Supreme Court of India
ARCHEOLOGICAL SURVEY OF INDIAversusSTATE OF M.P. & ORS.
- Citation
- 2014 INSC 972
- Decided
- 9 May 2014
- Disposal
- Dismissed
- Bench
- S S NIJJAR
Holding
The Archaeological Survey of India has no jurisdiction; the Bade Baba temple and idol are governed by the Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964, and the State Government is the competent authority.
Summary
The Archaeological Survey of India (ASI) and a public‑spirited petitioner sought a writ directing the preservation of the Bade Baba Jain Temple at Kundalpur, Madhya Pradesh, alleging illegal construction by the Jain Temple Trust and claiming the site was a protected monument of national importance under the Ancient Monuments and Historical Monuments and Archaeological Sites and Remains Act, 1958. The Madhya Pradesh High Court held that the original temple no longer existed, only the Bade Baba idol survived, and that the idol was governed by the Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964, not the 1958 Act, thereby stripping ASI of jurisdiction. The Supreme Court affirmed this view, holding that the 1964 State Act applies and the State Government is the competent authority. The Court directed the Trust to seek permission under the 1964 Act for any construction and dismissed the appeals.
Issues considered
- The applicability of the Central Ancient Monuments Act, 1958 versus the Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964 to the Bade Baba temple and idol.
- Whether the Archaeological Survey of India has jurisdiction over the site.
- Whether the construction undertaken by the Jain Temple Trust violates the applicable statutory regime.
- Whether the temple qualifies as a monument of national importance under the 1958 Act.
Legislation cited
- Ancient Monuments and Historical Monuments and Archaeological Sites and Remains Act, 1958s. 126, s. 2, s. 3, s. 30, s. 39, s. 4, s. 9
- Ancient Monuments and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951s. 2, s. 3, s. 4
- Ancient Monuments Protection Act, 1904s. 3
- Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964s. 10, s. 25, s. 3, s. 38, s. 39, s. 5
Subjects
heritage preservationancient monumentjurisdictioncentral legislationstate legislationArchaeological Survey of IndiaMadhya Pradesh Act 1964religious freedomJain templeconstruction permissionnational importance
Judgment
[2014] 7 S.C.R. 1
ARCHEOLOGICAL SURVEY OF INDIA A
V.
STATE OF M.P. & ORS.
(Civil Appeal No.5529/2014)
MAY 09, 2014
B
[SURINDER SINGH NIJJAR AND A.K.SIKRI, JJ.]
Madhya Pradesh Ancient Monuments and
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
importance. Section 9 provides that if any owner fails or
0
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.
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~
H
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 868-
followed. 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,
F
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
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 E
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]
Venkatachala Mudaliar v. Sambasiva Mudaliar AIR 1927 F
Mad 465 - approved.
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
Vinayak Gosavi (1960) 1 SCR 773 -referred to.
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 E
"Jainism: its history, principles and precepts, the
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.
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.
B 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 6-
F 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
Court vide common judgment dated 17.9.2012 holding that the
I
, 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 E
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 F
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 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
H
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. E
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 F
construction work. It was also argued by the respondents that
the main temple was no more existing which had crumbled due
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 H ·
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 E
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
F
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.
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 H
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 B
monuments and records, and archaeological sites and
remains, (declared by or under law made by Parliament) to be
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 F
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
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 H
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:
"It would, therefore, be manifest that all ancient and
historical monuments and all archaeological sites and
G 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
H
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. In other words, either B
of them are required and shall be protected, preserved and
maintained as national monuments or State monuments
for the basis which not only gives pride to the people but
also gives us insight into the past glory of our structure,
culture, sculptural, artistic or archaeological significance, C
artistic skills and the vision and wisdom of our ancestors,
which should be preserved and perpetuated so that our
succeeding generations learn the skills of our ancestors
and our traditions, culture and civilization. They would have
the advantage to learned our art, architecture, aesthetic
0
tastes imbibed by the authors of the past and to continue
the same tradition for the posterity. Preservation and
protection of ancient monuments, is thus the duty of the
Union of India and the State Governments concerned in
respect of ancient monuments of national importance or
those of State importance respectively to protect, preserve E
and maintain them by preserving or restoring them to their
original conditions."
23. Emphasizing on the other limb of the same arguments,
Mr. Kuhad argued that the monuments in question is in any case F
in the nature of a pro~ected monument having so declared
specifically under 1904 Act. He submitted that 1958 Act had
not repealed the earlier Act of 1904 Act as section 39 (2) of
the 1958 Act merely states that the Act of 1904 would cease
to have effect "in relation to" ancient and historical monuments G
declared by or under this Act to be of national importance.
Therefore, all monuments which were not covered by 1958 Act
continue to remain covered under 1904 Act. For this
proposition, sustenance from the judgment of this Court in the
case of AS/ vs. Narender Anand & Ors. (2012) 2 SCC 562 H
22 SUPREME COURT REPORTS [2014] 7 S.C.R.
A was sought to be drawn which laid down that for a monument
to be an ancient monument, Notification under Section 3 of the
1904 Act was sufficient without any further Notification under
1951 or 1958 Act.
24. Alternate submission of the learned ASG was that the
B
monument in question is in any case liable to be declared as
monument of national importance as was done by this Court
in National Anand (supra). In the case of Viceregal Lodge in
Shimla, in the following words:
c "such being the historic evidence furnished by the
Viceregal Lodge, is it not the duty of Indians and of the
Government of India to preserve the Viceregal Lodge as
a monument of national importance for posterity as the
historic evidence so that every Indian citizen while visiting
D Shimla would have glimpse of it to recall the folly of
disunity, teaching us the lesson of being united so as not
to destroy ourselves once over and lose democracy and
liberties on account of disunity, disharmony on grounds of
religion, region, caste, language; and denial of all
E opportunities and facilities to our own weaker segments
of the society; of equality of opportunities and of status to
improve excellence in chosen facets of the respective lives.
