{"id":388,"date":"1997-01-10T00:00:00","date_gmt":"1997-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhuri-nath-ors-etc-the-sewa-vs-the-state-of-jammu-kashmir-ors-on-10-january-1997"},"modified":"2017-09-27T07:23:58","modified_gmt":"2017-09-27T01:53:58","slug":"bhuri-nath-ors-etc-the-sewa-vs-the-state-of-jammu-kashmir-ors-on-10-january-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhuri-nath-ors-etc-the-sewa-vs-the-state-of-jammu-kashmir-ors-on-10-january-1997","title":{"rendered":"Bhuri Nath & Ors. Etc. The Sewa … vs The State Of Jammu & Kashmir & Ors on 10 January, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhuri Nath & Ors. Etc. The Sewa … vs The State Of Jammu & Kashmir & Ors on 10 January, 1997<\/div>\n
Author: K Ramaswamy<\/div>\n
Bench: K. Ramaswamy, G.B. Pattanaik<\/div>\n
           PETITIONER:\nBHURI NATH & ORS. ETC. THE SEWA COMMITTEE BARIDARAN &ORS. (B\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF JAMMU & KASHMIR & ORS.\n\nDATE OF JUDGMENT:\t10\/01\/1997\n\nBENCH:\nK. RAMASWAMY, G.B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 10TH DAY OF JANUARY, 1997
\nPresent:\n<\/p>\n
\t      Hon’ble Mr. Justice K. Ramaswamy
\n\t      Hon’ble Mr. Justice G. B. Pattanaik
\n     N.N.  Bhat,  Mahesh  Aggarwal,  G.P.  Srivastava,\tAtul
\nSharma, E.C. Agarwala, Advs. for the appellants.<\/p><\/blockquote>\n
     S.K. Dholakia, P.P. Rao, Sr. Advs. J.S. Manhas, Subhash
\nSharma, Mulk  Raj Vij,\tN.P. Sharma, Sunil Dogra, Ms. Monica
\nSharma, S.S.  Shroff, Advs. with them for S.A. Shroff & Co.,
\nAdvs. for the Respondents.\n<\/p>\n
\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\n     K. Ramaswamy, J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     All Hindus,  in millions, of India from nook and corner
\nand those  settled abroad,  go by  foot or carriage, bearing
\nall arduous  journey and inconveniences, covering a distance
\nof 16  miles from  foothill of\tKatra to  have\tdarshan\t and
\nblessings of  Mata Vaishno  Deviji. When  the Legislature of
\nthe State  of Jammu and Kashmir stepped in for effective and
\nproper management  of the  shrine  and\tconvenience  of\t the
\npilgrims and  the  Shrine,  it\tgave  rise  to\tthe  present
\nlitigation.\n<\/p>\n
     These appeals,  sequally, by  special leave  arise from
\nthe common  judgment of\t the Division  Bench  of  Jammu\t and
\nKashmir High  Court, made  on March  17, 1994  in  CWP\tNod.
\n1328\/96\t and   1039\/95.\t The   appellants   challenged\t the
\nconstitutionality of the Jammu and Kashmir Shri Mata Vaishno
\nDevi Shrine  Act, 1988 (XVI of 1988) (for short, the “Act”).
\nOn March  17, 1986,  the Governor,  exercising the  power of
\nSection\t 92   of  the\tConstitution  of  Jammu\t &  Kashmir,
\npromulgated Ordinance  No.1 of\t1986 which  got\t transformed
\ninto J\t& K  Shri Mata\tVaishno Devi  Shrine Act,  1986, the
\nGovernor’s Act\tand is\tnow replaced by the Act. The Act has
\ncome into  force by  operation of  Section 1(2)\t of the\t Act
\nw.e.f. August 13, 1986, the date on which the said Ordinance
\nhad come into force.\n<\/p>\n
     The Preamble  of the Act manifests that the Act came to
\nbe  passed   “to  provide   for\t  the\tbetter\t management,
\nadministration and  governance of  Shri\t Mata  Vaishno\tDevi
\nshrine and  its endowments  including the land and buildings
\nattached, or appurtenant to the Shrine, beginning from Katra
\nupto the  holy cave  and adjoining  hillocks currently under
\nthe management\tof Dharmarth  Trust”. Section 2 gives to the
\nAct overriding\teffect and envisages that the Act shall have
\neffect, notwithstanding\t anything to  the contrary contained
\n“in any\t law or in any scheme of management, decree, custom,
\nusage or  instrument”. The  Act\t consists  of,\tin  all,  25
\nSection. Section  3(a) defines the “Board” to mean “the Shri
\nMata Vaishno  Devi Shrine Board constituted under this Act”.
\nSection 3(b)  defines  “Endowment”  to\tmean  all  property,
\nmovable or immovable, including the idols installed therein.
\nThe important  facet of\t this definition  of “endowment”  is
\nthat the  sum total  of properties  belonging to,  given  or
\nendowed for  the maintenance,  improvement, additions  to or
\nworship in  the Shrine\tor for the purpose of any service or
\ncharity connected  therewith including\tthe idols  installed
\ntherein, the premises of the Shrine, the lands and buildings
\nattached or  appurtenant thereto,  beginning from Katra upto
\nthe holy  cave and the adjoining hillocks, are the endowment
\nof Mata Shri Vaishno Deviji. They all, as on the date of the
\nAct, were  endowment properties\t under the management of the
\nDharmarth  Trust,   or\tproperty  belonging  to\t Baridar  or
\nBaridars  Association  within  the  area  specified  in\t the
\nPreamble of  the Act.  Section 3(c) defines “Shrine Fund” to
\nmean the  endowment and\t includes all sums received by or on
\nbehalf of  the Shrine  or for  the time\t being held  for the
\nbenefit of  the\t Shrine;  it  an  inclusive  definition\t and
\ndetails\t of  the  endowments  described\t therein  being\t not
\nmaterial, the  same are\t omitted. Section  3(d) is  relevant
\nwhich defines  the “Shrine”  to mean the Shrine of Shri Mata
\nVaishno Devi  Shrine and  includes the Shrine, holy cave and
\nother temples  within the premises specified in the preamble
\nof the\tAct. It\t would, thus, be clear that the Act was made
\nto provide  better management, administration and governance
\nof Shri\t Mata  Vaishno\tDevi  Shrine,  its  endowments,\t all
\ntemples, and  sum  total  of  the  properties,\tmovable\t and
\nimmovable attached  or appurtenant  to the Shrine within the
\narea specified\tin the\tpreamble of the Act, notwithstanding
\nthe fact  that there  exist any\t law, scheme  of management,
\ndecree, custom,\t usage or  instrument to  the contrary.\t The
\nobject of  the Act,  therefore, clearly is proper, efficient
\nand effective  management, administration  and governance of
\nthe Shrine, its endowments and properties. All this is aimed
\nto cater facilities, sources and comfort to the pilgrims who
\nvisit the Shrine.\n<\/p>\n
     Section 4 vests the ownership of the Shrine Fund in the
\nBoard envisaging  that “the  ownership of  the\tShrine\tFund
\nshall, from  the commencement  of this Act vest in the Board
\nand  the   Board  shall\t  be  entitled\tto  its\t possession,
\nadministration and  use for  the purposes  of this Act”. The
\nBoard gets  constituted under  Section\t5.  Sub-section\t (1)
\nadumberates  that   the\t  administration,   management\t and
\ngovernance of  Shri Mata  Vaishno Devi Shrine and the Shrine
\nFund shall  vest in  the Board comprising a Chairman and not
\nmore than ten members. The composition thereof is elaborated
\nwith the  a mandatory  language,  viz.,\t “shall\t be”.  Under
\nclause (a)  of sub-section  (1) thereof, the Governor of the
\nState of  Jammu and  Kashmir, and  if the  Governor be not a
\nHindu, then  an eminent person professing Hindu religion and
\nqualified to  be a  member to  be nominated by the Governor,
\nshall be  the ex-officio  Chairman of  the Board. Clause (b)
\nprovides that  a Governor shall nominate nine members in the
\nmanner indicated  therein, viz., (i) two persons who, in the
\nopinion of  the Governor,  have distinguished  themselves in
\nthe service  of Hindu  religion or  culture; (ii) two women,
\nwho in\tthe opinion  of\t the  Governor,\t have  distinguished
\nthemselves in  the service  of Hindu  religion,\t culture  or
\nsocial work,  especially in  regard to advancement of women;\n<\/p>\n
(iii) three  persons, out  of persons who have distinguished
\nthemselves in  administration, legal  affairs  of  financial
\nmatters; and  (iv) two\teminent Hindus of the State of Jammu
\nand Kashmir. Under the provision, for a period not exceeding
\nthree months  from the\tdate the  Act came  into force,\t the
\nGovernor shall\t“act as\t and exercise  all the powers of the
\nBoard under this Act”. Sub-section (2) of Section 5 declares
\nthat a person shall not be eligible for being nominated as a
\nmember of  the Board,  if he  suffers or  incurs any  of the
\ndisqualifications specified in Section 8.\n<\/p>\n
     Section 6\tdeclares that  the Board  shall\t be  a\tbody
\ncorporate and  shall have  perpetual succession and a common
\nseal. It  is to\t sue or be sued in the name of the statutory
\nBoard. Section\t7 prescribes  term of  office of the members
\nfor a period of three years from the date of nomination made
\nunder Section  5. Disqualifications  for membership  of\t the
\nBoard are  enumerated in  Section 8  which envisages  that a
\nperson shall be disqualified for being nominated as a member
\nof the\tBoard for  any of the disqualifications mentioned in
\nclauses (a) to (i). Clause (a) is of importance and provides
\nthat if “such person is not a Hindu” he becomes disqualified
\nto be  or be  appointed as  a member.  Clause  (b)  provides
\nunsoundness of\tmind declared  by a  competent\tcourt  is  a
\ndisqualification. Under\t clauses (c)  to (i)  are enumerated
\nvarious disqualifications,  the details\t of  which  are\t not
\nmaterial for the purpose of this case. Section 9 gives power
\nto the\tGovernor for  dissolution and  supersession  of\t the
\nBoard. Sub-section  (1) says  that “if in the opinion of the
\nGovernor,  the\t Board\tis   not  competent  to\t perform  or
\npersistently makes  default in performing the duties imposed
\non it  under this  Act, or exceeds or abuses its powers, the
\nGovernor may,  after due  enquiry and after giving the Board
\nreasonable opportunity of being heard, by order, dissolve or
\nsupersede  the\tBoard  and  reconstitute  another  Board  in
\naccordance  with  this\tAct”  Thereafter,  by  operation  of
\nSection 9(2),  the Governor “shall assume all the powers and
\nperform all the functions and exercise all the powers of the
\nBoard for  a period  not exceeding three months or until the
\nconstitution of another Board whichever is earlier”. Filling
\nup of  vacancies is  provided  for  under  Section  10;\t the
\ndetails thereof\t are not  material for\tthe present purpose.
