PETITIONER: BHURI NATH & ORS. ETC. THE SEWA COMMITTEE BARIDARAN &ORS. (B Vs. RESPONDENT: THE STATE OF JAMMU & KASHMIR & ORS. DATE OF JUDGMENT: 10/01/1997 BENCH: K. RAMASWAMY, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:
THE 10TH DAY OF JANUARY, 1997
Present:
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice G. B. Pattanaik
N.N. Bhat, Mahesh Aggarwal, G.P. Srivastava, Atul
Sharma, E.C. Agarwala, Advs. for the appellants.
S.K. Dholakia, P.P. Rao, Sr. Advs. J.S. Manhas, Subhash
Sharma, Mulk Raj Vij, N.P. Sharma, Sunil Dogra, Ms. Monica
Sharma, S.S. Shroff, Advs. with them for S.A. Shroff & Co.,
Advs. for the Respondents.
J U D G M E N T
The following Judgment of the Court was delivered:
K. Ramaswamy, J.
Leave granted.
All Hindus, in millions, of India from nook and corner
and those settled abroad, go by foot or carriage, bearing
all arduous journey and inconveniences, covering a distance
of 16 miles from foothill of Katra to have darshan and
blessings of Mata Vaishno Deviji. When the Legislature of
the State of Jammu and Kashmir stepped in for effective and
proper management of the shrine and convenience of the
pilgrims and the Shrine, it gave rise to the present
litigation.
These appeals, sequally, by special leave arise from
the common judgment of the Division Bench of Jammu and
Kashmir High Court, made on March 17, 1994 in CWP Nod.
1328/96 and 1039/95. The appellants challenged the
constitutionality of the Jammu and Kashmir Shri Mata Vaishno
Devi Shrine Act, 1988 (XVI of 1988) (for short, the “Act”).
On March 17, 1986, the Governor, exercising the power of
Section 92 of the Constitution of Jammu & Kashmir,
promulgated Ordinance No.1 of 1986 which got transformed
into J & K Shri Mata Vaishno Devi Shrine Act, 1986, the
Governor’s Act and is now replaced by the Act. The Act has
come into force by operation of Section 1(2) of the Act
w.e.f. August 13, 1986, the date on which the said Ordinance
had come into force.
The Preamble of the Act manifests that the Act came to
be passed “to provide for the better management,
administration and governance of Shri Mata Vaishno Devi
shrine and its endowments including the land and buildings
attached, or appurtenant to the Shrine, beginning from Katra
upto the holy cave and adjoining hillocks currently under
the management of Dharmarth Trust”. Section 2 gives to the
Act overriding effect and envisages that the Act shall have
effect, notwithstanding anything to the contrary contained
“in any law or in any scheme of management, decree, custom,
usage or instrument”. The Act consists of, in all, 25
Section. Section 3(a) defines the “Board” to mean “the Shri
Mata Vaishno Devi Shrine Board constituted under this Act”.
Section 3(b) defines “Endowment” to mean all property,
movable or immovable, including the idols installed therein.
The important facet of this definition of “endowment” is
that the sum total of properties belonging to, given or
endowed for the maintenance, improvement, additions to or
worship in the Shrine or for the purpose of any service or
charity connected therewith including the idols installed
therein, the premises of the Shrine, the lands and buildings
attached or appurtenant thereto, beginning from Katra upto
the holy cave and the adjoining hillocks, are the endowment
of Mata Shri Vaishno Deviji. They all, as on the date of the
Act, were endowment properties under the management of the
Dharmarth Trust, or property belonging to Baridar or
Baridars Association within the area specified in the
Preamble of the Act. Section 3(c) defines “Shrine Fund” to
mean the endowment and includes all sums received by or on
behalf of the Shrine or for the time being held for the
benefit of the Shrine; it an inclusive definition and
details of the endowments described therein being not
material, the same are omitted. Section 3(d) is relevant
which defines the “Shrine” to mean the Shrine of Shri Mata
Vaishno Devi Shrine and includes the Shrine, holy cave and
other temples within the premises specified in the preamble
of the Act. It would, thus, be clear that the Act was made
to provide better management, administration and governance
of Shri Mata Vaishno Devi Shrine, its endowments, all
temples, and sum total of the properties, movable and
immovable attached or appurtenant to the Shrine within the
area specified in the preamble of the Act, notwithstanding
the fact that there exist any law, scheme of management,
decree, custom, usage or instrument to the contrary. The
object of the Act, therefore, clearly is proper, efficient
and effective management, administration and governance of
the Shrine, its endowments and properties. All this is aimed
to cater facilities, sources and comfort to the pilgrims who
visit the Shrine.
Section 4 vests the ownership of the Shrine Fund in the
Board envisaging that “the ownership of the Shrine Fund
shall, from the commencement of this Act vest in the Board
and the Board shall be entitled to its possession,
administration and use for the purposes of this Act”. The
Board gets constituted under Section 5. Sub-section (1)
adumberates that the administration, management and
governance of Shri Mata Vaishno Devi Shrine and the Shrine
Fund shall vest in the Board comprising a Chairman and not
more than ten members. The composition thereof is elaborated
with the a mandatory language, viz., “shall be”. Under
clause (a) of sub-section (1) thereof, the Governor of the
State of Jammu and Kashmir, and if the Governor be not a
Hindu, then an eminent person professing Hindu religion and
qualified to be a member to be nominated by the Governor,
shall be the ex-officio Chairman of the Board. Clause (b)
provides that a Governor shall nominate nine members in the
manner indicated therein, viz., (i) two persons who, in the
opinion of the Governor, have distinguished themselves in
the service of Hindu religion or culture; (ii) two women,
who in the opinion of the Governor, have distinguished
themselves in the service of Hindu religion, culture or
social work, especially in regard to advancement of women;
(iii) three persons, out of persons who have distinguished
themselves in administration, legal affairs of financial
matters; and (iv) two eminent Hindus of the State of Jammu
and Kashmir. Under the provision, for a period not exceeding
three months from the date the Act came into force, the
Governor shall “act as and exercise all the powers of the
Board under this Act”. Sub-section (2) of Section 5 declares
that a person shall not be eligible for being nominated as a
member of the Board, if he suffers or incurs any of the
disqualifications specified in Section 8.
Section 6 declares that the Board shall be a body
corporate and shall have perpetual succession and a common
seal. It is to sue or be sued in the name of the statutory
Board. Section 7 prescribes term of office of the members
for a period of three years from the date of nomination made
under Section 5. Disqualifications for membership of the
Board are enumerated in Section 8 which envisages that a
person shall be disqualified for being nominated as a member
of the Board for any of the disqualifications mentioned in
clauses (a) to (i). Clause (a) is of importance and provides
that if “such person is not a Hindu” he becomes disqualified
to be or be appointed as a member. Clause (b) provides
unsoundness of mind declared by a competent court is a
disqualification. Under clauses (c) to (i) are enumerated
various disqualifications, the details of which are not
material for the purpose of this case. Section 9 gives power
to the Governor for dissolution and supersession of the
Board. Sub-section (1) says that “if in the opinion of the
Governor, the Board is not competent to perform or
persistently makes default in performing the duties imposed
on it under this Act, or exceeds or abuses its powers, the
Governor may, after due enquiry and after giving the Board
reasonable opportunity of being heard, by order, dissolve or
supersede the Board and reconstitute another Board in
accordance with this Act” Thereafter, by operation of
Section 9(2), the Governor “shall assume all the powers and
perform all the functions and exercise all the powers of the
Board for a period not exceeding three months or until the
constitution of another Board whichever is earlier”. Filling
up of vacancies is provided for under Section 10; the
details thereof are not material for the present purpose.