The answer is obviously "YES". If we forget the past and
repeat the same mistake, we would stand to lose our
F nation's unity and integrity; stand to lose the opportunity to
integrate into the world our great democractic Bharat
Republic. Viceregal Lodge teaches us these lessons and
it is for all of us, individually and collectively, to learn,
awake, arise and work for integration, unity and fraternity,
which are our fundamental duties."
G
25. Summing up the argumentr;, Mr. Kuhad pleaded that
in spite of aforesaid legal web standing as a wall in front of the·
Jain Temple Trust, it had the audacity to destroy the ancient
monument on or after 17th January 2006 under the garb of
H protecting Bade Baba idol in blatant violation of 1992
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 23
M.P. [A.K.SIKRI, J.]
Notification and without seeking permission of the ASI. It was A
argued that the Jain Temple Trust was going on withollt the
expert advice of the National Monuments Authority and has
constructed a new temple illegally of a punishable offence. He
submitted that under the order of the High Court dated 20th May
2006, subject to undertaking to demolish the structure upon a B
judicial determinations, a dome was allowed to be constructed
to cover the idols at the new location. No other construction has
been carried out owing to the restraint imposed by the High
Court. Clearly the construction raised so far is completely
violative of the provisions of the Act and Rules, and in any case c
by virtue of the operative provisions of the Act of 1958 Act, no
further construction can now be undertaken. The photograph
placed on record clearly bear out that the new structure is in
no manner harmonious with the existing structure either in terms
of architectural style, or in terms of construction material or in
D
terms of aesthetics involved. The photographs also bear out that
all other temples on Kundalpur hills are in a pristine condition
and in the original form without any change. He, thus, pleaded
for issuance of necessary directions for preservation and
protection of the ancient monuments with no further construction
and demolition of structure, erected so far, along with suitable E
directions for restoration of this sculpture to its original form and
its reinstallation in a structure that confirms to the artistic,
historical and archaeological style, in tune and harmony of rest
of the monuments.
F
26. Mr. Ajay Choudhary, the learned counsel appearing for
the appellant in the other appeal has filed a written submission.
On a perusal thereof, one finds that it is almost on the same
lines as the submission of the learned ASG, already taken note
of. Mr. Choudhary has also appeared on behalf of the G
intervener, viz. Jain Sanskrati Raksha Manch and filed written
submissions on identical lines. Additionally, however, the
intervener has sought to trace out the history of Kundalpur and
the Jain Temple structures which were erected some time
between the 6th -7th Century A.O .. It is sought to be H
24 SUPREME COURT REPORTS (2014] 7 S.C.R.
A emphasized that temple of Bade Baba being an ancient is not
governed an ancient temple. These temples were maintained
by Jain community and as such it is a public trust. Therefore,
respondents 9 to 11 cannot claim ownership of the temple and
at the most they may be considered to be the trustees of the
B temple with no title to the trust properties which vest in them
only for the purpose of administration and management. It is,
further, argued that preservation and protection of ancient
monument is the forte of the ASI; no laJt permits demolition of
a temple; the temple of Bade Baba is a protected temple and
c a monument of national importance and therefore is governed
by the Act of 1958 over which ASI will have the exclusive
jurisdiction.
27. Ms. Vibha Dutta Makhija, learned counsel appearing
for the State of Madhya Pradesh, submitted at the outset that
D the core issue was as to whether temple in question falls under
the provision of State Archaeological Department or ASI. Her
argument on this issue was that once we go into the legal
history of. the statutory framework regarding the ancient
monument and archaeological sites in India and examine the
E same in juxtaposition with the State Act namely 1964 Act of
M.P., it would become clear that in so far as Bade Baba is
concerned, it is the State Act which is the governing law. We
would take detailed note of these submissions and the historical
perspective which Ms. Makhija drew, at the time of our
F discussion on this seminal issue. It can be pointed out in brief
that as per the learned senior counsel, The Madhya Pradesh
Ancient Monuments and Archaeological Sites and Remains
Act, 1964 (No.12 of 1964) was enacted by the Madhya
Pradesh Legislature on 16.4.1964. Section 3 gives power to
G 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 maintenance
of the State protected monuments by entering into an
agreement with the owner of the monument. Section 38 of the
H Act repeals the Ancient Monument Preservation Act, 1904 in
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 25
M.P. [A.K.SIKRI, J.]
its application to the State of Madhya Pradesh shall cease to A
have effect in relation to ancient and historical monuments,
archaeological sites and remains and all other matters
pertaining to the Act. The said enactment has duly been given
assent by the President on 16.4.1964. The learned senior
counsel also pointed out that the Madhya Pradesh Ancient B
Monuments and Archaeological Sites and Remains Rules, 1976
were framed under Section 37 of the 1964 Act by the State
Government. Rule 10 in Chapter Ill provides that no person shall
undertake any construction in a State protected area without
proper permission of the State Government. Rule 25 in Chapter c
V provides that an application may be submitted to move an
antiquity. Her submission, thus, was that the Bade Baba is not
declared as an ancient monument of national importance under
1951 or 1958 Act and therefore it is covered by the State Act
of 1964. She also argued at length the doctrine of implied 0
repeal of entire 1904 Act cannot be applied and the 1951 Act
has not fully repea!ed the 1904 Act impliedly. There was only
a partial repeal in relation to ancient and historical monument
and archaeological sites and remains declared or under the
1958 Act to be of national importance.
E
28. Her further submission was that with respect to the
issue regarding the applicability of the 1951 Act in case of the
monument not covered under the said Act, the issue has been
dealt with by a 5-judge bench of this Court in Joseph Pothen
v. State of Kera/a 1965 (2) SCR 868. The question to be F
determined was whether the Travancore Act was repealed by
the 1904 Act or by the 1951 Act-or by the 1958 Act. This Court
held that the 1951 Act applied to ancient and historical
monuments referred to or specified .in Part I of the Schedule
thereto which had been declared to be of national importance, G
and since the monuments in question was not included in the
Schedule, the 1951 Act did not apply to the said monument,
with the following observations:
"For the aforesaid reasons it must be held that H
26 SUPREME COURT REPORTS [2014] 7 S.C.R.
A notwithstanding the extension of the Central Act 7 of 1904
to the Travancore area and the passing of Central Acts 71
of 1951 and 24 of 1958, the State Act continued to hold
the field in respect of the monument in question. It follows
that the notification issued under the State Act was valid."