\nUnder Section 11, any member may resign his office by giving
\nnotice in  writing to  the Chief  Executive Officer  of\t the
\nBoard and  his\toffice\tbecomes\t vacant\t from  the  data  of
\nacceptance  of\t such  resignation.  Section  12  speaks  of
\n“removal of a member” by the Governor. It reads as under:\n<\/p>\n
     12. Removal  of  a\t member.  –  The
\n     Governor\tmay,\tfor   good   and
\n     sufficient\t  reason,   remove   any
\n     member   after    giving\thim   an
\n     opportunity   of\t showing   cause
\n     against  such   removal  and  after
\n     considering the explanation offered
\n     therefor”<\/p><\/blockquote>\n
     Section 13\t gives liberty\tto the Board to maintain its
\noffice and  hold meetings  at the place as may be decided by
\nit. The Governor and in his absence one of the members to be
\nelected for  the purpose,  shall preside  at the meetings as
\nChairman. Coram\t of every  meeting is  prescribed under sub-
\nsection (3) as 4 members. Sub-section (4) gives power to the
\nmembers of  the Board  to decide  the matters by majority of
\nvotes and in case of equality of votes, the person presiding
\n“shall have  a second  or casting  vote”. Section  14  gives
\npower to  the Board  to appoint\t officers  and\tservants  to
\nassist the  Board. Under  sub-section  (1),  the  Board\t may
\nappoint, for  efficient discharge  of the functions assigned
\nto it  under the  Act, a  Chief Executive  Officer and\tsuch
\nother officers\tand servants  as it  consider necessary with
\nsuch designation,  pay etc.  as the Board may determine from
\ntime to time. Under the proviso, the Chief Executive Officer
\nof the Board will not a person below the rank of a “District
\nMagistrate of  the District”  and in  the case\tof the Chief
\nAccounts Officer,  not below  the rank of a “Deputy Director
\nof  Accounts.\tThe  Chief   Executive\tOfficer\t  shall\t  be
\nresponsible   for    proper   and    efficient\t management,
\nadministration and  governance of  the Shrine, its funds and
\nall arrangements  for orderly, peaceful darshan of the Deity
\nby the\tpilgrims, their\t comfortable stay  etc. The Accounts
\nOfficer shall be responsible for sound financial management.
\nThe honest,  efficient and  experienced\t officers  shall  be
\ndrawn from  the bureaucracy  for the  purpose on  deputation
\nbasis. Subject\tto the\tbye-laws made,\tby operation of sub-
\nsection (2),  the Chairman of the Board shall have the power
\nto transfer,  suspend, remove  or  dismiss  any\t officer  or
\nservant of  the Board  for the\tbreach\tof  discipline,\t for
\ncarelessness, unfitness,  neglect of  duty or  misconduct or
\nfor any\t other sufficient cause. An officer on deputation is
\nliable to  be reverted\tto the parent cadre or Department in
\nthe Government.\t Under Section\t15, officers and servants of
\nthe Board are public servants.\n<\/p>\n
     Section 16 prescribes the liability of members. Section
\n17 prohibits transfer or alienation of movable and immovable
\nproperty without  prior sanction  of the  Board. Under\tsub-
\nsection\t 91)   without\tprior  sanction\t of  the  Board,  no
\nproperty, movable  or immovable,  shall not  be transferred.
\nSub-section (2)\t of Section  17 prohibits  alienation of the
\nproperties including land or other immovable property except
\nby resolution of the Board.\n<\/p>\n
     Section 18\t prescribes duties  of the Board. Section 19
\nwhich is material for the purpose of this case, extinguishes
\nthe rights  of Baridars.  Sub-section (1)  thereof reads  as
\nunder:\n<\/p>\n
     “(1) All  rights of  Baridars shall
\n     stand extinguished from the date of
\n     commencement of this Act.
\n     Provided  that   the  Governor  may
\n     appoint a Tribunal which shall give
\n     personal hearing  to  the\tBaridars
\n     and representatives  of the  Board,
\n     shall recommend  compensation to be
\n     paid  by\tthe  Board  in\tlieu  of
\n     extinction of  their rights.  While
\n     making its\t recommendation\t to  the
\n     Board, the\t Tribunal shall have due
\n     regard  to\t the  income  which  the
\n     Baridar  had   been   deriving   as
\n     Baridars. The  Board shall\t examine
\n     the recommendations forwarded to it
\n     by the  Tribunal and  take such  by
\n     the Tribunal and take such decision
\n     as it  may\t deem  appropriate.  The
\n     decision of  the  Board  should  be
\n     final.\n<\/p><\/blockquote>\n
     Provided  further\tthat  where  the
\n     Baridar  surrenders  his  right  to
\n     compensation and offers himself for
\n     employment to  the Board, the Board
\n     shall  cause  his\tsuitability  for
\n     such employment  to be adjudged and
\n     may offer him employment in case he
\n     is found  suitable by the Selection
\n     Committee to  be appointed\t for the
\n     purpose  subject\tto  the\t Baridar
\n     giving an\tundertaking to the Board
\n     to abide  by the administration and
\n     disciplinary control  of the  Board
\n     in accordance  with bye-laws framed
\n     by the Board.”<\/p><\/blockquote>\n
     Constitution of  India by\tSection 2 and 6 respectively
\nof the\tConstitution (44th  Amendment) Act, 1978 w.e.f. June
\n20, 1979  does not  apply to the State of Jammu and Kashmir.
\nThe right  to property\tis, therefore,\tstill a\t fundamental
\nright to  the residents\t of Jammu  and Kashmir. The Act does
\nnot make either any provision for payment of compensation or
\nprinciple or guidelines for determination of compensation to
\nBaridars. The  Board being  a controlled  Corporation, as an
\narm of\tthe Government,\t all the  properties of\t the  Shrine
\nstand vested  in the  Government. The Governor, though is an
\nex-officio Chairman,  he nominates  the members of the Board
\nas executive-head  of the  State. If the Governor happens to
\nbe  a  non-Hindu,  he  has  to\tnominate  an  eminent  Hindu
\nqualified to be a member of the Board. The object to empower
\nthe Governor  to preside  over the Board as its Chairman, is
\nto ensure  its control\tby the State. The Governor being the
\nhead of\t the executive,\t exercises the\tpowers of nomination
\nwith the  aid and  advice of  the Council  of Ministers. The
\nChief Executive\t Officer, the  District Magistrate and Chief
\nAccounts  Officer,  Deputy  Director  of  Accounts  are\t the
\nGovernment servants  drawn from the different Departments of
\nthe Government. The Governor, therefore, exercises executive
\npower of  the State  under the Constitution of the Jammu and
\nKashmir and  Constitution  of  India,  unless  the  relevant
\nprovisions of  the later  are not  extended.  The  executive
\npower of  the Governor, thus, flows from the sovereign power
\nof the\tState. The statutory power under the Act is integral
\nto the\texecutive power\t which flows  from the Constitution.
\nThe Governor,  therefore, is  the repository  of  the  State
\npower exercised\t by the\t executive. Various powers conferred
\non the\tHindu Governor\tare exercisable\t by  virtue  of\t the
\nstatute as  Governor. Therefore,  in  his  capacity  as\t the
\nexecutive Head,\t the Governor  is required  to exercise\t the
\npower under  the Act  with the aid and advice of the Council
\nof Ministers.  Even otherwise, he exercises the powers under
\nthe Act\t ex-officio as\tGovernor of the State. Therefore, in
\neither event, he is the repository of executive power of the
\nState. When  the Governor  supersedes or  reconstitutes\t the
\nBoard with  perpetual succession  and seal, he exercises the
\nexecutive power\t of the State Government and, therefore, the
\nBoard is a State controlled Corporation. In support thereof,
\nhe placed  reliance on\tSamsher Singh  vs. State of Punjab &
\nAnr. [(1974)  2 SCC  831] and  Ram Nagina  Singh &  Ors. vs.
