Archaeological Survey Of India vs State Of M.P. . on 9 May, 2014
65. 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, Archaeological Survey of India v. State of M.P., (2012)
4 MPLJ 323: AIR 2013 MP 105, has directed the Trust to submit
an application for grant of permission to raise construction of the
temple to preserve and protect the 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."