Under Section 11, any member may resign his office by giving
notice in writing to the Chief Executive Officer of the
Board and his office becomes vacant from the data of
acceptance of such resignation. Section 12 speaks of
“removal of a member” by the Governor. It reads as under:
12. Removal of a member. – The
Governor may, for good and
sufficient reason, remove any
member after giving him an
opportunity of showing cause
against such removal and after
considering the explanation offered
therefor”
Section 13 gives liberty to the Board to maintain its
office and hold meetings at the place as may be decided by
it. The Governor and in his absence one of the members to be
elected for the purpose, shall preside at the meetings as
Chairman. Coram of every meeting is prescribed under sub-
section (3) as 4 members. Sub-section (4) gives power to the
members of the Board to decide the matters by majority of
votes and in case of equality of votes, the person presiding
“shall have a second or casting vote”. Section 14 gives
power to the Board to appoint officers and servants to
assist the Board. Under sub-section (1), the Board may
appoint, for efficient discharge of the functions assigned
to it under the Act, a Chief Executive Officer and such
other officers and servants as it consider necessary with
such designation, pay etc. as the Board may determine from
time to time. Under the proviso, the Chief Executive Officer
of the Board will not a person below the rank of a “District
Magistrate of the District” and in the case of the Chief
Accounts Officer, not below the rank of a “Deputy Director
of Accounts. The Chief Executive Officer shall be
responsible for proper and efficient management,
administration and governance of the Shrine, its funds and
all arrangements for orderly, peaceful darshan of the Deity
by the pilgrims, their comfortable stay etc. The Accounts
Officer shall be responsible for sound financial management.
The honest, efficient and experienced officers shall be
drawn from the bureaucracy for the purpose on deputation
basis. Subject to the bye-laws made, by operation of sub-
section (2), the Chairman of the Board shall have the power
to transfer, suspend, remove or dismiss any officer or
servant of the Board for the breach of discipline, for
carelessness, unfitness, neglect of duty or misconduct or
for any other sufficient cause. An officer on deputation is
liable to be reverted to the parent cadre or Department in
the Government. Under Section 15, officers and servants of
the Board are public servants.
Section 16 prescribes the liability of members. Section
17 prohibits transfer or alienation of movable and immovable
property without prior sanction of the Board. Under sub-
section 91) without prior sanction of the Board, no
property, movable or immovable, shall not be transferred.
Sub-section (2) of Section 17 prohibits alienation of the
properties including land or other immovable property except
by resolution of the Board.
Section 18 prescribes duties of the Board. Section 19
which is material for the purpose of this case, extinguishes
the rights of Baridars. Sub-section (1) thereof reads as
under:
“(1) All rights of Baridars shall
stand extinguished from the date of
commencement of this Act.
Provided that the Governor may
appoint a Tribunal which shall give
personal hearing to the Baridars
and representatives of the Board,
shall recommend compensation to be
paid by the Board in lieu of
extinction of their rights. While
making its recommendation to the
Board, the Tribunal shall have due
regard to the income which the
Baridar had been deriving as
Baridars. The Board shall examine
the recommendations forwarded to it
by the Tribunal and take such by
the Tribunal and take such decision
as it may deem appropriate. The
decision of the Board should be
final.
Provided further that where the
Baridar surrenders his right to
compensation and offers himself for
employment to the Board, the Board
shall cause his suitability for
such employment to be adjudged and
may offer him employment in case he
is found suitable by the Selection
Committee to be appointed for the
purpose subject to the Baridar
giving an undertaking to the Board
to abide by the administration and
disciplinary control of the Board
in accordance with bye-laws framed
by the Board.”
Constitution of India by Section 2 and 6 respectively
of the Constitution (44th Amendment) Act, 1978 w.e.f. June
20, 1979 does not apply to the State of Jammu and Kashmir.
The right to property is, therefore, still a fundamental
right to the residents of Jammu and Kashmir. The Act does
not make either any provision for payment of compensation or
principle or guidelines for determination of compensation to
Baridars. The Board being a controlled Corporation, as an
arm of the Government, all the properties of the Shrine
stand vested in the Government. The Governor, though is an
ex-officio Chairman, he nominates the members of the Board
as executive-head of the State. If the Governor happens to
be a non-Hindu, he has to nominate an eminent Hindu
qualified to be a member of the Board. The object to empower
the Governor to preside over the Board as its Chairman, is
to ensure its control by the State. The Governor being the
head of the executive, exercises the powers of nomination
with the aid and advice of the Council of Ministers. The
Chief Executive Officer, the District Magistrate and Chief
Accounts Officer, Deputy Director of Accounts are the
Government servants drawn from the different Departments of
the Government. The Governor, therefore, exercises executive
power of the State under the Constitution of the Jammu and
Kashmir and Constitution of India, unless the relevant
provisions of the later are not extended. The executive
power of the Governor, thus, flows from the sovereign power
of the State. The statutory power under the Act is integral
to the executive power which flows from the Constitution.
The Governor, therefore, is the repository of the State
power exercised by the executive. Various powers conferred
on the Hindu Governor are exercisable by virtue of the
statute as Governor. Therefore, in his capacity as the
executive Head, the Governor is required to exercise the
power under the Act with the aid and advice of the Council
of Ministers. Even otherwise, he exercises the powers under
the Act ex-officio as Governor of the State. Therefore, in
either event, he is the repository of executive power of the
State. When the Governor supersedes or reconstitutes the
Board with perpetual succession and seal, he exercises the
executive power of the State Government and, therefore, the
Board is a State controlled Corporation. In support thereof,
he placed reliance on Samsher Singh vs. State of Punjab &
Anr. [(1974) 2 SCC 831] and Ram Nagina Singh & Ors. vs.
Sohni & Ors. [AIR 1976 Patna 39 para 5]. He also placed
reliance on Mansingh Surajsingh Padvi vs. The State of
Maharashtra [(1968 BLR 654]; S. Gurmukh Singh vs. Union of
India & Ors. [AIR 1952 Pun. 143]; Home Telephone &
Under sub-section (2), all existing employees of
Dharmarth Trust engaged in any functions connected with the
Shrine, unless they opt to the contrary, would be subject to
the administration, disciplinary control of the Board. The
terms and conditions of service shall be regulated by the
bye-laws framed by the Board. By operation of sub-section
(3), the tenants or lease-holders who were till the
commencement of the Act tenants/licensee of the Dharmarth
Trust are transposed to be tenants of the Board. Section 20
prescribes bar of suits and other proceedings. Section 21
gives power to the Board to make grants in favour of any
institution for religious spiritual purposes. Section 22
mandates auditing of the accounts of the Board for every
financial year by the Chartered Accountant to be nominated
by the Board. Section 23 provides procedure for arbitration
of any dispute arising between the Dharamarth Trust and the
Board. Section 24 gives power to make bye-laws and Section
25 provides for repeal of the Governor’s Act No.XXIII of
1986.
By order dated January 16, 1995, this Court directed
the Board to frame a scheme for rehabilitation of all the
persons engaged in the performance of Pooja at Shri Mata
Vaishno Devi Shrine and other temples to be displaced by the
implementation of the Act. When the matter had come up on
March 20, 1995, Shri D.D. Thakur, Tearned senior counsel
appearing for Saridars, stated that Baridars do not want
rehabilitation. Instead they prefer to receive compensation
to be determined under Section 20. He pointed out the
absence of guidelines for determination of the compensation
by the Tribunal to be appointed under the proviso to Section
20 of the Act. Accordingly, we ordered that the issue be
left to the Governor to make appropriate guidelines to
determine the compensation. Pursuant thereto, guidelines
were framed by the Governor were published in the State
Gazette and placed on record on May 8, 1995. By order dated
August 21, 1995, the controversy was limited to a question,
as suggested by Shri Thakur, thus; “whether Mata Vaishno
Devi Management Board is a controlled corporation?” If the
finding was to go in favour of the appellants, they would be
entitled to compensation for deprivation of their right to
receive offerings made by the pilgrims to Shri Mata Vaishno
Deviji. The counsel were directed to file the written
arguments. Accordingly, written arguments were filed by the
counsel on both sides.
Shri D.D. Thakur contended that Shri Mata Vaishno Devi
Board is a controlled Corporation. The repeal of Article
19(1) (f) and Article 31 of the Telegraph Company vs. City
of Los Angeles [57 L.ed. 510; 227 US SCR 1913] and a passage
from Shri Kishan Singh & Ors. vs. The State of Rajasthan &
Ors. [(1955) 2 SCR 531 at 539]. On the concept of control
under the Act, he placed strong reliance on the meaning of
the word `control’ in Black’ Law Dictionary (6th Edn.) at
page 329. The Commissioner of Income-Tax, Kerala, Ernakulam
vs. V.K. Ramakrishnan [AIR 1968 Kerala 156] In re: Kodur
Thimma Reddi & Ors. [AIR 1957 AP 758]. Right to receive
offerings from the pilgrims was held to be property of
Baridars by this Court in Badri Nath & Anr. vs. Mst. Punna
(Dead) By Lrs. and Ors. [AIR 1978 SC 1314 at 1318].