\nSohni &\t Ors. [AIR  1976 Patna\t39 para\t 5]. He\t also placed
\nreliance on  Mansingh Surajsingh  Padvi\t vs.  The  State  of
\nMaharashtra [(1968  BLR 654];  S. Gurmukh Singh vs. Union of
\nIndia & Ors. [AIR 1952 Pun. 143]; Home Telephone &
\n     Under  sub-section\t  (2),\tall  existing  employees  of
\nDharmarth Trust\t engaged in any functions connected with the
\nShrine, unless they opt to the contrary, would be subject to
\nthe administration,  disciplinary control  of the Board. The
\nterms and  conditions of  service shall\t be regulated by the
\nbye-laws framed\t by the\t Board. By  operation of sub-section
\n(3),  the   tenants  or\t lease-holders\twho  were  till\t the
\ncommencement of\t the Act  tenants\/licensee of  the Dharmarth
\nTrust are  transposed to be tenants of the Board. Section 20
\nprescribes bar\tof suits  and other  proceedings. Section 21
\ngives power  to the  Board to  make grants  in favour of any
\ninstitution for\t religious spiritual  purposes.\t Section  22
\nmandates auditing  of the  accounts of\tthe Board  for every
\nfinancial year\tby the\tChartered Accountant to be nominated
\nby the\tBoard. Section 23 provides procedure for arbitration
\nof any\tdispute arising between the Dharamarth Trust and the
\nBoard. Section\t24 gives  power to make bye-laws and Section
\n25 provides  for repeal\t of the\t Governor’s Act\t No.XXIII of
\n1986.\n<\/p>\n
     By order  dated January  16, 1995,\t this Court directed
\nthe Board  to frame  a scheme  for rehabilitation of all the
\npersons engaged\t in the\t performance of\t Pooja at  Shri Mata
\nVaishno Devi Shrine and other temples to be displaced by the
\nimplementation of  the Act.  When the  matter had come up on
\nMarch 20,  1995, Shri  D.D. Thakur,  Tearned senior  counsel
\nappearing for  Saridars, stated\t that Baridars\tdo not\twant
\nrehabilitation. Instead\t they prefer to receive compensation
\nto be  determined under\t Section  20.  He  pointed  out\t the
\nabsence of  guidelines for determination of the compensation
\nby the Tribunal to be appointed under the proviso to Section
\n20 of  the Act.\t Accordingly, we  ordered that\tthe issue be
\nleft to\t the Governor  to  make\t appropriate  guidelines  to
\ndetermine the  compensation.  Pursuant\tthereto,  guidelines
\nwere framed  by the  Governor were  published in  the  State
\nGazette and  placed on record on May 8, 1995. By order dated
\nAugust 21,  1995, the controversy was limited to a question,
\nas suggested  by Shri  Thakur, thus;  “whether Mata  Vaishno
\nDevi Management\t Board is  a controlled corporation?” If the
\nfinding was to go in favour of the appellants, they would be
\nentitled to  compensation for  deprivation of their right to
\nreceive offerings  made by the pilgrims to Shri Mata Vaishno
\nDeviji. The  counsel  were  directed  to  file\tthe  written
\narguments. Accordingly,\t written arguments were filed by the
\ncounsel on both sides.\n<\/p>\n
     Shri D.D.\tThakur contended that Shri Mata Vaishno Devi
\nBoard is  a controlled\tCorporation. The  repeal of  Article
\n19(1) (f)  and Article\t31 of the Telegraph Company vs. City
\nof Los Angeles [57 L.ed. 510; 227 US SCR 1913] and a passage
\nfrom Shri  Kishan Singh\t & Ors. vs. The State of Rajasthan &
\nOrs.<\/a> [(1955)  2 SCR  531 at  539]. On the concept of control
\nunder the  Act, he  placed strong reliance on the meaning of
\nthe word  `control’ in\tBlack’ Law  Dictionary (6th Edn.) at
\npage 329.  The Commissioner of Income-Tax, Kerala, Ernakulam
\nvs. V.K.  Ramakrishnan<\/a> [AIR  1968 Kerala  156] In  re: Kodur
\nThimma Reddi  & Ors.  [AIR 1957\t AP 758].  Right to  receive
\nofferings from\tthe pilgrims  was held\tto  be\tproperty  of
\nBaridars by  this Court\t in Badri Nath & Anr. vs. Mst. Punna
\n(Dead) By  Lrs.\t and  Ors.<\/a>  [AIR  1978\tSC  1314  at  1318].
\nOfferings and  other properties\t were acquired under the Act
\nand got\t vested in  the controlled  Corporation,  viz.,\t the
\nBoard.\tFor   their  abolition,\t Baridars  are\tentitled  to
\ncompensation. Section  19 downs\t not prescribe\tcompensation
\nfor  payment   nor  it\t lay  any   principle  to  determine
\ncompensation. Therefore, the Act is ultra vires of the power
\nof the legislature.\n<\/p>\n
     Shri P.P. Rao, learned senior counsel contended that by
\noperation of clause (2-A) of Article 31 of the Constitution,
\nthe transfer  of ownership  of acquired property or right to
\ncontrol any Corporation by the State under an Act, should in
\nlaw vest  in the  State, or  in\t the  Corporation  owned  or
\ncontrolled by  the State,  under the  Act. The properties or
\nthe offerings  are not owned or controlled by the State. The
\nBoard is  not a\t controlled Corporation. The Act requires to
\nbe read\t in the\t light of  the scheme  it has  evolved.\t The
\nsovereign power\t of the\t State is  to supervise\t and  ensure
\nproper administration or management of religious institution
\nor an  endowment. Secularism,  being a\tbasic feature of the
\nConstitution, the  Constitution does not permit the State to
\ninterfere with\tthe management\tof religious  affairs of any
\nreligion  or  denomination.  But  the  State  has  power  to
\ninterfere with the same for proper supervision and efficient
\nmanagement of  religious institution  or endowment  which is
\nsecular in  its character.  The abolition  of the  right  to
\nreceive offerings  is part  of\tsecular\t management  of\t the
\nreligious  institution\t or  endowment.\t  The\tlegislature,
\ntherefore, enacted  the Act vesting the properties including
\nthe offerings,\tin the\tBoard.\tThe  Board  is\ta  statutory
\nauthority under\t the  Act  set\tup  for\t better\t management,
\nadministration\tand   governance  of   the  Shrine  and\t its
\nendowments including the sum total of properties attached or
\nappurtenant to\tthe Shrine  within the premises specified in
\nthe preamble  of the  Act. The\tBoard  is  composed  of\t the
\nGovernor and  the  nominated  nine  members.  The  power  to
\nnominate the members is conferred upon the Governor which he
\nexercises  in\this  ex-officio\t capacity  but\tnot  as\t the
\nexecutive head\tof the\tState with the aid and advice of the
\nCouncil of  Ministers. His  power to  nominate a  member  is
\nconditioned upon his being a Hindu; he downs not suffer from
\nany disqualification. The power to dissolve or supersede the
\nBoard or  reconstitution of  the Board\twithin a  period  of
\nthree  months\tand  to\t assume\t administration\t within\t the
\ninterregnum of\tthree months,  stands  vested  only  in\t the
\nGovernor obviously  in his  ex-officio capacity\t but not  as
\nexecutive head\tof the\tState. Section\t9, 11  and 12 of the
\nAct, form  back-drop or throw light as the key to understand
\nthe scheme.  There is a distinction between the Governor and
\nthe State  Government. The  analogous provisions  in similar
\nActs in\t other States  like A.P.,  Bihar, U.P. and Rajasthan
\ncontain\t provision   for  interference\t by  the   political
\nexecutive for  supersession or\treconstitution of  the Board
\nand have  vested that  power in\t the State  Government.\t The
\nState Legislature having been aware of that existing law and
\npractice in  that behalf,  chose to enact the Act empowering
\nthe Governor  to act under the Act. The General Clauses Act,
\nthough would  apply in\tinterpretation of  the Constitution,
\ndoes not  define “Governor”.  On  the  other  hand,  it\t has
\ndefined the “State Government”. Therefore, when the Governor
\nexercises his powers under the Act, he exercises them in his
\nofficial capacity  as Governor\tand not as executive head of
\nthe State. In support thereof, he place reliance on Hardwari
\nLal, Rohtak vs. G.D. Thapase, Chandigarh & Ors [AIR 1982 P &
\nH 439];\t Mr Kiran  Babu vs.  Government of  Andhra Pradesh &
\nAnr. [AIR  1986 AP  275]. He also contended that supervising
\nrole of\t the Governor  under Section 9, 11 and 12 is limited
\nto traditional\trole and  responsibility of the sovereign to
\nensure proper  management and  responsible administration of
\nthe  religious\tinstitutions  or  endowments  and  of  their
\nproperties  and\t  nothing  more.   The\tGovernor   can\tseek
\nassistance only\t in an appropriate case from the bureaucracy
\nor Council  of Ministers,  if necessary. But the exercise of
\npower under the Act is in his official capacity as Governor.
\nThe properties\tof the\tShrine or  the\tmanagement  are\t not
\nvested in  the State.  Article 31 (2A) makes it clear and so
\nArticle 31(2)  does not apply to the facts of the case. Shri
\nDholakia, learned  senior counsel  for the  State, contended
\nthat the  properties of\t the Shrine  and funds are under the
\nControl of  the State;\tthe property  is not  vested in\t the
\nState and  so the Act is a valid law. There is a distinction
\nbetween\t acquisition   and  deprivation.  The  Act  deprives
\nBaridars to  receive offerings\tbut it is not an acquisition
\nby  the\t  State.  Mere\t deprivation  does   not  amount  to
\nacquisition.\n<\/p>\n
     The respective  contentions give  rise to\tthe two-fold
\nquestion: whether  the Board is a controlled Corporation and
\nwhether the  Governor exercises\t the powers under the Act as
\nexecutive head\tof the\tState or in his official capacity as
\nthe Governor  of the  State of\tJammu  &  Kashmir?  We\thave
\nelaborately   brought\t out   the    relevant\t  provisions
\nhereinbefore; hence  there is no need to reproduce them once
\nover. The  preamble of\tthe Act\t makes it clear that the Act
\nregulates  only\t  better  management,\tadministration\t and
\ngovernance  of\t Shri  Mata  Vaishno  Devi  Shrine  and\t its
\nendowments including  the lands\t and the  hills attached and
\nappurtenant to\tthe Shrine  within  the\t premises  specified
\ntherein, including  the Shrine, holy cave and other temples.
