on both sides of this image, images of Yaksha and Yakshni of Rishabhanatha are noticed. The main interest of place lies in the beautiful huge images of Rishabhanatha and two of Parshwanatha in standing posture. The later are installed on either side of the former. These are probably of 6th or 7th century A.D." "Kundalgiri as one of the Nirvarana Kshetras finds mention in Daska Bhakti by Swami Pujyabada of fifth or sixth century A.D. and in Prakrit is one of the most ancient and sacred Nivarana Kshetras of the Jains. On another small temple date of Samvat 1505 (1444 A.D.) is given."

  6. As pointed out above, the most sacred temple among 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 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 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 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 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 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 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 covered by the Notification 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 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 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.

  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 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 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, were destroying the pristine beauty and ancient ambience of the monument by cutting and adding new construction within the 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 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.

  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...

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