Offerings and other properties were acquired under the Act
and got vested in the controlled Corporation, viz., the
Board. For their abolition, Baridars are entitled to
compensation. Section 19 downs not prescribe compensation
for payment nor it lay any principle to determine
compensation. Therefore, the Act is ultra vires of the power
of the legislature.
Shri P.P. Rao, learned senior counsel contended that by
operation of clause (2-A) of Article 31 of the Constitution,
the transfer of ownership of acquired property or right to
control any Corporation by the State under an Act, should in
law vest in the State, or in the Corporation owned or
controlled by the State, under the Act. The properties or
the offerings are not owned or controlled by the State. The
Board is not a controlled Corporation. The Act requires to
be read in the light of the scheme it has evolved. The
sovereign power of the State is to supervise and ensure
proper administration or management of religious institution
or an endowment. Secularism, being a basic feature of the
Constitution, the Constitution does not permit the State to
interfere with the management of religious affairs of any
religion or denomination. But the State has power to
interfere with the same for proper supervision and efficient
management of religious institution or endowment which is
secular in its character. The abolition of the right to
receive offerings is part of secular management of the
religious institution or endowment. The legislature,
therefore, enacted the Act vesting the properties including
the offerings, in the Board. The Board is a statutory
authority under the Act set up for better management,
administration and governance of the Shrine and its
endowments including the sum total of properties attached or
appurtenant to the Shrine within the premises specified in
the preamble of the Act. The Board is composed of the
Governor and the nominated nine members. The power to
nominate the members is conferred upon the Governor which he
exercises in his ex-officio capacity but not as the
executive head of the State with the aid and advice of the
Council of Ministers. His power to nominate a member is
conditioned upon his being a Hindu; he downs not suffer from
any disqualification. The power to dissolve or supersede the
Board or reconstitution of the Board within a period of
three months and to assume administration within the
interregnum of three months, stands vested only in the
Governor obviously in his ex-officio capacity but not as
executive head of the State. Section 9, 11 and 12 of the
Act, form back-drop or throw light as the key to understand
the scheme. There is a distinction between the Governor and
the State Government. The analogous provisions in similar
Acts in other States like A.P., Bihar, U.P. and Rajasthan
contain provision for interference by the political
executive for supersession or reconstitution of the Board
and have vested that power in the State Government. The
State Legislature having been aware of that existing law and
practice in that behalf, chose to enact the Act empowering
the Governor to act under the Act. The General Clauses Act,
though would apply in interpretation of the Constitution,
does not define “Governor”. On the other hand, it has
defined the “State Government”. Therefore, when the Governor
exercises his powers under the Act, he exercises them in his
official capacity as Governor and not as executive head of
the State. In support thereof, he place reliance on Hardwari
Lal, Rohtak vs. G.D. Thapase, Chandigarh & Ors [AIR 1982 P &
H 439]; Mr Kiran Babu vs. Government of Andhra Pradesh &
Anr. [AIR 1986 AP 275]. He also contended that supervising
role of the Governor under Section 9, 11 and 12 is limited
to traditional role and responsibility of the sovereign to
ensure proper management and responsible administration of
the religious institutions or endowments and of their
properties and nothing more. The Governor can seek
assistance only in an appropriate case from the bureaucracy
or Council of Ministers, if necessary. But the exercise of
power under the Act is in his official capacity as Governor.
The properties of the Shrine or the management are not
vested in the State. Article 31 (2A) makes it clear and so
Article 31(2) does not apply to the facts of the case. Shri
Dholakia, learned senior counsel for the State, contended
that the properties of the Shrine and funds are under the
Control of the State; the property is not vested in the
State and so the Act is a valid law. There is a distinction
between acquisition and deprivation. The Act deprives
Baridars to receive offerings but it is not an acquisition
by the State. Mere deprivation does not amount to
acquisition.
The respective contentions give rise to the two-fold
question: whether the Board is a controlled Corporation and
whether the Governor exercises the powers under the Act as
executive head of the State or in his official capacity as
the Governor of the State of Jammu & Kashmir? We have
elaborately brought out the relevant provisions
hereinbefore; hence there is no need to reproduce them once
over. The preamble of the Act makes it clear that the Act
regulates only better management, administration and
governance of Shri Mata Vaishno Devi Shrine and its
endowments including the lands and the hills attached and
appurtenant to the Shrine within the premises specified
therein, including the Shrine, holy cave and other temples.
The are all the properties of the Shrine. Mutation
proceedings do bear it out. The ownership of the Shrine Fund
is vested in the Board. The Board is made entitled to their
possession, administration and use “for the purpose of the
Act” and “for convenience, comfort or benefit of the
pilgrims”.
The administration, management and governance of the
Shrine and the Shrine Fund are vested in the Board
consisting of the Chairman and nine members nominated by the
Governor. The Governor is the ex-officio Chairman. In case,
the Governor happens to be a non-Hindu, his nominee, who has
to be an eminent person professing Hindu religion and
qualified to be a member, shall be ex-officio Chairman of
the Board, obviously, to act as his substitute to preside
over the Board participate in the deliberations of the
Board. In other words, he represents the Governor.
Nonetheless, the Governor bears responsibility for proper,
efficient and effective management, administration and
governance of the Shrine, its properties, the Fund and to
provide facilities and comfort to the pilgrims, the
sustaining source. Nomination of all the persons as members
is conditioned upon the qualifications that they should be
Hindus and do not incur all or any of the disqualifications
enumerated in Section 8 of the Act. By virtue of his office
as Governor, he shall be the ex-officio Chairman of the
Board and has been vested with the power to nominate nine
persons who, in his opinion, have distinguished themselves
in the service of Hindu religion or culture etc. as
mentioned earlier. For a period of three months from the
date the Act came into force, the Governor shall act as and
exercise all the powers of the Board until its constitution.
Within three months, the Board has to be constituted or
reconstituted even when it is dissolved or superseded or its
term expired by efflux of time. During the interregnum
between its dissolution or supersession and reconstitution,
the Governor exercises the powers as the Board. One
important factor that cannot be lost sight of is that in the
absence of the Board during the period of three months,
either initially at the commencement of the Act or
thereafter, it is the Governor that takes over the
management and acts as the Board. But a peculiar situation
may arise when, suppose, the Governor is a non-Hindu, and
the governance and management vest in the executive
Government in Cabinet system under the Constitution. Who
would in that situation assume the power of management?
Suppose, a Minister and/or for that matter, the Chief
Minister professing Islam are in office, could they
discharge the functions under the Act? Answer is obviously
and definitely `No’.
Section 9 empowers the Governor to supersede or
dissolve the Board, when the Governor forms an opinion that
the Board is not competent to perform the duties imposed on
it under the Act or the Board persistently makes default in
performing the duties imposed on it under the Act or the
Board acts in excess of its authority and power or abuses
its power. He was been empowered to supersede the Board. He
is equally empowered to dissolve the Board. But before doing
it, the Governor is required to have a due enquiry
conducted, after giving the Board reasonable opportunity of
being heard, i.e., observing principle of natural justice or
to avoid any charge of arbitrary action. After having formed
the aforestated opinion, on an objective consideration of
the material before him, he would pass an order either
superseding or dissolving the Board. he would reconstitute
Board, shortly thereafter, but not exceeding three months.
As soon as it is dissolved, the Governor shall assume all
the powers and perform all the functions and exercise all
powers of the Board for a period not exceeding three months
or until the constitution of another Board, whichever is
earlier. This would appear to manifest the legislative
intention that the Governor bestows constant personal care
and attention in proper, efficient and effective
administration, management and governance of the Shrine, the
sum total of properties and facilities and services to the
pilgrims. In case the Governor happens to be a non-Hindu, he
obviously gets the management done through the Board, The
Chief Executive who would always be Hindus and they act
under the directions of the Governor. The Governor has to
bestow added personal attention to the management,
administration and governance of the Shrine etc.
Similarly, Section 12 gives power to the Governor for
good and sufficient reasons to remove any member after
giving him an opportunity of showing cause against his
removal and after consideration of the explanation offered
by him. The resignation of any member shall be by a notice
given in writing to the Chief Executive Officer and
acceptance of the same by the Governor. The Governor, when
he nominates a member, equally has power to remove him when
the Governor finds any member abusing the office etc. as
found in the enquiry. It would, thus, appear that the Act
intends to invest with the Governor the power to nominate
the members in his official personal capacity as the
Governor of the State of the power to constitute the Board
to supersede or to dissolve the Board; the Power to accept
resignation and to fill up the resultant casual vacancies
under Section 10, are conferred on the Governor. The
question, therefore, emerges: whether such exercise of the
powers by the Governor is in his capacity as the executive
head of the State under parliamentary mechanism devised
under the Constitution or in his official capacity as
Governor of the State?