\nThe  are   all\tthe   properties  of  the  Shrine.  Mutation
\nproceedings do bear it out. The ownership of the Shrine Fund
\nis vested  in the Board. The Board is made entitled to their
\npossession, administration  and use  “for the purpose of the
\nAct”  and  “for\t convenience,  comfort\tor  benefit  of\t the
\npilgrims”.\n<\/p>\n
     The administration,  management and  governance of\t the
\nShrine\tand   the  Shrine  Fund\t are  vested  in  the  Board
\nconsisting of the Chairman and nine members nominated by the
\nGovernor. The  Governor is the ex-officio Chairman. In case,
\nthe Governor happens to be a non-Hindu, his nominee, who has
\nto be  an  eminent  person  professing\tHindu  religion\t and
\nqualified to  be a  member, shall  be ex-officio Chairman of
\nthe Board,  obviously, to  act as  his substitute to preside
\nover the  Board participate  in\t the  deliberations  of\t the
\nBoard.\tIn   other  words,   he\t represents   the  Governor.
\nNonetheless, the  Governor bears  responsibility for proper,
\nefficient  and\t effective  management,\t administration\t and
\ngovernance of  the Shrine,  its properties,  the Fund and to
\nprovide\t facilities   and  comfort   to\t the  pilgrims,\t the
\nsustaining source.  Nomination of all the persons as members
\nis conditioned\tupon the  qualifications that they should be
\nHindus and  do not incur all or any of the disqualifications
\nenumerated in  Section 8 of the Act. By virtue of his office
\nas Governor,  he shall\tbe the\tex-officio Chairman  of\t the
\nBoard and  has been  vested with  the power to nominate nine
\npersons who,  in his  opinion, have distinguished themselves
\nin  the\t service  of  Hindu  religion  or  culture  etc.  as
\nmentioned earlier.  For a  period of  three months  from the
\ndate the  Act came into force, the Governor shall act as and
\nexercise all the powers of the Board until its constitution.
\nWithin three  months, the  Board has  to be  constituted  or
\nreconstituted even when it is dissolved or superseded or its
\nterm expired  by efflux\t of  time.  During  the\t interregnum
\nbetween its  dissolution or supersession and reconstitution,
\nthe  Governor\texercises  the\tpowers\tas  the\t Board.\t One
\nimportant factor that cannot be lost sight of is that in the
\nabsence of  the Board  during the  period of  three  months,
\neither\tinitially   at\tthe   commencement  of\tthe  Act  or
\nthereafter,  it\t  is  the   Governor  that  takes  over\t the
\nmanagement and\tacts as\t the Board. But a peculiar situation
\nmay arise  when, suppose,  the Governor\t is a non-Hindu, and
\nthe  governance\t  and  management   vest  in  the  executive
\nGovernment in  Cabinet system  under the  Constitution.\t Who
\nwould in  that situation  assume the  power  of\t management?
\nSuppose, a  Minister  and\/or  for  that\t matter,  the  Chief
\nMinister  professing   Islam  are   in\toffice,\t could\tthey
\ndischarge the  functions under\tthe Act? Answer is obviously
\nand definitely `No’.\n<\/p>\n
     Section  9\t  empowers  the\t Governor  to  supersede  or
\ndissolve the  Board, when the Governor forms an opinion that
\nthe Board  is not competent to perform the duties imposed on
\nit under  the Act or the Board persistently makes default in
\nperforming the\tduties imposed\ton it  under the  Act or the
\nBoard acts  in excess  of its  authority and power or abuses
\nits power.  He was been empowered to supersede the Board. He
\nis equally empowered to dissolve the Board. But before doing
\nit,  the   Governor  is\t required  to  have  a\tdue  enquiry
\nconducted, after  giving the Board reasonable opportunity of
\nbeing heard, i.e., observing principle of natural justice or
\nto avoid any charge of arbitrary action. After having formed
\nthe aforestated\t opinion, on  an objective  consideration of
\nthe material  before him,  he would  pass  an  order  either
\nsuperseding or\tdissolving the\tBoard. he would reconstitute
\nBoard, shortly\tthereafter, but\t not exceeding three months.
\nAs soon\t as it\tis dissolved,  the Governor shall assume all
\nthe powers  and perform\t all the  functions and exercise all
\npowers of  the Board for a period not exceeding three months
\nor until  the constitution  of another\tBoard, whichever  is
\nearlier. This  would  appear  to  manifest  the\t legislative
\nintention that\tthe Governor  bestows constant personal care
\nand   attention\t  in   proper,\t efficient   and   effective
\nadministration, management and governance of the Shrine, the
\nsum total  of properties  and facilities and services to the
\npilgrims. In case the Governor happens to be a non-Hindu, he
\nobviously gets\tthe management\tdone through  the Board, The
\nChief Executive\t who would  always be  Hindus and  they\t act
\nunder the  directions of  the Governor.\t The Governor has to
\nbestow\tadded\tpersonal  attention   to   the\t management,
\nadministration and governance of the Shrine etc.
\n     Similarly, Section\t 12 gives  power to the Governor for
\ngood and  sufficient reasons  to  remove  any  member  after
\ngiving him  an opportunity  of\tshowing\t cause\tagainst\t his
\nremoval and  after consideration  of the explanation offered
\nby him.\t The resignation  of any member shall be by a notice
\ngiven  in   writing  to\t the  Chief  Executive\tOfficer\t and
\nacceptance of  the same\t by the Governor. The Governor, when
\nhe nominates  a member, equally has power to remove him when
\nthe Governor  finds any\t member abusing\t the office  etc. as
\nfound in  the enquiry.\tIt would,  thus, appear that the Act
\nintends to  invest with\t the Governor  the power to nominate
\nthe  members  in  his  official\t personal  capacity  as\t the
\nGovernor of  the State\tof the power to constitute the Board
\nto supersede  or to  dissolve the Board; the Power to accept
\nresignation and\t to fill  up the  resultant casual vacancies
\nunder  Section\t10,  are  conferred  on\t the  Governor.\t The
\nquestion, therefore,  emerges: whether\tsuch exercise of the
\npowers by  the Governor\t is in his capacity as the executive
\nhead of\t the State  under  parliamentary  mechanism  devised
\nunder the  Constitution\t or  in\t his  official\tcapacity  as
\nGovernor of the State?\n<\/p>\n
     It is  true, as  contended by Shri D.D. Thakur, that in
\ninterpretation of  the Constitution, by operation of Article
\n367, unless  the context  otherwise  requires,\tthe  General
\nClauses Act,  1897 (for\t short, the  “GC Act”)\tas modified,
\nshall apply.  Section 3(23)  of the  GC Act  defines  “State
\nGovernment” to\tinclude both  the Central Government and the
\nState  Government   and\t  Section   3(61)   defines   “State
\nGovernment”, as regards anything done or to be done, to mean
\nthe Governor.  Part VI\tof the\tConstitution  titled  “State
\nGovernment”, as regards anything done or to be done, to mean
\nthe Governor.  Part  VI\t of  the  Constitution\ttitled\t“The
\nStates”\t consists   of\tChapter\t  I  “General”,\t Chapter  II
\n“Executive”, Chapter  III “The Legislature, Chapter IV, “The
\nLegislative Power  of the  Governor”, Chapter  V  “The\tHigh
\nCourts in  the States  (Judicial  Power)”,  and\t Chapter  VI
\n“Subordinate Courts”.  Article 152  in\tChapter\t II  defines
\n“State” unless\tthe context otherwise requires, so as not to
\ninclude the  State of Jammu and Kashmir. Thereby, as regards
\nthe State  of Jammu  and Kashmir,  the distinction  is\tmade
\nbetween\t the   Governor\t ex-officio   and  the\tGovernor  as
\nexecutive head\tof  the\t State,\t unless\t it  is\t applied  by
\nexercise of  the power\tunder Article  370(1), (i)  and (d).