B
29. With regard to the ownership of the land Ms. Makhija
submitted that the issue of the ownership of the land has been
raised by the appellant. The same has been examined by the
Committee set up by the State Government which has
C conducted site inspection and has inspected all records. The
ownership according to the land revenue records is in private
ownership of the Digambar Jain Atishay Keshtra Kundalpur
Public Trust and the contemporaneous record of the
Archaeological Survey Qf India also records the same in its
Monument 'Register. She submitted that the record of the
D Revenue Department ~r the year 2011-12 for Village
Kundalpur, Tehsil Patera, District Damoh shows the name of
Shri Digambar Jain Sidh Kshetra Kundalpur as the owner of
50.72 hectares of land which is approximately 125.33 acres
which includes land other than that of the temples. She also
E referred to the records of ASI and argued that the ASI Register
entries itself establish that the temple in question was in private
ownership and was not taken under the gua~dianship of the
government. It has been held that the entries in the monument
register are conclusive proof of. ownership by this Court in
F Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779.
30. Mr. Gopal Subramaniam, the learned senior counsel
appeared for the Jain Temple Trust (respondents 9 to 11). He I
took pains in making an. endeavour to demonstrate that legal
G position was that there was no notification issued under 1951
Act to declare the Bade Baba temple as the national monument
and therefore this temple was not covered under the provisions
of 1958 Act. Referring to the Entry 67 of the Union List in 7th
Schedule of the Constitution as well as Entry 12 of the List 11 I
H thereof, his submission was that whereas Entry 67 of the Union
1
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 27
M.P. [A.K.SIKRI, J.]
List expressly covered such monuments declared by A
Parliamentary law to be of national importance, all other
monuments would be covered by legislation to be enacted
under Entry 12 of List II of the State List. 1964 Act was passed
by Madhya Pradesh under Entry 12 of the State List and
therefore it was the State Government which had the locus B
standi and jurisdiction over the Bade Baba temple. Mr.
Subramaniam also pleaded reliance upon the Constitution
Bench judgment in the case of Joseph Pothen (supra) and
submitted that the impugned judgment of the High Court was
in sync with the aforesaid judgment which makes the impugned c
judgment of the High Court unblemished. Justifying the findings
of the High Court that the original temple which was declared
to be an ancient monument under 1904 Act does not survive
and only the idol of Bade Baba alone survives, Mr.
Subramaniam highlighted the facts that the Bade Baba temple 0
contains the idol of Bade Baba which admeasures 12 ft x 12
ft. It is made of stone. It is an extraordinary precious idol. It was
submitted that the temple which housed Bade Baba idol, itself
had to be demolished and rebuilt in the year 1940. He pointed
out that in the year 1976, just like in 1940, prior to the E
reconstruction of the temple, the dome again fell and a new
dome had to be constructed. Thus, in 1976, yet another dome
was made. Again extensive repairs were carried out in 1992.
On account of the repeated cracks which were occurring in the
temple and having regard to the Deity itself being endangered,
it was decided that a new temple must be built. Referring to F
;
the Jain Agamas (the sacred texts which govern the
construction of Jain temples), his argument was that, as per
these Agamas, a Deity cannot be in a dilapidated structure nor
should an idol be subject to danger. An idol to which
energisation rights are imparted becomes a live Deity which G
has to be worshipped on a continued and regular basis thereby
attracting devotees who come and offer prayers and who return
once again. Therefore, in order to follow the Agamas and
keeping in view the height of this Deity, it was decided that a
temple be constructed in accordance with the "Nagara" style H
28 SUPREME COURT REPORTS [2014) 7 S.C.R.
A of architecture. According to the Trust, the said design is
completely in conformity with the Agamas and has been
approved by the Acharyas of the Digamber Jain Sect. In fact,
in order to ensure that the idol was correctly removed after
proper ceremonies and was installed at a new place it is stated
B that the said installation of the Deity was also undertaken in the
presence of the Acharyas and proper ceremonies were
performed. In fact, on account of the status quo order passed
by this Court on 15th March 2013, further construction has not
taken place.
c 31. Mr. Subramaniam also submitted that by looking into
the statutory regime under the Central Acts as well as the State
Act in right perspective the submission of the learned ASG that
it was a protected monument under 1958 Act would stand
refuted. He also countered the claim of the ASI that the statue
D was fragmented and destroyed. According to him, Bade Baba
is the main Deity. The Deities which are shown on the side of
Bade Baba include two individual idols of Lord Parswanath.
These idols on pieces of stone were placed together on the
side of Bade Baba in the Old Temple. The said pieces have
E been dismantled and kept intact. But on account of the status
quo order, they have not been placed with Bade Baba for the
present. The Trust undertakes that all the Deities, namely, the
two Parswanath (left and right), two of Pushpavrishtis and two
of Chavardaris and two Yaksha and Yakshinis are intact. Each
F one of these idols/statues is available with the Trust.
32. The learned senior counsel also joined issue on the
ownership of the temple, which according to him belongs to a
private entity. For this purpose, he referred to the averments
G made in the counter affidavit filed by the Trust before the High
Court as well as the counter affidavit filed in the present
proceedings. He submitted that the Trust had ample evidence
to the effect that the total land measuring 199.45 acres (Patwari
Halka No.81, Gram Kundalpur, out of Bandobast No.337, Area
H being 158.65 acres; Gram Fatehpur, out of Bandobast No.346,
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 29
M.P. [A.KSIKRI, J.]
being 34.35 Acres; Patwari Halka No. 79, Gram Teergarh, out A
of Bandobast No.171, area being 6.45 acres) as mentioned in
the letter dated 5.4.1999 is distinct from the land under the
private ownership of the Trust. Further, it is common ground
between the parties that no agreement pursuant to 5.4.1999
was ever executed. No further steps were taken even under the B
1904 Act either to enter into an agreement or place any
restrictive conditions. Thus, according to him,· these
circumstances make it clear that these temples were treated
as private temples, yet they were not taken over in any way since
the idols were being preserved, looked afte,r and were being c
worshipped on a continued basis.