It is true, as contended by Shri D.D. Thakur, that in
interpretation of the Constitution, by operation of Article
367, unless the context otherwise requires, the General
Clauses Act, 1897 (for short, the “GC Act”) as modified,
shall apply. Section 3(23) of the GC Act defines “State
Government” to include both the Central Government and the
State Government and Section 3(61) defines “State
Government”, as regards anything done or to be done, to mean
the Governor. Part VI of the Constitution titled “State
Government”, as regards anything done or to be done, to mean
the Governor. Part VI of the Constitution titled “The
States” consists of Chapter I “General”, Chapter II
“Executive”, Chapter III “The Legislature, Chapter IV, “The
Legislative Power of the Governor”, Chapter V “The High
Courts in the States (Judicial Power)”, and Chapter VI
“Subordinate Courts”. Article 152 in Chapter II defines
“State” unless the context otherwise requires, so as not to
include the State of Jammu and Kashmir. Thereby, as regards
the State of Jammu and Kashmir, the distinction is made
between the Governor ex-officio and the Governor as
executive head of the State, unless it is applied by
exercise of the power under Article 370(1), (i) and (d).
Article 370 (1) declares that “notwithstanding anything in
this Constitution”, the provisions of article 238 shall not
apply in relation to the State of Jammu & Kashmir and clause
(d) states that subject to such exceptions and modifications
as the President may by order specify, such other provisions
of the Constitution shall apply in relation to the said
State. Chapter II, Part VI deals with the executive power of
the State. Under Article 153, there shall be a Governor for
each State or one Governor for more than one State. By
operation of the First Schedule to the Constitution, Item 15
relates to State of Jammu and Kashmir. Item 15 read with
Articles 1 and 4 of the Constitution, the territories, which
immediately before the commencement of the Constitution was
comprised in the Indian State of Jammu and Kashmir is the
State of Jammu and Kashmir. The Constitution of Jammu and
Kashmir, 1957 contains detailed provisions in this behalf
and the executive powers given under Sections 21 to 45 are
not inconsistent therewith. it would, thus, appear that
there is no inconsistency in the Constitution of Jammu and
Kashmir and the Constitution of India in application of
Chapter II of Part VI of the Constitution in relation to
executive power of the Governor of Jammu and Kashmir.
By operation of Article 154, the executive power of the
State shall be vested in the Governor and shall be exercised
by him either directly or through officers subordinate to
him in accordance with the Constitution. By Operation of
Article 162, subject to the provisions of the Constitution,
the executive power of the State shall extend to all matters
with respect to which the legislature of the State has power
to make law. Thus, except his discretionary powers like that
of appointing Chief Minister, the Governor does not exercise
any power in his individual discretion. The Governor is
aided and advised by the Council of Ministers appointed by
him under Article 163. The executive power of the State is
co-extensive with that of the legislative power of the State
and the Governor in the constitutional sense discharges the
functions under the Constitution with the aid and advice of
the Council of Ministers except in so far as he is by or
under the Constitution required to exercise his functions in
his discretion. This is subject to Article 370 and the
Constitution (Application to Jammu & Kashmir) Order, 1950
repealed and revised by the Constitution (Application to
Jammu & Kashmir) Order, 1954 and the Constitution of Jammu &
Kashmir, 1957 (Part V). All the executive actions of the
State Government shall be expressed to be taken in the name
of the Governor as per the business rules of the Government
made in accordance with Article 166 of the Constitution and
the business rules made by the Governor under clause (3)
thereof (Section 45 of the Constitution of Jammu and
Kashmir). In Samsher Singh’s case, a Bench of seven Judges
of this Court had held that under the Cabinet system of
Government, as embodied in our Constitution, the Governor is
the formal head of the State. He exercises all his powers
and functions conferred on him by or under the Constitution
with the aid and advice of his Council of Ministers save in
spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion.
The satisfaction of the Governor for the exercise of any
other powers or functions required by the Constitution is
not the personal satisfaction of the Governor but is the
satisfaction in the constitutional sense under the Cabinet
system of Government. The executive is to act subject to the
control of the legislature. The executive power of the State
is vested in the Governor as head of the executive. The real
executive power is vested in the Council Ministers of the
Cabinet. There is a Council of Ministers with the Chief
Minister as its head to aid and advise the Governor in the
exercise of his executive functions. In R.K. Jain vs. Union
of India [(1993) 4 SCC 119], it was held that the Cabinet
system is a constitutional mechanism to ensure that before
important decisions are taken, many sides of the question
are weighed and considered. The Cabinet takes political
decisions of importance and the permanent bureaucracy works
out the details and implements the policy. The Cabine headed
by the Prime Minister bears collective responsibility for
the governance of the country. The Cabinet as a whole is
responsible for the advice and conduct of business by each
of the members of Cabinet of his Department and requires to
maintain secrecy in the performance of the decision making
process individually or collectively. They are also equally
responsible individually and collectively for their acts and
policies. The Cabinet, as a whole, is collectively
responsible for the advice to the President and to the
Parliament and the people. In S.R. Bommai & Ors. vs. Union
of India & Ors. [(1994) 3 SCC 1] at page 238 in paragraph
313 and 314, this Court had held that the executive power of
the Union shall be vested in the President and shall be
exercised by him whether directly or through officers
subordinate to him in accordance with the Constitution. All
the executive actions of the Government shall be expressed
to be taken in the name of the President under Article
77(1). Therefore, he acts with the aid and advice of the
Council of Ministers under Article 78 of the Constitution
headed by the Prime Minister as elaborated under paragraphs
313 to 321. In Samsher Singh’s case, this Court had held
thus:
“Under the Cabinet system of
Government as embodied in our
Constitution, the Governor is the
constitutional or formal head of
the State and he exercised all his
powers and functions conferred on
him by or under the Constitution on
the aid and advice of his Council
of Ministers save in spheres where
the Governor is required by or
under the Constitution to exercise
his functions in his discretion.
The executive power is generally
described as the residue which does
not fall within the legislative or
judicial power. But executive power
may also partake of legislative or
judicial actions. All powers and
functions of the President except
his legislative powers as for
example in Article 123, viz.,
ordinance making power and all
powers and functions of the
Governor except his legislative
power as for example in Article 213
in the President under Article
53(1) in one case and are executive
powers of the State vested in the
Governor under Article 154(1) in
the other case. Clause (2) or
clause (3) of Article 77 is not
limited in its operation to the
executive action of the Government
of India under clause (1) of
Article 77. Similarly, clause (2)
or clause (3) of Article 166 is not
limited in its operation to the
executive action of the Government
of the State under clause (1) of
Article 166. The expression
“Business of the Government of
India” in clause (3) of Article 77,
and the expression “Business of the
Government of the State” in clause
(3) of Article 166 includes all
executive business.”
The constitutional mechanism, i.e., Cabinet system of
Government is devised for convenient transaction of business
of the executive power of the State. Though constitutionally
the executive power of the State vests in the Governor, he
does not, unless Constitution expressly conferred on him,
personally take the decision. The decision are taken
according to business rules at different levels and
ultimately the decision rests with the authority specified
in the business rules and is expressed to be taken in the
name of the Governor. In substance and in reality, decisions
are taken by the Council of Ministers headed by the Chief
Minister or the Minister or Secretary as per business rules.
But they are all expressed to be taken by the Council of
Ministers in the name of the Governor and authenticated by
an authorised officer. The Governor being the constitutional
head of the State, unless he is required to perform the
function under the Constitution in his individual
discretion, the performance of the executive power, which is
coextensive with the legislative power, is with the aid and
advice of the Council of Ministers headed by the Chief
Minister.