\nArticle 370  (1) declares  that “notwithstanding anything in
\nthis Constitution”,  the provisions of article 238 shall not
\napply in relation to the State of Jammu & Kashmir and clause\n<\/p>\n
(d) states that subject to such exceptions and modifications
\nas the President may by order specify, such other provisions
\nof the\tConstitution shall  apply in  relation to  the\tsaid
\nState. Chapter II, Part VI deals with the executive power of
\nthe State.  Under Article 153, there shall be a Governor for
\neach State  or one  Governor for  more than  one  State.  By
\noperation of the First Schedule to the Constitution, Item 15
\nrelates to  State of  Jammu and\t Kashmir. Item\t15 read with
\nArticles 1 and 4 of the Constitution, the territories, which
\nimmediately before  the commencement of the Constitution was
\ncomprised in  the Indian  State of  Jammu and Kashmir is the
\nState of  Jammu and  Kashmir. The  Constitution of Jammu and
\nKashmir, 1957  contains detailed  provisions in\t this behalf
\nand the\t executive powers  given under Sections 21 to 45 are
\nnot inconsistent  therewith. it\t would,\t thus,\tappear\tthat
\nthere is  no inconsistency  in the Constitution of Jammu and
\nKashmir and  the Constitution  of India\t in  application  of
\nChapter II  of Part  VI of  the Constitution  in relation to
\nexecutive power of the Governor of Jammu and Kashmir.\n<\/p>\n
     By operation of Article 154, the executive power of the
\nState shall be vested in the Governor and shall be exercised
\nby him\teither directly\t or through  officers subordinate to
\nhim in\taccordance with\t the Constitution.  By Operation  of
\nArticle 162,  subject to the provisions of the Constitution,
\nthe executive power of the State shall extend to all matters
\nwith respect to which the legislature of the State has power
\nto make law. Thus, except his discretionary powers like that
\nof appointing Chief Minister, the Governor does not exercise
\nany power  in his  individual discretion.  The\tGovernor  is
\naided and  advised by  the Council of Ministers appointed by
\nhim under  Article 163.\t The executive power of the State is
\nco-extensive with that of the legislative power of the State
\nand the\t Governor in the constitutional sense discharges the
\nfunctions under\t the Constitution with the aid and advice of
\nthe Council  of Ministers  except in  so far  as he is by or
\nunder the Constitution required to exercise his functions in
\nhis discretion.\t This is  subject to  Article  370  and\t the
\nConstitution (Application  to Jammu  & Kashmir)\t Order, 1950
\nrepealed and  revised by  the Constitution  (Application  to
\nJammu & Kashmir) Order, 1954 and the Constitution of Jammu &
\nKashmir, 1957  (Part V).  All the  executive actions  of the
\nState Government  shall be expressed to be taken in the name
\nof the\tGovernor as per the business rules of the Government
\nmade in\t accordance with Article 166 of the Constitution and
\nthe business  rules made  by the  Governor under  clause (3)
\nthereof\t (Section  45  of  the\tConstitution  of  Jammu\t and
\nKashmir). In  Samsher Singh’s  case, a Bench of seven Judges
\nof this\t Court had  held that  under the  Cabinet system  of
\nGovernment, as embodied in our Constitution, the Governor is
\nthe formal  head of  the State.\t He exercises all his powers
\nand functions  conferred on him by or under the Constitution
\nwith the  aid and advice of his Council of Ministers save in
\nspheres where  the Governor  is required  by  or  under\t the
\nConstitution to\t exercise his  functions in  his discretion.
\nThe satisfaction  of the  Governor for\tthe exercise  of any
\nother powers  or functions  required by\t the Constitution is
\nnot the\t personal satisfaction\tof the\tGovernor but  is the
\nsatisfaction in\t the constitutional  sense under the Cabinet
\nsystem of Government. The executive is to act subject to the
\ncontrol of the legislature. The executive power of the State
\nis vested in the Governor as head of the executive. The real
\nexecutive power\t is vested  in the  Council Ministers of the
\nCabinet. There\tis a  Council of  Ministers with  the  Chief
\nMinister as  its head  to aid and advise the Governor in the
\nexercise of  his executive functions. In R.K. Jain vs. Union
\nof India<\/a>  [(1993) 4  SCC 119],\tit was held that the Cabinet
\nsystem is  a constitutional  mechanism to ensure that before
\nimportant decisions  are taken,\t many sides  of the question
\nare weighed  and considered.  The  Cabinet  takes  political
\ndecisions of  importance and the permanent bureaucracy works
\nout the details and implements the policy. The Cabine headed
\nby the\tPrime Minister\tbears collective  responsibility for
\nthe governance\tof the\tcountry. The  Cabinet as  a whole is
\nresponsible for\t the advice  and conduct of business by each
\nof the\tmembers of Cabinet of his Department and requires to
\nmaintain secrecy  in the  performance of the decision making
\nprocess individually  or collectively. They are also equally
\nresponsible individually and collectively for their acts and
\npolicies.  The\t Cabinet,  as\ta  whole,   is\tcollectively
\nresponsible for\t the advice  to the  President\tand  to\t the
\nParliament and\tthe people.  In S.R. Bommai & Ors. vs. Union
\nof India  & Ors.<\/a>  [(1994) 3  SCC 1] at page 238 in paragraph
\n313 and 314, this Court had held that the executive power of
\nthe Union  shall be  vested in\tthe President  and shall  be
\nexercised  by  him  whether  directly  or  through  officers
\nsubordinate to\thim in accordance with the Constitution. All
\nthe executive  actions of  the Government shall be expressed
\nto be  taken in\t the name  of the  President  under  Article
\n77(1). Therefore,  he acts  with the  aid and  advice of the
\nCouncil of  Ministers under  Article 78\t of the Constitution
\nheaded by  the Prime Minister as elaborated under paragraphs
\n313 to\t321. In\t Samsher Singh’s  case, this  Court had held
\nthus:\n<\/p>\n
     “Under  the   Cabinet   system   of
\n     Government\t as   embodied\tin   our
\n     Constitution, the\tGovernor is  the
\n     constitutional or\tformal\thead  of
\n     the State\tand he exercised all his
\n     powers and\t functions conferred  on
\n     him by or under the Constitution on
\n     the aid  and advice  of his Council
\n     of Ministers  save in spheres where
\n     the  Governor  is\trequired  by  or
\n     under the\tConstitution to exercise
\n     his functions in his discretion.
\n     The executive  power  is  generally
\n     described as the residue which does
\n     not fall  within the legislative or
\n     judicial power. But executive power
\n     may also  partake of legislative or
\n     judicial actions.\tAll  powers  and
\n     functions of  the President  except
\n     his  legislative\tpowers\tas   for
\n     example  in   Article  123,   viz.,
\n     ordinance\tmaking\t power\tand  all
\n     powers   and   functions\tof   the
\n     Governor  except\this  legislative
\n     power as for example in Article 213
\n     in\t the   President  under\t Article
\n     53(1) in one case and are executive
\n     powers of\tthe State  vested in the
\n     Governor under  Article  154(1)  in
\n     the  other\t  case.\t Clause\t (2)  or
\n     clause (3)\t of Article  77\t is  not
\n     limited in\t its  operation\t to  the
\n     executive action  of the Government
\n     of\t India\t under\tclause\t (1)  of
\n     Article 77.  Similarly, clause  (2)
\n     or clause (3) of Article 166 is not
\n     limited in\t its  operation\t to  the
\n     executive action  of the Government
\n     of the  State under  clause (1)  of
\n     Article   166.    The    expression
\n     “Business\tof   the  Government  of
\n     India” in clause (3) of Article 77,
\n     and the expression “Business of the
\n     Government of  the State” in clause
\n     (3) of  Article  166  includes  all
\n     executive business.”<\/p><\/blockquote>\n
     The constitutional\t mechanism, i.e.,  Cabinet system of
\nGovernment is devised for convenient transaction of business
\nof the executive power of the State. Though constitutionally
\nthe executive  power of\t the State vests in the Governor, he
\ndoes not,  unless Constitution\texpressly conferred  on him,
\npersonally  take   the\tdecision.  The\tdecision  are  taken
\naccording  to\tbusiness  rules\t  at  different\t levels\t and
\nultimately the\tdecision rests\twith the authority specified
\nin the\tbusiness rules\tand is\texpressed to be taken in the
\nname of the Governor. In substance and in reality, decisions
\nare taken  by the  Council of  Ministers headed by the Chief
\nMinister or the Minister or Secretary as per business rules.