33. At the end, Mr. ,Subramaniam laid great stress on the
religious freedom which 'Is given to the Jain community under£
Art.29 of the ConstitlJtton, being a religious minority and argued D
that the attempt of the ASI to interfere with the religious freedom
of the Jain Trust was impermissible and violative of this
provision.
34. We have given our utmost consideration to each and
every aspect of the matter, which it deserves as the issue is of E
great public importance. Though the central issue pertains to
the jurisdiction of ASI over the temple in question (which
depends upon thE> answer to the question as to whether it is
State Act i.e. 1964 Act which is applicable or the Central Act
i.e. 1958 Act that governs the field), few incidental facets of this F
issue which have also cropped up. These have factual as well
as legal hues. After deliberating on this core issue, we would
be providing answers to all such peripheral issues, as the
outcome of the main issue will not only remove the cob webs
but also lead us to the right path, showing direction to find G
solution to those issues. We, thus, proceed with the discussion
on the central issue, which is the fulcrum, in order to comitruct
the edifice on which main structure would be erected.
H
30 SUPREME COURT REPORTS [2014] 7 S.C.R.
A RE: APPLICABILITY OF STATE ACT OR CENTRAL ACT
35. Adverting to the aforesaid primary issue in the first
instance, no doubt Notification No.99 dated 20th November
1914 was passed under Section 3 of the 1904 Act followed
B by the Notification dated 16th July 2013 which was issued by
Public Works Department of Central Provinces. It is pertinent
to note that 1904 Act was enacted by the Legislative
Department of then Government of India to provide for the
preservation of ancient monuments and of objects of
C archaeological, historical or artistic interest. Section 2(1) of this
Act contained the meaning of 'ancient monument', Section 2(3)
defined the word "Commissioner" to be any officer authorized
by the Local Government to perform the duties of a
Commissioner under the Act. Section 3 of the Act granted the
Local Government power to declare any ancient monument
D to be a protected monument by way of notification in the official
Gazette. Section 4(6) provided that where there is no power
of a protected monument then the Commissioner will assume
the guardianship of the monument.
E 36. The moot question is what is the effect of these
Notifications after the repeal of 1904 Act and on the enactment
of 1951 Act and 1958 Act. The High Court has held that while
issuing these Notifications, the then Commissioner was acting
as "Local Government", as the term was then understood. The
F legal position in this behal.f that prevailed at that time and came
into being on the passing of 1919 Act, 1935 Act and the
Constitution of India, is explained by the High Court in the
following manner:
"While issuing these notifications, the Chief Commissioner
G was acting as the "Local Government" as the term was then
understood. The Government of India Act, 1919 was
enacted to make further provisions with respect to
Government of India. The Preamble to the Act provides
that concurrently with the gradual development of self-
H governing institutions in the provinces of India it is
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 31
M.P. [A.K.SIKRI, J.]
expedient to give to those provinces in provincial matters A
the large measure of independence of the Government of
India which is compatible with the due discharge by the
letter of its own responsibilities. Thereafter, the
Government of India Act, 1935 brought about the concept
of federal government with distribution of powers in the s
real sense for the first time. In the 1935 Act, the subject
'ancient historical monuments and archaeological sites and
remains" was put in the Federal List by the Govarnment
of India (Adaption of Indian Laws) Order 1937, the
provisions of 1904 Act were adopted and it was pro,vided c
that the expression "local Government" shall be read as
"Central Government".
37. We agree with the aforesaid conclusion. Let us
examine the scheme of these statutes in some detail to
understand which will clarify the aforesaid position beyond pale D
of doubt. The Government of India (Adaptation of Indian Laws)
Order 1937 was enacted by the then Parliament on 18.3.1937
and came into force on 1.4.1937 wherein it was stated that the
"Chief Commissioner'' and "Local Government" would be within
the meaning of Provincial Government. Under Section 3(14) of E
the General Clauses Act, 1897 defines "Commissioner" to
mean the chief officer in charge of the revenue administration
of a division. Further Section 3 (31) of that Act defines "local
authority" to mean a municipal committee, district board, body
of port c6mmissioners or other authority legally entitled to, or F
entrusted by the Government with, the control or management
of a municipal or local fund. These provisions give a flavor as
to what was understood by the Local Government. While
passing Adaptation Order, 1937, signific_ant changes were
simultaneously made to the 1904 Act.- In Sections 3, 4, 1OA, G
14, 15, 16, 17, 18 and 19 "Local.Government" was substituted
by "Central Government". l.n·Section 5 "the Local Government",
"the Secretary of State for India in Council", "the Government"
and "Government" substitute "the Central Government" and
omitted Sub-section (3) of Section 5 provided that the Collector H
32 SUPREME COURT REPORTS ., [2014] 7 S.C.R.
A may enter into an agreement on behalf of the Secretary of State
for India in CouncH but the same shall not be executed until the
same has been approved by the Local Government. So, it is
only with these amendments, Central Government came to be
substituted for the Local Government.
B
38. It is, therefore, not possible to accept the contention
of the appellant that the expression "local Government" did not
mean provincial Government but meant the authority authorized
by law to administer the executive Government in that part of
C British India. Having regard to the clear position mentioned in
the aforesaid Acts, as described by the High Court, it is clear
that the concept of the Federal Government was brought about
by passing of Government of India Act, 1935 and not before.
39. It is noteworthy to mention here that the 1951 Act as
D well as the 1958 Act are the post-Constitution Acts. In both the
Acts, the Parliament has used the expression "Central
Government". The Parliament is deemed to be aware about the
concept and meaning of the term "Central Government" under
the Constitution. Therefore, the con.tention made by learned
E ASG that the expression "Central Government" should be read
so as to include "local Government" cannot be accepted.