As posed earlier, the question is; when the Governor
discharges the functions under the Act, is it with the aid
and advice of the Council of Ministers or in his official
capacity as the Governor? The legislature is aware of the
above constitutional mechanism of governance. Equally, the
legislature of Jammu and Kashmir, while making the Act would
be presumed to be aware that similar provisions in the
Endowment Acts exist in other States in India. Section 86
read with Section 95 of Andhra Pradesh Charitable Hindu
Religious Institutions and Endowments Act, 1966 gives power
to “the State Government” to dissolve the Board of Trustees
of Tirumala Tirupathi Devasthanams and the Board of Trustees
of other institutions and reconstitution thereof. Similarly,
in Bihar Hindu Religious Trusts Act, 1950, Section 7 and 8
give power to the State Government for appointment of the
members of the Board and Section 80 empowers the State
Government to dissolve the Board. The Bombay Public Trusts
Act, 1950 confers similar powers on the State Government
under Sections 56D, 56G, 56H and 56R. Orissa Hindu Religious
Endowments Act, 1959 contains similar provisions conferring
power on the State Government, vide Section 4 thereof, for
constitution of the Board. The U.P. Shri Kashi Vishwanth
Temple Act, 1983 is yet another Act where the entire
responsibility is saddled on the Governor.
It would be clear that the legislature entrusted the
powers under the Act to the Governor in his official
capacity. it expressly states that the would preside over
the meetings of the Board. If he is a non-Hindu, his
nominee, an eminent qualified Hindu will be his substitute
to preside over the functions. As seen, no distinction
between the Governor and executive Government is made by the
legislature in the relevant provisions in the Act. Under
Section 9, 11 and 12 of the Act, though the Governor acts as
repository of the sovereign power of the State, the
phraseology employed therein does not indicate that power is
given to the Council of Ministers and the Governor is to act
on its advice as executive head of the State. It is an
admitted position that prior to the Act, Dharmarth Trust was
in management and administration of the Shrine and the
properties attached thereto.
From the material on record, placed in the paper books,
it is clear that originally the immovable properties were
mutated in the name of Shri Mata Vaishno Deviji under the
management of the individuals. Subsequently, they were in,
Column 5, mutated to be in the possession of Dharmarth
Trust. The ownership of Shri Mata Vaishno Deviji is under
the management of Dharmarth Trust. It was mutated by
proceedings dated October 18, 1986 that the properties of
Shri Mata Vaishno Deviji are under the management of the
Shrine Board. It is stated that the mutation has been
effected pursuant to the directions issued by the Deputy
Commissioner and the Shrine Board has taken over possession
of the properties. Accordingly, entry in that behalf was
entered in column 14 thereof. It was effected by order dated
December 27, 1986.
Under Section 5 of the Act, the Board headed by the
Governor as the ex-officio Chairman, shall administer,
manage and govern Shri Mata Vaishno Devi Shrine and the
Shrine Fund is vested in the Board as a body corporate with
perpetual succession with common seal and it can sue and be
sued in a court of law. The Board discharges the functions
and duties under the Act in particular, as enumerated in 14
to 18. It would, therefore, be apparent from the scheme of
the Act that the legislature, though having been aware of
the executive functions of the Governor, in Part VI, Chapter
Ii of the Constitution (Part VI of Jammu and Kashmir
Constitution), as head of the State, did not entrust the
power under the Act to the Governor under the mechanism of
the Cabinet system devised under the Constitution. It
appears, for the reasons stated supra, that the Governor of
the State of Jammu and Kashmir is required to exercise his
ex-officio power as Governor to oversee personally the
administration, management and governance of Shri Mata
Vaishno Devi Shrine, Shrine Fund and the properties vested
in the Board. A non-Hindu Governor shall nominate an eminent
Hindu as his deputy responsible for presiding over the
meetings as Chairman to take decisions to be taken by the
Board in the administration, management and governance of
Shri Mata Vaishno Devi Shrine and the Shrine fund and sum
total of properties attached or belonging to the Shrine
within the premises specified in the premable of the Act and
all other properties belonging to the Shrine and vested in
the Board Sections 9, 11 and 12, as stated earlier, gives a
clear indication in that behalf that the Governor is
sovereign ex-officio holder of power, shall be responsible
for proper, efficient and effective administration,
management and governance of Shri Mata Vaishno Devi Shrine,
Shrine Fund and sum total of the properties etc. Considered
from this perspective, we hold that there is no scope to
apprehend that the Board will misuse or abuse the power and
mismanage the funds or properties of the Shrine. Even in
case of such necessity, the Governor as the repository of
sovereign power, would always have the assistance, in any
given situation or case, to get the matter examined by an
appropriate authority or officer or collect necessary
information or material etc. the same having been placed
before him for his decision. The decision is his own
decision on his personal satisfaction and not one the aid
and advice of the Council of Ministers. The exercise of the
powers and functions under the Act is distinct and different
from those exercised formally in his name for which
responsibility rests only with his Council of Ministers
headed by the Chief Minister.
In Hardwarilal’s case (supra), a Full Bench of the
Punjab and Haryana High Court was to consider whether the
Governor in his capacity as the Chancellor of Maharshi
Dayanand University was to act under Maharshi Dayanand
University Act, 1975 (Haryana Act No.25 of 1975) in his
official capacity as Chancellor or with aid and advice of
the Council of Ministers. The Full Bench, after elaborate
consideration of the provisions of the Act and the statutes,
came to observe in paragraph 121 at page 476 that the Act
and the statutes intended that the State Government would
not interfere in the affairs of the University. The State
Government is an authority quite distinct from the authority
of the Chancellor. The State Government cannot advise the
Chancellor to act in a particular manner. The University, as
a statutory Body, autonomous in character, has been given
certain powers exercisable by the Chancellor in his absolute
discretion without any interference from any quarter. In the
appointment of the Vice-Chancellor or the Pro-Vice-
Chancellor, the Chancellor is not required to consult the
Council of Ministers. Though by virtue of his office as
Governor, he becomes the Chancellor of the University, but
while discharging the functions of his office, he does not
perform any duty or exercise any power of the office of the
Governor individually. However, while discharging the
functions as a Chancellor, he does every act in his
discretion as Chancellor and he does not act on the aid and
advice of his Council of Ministers. The performance of the
functions and duties under the Constitution with the aid and
advice of the Council of Ministers is distinct and different
from his discharge of the powers and duties of his office as
Chancellor of the University. Under the Act and the statute,
the Chancellor has independent existence and exercises his
powers without any interference from any quarter. Therefore,
the office as a Chancellor held by the Governor is a
statutory office quite distinct from the office of the
Governor. Same view was taken by Andhra Pradesh High Court
in Kiran Kumar’s case. In Ram Nagina Singh & Ors. vs. S.V.
Sohni & Ors. [AIR 1976 Patna 36], the question was as to the
appointment of a Lokayukta under Section 3 of the Bihar
Lokayukta Act, 1974 to be made by the Governor in his
capacity as Governor of the State, with the aid and advice
of the Council of Ministers. The language of Section 3(1) of
the said Act provides that “the Governor shall be warrant
under his hand and seal appoint a person to be known as the
Lokayukta of Bihar”. Considering the language in
that provisions and the scheme of the Act for removal of the
Lokayukta, the Division Bench came to hold that the
Governor, with the aid and advice of the Council of
Ministers, discharges the function in the appointment of the
Lokayukta under Section 3 of that Act. In the light of the
language therein, there is little difficulty in upholding
correctness of the decision but it renders little assistance
to the present controversy. The ratio in Mansingh Surajsingh
Padvi’s case relates to the exercise of the power by the
Governor under West Khandesh Mehwassi Estates (Proprietary
Rights Abolition, etc.) Regulation, 1961. From the
notification issued thereunder the learned Judges appears to
have reached the conclusion that the Governor acts with aid
and advice of the Council of Ministers. They did not
correctly understand the scope of Schedule V to the
Constitution in its relation to the administration of the
scheduled area. The power of State and the Governor in that
behalf was not properly understood nor brought home to the
learned Judges. Therefore, the learned Judges were not right
in holding that the Governor while exercising the power
under Schedule V of the Constitution acts with the aid and
advice of the Council of Ministers. The law laid down
therein is not correct in law.
The next question is: whether the Board is a controlled
Corporation? The thrust which Shri D.D. Thakur forcefully
sought to bring home is that the Governor, be it in exercise
of his executive power in the Cabinet system of Government
devised under the Constitution or in his official capacity
as Governor, draws his power, which flows from the statute,
as the repository of the State executive. He has control
over the nomination f the members to the Board,
supersession, dissolution and reconstitution of the Board as
well as administration, management and governance of Shri
Mata Vaishno Devi Shrine, Shrine Fund and the sum total of
all the properties. He performs the functions with the
assistance of the Chief Executive Officer of the rank not
below the District Magistrate and of the Chief Accounts
Officer of the rank not below Deputy Director of Accounts.
