Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Jain Sanskrati Raksha Manch vs The State Of Madhya Pradesh on 3 July, 2015

                                  WP-8993-2015
         (JAIN SANSKRATI RAKSHA MANCH Vs THE STATE OF MADHYA PRADESH)


03-07-2015

         Shri R.K. Sanghi, learned counsel for the petitioner.
         Shri A.P. Singh, learned Govt. Adv. for the State.
         Heard.
         This petition has been filed by the petitioner for the following
reliefs:-
          “(i)    to cancel, quash or set aside the impugned order

            dated 26.07.2014 (Annexure-P-6) passed by the respondent

No.2 on the various grounds mentioned in para 6 of this writ petition.

ii. to restrain the respondent No.4 by a writ of permanent injunction from raising any construction in the areas of the temple of Bade Baba and mandatory order may be issued to demolish all the construction raised by the respondent no.4 after the decision given by the High Court of Madhya Pradesh.

(iii) to direct the respondent No.3, the Chief Conservator, Department of Forest, Government of M.P., Bhopal to take appropriate legal action against the Jain Trust for raising any construction in the Forest Area and prohibited area and to demolish all the constructions so far raised by the respondent No.4.” This case has checkered history. Earlier Archaeological Survey of India filed a petition before this Court which was registered as W.P.No.1220/06. In the aforesaid petition, it was prayed that the respondent no.9 Shri Digamber Jain Atishay Kshetra Kundalpur, a Public Trust, be restrained from raising any construction or making any alterations. That petition was disposed of by this Court vide dated 20.05.2006. Thereafter, an SLP was filed before the Supreme Court which was registered as SLP (Civil) No.9923/13. The same was disposed of vide order dated 9.5.2014 with the following directions:-

“58. We have already held that ASI has no jurisdiction in the matter and the archaeological site in question is governed by the 1964 Act, over which it is the State Government 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 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 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 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, 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 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 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.” In accordance with the directions issued by the Supreme Court, the Government of M.P. Principal Secretary, Department of Sanskrati passed the order dated 24.7.2014 (Annexure-P-6) The Department had granted permission to the Trust to raise construction with certain conditions. The petitioner challenged the aforesaid order in writ petition filed under Article 32 of the Constitution of India before the Supreme Court. That writ petition has been disposed of vide order dated 24.4.2015 (Annexure-P-1) with the following observations.

“Heard learned Senior counsel appearing for the petitioner.

In our view, the petitioner may approach the High Court instead of filing this writ petition under Article 32 of the Constitution of India.

The writ petition is dismissed accordingly. However, in the event the petitioner files a writ petition before the High Court, the same shall be considered on its own merits in accordance with law.” Now the petitioner has filed this petition before this Court against the order Annexure-P-6. This order has been passed in pursuance to the order passed by the Supreme Court quoted above. The Supreme Court has clearly observed in the order that “we further make it clear that if the Government functionaries approve of the construction, the appellants shall not be allowed to challenge it again”. In that case, the present petitioner was also an intervenor. It is contended by the learned counsel for the petitioner that the present petitioner was not accorded an opportunity of hearing before passing the order, hence the order is bad in law. This is not the condition precedent as fixed by the Supreme Court in the SLP that the present petitioner be also accorded an opportunity of hearing. There is no requirement of rule of law in this regard. The petitioner is a registered Society. After considering all the facts of the case, the competent Authority accorded permission for construction. Looking to the aforesaid facts of the case, in my opinion, this writ petition is not maintainable. It is hereby dismissed. No order as to the costs.

Certified copy as per rules.

(S.K. GANGELE) JUDGE