40. Let us now see as to whether, by virtue of the aforesaid
notifications issued under 1904 Act, the structure in question
F automatically attained the tag of "National Importance" under
1951 Act or 1958 Act. Answering this aspect in the negative,
the High Court has dealt with issue in the following manner:
"After commencement of the Constitution of India, the
Parliament enacted the Ancient and Historical Monuments
G and Archaeological Sites and Remains (Declaration of
National Importance) Act, 1951 to declare certain ancient
and historical monuments and remains in part A State and
Part b States to be of National Importance and to provide
for certain matters connected therewith. Section 2 of the
H 1951 Act inter alia states that all ancient and historical
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 33
M.P. [A.KSIKRI, J.]
monuments and all archaeological sites and remains A
declared by this Act to be of "National Importance" .shall
be deemed to be protected monuments and protected
areas respectively within the meaning of the 1904 Act. But
a crucial aspect is noteworthy here that all protected
monuments under the 1904 Act did not automatically B
become of "national importance". Part 1 of the Schedule
of the 1951 Act states that all ancient and historical
monuments which before the 1st day of April, 1956 have
either been declared by the Central Government to be
protected monuments within the meaning of the 1904 Act c
or possession of which has been taken by the Central
Government as protected monuments shall be monuments
of national importance. Section 2U) of the 1958 Act defines
'protected monument' to mean an ancient monument which
is declared to be of national importance by or under the 0
1958 Act.
In order to attract the applicability of 1958 Act, declaration
in respect of a monument has to be made by the Central
Government under Section 4 of the 1958 Act. Section 4
of the 1958 Act provides that where the Central E
Government is of opinion that any ancient monument or
archaeological site and remains not included in Section 3
is of national importance, it may, by notification in the
Official Gazette, give two months' notice of its intention to
declare such monument to be of national importance. The F
Central Government neither under the provisions of 1951
Act nor under the provisions of the 1958 Act has issued
ny notification in respect of the temple in question."
41. We are in agreement with the aforesaid approach of
the High Court. It is to be kept in mind that under Article 246 of G
the Constitution, the power to legislate has been divided
: between the Parliament and the State Legislatures on the
basis of the three lists in the Seventh Schedule of the
i Constitution. Entry 67 of the Union List covers "Ancient and
historical monuments and records, and the archaeological sites H
34 SUPREME COURT REPORTS [2014] 7 S.C.R.
A and remains, declared by or under law made Parliament to be
of national importance". Entry 12 of the State List covers
"'Ancient and historical monuments and records other than those
declared by or under law made Parliament to be of national
importance". Entry 40 of the Concurrent List covers
B ··Archaeological sites and remains other than those declared
by or under law made Parliament to be of national importance".
1951 Act was enacted by the Parliament to declare certain
ancient and historical monuments and archaeological sites and
remains in Part A and B States to be of national importance.
c Section 3 which 1s the declaratory provision declares that "all
ancient and historical monument and all archaeological sites
and remains declared by this Act to be of national importance
shall be deemed to be protected monuments and protected
areas respectively within the meaning of the Ancient
Monuments Preservation Act. 1904, and the provisions of that
0
Act shall apply accordingly to the ancient and historical
monuments or archaeological sites arid remains as the case
may be. and shall be deemed to have so applied at all relevant
times". The Schedule enumerates two categories of ancient
E monuments which are declared as those of national importance.
Under Point I of the Schedule. "'all ancient and historical
monuments in Part A States which, before the commencement
of this Act. have either been declared by the Central
Government to be protected monuments within the meaning of
ancient monuments. the Ancient Monuments within the meaning
F of ancient monuments. the Ancient Monuments Preservation
Act. 1904. or which have been taken possession of by the
Central Government as protected monuments." Further. the
ancient monuments declared to be of national importance were
enumerated specifically in Part II of the Schedule. Thus, Point I
G of Part I of Schedule declared only those ancient and historical
monuments declared by the 1951 Act as those of national
importance in Part A States and Part B States which. before
the commencement of the 1951 Act, were declared by the
Central Government (in contradistinction to Local Government
H or State Government) to be protected monuments within the
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 35
M.P. (A.K.SIKRI, J.]
meaning of the 1904 Act. Since the Notifications dated A
. 16.7.1913 and 20.11.1914 were issued prior to the 1951 Act
but were not issued by the Central Government, the monument
in question falls out of the ambit of the 1951 Act. The same is
apparent from the definition of "Central Government" in Section
3(8) of the General Clauses Act 1897 which defines "Central B
Government" as (a) in relation anything done before the
commencement of the Constitution, mean the Governor-
General or the Governor-General-in-Council as the case may
be; and shall include, - (i) in relation to functions entrusted under
sub-Section 1 of Section 124 of the Government of India Act. C
1935, the Government of a Province, the provincial government
acting within the scope of authority given to it under that sub-
section; and (ii) in relation to the administration of a Chief-
Commissioners Province, the Chief Commissioner acting within
the scope of the authority given to him under sub-section 3 of
section 94 of the said Act; ..... ". By virtue of Section 94 of the D
Government of India Act, 1935, Chief Commissioners·
Provinces have been delineated as British Baluchistan, Delhi.
Ajmer-Merwara, Coorg and the Andaman and Nicobar Island.
the area known as Panth Piploda. Central Province and Berar
were not Chief Commissioners Province but 1t was a Governors E
Province (see Section 46 of the 1935 Act). It is thus clear that
the acts of the Chief Commissioner Central Provinces (who
issued the 1913 & 1914 notifications) could not be deemed to
be that of the Central Government and stood on a different
authority and footing, and could subsequently be deemed to be F
that of the Provincial Government only under the 1937
Adaptation of Laws Order.
42. Argument of the learned ASG loses sight of the
relevant provisions of 1951,Act. It also ignores the fact that not G
only there is a central legislation enacted under Entry 67 of the
Union List. bwt State Legislation as well in the form of 1964 Act
enacted by the State Legislature under Entry 12 of the State
List. We may elaborate these aspects by pointing out that in
order to be covered under the provisions of the 1958 Act. it was H
36 SUPREME COURT REPORTS (2014] 7 S.C.R.
A 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 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
B declaration by the Central Government or monuments whose
possession was taken over by the Central Government.
