Judgment :

A.K. Sikri, J.

1. Two Writ Petitions, both in the nature of Public Interest Litigation came to be filed in the High Court of Madhya Pradesh, Principal Seat at 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 6-7th Century A.D and scattered over an area of 199.45 acres in villages Kundalpur, Fatepur and Teergarh in Tehsil Hata, District Damoh (MP). This cluster of temples include most famous among them known as the temple of “Bade Baba”. According to the petitioners, even when they are protected ancient monuments under the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958 and Rules 1959 framed thereunder, Jain Temple Trust (respondents 9 to 11) is carrying out illegal construction and thereby vandalizing the said Bade Baba Jain Temple.

2. Both these Writ Petitions are disposed of by the High Court vide common judgment dated 17.9.2012 holding that the original temple which was declared to be an ancient monument by virtue of Notification issued under Section 3 of Ancient Monuments Protection Act, 1904 (hereinafter referred to as “1904 Act”) does not survive and the idol of “Bade Baba” which is an ancient monument, alone survives. The Court has, thus, held that question of preservation and/or protecting of the monuments does not arise. In so far as idol of “Bade Baba” is concerned, the same is governed by the local Act, namely M.P. Ancient Monuments and Archeological Sites and Remains Act 1964 (hereinafter referred to as the “1964 Act”) and therefore ASI has no jurisdiction over it. At the same time, keeping in mind the provisions of Section 19 of 1964 Act which provides that there cannot be any construction or mining etc. by any person including the owner or occupier of the said protected area without permission of the State Government, the Jain Temple Trust will not proceed with the construction without obtaining the permission of the State Government. Accordingly, direction is issued to the Trust to submit an application for grant of permission to raise construction of the temple to preserve and protect idol of “Bade Baba” and a further direction is issued to the State Government to consider that application in accordance with law within a period of 2 months. It is also held that in case the State Government refuses to grant permission to raise construction of the temple the trust shall restore the construction to its position which existed on the date of the passing of the interim order by the High Court on 20th May 2006.

3. Obviously, both the writ petitioners were not satisfied with the aforesaid outcome of their Writ Petition and it is maintained that ASI is the appropriate authority as the temple and the idol of “Bade Baba” are the protected monuments of national importance under 1958 Act. The petitioners have also taken the position that the Trust has materially altered the character of the temple which was impermissible and therefore the same be directed to be restored to its original condition and in so far as the Trust is concerned, it has no right to carry out any construction thereon. Petitioners also maintain that 1964 Act does not apply and therefore State Government has no jurisdiction over the said temple. This, in nutshell, is the controversy on which we had heard counsel for the parties in detail.

4. Leave granted in both the SLPs.

5. Let us turn to the factual details at this point. We shall traverse these facts from the SLP Paper Book filed by the ASI by 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 Kundalpur starting from the foot hill. According to the Central Provinces