\nBut they  are all  expressed to\t be taken  by the Council of
\nMinisters in  the name\tof the Governor and authenticated by
\nan authorised officer. The Governor being the constitutional
\nhead of\t the State,  unless he\tis required  to perform\t the
\nfunction  under\t  the\tConstitution   in   his\t  individual
\ndiscretion, the performance of the executive power, which is
\ncoextensive with  the legislative power, is with the aid and
\nadvice of  the Council\tof Ministers  headed  by  the  Chief
\nMinister.\n<\/p>\n
     As posed  earlier, the  question is;  when the Governor
\ndischarges the\tfunctions under\t the Act, is it with the aid
\nand advice  of the  Council of\tMinisters or in his official
\ncapacity as  the Governor?  The legislature  is aware of the
\nabove constitutional  mechanism of  governance. Equally, the
\nlegislature of Jammu and Kashmir, while making the Act would
\nbe presumed  to be  aware that\tsimilar\t provisions  in\t the
\nEndowment Acts\texist in  other States\tin India. Section 86
\nread with  Section 95  of Andhra  Pradesh  Charitable  Hindu
\nReligious Institutions\tand Endowments Act, 1966 gives power
\nto “the\t State Government” to dissolve the Board of Trustees
\nof Tirumala Tirupathi Devasthanams and the Board of Trustees
\nof other institutions and reconstitution thereof. Similarly,
\nin Bihar  Hindu Religious  Trusts Act, 1950, Section 7 and 8
\ngive power  to the  State Government  for appointment of the
\nmembers of  the Board  and Section  80\tempowers  the  State
\nGovernment to  dissolve the  Board. The Bombay Public Trusts
\nAct, 1950  confers similar  powers on  the State  Government
\nunder Sections 56D, 56G, 56H and 56R. Orissa Hindu Religious
\nEndowments Act,\t 1959 contains similar provisions conferring
\npower on  the State  Government, vide Section 4 thereof, for
\nconstitution of\t the Board.  The U.P.  Shri Kashi  Vishwanth
\nTemple Act,  1983  is  yet  another  Act  where\t the  entire
\nresponsibility is saddled on the Governor.\n<\/p>\n
     It would  be clear\t that the  legislature entrusted the
\npowers under  the  Act\tto  the\t Governor  in  his  official
\ncapacity. it  expressly states\tthat the  would preside over
\nthe meetings  of the  Board.  If  he  is  a  non-Hindu,\t his
\nnominee, an  eminent qualified\tHindu will be his substitute
\nto preside  over the  functions.  As  seen,  no\t distinction
\nbetween the Governor and executive Government is made by the
\nlegislature in\tthe relevant  provisions in  the Act.  Under
\nSection 9, 11 and 12 of the Act, though the Governor acts as
\nrepository  of\t the  sovereign\t power\tof  the\t State,\t the
\nphraseology employed therein does not indicate that power is
\ngiven to the Council of Ministers and the Governor is to act
\non its\tadvice as  executive head  of the  State. It  is  an
\nadmitted position that prior to the Act, Dharmarth Trust was
\nin management  and administration  of  the  Shrine  and\t the
\nproperties attached thereto.\n<\/p>\n
     From the material on record, placed in the paper books,
\nit is  clear that  originally the  immovable properties were
\nmutated in  the name  of Shri  Mata Vaishno Deviji under the
\nmanagement of  the individuals.\t Subsequently, they were in,
\nColumn 5,  mutated to  be in  the  possession  of  Dharmarth
\nTrust. The  ownership of  Shri Mata  Vaishno Deviji is under
\nthe  management\t of  Dharmarth\tTrust.\tIt  was\t mutated  by
\nproceedings dated  October 18,\t1986 that  the properties of
\nShri Mata  Vaishno Deviji  are under  the management  of the
\nShrine Board.  It is  stated  that  the\t mutation  has\tbeen
\neffected pursuant  to the  directions issued  by the  Deputy
\nCommissioner and  the Shrine Board has taken over possession
\nof the\tproperties. Accordingly,  entry in  that behalf\t was
\nentered in column 14 thereof. It was effected by order dated
\nDecember 27, 1986.\n<\/p>\n
     Under Section  5 of  the Act,  the Board  headed by the
\nGovernor  as  the  ex-officio  Chairman,  shall\t administer,
\nmanage and  govern Shri\t Mata Vaishno  Devi Shrine  and\t the
\nShrine Fund  is vested in the Board as a body corporate with
\nperpetual succession  with common seal and it can sue and be
\nsued in\t a court  of law. The Board discharges the functions
\nand duties  under the Act in particular, as enumerated in 14
\nto 18.\tIt would,  therefore, be apparent from the scheme of
\nthe Act\t that the  legislature, though\thaving been aware of
\nthe executive functions of the Governor, in Part VI, Chapter
\nIi of  the  Constitution  (Part\t VI  of\t Jammu\tand  Kashmir
\nConstitution), as  head of  the State,\tdid not\t entrust the
\npower under  the Act  to the Governor under the mechanism of
\nthe  Cabinet  system  devised  under  the  Constitution.  It
\nappears, for  the reasons stated supra, that the Governor of
\nthe State  of Jammu  and Kashmir is required to exercise his
\nex-officio power  as  Governor\tto  oversee  personally\t the
\nadministration,\t management  and  governance  of  Shri\tMata
\nVaishno Devi  Shrine, Shrine  Fund and the properties vested
\nin the Board. A non-Hindu Governor shall nominate an eminent
\nHindu as  his deputy  responsible  for\tpresiding  over\t the
\nmeetings as  Chairman to  take decisions  to be taken by the
\nBoard in  the administration,  management and  governance of
\nShri Mata  Vaishno Devi\t Shrine and  the Shrine fund and sum
\ntotal of  properties attached  or belonging  to\t the  Shrine
\nwithin the premises specified in the premable of the Act and
\nall other  properties belonging\t to the Shrine and vested in
\nthe Board  Sections 9, 11 and 12, as stated earlier, gives a
\nclear  indication  in  that  behalf  that  the\tGovernor  is
\nsovereign ex-officio  holder of\t power, shall be responsible
\nfor  proper,   efficient   and\t effective   administration,
\nmanagement and\tgovernance of Shri Mata Vaishno Devi Shrine,
\nShrine Fund  and sum total of the properties etc. Considered
\nfrom this  perspective, we  hold that  there is\t no scope to
\napprehend that\tthe Board will misuse or abuse the power and
\nmismanage the  funds or\t properties of\tthe Shrine.  Even in
\ncase of\t such necessity,  the Governor\tas the repository of
\nsovereign power,  would always\thave the  assistance, in any
\ngiven situation\t or case,  to get  the matter examined by an
\nappropriate  authority\t or  officer  or  collect  necessary
\ninformation or\tmaterial etc.  the same\t having been  placed
\nbefore him  for\t his  decision.\t The  decision\tis  his\t own
\ndecision on  his personal  satisfaction and  not one the aid
\nand advice  of the Council of Ministers. The exercise of the
\npowers and functions under the Act is distinct and different
\nfrom  those   exercised\t formally  in  his  name  for  which
\nresponsibility rests  only with\t his  Council  of  Ministers
\nheaded by the Chief Minister.\n<\/p>\n
     In Hardwarilal’s  case (supra),  a Full  Bench  of\t the
\nPunjab and  Haryana High  Court was  to consider whether the
\nGovernor in  his capacity  as  the  Chancellor\tof  Maharshi
\nDayanand University  was  to  act  under  Maharshi  Dayanand
\nUniversity Act,\t 1975 (Haryana\tAct No.25  of 1975)  in\t his
\nofficial capacity  as Chancellor  or with  aid and advice of
\nthe Council  of Ministers.  The Full  Bench, after elaborate
\nconsideration of the provisions of the Act and the statutes,
\ncame to\t observe in  paragraph 121  at page 476 that the Act
\nand the\t statutes intended  that the  State Government would
\nnot interfere  in the  affairs of  the University. The State
\nGovernment is an authority quite distinct from the authority
\nof the\tChancellor. The\t State Government  cannot advise the
\nChancellor to act in a particular manner. The University, as
\na statutory  Body, autonomous  in character,  has been given
\ncertain powers exercisable by the Chancellor in his absolute
\ndiscretion without any interference from any quarter. In the
\nappointment  of\t  the  Vice-Chancellor\t or  the   Pro-Vice-
\nChancellor, the\t Chancellor is\tnot required  to consult the
\nCouncil of  Ministers. Though  by virtue  of his  office  as
\nGovernor, he  becomes the  Chancellor of the University, but
\nwhile discharging  the functions  of his office, he does not
\nperform any  duty or exercise any power of the office of the
\nGovernor  individually.\t  However,  while   discharging\t the
\nfunctions  as  a  Chancellor,  he  does\t every\tact  in\t his
\ndiscretion as  Chancellor and he does not act on the aid and
\nadvice of  his Council\tof Ministers. The performance of the
\nfunctions and duties under the Constitution with the aid and
\nadvice of the Council of Ministers is distinct and different
\nfrom his discharge of the powers and duties of his office as
\nChancellor of the University. Under the Act and the statute,
\nthe Chancellor\thas independent\t existence and exercises his
\npowers without any interference from any quarter. Therefore,
\nthe office  as a  Chancellor  held  by\tthe  Governor  is  a
\nstatutory office  quite distinct  from\tthe  office  of\t the
\nGovernor. Same\tview was  taken by Andhra Pradesh High Court
\nin Kiran  Kumar’s case.\t In Ram Nagina Singh & Ors. vs. S.V.
\nSohni & Ors. [AIR 1976 Patna 36], the question was as to the
\nappointment of\ta Lokayukta  under Section  3 of  the  Bihar
\nLokayukta Act,\t1974 to\t be made  by  the  Governor  in\t his
\ncapacity as  Governor of  the State, with the aid and advice
\nof the Council of Ministers. The language of Section 3(1) of
\nthe said  Act provides\tthat “the  Governor shall be warrant
\nunder his  hand and seal appoint a person to be known as the
\nLokayukta   of\t Bihar”.   Considering\t the   language\t  in
\nthat provisions and the scheme of the Act for removal of the
\nLokayukta,  the\t  Division  Bench  came\t to  hold  that\t the
\nGovernor,  with\t the  aid  and\tadvice\tof  the\t Council  of
\nMinisters, discharges the function in the appointment of the
\nLokayukta under\t Section 3  of that Act. In the light of the
\nlanguage therein,  there is  little difficulty\tin upholding
\ncorrectness of the decision but it renders little assistance
\nto the present controversy. The ratio in Mansingh Surajsingh
\nPadvi’s case  relates to  the exercise\tof the\tpower by the
\nGovernor under\tWest Khandesh  Mehwassi Estates (Proprietary
\nRights\tAbolition,   etc.)  Regulation,\t  1961.\t  From\t the
\nnotification issued thereunder the learned Judges appears to
\nhave reached  the conclusion that the Governor acts with aid
\nand advice  of\tthe  Council  of  Ministers.  They  did\t not
\ncorrectly  understand\tthe  scope  of\tSchedule  V  to\t the
\nConstitution in\t its relation  to the  administration of the
\nscheduled area.\t The power of State and the Governor in that
\nbehalf was  not properly  understood nor brought home to the
\nlearned Judges. Therefore, the learned Judges were not right
\nin holding  that the  Governor while  exercising the  power
\nunder Schedule\tV of  the Constitution acts with the aid and
\nadvice of  the Council\tof  Ministers.\tThe  law  laid\tdown
\ntherein is not correct in law.\n<\/p>\n
     The next question is: whether the Board is a controlled
\nCorporation? The  thrust which\tShri D.D.  Thakur forcefully
\nsought to bring home is that the Governor, be it in exercise
\nof his\texecutive power\t in the Cabinet system of Government
\ndevised under  the Constitution\t or in his official capacity
\nas Governor,  draws his power, which flows from the statute,
\nas the\trepository of  the State  executive. He\t has control
\nover  the   nomination\tf   the\t members   to\tthe   Board,
\nsupersession, dissolution and reconstitution of the Board as
\nwell as\t administration, management  and governance  of Shri
\nMata Vaishno  Devi Shrine,  Shrine Fund and the sum total of
\nall the\t properties. He\t performs  the\tfunctions  with\t the
\nassistance of  the Chief  Executive Officer  of the rank not
\nbelow the  District Magistrate\tand of\tthe  Chief  Accounts
\nOfficer of  the rank  not below Deputy Director of Accounts.