However, in the present case, neither there is any notification
by the Central Government nor has the possession ever been
taken by the Central Government.
c 43. It is to be noted that 1958 Act was enacted for the
preservation of ancient and historical monuments and
archaeological sites. Vide section 39, the 1958 Act repealed
the Ancient & Historical Monuments & Archeological Sites &
Remains (Declaration of National Importance) Act. 1951 and
D Section 126 of the States Reorganization Act 1956. The
enactment is a comprehensive legislation dealing with the
meaning of "ancient monuments" and "owner" in Section 2(a)
and 2(g) respectively. Under Section 2U) "protected monument"
means any monument which is declared to be of national
E importance under the 1958 Act. Section 3 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
F national 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
G that the 1958 Act replaced the 1951 Act 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 to be of national importance even under the 1951 Act.
H
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 37
M.P. [A.K.SIKRI, J.]
the same fell outsice the purview of the 1958 Act as well. A
44. While this is the position of the Central Act. Madhya
Pradesh State enacted 1964 Act on 16.4.1964. Section 3
gives power to State Government to declare ancient
monuments to be State-protected monuments or
8
archaeological sites and remains to be State-protected Area
Section 5 provides for maintenance of the State protected
monuments by entering into an agreement with 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 C
Pradesh shall cease to have effect in relation to ancient and
historical monuments, archaeological sites and remains and all
other matters pertaining to the Act. The said enactment has duly
been given assent by the President on 16.4.1964.
45. At this juncture, we would like to discuss the D
Constitution Bench judgment in Joseph Pothen (supra) which
is squarely appl!cable. The question to be determined in the
case was whether the Travancore Act was repealed by the 1904
Act or by the 1951 Act or by the 1958 Act. the Court held that
the 1951 applied to ancient and historical monuments referred E
to or specified in Part I of the Schedule thereto which had been
declared to be of national importance, and since the monument
in question was not included in the Schedule. the 1951 Act did
not apply to the said monument. The Court held:
F
"For the aforesaid reasons it must be held that
notwithstanding the extension of the Central Act 7 of 1904
to the Travancore area and the passing of Central Acts 71
of 1951 and 24 of 1958. the State Act continued to hold
the field in respect of the monument in question. It follows
that notification issued under the State Act was valid." G
46: There is yet another vital factual aspect regarding the
temples in question. that clinches the issue. Even the Register
maintained by the Archaeological Survey of India expressly
records that the Temples were 'private' Temples. and also that H
38 SUPREME COURT REPORTS [2014] 7 S.C.R.
A no agreement was required to be entered and could be left 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
B national importance.
47. The aforesaid discussion persuades us to accept the
conclusion arrived at by the High Court accepting the legal
position as enunciated by the High Court, i.e. qua these
temples it is the 1964 Act passed by the State Legislature that
c would be applicable and the monuments are not covered by
the 1958 Act. Once we arrive at this conclusion on law point,
the argument of the learned ASG that since the temples are of
national importance, they should be treated as deemed covered
by 1958 Act, cannot be countenanced. After all, State Act
D 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 is no repugnancy between the two. Accepting the
argument the learned ASG would amount to rendering the
provisions of 1964 Act inapplicable even where that Act
E applies. It is not possible to accept such a consequence.
Having clarified the legal position, we discuss the case at
hand. ·
RE: KUNDALPUR HILL AND BADE BABA TEMPLE
F
48. The Kundalpur Hill consists of three villages, namely
Kundalpur, Fatehpur and Tirgarh. This is a hill of sacredness
which is worshipped as a "Siddha l<:shetra" by members of the
Jain community as it is believed that the last disciple of Lord
G Mahaveera attained salvation from the hill of Kundalpur. A total
of 58 temples are located at different levels on the hills off
Kundalpur starting from the foot hill. According to Distrtict
Gazetters published in 1974 based on Archaeological Survey
of India Volume VII, "there are 58 Digambar Jain Temples. On
H the circular hill range stand 30 of these temples, all gleaming
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 39
M.P. [A.K.SIKRI, J.]
white and the remaining 28 temples are situated at the foot of A
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 Yaksha and Yakshni of B
Rishabhanatha are noticed. The main interest 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. c
49. Out of the aforesaid 58 temples, Bade Baba is the
main Deity. It admeasures 12 ft x 12 ft. It is made of stone. It is
an extraordinary precious idol. The Deities which are shown on
the side of Bade Baba include two individual idols of Lord
Parswanath as well as images of Yaksha & Yakshni. These D
idols on pieces of stone were placed together on the side of
Bade Baba in the Old Temple.
50. Since we are concerned with the construction that has
taken place in Bade Baba temple, it would be necessary to E
narrate the condition of this temple that existed from time to
time. As per the Jain Temple Trust, since the structure 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 F
Baba idol was in fact earlier demolished and re-built way back
in the year 1940. Again 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. G
Significantly, the idol of Bade Baba has remained intact.
51. There is no quarrel up to this, which means that the
main temple building which houses Bade Baba idol needed
repairs. It is at this juncture that the parties have joined issue
as to who is to carry out the repairs and in what manner. As H
40 SUPREME COURT REPORTS [2014] 7 S.C.R.
A per the ASI, it is the ASI under whose supervision the aforesaid
task is to be accomplished whereas Jain Temple Trust claims
its prerogative to undertake this job. That is an aspect which
we have already dealt with, negating the claim of ASI in this
behalf. Now, we would deal with other aspects, namely, whether
B removal of the idol was justified and whether the repairs/
construction carried out by Jain Temple Trust amounts to
vandalizing the said temple or it was permissible to make the
construction by the Trust in the present form.