Government bureaucrats on deputation and all officers of the
Board are under the control and supervision of the Chief
Executive Officer. Therefore, it is a controlled
Corporation. Section 19 of the Act, while extinguishing all
rights of the Baridars form the date of the commencement of
the Act, does not provide for compensation in a specified
sum nor it lay any principles to determine compensation.
Therefore, the Act is void offending their fundamental
rights guaranteed by Article 19(1)(f) and Article 31(2) of
the Constitution. Though, prima facie, the argument is
alluring but on deeper probe, we find it difficult to give
acceptance to the same. The presumption in law is that an
Act is valid and the legislature does not intend to enact a
law which is ultra vires the Constitution. The burden to
prove contra is on the appellants to establish the contrary.
The provisions of the Act are required to be examined
carefully to find whether it is purported to have that
effect. Section 19 in this behalf is relevant. It is already
seen that “all rights of Baridars shall stand extinguished
from the date of the commencement of the Act” by operation
of sub-section (1) of Section 19 of the Act. It is an
admitted case of the appellants themselves that they perform
Pooja and would appropriate part of the offerings. Their
right to perform Pooja is only customary right coming from
generations. Section 2 of the Act gives over-riding effect
to any custom, usage of instrument or any law, decree or
scheme of management, notwithstanding anything contained
contra to the Act etc. It declares that the Act shall have
over-riding effect thereon. In A.S. Narayana Deekshitulu vs.
State of A.P. & Ors. [(1996) 9 SCC 548 at 604] Section 144
of the Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments Act, 1987 abolished the right of
the appellants to receive offerings with the abolition of
the hereditary right of Archaka service. The question arose;
whether it offended the religion or protection of Articles
25 and 26? It was held that the word `religion’ used in
Articles 25 and 26 of the Constitution is personal to the
person having faith and belief in the religion. The religion
is that which binds a man with his Cosmos, his Creator or
super force. Essentially, religion is a matter of personal
faith and belief or personal relations of an individual with
what the regards as Cosmos, his Maker or his Creator which,
he believes, regulates the existence of insentient beings
and the forces of the universe. Religion is not necessarily
theistic. A religion undoubtedly has its basis in a system
of beliefs and doctrine which are regarded by those who
profess religion to be conducive to their spiritual well-
being. Right to religion guaranteed under Article 25 or 26
is not an absolute or unfettered right but is subject to
legislation by the State limiting or regulating any activity
– economic, financial, political or secular which are
associated with the religious belief, faith, practice or
custom. The are subject to reform as social welfare by
appropriate legislation by the State. Though religious
practices and performances of acts in pursuance of religious
belief are, as must as, a part of religion, as faith or
belief in a particular doctrine, that by itself is not
conclusive or decisive. What are essential parts of religion
or religious belief or matters of religion and religious
practice is essentially a question of fact to be considered
in the context in which the question has arisen and the
evidence – factual or legislative presented in that context
is required to be examined and a decision reached. In
secularising the matters of religion which are not
essentially and integrally parts of religion, secularism,
therefore consciously denounces all forms of supernaturalism
or superstitious beliefs or actions and acts which are not
essentially or integrally matters of religion or religious
belief or faith or religious practice. Non-religious or
anti-religious practices are anti-thesis to secularism which
seeks to contribute in some degree to the process of
secularisation of the matters of religion or religious
practices. A balance, therefore, has to be struck between
the rigidity of right to religious belief and faith and
their intrinsic restrictions in matters of religion,
religious beliefs or religious practices guaranteed under
the Constitution. The Andhra Pradesh Act impugned Therein,
was held to regulate administration and maintenance of
charitable and Hindu religious institutions and endowments
in their secular administration. It laid emphasis on
preserving Hindu Dharma and performance of religious worship
ceremonies and Pooja in religious institutions according to
their prevailing Sampradayams and Agamas. There is a
distinction between religious service and the person who
performs the service; performance of the religious service
according to the tenets, Agamas, customs and usages
prevalent in the temple etc. is an integral part of the
religious faith and belief and to that extent the
legislature cannot intervene to regulate. But the service of
the priest (Archaka) is a secular part. The hereditary right
as such is not an integral part of the religious practice
but a source to secure the services of a priest independent
of it. Though performance of the ritual ceremonies is an
integral part of the religion, the person who performs it or
associates himself with performance of ritual ceremonies, is
not. Therefore, when the hereditary right to perform service
in the temple can be terminated or abolished by sovereign
legislature, it can equally regulate the service conditions
sequel to the abolition of the hereditary right of
succession in the office of an Archaka. Though an archaka
integrally associates himself with the performance of
ceremonial rituals and daily pooja to the Deity, he is the
holder of an office of priest in the temple. He is subject
to the discipline on par with other members of the
establishment. Abolition of emoluments attached to the
office of the Archaka, therefore, cannot be said to be
invalid. The customs or usages in that behalf were held not
an integral part of the religion. It was, therefore, held
that the legislature has power to regulate the appointment
of the Archaka, emoluments and abolition of customary share
in the offerings to the Deity. The same ratio applies to the
facts in this case.
In a private litigation between Baridar holders, this
Court in Badri Nath’s case (supra) had held that though the
right to receive a share in the offerings was subject to
performance of those duties, none of them was in nature
priestly or required a personal qualification. All of them
were of non-religious or secular character which could be
performed by the Baridar’s agented or servants incurring
expense on his account. When the right to receive the
offerings made at a temple is independent of an obligation
to render services involving qualification of personal
nature such a right is heritable as well as alienable. The
right of the baridars cannot be equated with the right ad
duties of a shebait. The Baridars are not managers of the
Shrine in the sense that a shebait is in relation to a
temple in his charge. The right to share in the offerings
being a right coupled with duties other than those involving
personal qualification and being heritable property, it will
descend in accordance with the dictates of the Hindu
Succession Act in supersession of all customs to the
contrary in view of Section 4 of the Hindu Succession Act.
It is seen that Section 2 gives over-riding effect to the
Act over any contrary law or any scheme of the management,
decree, custom, usage or instrument. The Act, therefore,
abolishes the customary right or duty of service as Baridar
and the receipt of offerings being conditioned upon
performing Pooja, he loses the right with cessation of
performing service. Right to receive offerings, by operation
of Section 19(1) of the Act has ceased. The question is;
whether the State controls the vesting of the properties and
the Board is a controlled Corporation within the meaning of
Article 12 of the Constitution? By operation of Section 6,
the Board is a body corporate with perpetual succession and
seal with a right to sue or be sued by or in the name of the
Board. The sum total of properties are of and vest in the
Shrine. The management of the Shrine and the Shrine Fund
stood vested in the Board under Section 4. The appellants
had the fundamental right to property guaranteed by Article
19(1) (g) of the Constitution. Though the Constitution (44th
Amendment) Act, 1978 which came into force w.e.f. June 29,
1979, deleted Article 19(1) (g) and Article 31 by operation
of Sections 2 and 6 thereof, they would still be available
to the residents of the Stat of Jammu and Kashmir. In Bela
Banerjee vs. State of West Bengal [(1954) SCR 558] Article
31(1) and Article 31(2) of the Constitution were interpreted
by the Constitution Bench and it was held that the word
`compensation’ must mean a full and fair money equivalent.
The same ratio was followed in State of West Bengal vs.
Kameshwar Singh [AIR 1952 SC 252]. The Constitution (5th
Amendment) Act was made in 1955 amending Article 31(2) and
also introducing Article 31(2A). It would, therefore, be
necessary to look into those provisions relevant to the case
since they were operative in the field when the Act was
enacted. They read as under:
“31. Compulsory acquisition of
property – (1) No person shall be
deprived of his property save by
authority of law.
(2) No property shall be
compulsorily acquired or
requisitioned save for a public
purpose and save by authority of a
law which provides for acquisition
or requisitioning of the property
for a compensation which may be
fixed by such law or which may be
determined in accordance with such
principles and given in such manner
as may be specified in such law;
and no such law shall be called in
question in any court on the ground
that the amount so fixed or
determined is not adequate or that
the whole or any part of such
amount is to be given a otherwise
than in cash:
Provided that in making any law
providing for the compulsory
acquisition of any property of an
educational institution established
and administered by a minority,
referred to in clause (1) of
Article 30, the State shall ensure
that the amount fixed by or
determined under such law for the
acquisition of such property is
such as would not restrict or
abrogate the right guaranteed under
that clause.