\nGovernment bureaucrats on deputation and all officers of the
\nBoard are  under the  control and  supervision of  the Chief
\nExecutive   Officer.   Therefore,   it\t is   a\t  controlled
\nCorporation. Section  19 of the Act, while extinguishing all
\nrights of  the Baridars form the date of the commencement of
\nthe Act,  does not  provide for\t compensation in a specified
\nsum nor\t it lay\t any principles\t to determine  compensation.
\nTherefore, the\tAct  is\t void  offending  their\t fundamental
\nrights guaranteed  by Article  19(1)(f) and Article 31(2) of
\nthe Constitution.  Though,  prima  facie,  the\targument  is
\nalluring but  on deeper\t probe, we find it difficult to give
\nacceptance to  the same.  The presumption  in law is that an
\nAct is\tvalid and the legislature does not intend to enact a
\nlaw which  is ultra  vires the\tConstitution. The  burden to
\nprove contra is on the appellants to establish the contrary.
\nThe provisions\tof the\tAct  are  required  to\tbe  examined
\ncarefully to  find whether  it is  purported  to  have\tthat
\neffect. Section 19 in this behalf is relevant. It is already
\nseen that  “all rights\tof Baridars shall stand extinguished
\nfrom the  date of  the commencement of the Act” by operation
\nof sub-section\t(1) of\tSection 19  of the  Act.  It  is  an
\nadmitted case of the appellants themselves that they perform
\nPooja and  would appropriate  part of  the offerings.  Their
\nright to  perform Pooja\t is only customary right coming from
\ngenerations. Section  2 of  the Act gives over-riding effect
\nto any\tcustom, usage  of instrument  or any  law, decree or
\nscheme of  management,\tnotwithstanding\t anything  contained
\ncontra to  the Act  etc. It declares that the Act shall have
\nover-riding effect thereon. In A.S. Narayana Deekshitulu vs.
\nState of  A.P. &  Ors. [(1996) 9 SCC 548 at 604] Section 144
\nof  the\t  Andhra  Pradesh  Charitable  and  Hindu  Religious
\nInstitutions and Endowments Act, 1987 abolished the right of
\nthe appellants\tto receive  offerings with  the abolition of
\nthe hereditary right of Archaka service. The question arose;
\nwhether it  offended the  religion or protection of Articles
\n25 and\t26? It\twas held  that the  word `religion’  used in
\nArticles 25  and 26  of the  Constitution is personal to the
\nperson having faith and belief in the religion. The religion
\nis that\t which binds  a man  with his Cosmos, his Creator or
\nsuper force.  Essentially, religion  is a matter of personal
\nfaith and belief or personal relations of an individual with
\nwhat the  regards as Cosmos, his Maker or his Creator which,
\nhe believes,  regulates the  existence of  insentient beings
\nand the\t forces of the universe. Religion is not necessarily
\ntheistic. A  religion undoubtedly  has its basis in a system
\nof beliefs  and doctrine  which are  regarded by  those\t who
\nprofess religion  to be\t conducive to  their spiritual well-
\nbeing. Right  to religion  guaranteed under Article 25 or 26
\nis not\tan absolute  or unfettered  right but  is subject to
\nlegislation by the State limiting or regulating any activity\n<\/p>\n
–  economic,  financial,  political  or\t secular  which\t are
\nassociated with\t the religious\tbelief, faith,\tpractice  or
\ncustom. The  are subject  to reform  as\t social\t welfare  by
\nappropriate  legislation  by  the  State.  Though  religious
\npractices and performances of acts in pursuance of religious
\nbelief are,  as must  as, a  part of  religion, as  faith or
\nbelief in  a particular\t doctrine, that\t by  itself  is\t not
\nconclusive or decisive. What are essential parts of religion
\nor religious  belief or\t matters of  religion and  religious
\npractice is  essentially a question of fact to be considered
\nin the\tcontext in  which the  question has  arisen and\t the
\nevidence – factual or legislative  presented in that context
\nis required  to be  examined  and  a  decision\treached.  In
\nsecularising  the   matters  of\t  religion  which   are\t not
\nessentially and\t integrally parts  of religion,\t secularism,
\ntherefore consciously denounces all forms of supernaturalism
\nor superstitious  beliefs or  actions and acts which are not
\nessentially or\tintegrally matters  of religion or religious
\nbelief or  faith or  religious\tpractice.  Non-religious  or
\nanti-religious practices are anti-thesis to secularism which
\nseeks to  contribute  in  some\tdegree\tto  the\t process  of
\nsecularisation of  the\tmatters\t of  religion  or  religious
\npractices. A  balance, therefore,  has to  be struck between
\nthe rigidity  of right\tto religious  belief and  faith\t and
\ntheir  intrinsic   restrictions\t in   matters  of  religion,
\nreligious beliefs  or religious\t practices guaranteed  under
\nthe Constitution.  The Andhra  Pradesh Act impugned Therein,
\nwas held  to  regulate\tadministration\tand  maintenance  of
\ncharitable and\tHindu religious\t institutions and endowments
\nin  their   secular  administration.  It  laid\temphasis  on
\npreserving Hindu Dharma and performance of religious worship
\nceremonies and\tPooja in religious institutions according to
\ntheir  prevailing   Sampradayams  and  Agamas.\tThere  is  a
\ndistinction between  religious service\tand the\t person\t who
\nperforms the  service; performance  of the religious service
\naccording  to\tthe  tenets,   Agamas,\tcustoms\t and  usages
\nprevalent in  the temple  etc. is  an integral\tpart of\t the
\nreligious  faith   and\tbelief\t and  to   that\t extent\t the
\nlegislature cannot intervene to regulate. But the service of
\nthe priest (Archaka) is a secular part. The hereditary right
\nas such\t is not\t an integral  part of the religious practice
\nbut a  source to secure the services of a priest independent
\nof it.\tThough performance  of the  ritual ceremonies  is an
\nintegral part of the religion, the person who performs it or
\nassociates himself with performance of ritual ceremonies, is
\nnot. Therefore, when the hereditary right to perform service
\nin the\ttemple can  be terminated  or abolished by sovereign
\nlegislature, it\t can equally regulate the service conditions
\nsequel\tto   the  abolition   of  the  hereditary  right  of
\nsuccession in  the office  of an  Archaka. Though an archaka
\nintegrally  associates\t himself  with\tthe  performance  of
\nceremonial rituals  and daily  pooja to the Deity, he is the
\nholder of  an office  of priest in the temple. He is subject
\nto  the\t  discipline  on  par  with  other  members  of\t the
\nestablishment.\tAbolition  of  emoluments  attached  to\t the
\noffice of  the Archaka,\t therefore, cannot  be\tsaid  to  be
\ninvalid. The  customs or usages in that behalf were held not
\nan integral  part of  the religion.  It was, therefore, held
\nthat the  legislature has  power to regulate the appointment
\nof the\tArchaka, emoluments and abolition of customary share
\nin the offerings to the Deity. The same ratio applies to the
\nfacts in this case.\n<\/p>\n
     In a  private litigation  between Baridar holders, this
\nCourt in  Badri Nath’s case (supra) had held that though the
\nright to  receive a  share in  the offerings  was subject to
\nperformance of\tthose duties,  none of\tthem was  in  nature
\npriestly or  required a\t personal qualification. All of them
\nwere of\t non-religious or  secular character  which could be
\nperformed by  the Baridar’s  agented or\t servants  incurring
\nexpense on  his account.  When\tthe  right  to\treceive\t the
\nofferings made\tat a  temple is independent of an obligation
\nto  render  services  involving\t qualification\tof  personal
\nnature such  a right  is heritable as well as alienable. The
\nright of  the baridars\tcannot be  equated with the right ad
\nduties of  a shebait.  The Baridars  are not managers of the
\nShrine in  the sense  that a  shebait is  in relation  to  a
\ntemple in  his charge.\tThe right  to share in the offerings
\nbeing a right coupled with duties other than those involving
\npersonal qualification and being heritable property, it will
\ndescend\t in  accordance\t with  the  dictates  of  the  Hindu
\nSuccession  Act\t in  supersession  of  all  customs  to\t the
\ncontrary in view of Section 4 of the Hindu Succession Act.
\nIt is  seen that  Section 2  gives over-riding effect to the
\nAct over  any contrary\tlaw or any scheme of the management,
\ndecree, custom,\t usage or  instrument. The  Act,  therefore,
\nabolishes the  customary right or duty of service as Baridar
\nand  the   receipt  of\t offerings  being  conditioned\tupon
\nperforming Pooja,  he loses  the  right\t with  cessation  of
\nperforming service. Right to receive offerings, by operation
\nof Section  19(1) of  the Act  has ceased.  The question is;
\nwhether the State controls the vesting of the properties and
\nthe Board  is a controlled Corporation within the meaning of
\nArticle 12  of the  Constitution? By operation of Section 6,
\nthe Board  is a body corporate with perpetual succession and
\nseal with a right to sue or be sued by or in the name of the
\nBoard. The  sum total  of properties  are of and vest in the
\nShrine. The  management of  the Shrine\tand the\t Shrine Fund
\nstood vested  in the  Board under  Section 4. The appellants
\nhad the\t fundamental right to property guaranteed by Article
\n19(1) (g) of the Constitution. Though the Constitution (44th
\nAmendment) Act,\t 1978 which  came into force w.e.f. June 29,
\n1979, deleted  Article 19(1) (g) and Article 31 by operation
\nof Sections  2 and  6 thereof, they would still be available
\nto the\tresidents of  the Stat of Jammu and Kashmir. In Bela
\nBanerjee vs.  State of\tWest Bengal [(1954) SCR 558] Article
\n31(1) and Article 31(2) of the Constitution were interpreted
\nby the\tConstitution Bench  and it  was held  that the\tword
\n`compensation’ must  mean a  full and fair money equivalent.