C REMOVAL OF THE MAIN IDOL
52. 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
D structure nor should an idol be subject 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 view
E 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 has been
approved by the Acharyas of the Digamber Jain Sect. In fact,
F 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 imperative to shift the idol so that
G outer structure wherein the idol is housed could be
reconstructed. That step was necessary to protect the idol.
53. Having regard to the above, we would, in the first
instance, like to comment that claim of the ASI that the statute
was fragmented and destroyed is totally unfounded. What has
H happened is that on a big piece of stone there was an idol of
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 41
M.P. [A.K.SIKRI, J.]
Bade Baba. On the two sides of this main idol were two A
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
common damage while the construction in the temple is carried B
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 placed back at the same spot
and in the same form. Bade Baba idol will be reinstalled in. the c
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 tar.en on record,
making the Jain Temple Trust bound by this statement. We may D
add that such a course of action was upheld by the Madras
High Court in Venkatachala Mudaliar v..sambasiva Muda/ier,
AIR 1927 Mad 465, viz. to shift an idol from an old Temple to a
new one, if the same was in the beneficial interest of the
worshipper community. The said view has also been approved E
by this Court in Narayan Bhagwantrao Gosavi Ba/ajiwale v.
Gopa/ Vinayak Gosavi, (1960) 1 SCR 773 (para 40).
RE: NATURE OF CONSTRUCTION
54. This leaves us with the issue relating to the nature of F
construction that is carried out. As the outside structure had
become totally dilapidated and there was reasonable danger
of its collapse which could damage the main deity and other
deities, it became necessary to re-erect the outside structure
of the temple. May be, it would have been better to construct G
the same in the same format in which it was existed earlier.
Admittedly, the construction which is carried out now upto
by the Trust that too substantial, is n.ot the replica of the old
structure. However, case of the Trust is that the construction is
as per the Jain Agamas. Therefore the question that would H
42 SUPREME COURT REPORTS [2014] 7 S.C.R.
A arise as to whether it was necessary to make the construction
of new temple exactly in the manner in w~ich it existed earlier
or the manner in which it is constructed is permissible, being
in conformity with these Agamas.
55. There is no gain saying that Jain community claims
B
antiquity for its religion, and rightly so for a documented
commentary of Jain religion, running into Volume titled "Jainism:
its history, principles and precepts, the culture heritage of India
at volume 1, (page 400) it is said:
c- "The Jains claim great antiquity for their religion. Their
earliest prophet was Rsabhadev, who is mentioned even
in the Visnu and the Bhagwata Puranas as belonging to
a very remote past. In the earliest Brahmanic literature are
found traces of the existence of a religious Order which
D ranged itself strongly against the authority of the Vedas
and the institution of animal sacrifice. According to the
Jaina tradition, at the time of Mahabharata war, this Order
was led by Neminatha, who is said to have belonged to
the same Yadava family as Krsna and who is recognized
E as the twenty second Tirthankara. The Order gathered
particular strength during the eight century B.C. under
Parsvanatha, the twenty third Tirthankara, who was born
at Varanasi. This Order we may call the Sramana Sangha
(as distinct from the Vedic Order), which later became
F divided into the Jaina and the Buddhist Orders under
Mahavira and the Buddha, respectively.
While describing the history of Jain Darshana, it has been
noted:
G "Through out Vedic Literature we find two parallel currents
of thought, opposed to each other, one enjoining animal
sacrifice in the Yajanas (sacrifices), and the other
condemning it, the former being represented by the
Brahmanas of the Kuru-Pancala country in the west, and
H the later by the Ksatriyas of the eastern countries
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 43
M.P. [A.K.SIKRI, J.]
consisting of Kasi, Kosala, Videha, and Magapha. It is also A
noteworthy that in these areas the Ksatriyas at the head
of society, whereas in the Kuru-Pancala country, the
Brahmanas were leaders. And again, in the eastern
countries, instead pure Sanskrit, Prakrits were prevalent,
which were the canonsical language of Jainism and B
Buddhism. Further, the Atma-Vidya of the Upnishads is
found to be cultivated by the Ksatriyas of these eastern
countries, as against the sacrificial religion and the
adoration of the Gods in the Kuru-Pancala country. As we
find these features in Jainsim, and in Buddism, which later c
arose in this very area, we may conclude that Jainsim was
prevlent in the eastern countries, and is as old as the
Vedas. It is also held by the Jains that the Vedas, atleast
the portions that are not lost, advocated Ahimsa, and the
cleavage arose between the two schools when there was
0
difference of opinion in the interpretation of the Vedas, as
illustrated in the story of Kid Vasu found in Jaina Literature
as well asin the Mahabharata.
The emphasis on Samaiya or Equality is described as
follows:- E
"Jainism lays great stress upon the attitude of equality. It
has identified this attitude with the famous brahmanic
conception of Brahman, and has designated the whole
religious conduct and philosophical thought that helps the
development of the attitude of equality as Bambhacera F
(Brahmacarya), even as Buddhism has designated the
principles of goodwill (Maitri) and the like as brahmavihara.
Further, justice like the Dhammapada and the
Mahabharata, the Jaina texts identify a Sramana, who
embodies equality, with a Brahmana. G
Agamas of the Jains are described as
'The Agamas or the scriptures of the Jains are revealed
by the Sarvajana or the Omniscient being. The Jaina
scriptures should not be in conflict with the well-known H
44 SUPREME COURT REPORTS (2014] 7 S.C.R.
A Pramanas, the criteria of correct knowledge. They must be
capable of leading men towards higher goals, toswarga
and moksa, must give correct information as to the nature
of reality, and must describe the four pursusarthas (ends
of human life): dharma (religious merit), artha (wealth),
B kama (enjoyment), and moksa. The Agamas with such
characteristics, revealed by sarvajana, have been handed
down from generations to generations by a succession of
teachers called gandharas, beginning with Sudharman, the
chief disciple of the Tirthankara Vardhamana Mahavira.
They are known by the following appellations: the
Siddhanta, Paramagama, Krtanta, Veda, Sruti, Sastra,
etc. The Agamas are grouped under three classes: Anga,
Purva and Prakrima.
