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14. As stated in the beginning, the High Court while 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 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 counsel who appeared on behalf of the Jain Temple Trust.

25. Summing up the arguments, 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 protecting Bade Baba idol in blatant violation of 1992 Notification and without seeking permission of the ASI. It was argued that the Jain Temple Trust was going on without 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 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 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 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 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.

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 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 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.

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.