(2A) Where a law does not provide
for the transfer of the ownership
or right to possession of any
property to the State or to a
corporation owned or controlled by
the State, it shall not be deemed
to provide for the compulsory
acquisition or requisitioning of
property, notwithstanding that it
deprives any person of his
property.”
In Charanjit Lal Chowdhary vs. Union of India [(1950)
SCR 869 at 902] it was held by the Constitution Bench that
the acquisition means and implies the acquiring of the
entire title of the appropriate owner, whatever the nature
or extent of the title might be. All rights which were
vested in the original holder would pass on acquisition to
the acquirer leaving nothing in the former. In State of West
Bengal vs. Subodh Gopal Bose & Ors. [(1954) SCR 587], the
view taken was that clauses (1) and (2) of Article 31 were
to be read together to call out the scope of contents, and
understood as dealing with the same subject, viz., the
protection of the right to property by means of limitations
on the State’s power. Wider meaning, therefore, was given to
the word `acquisition’. Deprivation contemplated therein was
interpreted to mean divesting title and vesting it in the
State and the word `requisition’ to mean taking possession
of the property other than by acquisition of the property
mentioned in clause (2) of Article 31. Same view was
expressed in Kameshwar Singh’ case (supra). In Dwarkadas
Shrinivas of Bombay vs. The Sholapur Spinning & Weaving Co.
Ltd. & Anr. [(1954) SCR 674], it was held that acquisition
was a quite wider concept, meaning thereby procuring of the
property and taking of it permanently or temporarily. It was
not confined only to the acquisition of the legal title by
the State in the property taken possession of. As a
consequence, clause (2A) of Article 31 was brought on the
Constitution by Constitution (4th Amendment) Act in 1955.
Clause (2A) of Article 31 provides that where law does not
envisage transfer of ownership or right to possession of any
property to the State or to a Corporation owned or
controlled by the State, which shall not be deemed to
provide for the compulsory acquisition or requisition of the
property, notwithstanding that, it deprives any person of
his property. At this juncture, we may dispose of the
contentions of Shri Dholakia as being untenable. Acquisition
has the effect of deprivation and enjoyment of the property.
the acquisition in order to be valid must be for a public
purpose and the person deprived of the same is entitled to
compensation. However, in respect of the property which was
divested from him, e.e., right, title and interest coupled
with possession must be vested in the State or beneficiary.
Such deproved person is entitled to compensation. It is
equally settled law that abolishing and/or extinction does
not mean vesting. The two are distinct and separate.
Deprivation of property is concomitant to acquisition in
that context. The right to superintendence of management,
administration and governance of the Shrine is not the
property which the Stat acquires. It carries with it no
beneficial enjoyment of the property to the State. The Act
merely regulates the management, administration and
governance of the Shrine. It is not an extinguishment of the
right. The appellants-Baridarans were rendering pooja, a
customary right which was abolished and vested in the Board.
The management, administration and governance of the Shrine
alwayed remained with the Dharmarth Trust from who the Board
has taken over the same for proper administration,
management and governance. In other words, the effect of the
enactment of the Act is that the affairs of the functioning
of the Shrine merely have got transferred from Dharmarth
Trust to the Board. The At merely regulates in that behalf
incidentally, the right to collect offering enjoyed by the
Baridarans by rendering service of Pooja has been put ti an
end under the Act. The State, resultantly, has not acquired
that right onto itself. The contention of Shri D.D. Thakur
is that the word “control” is of wider connotation and,
therefore, requires to be interpreted in the light of the
scheme of the Act, i.e., the Governor exercise, as the
repository of the State power or State executive power in
the matter of nomination of nine members of the Board, the
supersession/dissolution and reconstitution of the Board and
filling up of the vacancies or appointment of a new post and
taking care of the management, administration and governance
of the properties of the Shrine through the Board. So, the
Governor exercises his executive power of the State as
Governor and, therefore, the Board is a controlled
Corporation.
It is true that the word “control”, as defined in
Black’s Law Dictionary [Sixth Edition] at page 329, means as
verb “to exercise restraining or directing influence over;
to regulate; restrain; dominate; curb; to hold from action;
overpower; counteract; govern; Power of authority to manage,
direct, superintend, restrict, regulate, govern, administer
or oversee. The ability to exercise a restraining or
directing influence over something”. In S. Gurmukh Singh vs.
Union of India & Ors. [AIR 1952 Pun. 143], a Full Bench of
the High Court had held that the Executive power of the
Union of India is vested in the President and is exercised
by him. The Government is for all practical purposes
synonymous with the Executive of the country. If the
executive power of the country is vested in the President
and is exercised by him, the act of the President must be
deemed to be the act of the Government or of the State. The
official acts of the President are the official acts of the
State for the purposes of Article 15 of the Constitution.
Therefore, the State is synonymous with the President or, at
any rate, includes his official personality when acts of the
State are under Articles 15 and 341 of the Constitution. The
Division Bench of the Andhra Pradesh High Court in Re: Kodur
Thimma Reddi & Ors. [supra] in the context of Section 19F of
the Arms Act had held that the word “control” over a fire
arm by the person in possession means a conscious possession
in his control but when it is accessible to others, it was
held that he was not having the control. Similar view was
taken by the Kerala High Court. However, these decisions do
not assist us in deciding this case.
To appreciate the contentions, it is necessary to deal
clauses (2) and (2A) of Article 31 together. If so read, the
expression “Corporation owned or controlled by the State”
clearly indicates that the control should be total control
which is as good as ownership of the Corporation by the
State. The ownership of the acquired property is through its
Corporation owned by the State. The Corporation is only a
cloak. The State should be able to deal with the property
transferred to the Corporation by virtue of its control as
if it deals with property transferred to itself or the
Corporation is only a conduit pipe itself to use the
property as if it is owned by itself. The control of the
State as envisaged in clause (2A), should have nexus with
the property transferred to the Corporation. Then only it
may be said that there was compulsory acquisition of the
property by the State and the property is owned by the
Corporation owned on controlled by the State as having been
vested in it. Under the Land Acquisition Act, when the
property is acquired, the right, title and interest of the
previous owner stand extinguished after taking possession of
the land and is vested in the State under Section 16 f that
Act or the transfree-beneficiary free from all encumbrances.
That would be total divestment of pre-existing right, title
and interest in the land by the previous owner and vesting
of the same in the State or the Corporation controlled by
the State. In order to attract clause (2A) of Article 31,
the law in question should, therefore, provide for the
transfer of ownership of the property of the Baridars to the
State or to a Corporation owned or controlled by the State.
There is no dispute that the impugned Act does not transfer
the ownership of the property of Baridars to the State or to
a Corporation owned by the State. It merely extinguishes the
right of the Baridars. The appellants’ contention is that
the Act has merely transferred the right to property of the
Baridars to the Shrine Board which is a Corporation
controlled by the State. This is not correct because the
word “controlled’ has to be construed in the light of the
preceding word `owned’. The control should be to such an
extent as would amount to virtual ownership by the State as
indicated above. In the instant case, the Act deals with the
property of a religious institution which cannot be owned by
the State under the Constitution and which cannot be
controlled by the State, like an owner, having regard to the
basic feature of secularism permeating the Constitution,
which separates religion from the State. When the property,
namely, right to recover offerings is extinguished by
Section 19(1) of the Act, it does not vest in the State; on
the other hand, the board becomes entitled to the right to
the collection, possession and management of the offerings
given to the Shrine and provide welfare services and
facilities to the pilgrims. The Governor exercises his
statutory power as ex-officio Chairman of the board, though
he is the repository of State power by virtue of his office
as a Governor. Nonetheless, he exercises it in his capacity
as Chairman, a distinct and separate function and power and
not in the constitutional sense of the Cabinet system, of
performing executive power the State Government has under
the Constitution, with the aid and advice of the Council of
Ministers headed by the Chief Minister. The power to
supervise and to take remedial steps to correct
mismanagement, abuse of power or incompetence to exercise
the power or access of the line power are only incidental to
the management, administration or governance of Shri Mata
Vaishno Devi Shrine, Shrine Fund and the properties
including the collection and taking possession of the
offerings. All are his individual performance of the
statutory functions in his official capacity as Chairman of
the Board and not as Governor. Therefore, by exercising the
power under the Act, it is impressible for the State to deal
with the properties vested in the Board in terms of the Act;
the Act does not permit the State to deal with the said
properties as if they are the properties of the State
acquired directly or indirectly through the medium of the
Board. The extent of supervision permitted by the provisions
of the Act is limited to and only to ensure proper,
efficient, effective and responsible administration,
management and governance of the Shrine, properties of the
Shrine and Fund of the Shrine and nothing more. The degree
of control required in clause (2A) of Article 31 is,
therefore, missing in the Act.