On Architectural Traditions and Canons, the Nagara
D Temples are described as follows:
"Nearly all over northern and central India one comes
across a type of upright building used for religious
purposes, which have a number of distinctive features. The
compartment within is square in plan and so is the outside.
E
But portions of the outer surface are progressively
projected forwards as one proceeds from the outer edge
of any one face of the building towards its middle. These
vertical strips disposed in several planes are called pagas.
They run from the base to below the crown. The planes are
F sometimes distinguished from one another by the nature
of their decoration. But the outermost pagas on any face
of the tower are very frequently divided from bottom
upwards into a number of storyes, the upper ends of which
bear an ornaments moulding called bhumi-amla or bhumi-
G amalaka, 'the amalaka which marks the bhumi or level.
On Jaina Architecture and Traditions and Canons:
"While several words were anciently current to denote what
is known as architecture, a common and appropriate word
H was vastu-sastra. Through the word silp-sastra has very
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 45
M.P. [A.K.SIKRI, J.]
much the same meaning, it has a distinct leaning towards A
sculpture and iconography. The word sthapatya has a more
restricted connotation, viz. a house or school, gharana,
relating to some particular type of architecture or sculpture
workshop. Apart from the traditional gharanas, there are
several other classes of architects. The Vaisyas, the B
Mewads, the Gurjaras, the Pancolis, and the Pankalas, all
spread over West India, include expert in wood-carving,
traditional engineering etc. The Gouda-Brahmanas of
Jaipur and Alwar are framed for marble carving. Some
specialize in metal craft and painting. The Jangadas are c
known for wood-carving and traditional engineering; they
are known in Madhya Pradesh, Uttar Pradesh and Delhi.
While the Gharanas are hereditary bearers of the ancient
architectural tradition, such tradition is also recorded in a
vast number of available texts. These treaties generally D
follow one and the same canon throughout, but they differ
considerably inter-se, both object-wise, leading to the
Gharanas mentioned above, and subject-wise, by putting
architecture into various types of sails like nagara vesara,
dravida, etc. E
While some of these texts, like the Diparnava of
Visvakarman, the Rupa-Mandana and Prasada-Mandana, both
of Mandana, the Vastu-Manjari of Nathaji, etc. deal inter-alia
with Jaina architecture perhaps the only book independently F
written on Jaina architecture is the Vatthusara Payarana in
Prakrt, with three chapters devoted respectively to residential
houses, iconography and temple architecture.
56. Relying upon the aforesaid scriptures, it is argued that G
when the new structure is in accordance with the Jain Agamas
and is in tune with the Jain Architectural on which basis Nagara
, temples are constructed, it would be unwise to direct demolition
of these structures and to carry out fresh construction as per
the earlier existing design.
H
46 SUPREME COURT REPORTS [2014] 7 S.C.R.
A 57. Mr. Gopal Subramanium had also referred to the
judgment in the case of Seshamma/ v. State of Tamil Nadu
(1972) 3 SCR 815, wherein this Court upheld the importance
of Agamas. Although this Court upheld the validity of the Tamil
Nadu Hindu Religious and Charitable Endowments
B (Amendment) Act, 1970, it was observed in paragraph 11 as
follows:-
" ..... The authority of these Agamas is recognized in
several decided cases and by this Court in Sri
Venkataramana Devaru v. The State of Mysore, Agamas
c are described in the last case as treatises of ceremonial
law dealing with such matters as the construction of
temples, installation of idols therein and conduct of the
worship of the deity .... "
D Thus, we find that on the one hand, the Jain Temple Trust
justified the construction which is being undertaken in the
present manner with the submission that once the existing
dome and outer structure decayed to such an extent that the
repairs were not possible and it needed reconstruction, while
E doing so, the tenets of the Jain religion are kept in mind and
new structure follows agamas. It is explained that the temple is
being constructed in accordance with 'Nagara' style of
architecture, which is approved by the Acharyas and Digambar
Jain sect. To this extent, the stand of the Trust appears to be
r correct, viz. the new construction is as per established Jain
culture, as described in Agamas. However, it is argued by the
appellants that in order to keep the sanctity of ancient
monument, the construction should have been on the same
pattern of structure but which existed before demolition. It is also
G their case that the construction of Bade Baba temple should
be in sync with other 57 temples and this sanctity has not been
maintained. We find that this aspect is not specifically looked
into by the High Court.
58. We have e.!ready held that ASI has no jurisdiction in
H the matter and the archaeological site in question is governed
ARCHEOLOGICAL SURVEY OF INDIA v. STATE OF 47
M.P. [A.K.SIKRI, J.]
by the 1964 Act, over which it is the State Government A
authorities who are competent to play their statutory role in
accordance with the provisions of the 1964 Act. The High
Court, in the impugned judgment, has directed the Trust to
submit an application for grant of permission to raise
construction of the Temple to preserve and protect idol of Bade B
Baba. Direction is also issued to the State Government to
consider the application, in accordance with law, within a period
of two months. We are of the opinion that while considering this
application, the competent authority under the 1964 Act would
specifically consider the aforesaid issue/ aspect as well. We c
are leaving the matter to the experts/ public functionaries under
the 1964 Act with a hope that they would weigh the 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.
0
application of the Jain Temple Trust, but the aforesaid aspect
is not dealt with, we direct the State Government to take
decision in-this behalf within a period of two months. It would
also be open to the Trust to press the argument that Jains are
declared religious minority and therefore, Jain community
enjoys the religious freedom, as a fundamental right, E
guarante-ed 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 the time of
temporary shifting of the idol' and also before deciding to have
the outer structure of the temple as per Agamas while F
performing these rituals are performed of Agamas by Suri
Mantras. Their plea shall also be kept in mind while taking the
decision. We further make it clear that if the Government
functionaries approve of the construction, the appellants shall
not be allowed to challenge it again. G
59. Subject to the aforesaid observations/directions, the
appeals of the appellants are dismissed. There shall, however,
be no order ·as to costs.
Nidhi Jain Appeals dismissed. H
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