In Gullapalli Nageswara Rao & Ors. vs. Andhra Pradesh
State Road Transport Corporation & Anr. [1959 Supp. (1) SCR
319] it was contended that the State by nationalisation of
the Transport Services, exercised its power in Chapter IVA
of the Motor Vehicles Act, 1939 and in effect and substance
authorised in law to effect the transfer of the business of
the citizens to the State or a Corporation owned or
controlled by the State, without paying full equivalent of
the compensation under Article 31(2). The acquisition was,
therefore, contended to be invalid. Repelling the
contention, the Constitution Bench of this Court had held
that Section enabled the Government to frame a scheme and
give effect to the approved scheme in respect of a notified
area of a notified route and stop the private operators from
entering on the notified route, from entertaining any
application for renewal of any other permit and from
cancelling any existing permit or modifying the terms of
existing permit so as to render the permit ineffective from
the specified date. The impugned provision was held to be a
regulated power conferred on the Transport Authority in the
interest of the public for efficient, economical and co-
ordinate regulated service offered by the STU. The business
of the private operators and the STU has nothing to do with
one another. They are two independent businesses carried on
under two different licenses. The contention that the scheme
enabled the nominee of the State to do the business and,
thereby, in effect and substance transfer the business on
the existing permit holders to the STU was held to be not
correct. The contention was held to be fallacious. It may be
by process of law that the existing permit holders are
precluded from doing their business and it also may be that
the STU carriers on a similar business. By no stretch of
imagination, in law it can be said that STU is doing
business carried on by previous permit holders by or on
behalf of the State. Accordingly, it was held that the State
has no control and it is not an acquisition on behalf of the
State. In Union of India vs. Sudhansu Mazumdar & Ors.
[1971]) Supp. SCR 244], on September 10, 1958 an agreement
was entered into between the Government of India and
Pakistan called the “Indo-Pakistan agreement”. Item 3 of the
agreement related to transfer of group of villages lying
within the territory of India, known as Berubari Union No.
12 and it was accordingly transferred to Pakistan. It was
contended that it was an acquisition without compensation
violating Article 31(1) and (2) of the Constitution. This
Court by a Constitution Bench had held that in order to
constitute acquisition or requisition, there must be
transfer of ownership or of right to possession of any
property to the State or Corporation owned or controlled by
the State. It was held that the effect of the Constitution,
by the Constitution (9th Amendment) Act, 1960 by no stretch
of imagination could be regarded as transfer of Berubari
Union No.12 to Pakistan as transfer of the ownership or of
right to possession of any property of the respondents in
the State under Article 31(2) of the Constitution. The
Amendment Act, 1955 made it clear that mere deprivation of
the property, unless its acquisition or requisition was
within the meaning of clause (2A), shall not attract clause
(2) and no application to pay compensation will arise
thereunder. In Katra Education Society, Allahabad vs. State
of U.P. [AIR 1966 SC 1307 at 1311] the contention was that
Section 16F(4) of the U.P. Intermediate Education Act, 1921
violated their fundamental right under Article 14, 19 or 31
of the Constitution. It was contended that since the scheme
of management did not provide for any compensation, it was
ultra vires the Constitution. The Constitution Bench
rejected the contention by holding that the educational
authorities, after considering the representation of the
management, had the power to make recommendation after
selectmen. The power to appoint persons possessed of
prescribed qualifications vests in the institution. The
education authorities did not accept suitability of persons
selected by the management on the specified grounds, and
reasons therefor. It is only an exercise of the control
envisaged by the amendment of Section 16D(3) of the Act with
a view to prevent appointment of unqualified person. The
power under Section 16D(4) entrusted to the authorised
controller was merely of management. Management of
institution in respect of which Authorised Controller had
been appointed had to be conducted and carried out in
accordance with the directions given by the Authorised
Controlled. IT was held that the property did not vest in
the State but continued to remain the property of the
institution as Article 31(2A) saves such control and Section
31(2) has no application.
In Constitutional Law of India by H.M. Seervai (Third
Edn.) Volume II at page 1109 in para 30 it is stated that
distinction between ordinary acquisitions where law provides
full compensation and large schemes of social engineering or
reform which would have to be located at from the point of
view of justice to the individual as well as to the
community, is harmonised by the legal view. In the after
light of Bela Banerjee’s case (supra), it is clear that the
eminent lawyers (founding fathers of the Constitution)
committed a grave error in leaving to implication what they
could have clearly expressed in Article 31(2). Bela
Banerjee’s case showed that the intention of the framers
failed because it was not expressly embodied in Article
31(2). Obviously, an amendment of the Constitution is meant
to change the existing law, and the 4th Amendment by
excluding the challenge on the ground of adequacy of
compensation was meant to change the law laid down in Bela
Banerjee’s case that compensation under Article 31(2) meant
a full and fair money equivalent. After the 4th Amendment,
the word “compensation”, could not mean a full and fair
money equivalent, for if it did, the law would have remained
unchanged and the 4th Amendment would have failed of its
purpose. By excluding a challenge on the ground that the
compensation provided by the law was not adequate, the 4th
Amendment removed the restriction on legislative power in
the sense that for the law to be valid it was no longer
obligatory to provide for the payment of full and fair money
equivalent. After the 4th Amendment a law which fixed
compensation which amounted to 80 per cent of full and fair
money equivalent would not violate Article 31(2) and was a
valid law. The 4th Amendment achieved this result by
introducing the concept of inadequate compensation. On
consideration of above provisions, we have, therefore, no
hesitation to hold that the Board is not a controlled
Corporation within the meaning of Article 12 of the
Constitution. By operation of clause (2A) of Article 31 of
the Constitution the Board or the properties of the Shrine
did not vest in the State. The right to collection of the
offerings or the divestment of the properties, if any, of
the Baridars or the right to collection or a share in the
offerings do not vest in the State. Consequently, Section
19(1) of the Act is not ultra vires of Article 19(1)(f) or
Article 31(2) of the Constitution.
It is seen that the proviso to Section 19 provides that
the Governor may appoint a Tribunal which, after giving
personal hearing to the Baridars and the representations of
the Board, “shall recommend compensation to be paid by the
Board in lieu of extinction of their right”. While making
its recommendations to the Board, the Tribunal “shall have
due regard to the income which the Baridars had been
deriving as Baridars”. The Board shall examine the
recommendations forwarded to it by the Tribunal and take
such decision as it may deem appropriate. The decision of
the Board shall be final. Pursuant to the directions issued
by this Court, the Governor made guidelines which were duly
notified in the Gazette. Another notification inviting
claims from Baridars was published and time was extended
from time to time informing to lay claims for compensation.
It would appear that while the matter remained pending, the
Baridars do not seem to have not laid their claims. The
guidelines framed by the Governor are by exercising the
rule-making power under Section 24 of the Act. So they
acquired the status as subordinate legislation and became
integral part of the proviso to Section 19 of the Act. As we
have upheld the Act, they are at liberty to file their
claims within two months from today. The Tribunal shall have
due regard to the guidelines in determining the income of
Baridars before the Tribunal makes its recommendations to
the Board for consideration and the Board shall also take a
decision, as it may deem appropriate, consistent with
proviso to Section 19(1) and the guidelines, in the light of
the recommendations made by the Tribunal. It would be
obvious that in case the Board does not find itself in
agreement with the recommendations made by the Tribunal, it
would be required to state its reasons in that behalf, give
an opportunity to the Baridars and, if necessary, a personal
hearing through their representatives or a counsel and then
take a decision to pay compensation as it may deem
appropriate. In case it disagrees with the recommendations
of the Tribunal, it should record reasons in writing and
would communicate the same to all the affected persons. This
exercise should be done within two months from the date of
the receipt of the recommendations of the Tribunal. The
Governor would appoint the Tribunal within six weeks from
the date of the receipt of the judgment. We hope and trust
that the Tribunal would dispose of the claims as
expeditiously as possible since more than a decade has
passed by now.
The appeals are accordingly disposed of but, in the
circumstances, there is no order as to costs.