\nThe same  ratio was  followed in  State of  West Bengal\t vs.
\nKameshwar Singh\t [AIR 1952  SC 252].  The Constitution\t(5th
\nAmendment) Act\twas made  in 1955 amending Article 31(2) and
\nalso introducing  Article 31(2A).  It would,  therefore,  be
\nnecessary to look into those provisions relevant to the case
\nsince they  were operative  in the  field when\tthe Act\t was
\nenacted. They read as under:\n<\/p>\n
     “31.  Compulsory\tacquisition   of
\n     property –\t (1) No\t person shall be
\n     deprived of  his property\tsave  by
\n     authority of law.\n<\/p><\/blockquote>\n
     (2)   No\t property    shall    be
\n     compulsorily      acquired\t      or
\n     requisitioned  save  for  a  public
\n     purpose and  save by authority of a
\n     law which\tprovides for acquisition
\n     or requisitioning\tof the\tproperty
\n     for a  compensation  which\t may  be
\n     fixed by  such law\t or which may be
\n     determined in  accordance with such
\n     principles and given in such manner
\n     as may  be specified  in such  law;
\n     and no  such law shall be called in
\n     question in any court on the ground
\n     that  the\t amount\t so   fixed   or
\n     determined is  not adequate or that
\n     the  whole\t or  any  part\tof  such
\n     amount is\tto be  given a otherwise
\n     than in cash:\n<\/p><\/blockquote>\n
     Provided that  in\tmaking\tany  law
\n     providing\t for\tthe   compulsory
\n     acquisition of  any property  of an
\n     educational institution established
\n     and  administered\tby  a  minority,
\n     referred  to   in\tclause\t (1)  of
\n     Article 30,  the State shall ensure
\n     that  the\t amount\t fixed\t by   or
\n     determined under  such law\t for the
\n     acquisition  of  such  property  is
\n     such  as\twould  not  restrict  or
\n     abrogate the right guaranteed under
\n     that clause.\n<\/p><\/blockquote>\n
     (2A) Where\t a law\tdoes not provide
\n     for the  transfer of  the ownership
\n     or\t right\t to  possession\t of  any
\n     property  to  the\tState  or  to  a
\n     corporation owned\tor controlled by
\n     the State,\t it shall  not be deemed
\n     to\t provide   for\tthe   compulsory
\n     acquisition  or  requisitioning  of
\n     property, notwithstanding\tthat  it
\n     deprives\tany    person\tof   his
\n     property.”<\/p><\/blockquote>\n
     In Charanjit  Lal Chowdhary  vs. Union of India<\/a> [(1950)
\nSCR 869\t at 902]  it was held by the Constitution Bench that
\nthe acquisition\t means and  implies  the  acquiring  of\t the
\nentire title  of the  appropriate owner, whatever the nature
\nor extent  of the  title might\tbe. All\t rights\t which\twere
\nvested in  the original\t holder would pass on acquisition to
\nthe acquirer leaving nothing in the former. In State of West
\nBengal vs.  Subodh Gopal  Bose &  Ors.<\/a> [(1954) SCR 587], the
\nview taken  was that  clauses (1) and (2) of Article 31 were
\nto be  read together  to call out the scope of contents, and
\nunderstood as  dealing with  the  same\tsubject,  viz.,\t the
\nprotection of  the right to property by means of limitations
\non the State’s power. Wider meaning, therefore, was given to
\nthe word `acquisition’. Deprivation contemplated therein was
\ninterpreted to\tmean divesting\ttitle and  vesting it in the
\nState and  the word  `requisition’ to mean taking possession
\nof the\tproperty other\tthan by\t acquisition of the property
\nmentioned in  clause  (2)  of  Article\t31.  Same  view\t was
\nexpressed in  Kameshwar Singh’\tcase (supra).  In  Dwarkadas
\nShrinivas of  Bombay vs. The Sholapur Spinning & Weaving Co.
\nLtd. &\tAnr.<\/a> [(1954)  SCR 674], it was held that acquisition
\nwas a  quite wider concept, meaning thereby procuring of the
\nproperty and taking of it permanently or temporarily. It was
\nnot confined  only to  the acquisition of the legal title by
\nthe  State  in\tthe  property  taken  possession  of.  As  a
\nconsequence, clause  (2A) of  Article 31  was brought on the
\nConstitution by\t Constitution (4th  Amendment) Act  in 1955.
\nClause (2A)  of Article\t 31 provides that where law does not
\nenvisage transfer of ownership or right to possession of any
\nproperty  to   the  State  or  to  a  Corporation  owned  or
\ncontrolled by  the State,  which  shall\t not  be  deemed  to
\nprovide for the compulsory acquisition or requisition of the
\nproperty, notwithstanding  that, it  deprives any  person of
\nhis property.  At this\tjuncture,  we  may  dispose  of\t the
\ncontentions of Shri Dholakia as being untenable. Acquisition
\nhas the effect of deprivation and enjoyment of the property.
\nthe acquisition\t in order  to be  valid must be for a public
\npurpose and  the person\t deprived of the same is entitled to
\ncompensation. However,\tin respect of the property which was
\ndivested from  him, e.e.,  right, title and interest coupled
\nwith possession\t must be vested in the State or beneficiary.
\nSuch deproved  person is  entitled to  compensation.  It  is
\nequally settled\t law that  abolishing and\/or extinction does
\nnot  mean  vesting.  The  two  are  distinct  and  separate.
\nDeprivation of\tproperty is  concomitant to  acquisition  in
\nthat context.  The right  to superintendence  of management,
\nadministration and  governance of  the\tShrine\tis  not\t the
\nproperty which\tthe Stat  acquires. It\tcarries with  it  no
\nbeneficial enjoyment  of the  property to the State. The Act
\nmerely\tregulates   the\t  management,\tadministration\t and
\ngovernance of the Shrine. It is not an extinguishment of the
\nright. The  appellants-Baridarans were\trendering  pooja,  a
\ncustomary right which was abolished and vested in the Board.
\nThe management,\t administration and governance of the Shrine
\nalwayed remained with the Dharmarth Trust from who the Board
\nhas  taken   over  the\t same  for   proper  administration,
\nmanagement and governance. In other words, the effect of the
\nenactment of  the Act is that the affairs of the functioning
\nof the\tShrine merely  have got\t transferred from  Dharmarth
\nTrust to  the Board.  The At merely regulates in that behalf
\nincidentally, the  right to  collect offering enjoyed by the
\nBaridarans by  rendering service of Pooja has been put ti an
\nend under  the Act. The State, resultantly, has not acquired
\nthat right  onto itself.  The contention of Shri D.D. Thakur
\nis that\t the word  “control” is\t of wider  connotation\tand,
\ntherefore, requires  to be  interpreted in  the light of the
\nscheme of  the Act,  i.e., the\tGovernor  exercise,  as\t the
\nrepository of  the State  power or  State executive power in
\nthe matter  of nomination  of nine members of the Board, the
\nsupersession\/dissolution and reconstitution of the Board and
\nfilling up of the vacancies or appointment of a new post and
\ntaking care of the management, administration and governance
\nof the\tproperties of  the Shrine through the Board. So, the
\nGovernor exercises  his executive  power  of  the  State  as
\nGovernor  and,\t therefore,  the   Board  is   a  controlled
\nCorporation.\n<\/p>\n
     It is  true that  the word\t “control”,  as\t defined  in
\nBlack’s Law Dictionary [Sixth Edition] at page 329, means as
\nverb “to  exercise restraining\tor directing influence over;
\nto regulate;  restrain; dominate; curb; to hold from action;
\noverpower; counteract; govern; Power of authority to manage,
\ndirect, superintend,  restrict, regulate, govern, administer
\nor  oversee.  The  ability  to\texercise  a  restraining  or
\ndirecting influence over something”. In S. Gurmukh Singh vs.
\nUnion of  India &  Ors. [AIR 1952 Pun. 143], a Full Bench of
\nthe High  Court had  held that\tthe Executive  power of\t the
\nUnion of  India is  vested in the President and is exercised
\nby  him.  The  Government  is  for  all\t practical  purposes
\nsynonymous  with  the  Executive  of  the  country.  If\t the
\nexecutive power\t of the\t country is  vested in the President
\nand is\texercised by  him, the\tact of the President must be
\ndeemed to  be the act of the Government or of the State. The
\nofficial acts  of the President are the official acts of the
\nState for  the purposes\t of Article  15 of the Constitution.
\nTherefore, the State is synonymous with the President or, at
\nany rate, includes his official personality when acts of the
\nState are under Articles 15 and 341 of the Constitution. The
\nDivision Bench of the Andhra Pradesh High Court in Re: Kodur
\nThimma Reddi & Ors. [supra] in the context of Section 19F of
\nthe Arms  Act had  held that  the word “control” over a fire
\narm by the person in possession means a conscious possession
\nin his\tcontrol but  when it is accessible to others, it was
\nheld that  he was  not having  the control. Similar view was
\ntaken by  the Kerala High Court. However, these decisions do
\nnot assist us in deciding this case.\n<\/p>\n
     To appreciate  the contentions, it is necessary to deal
\nclauses (2) and (2A) of Article 31 together. If so read, the
\nexpression “Corporation\t owned or  controlled by  the State”
\nclearly indicates  that the  control should be total control
\nwhich is  as good  as ownership\t of the\t Corporation by\t the
\nState. The ownership of the acquired property is through its
\nCorporation owned  by the  State. The  Corporation is only a
\ncloak. The  State should  be able  to deal with the property
\ntransferred to\tthe Corporation\t by virtue of its control as
\nif it  deals with  property transferred\t to  itself  or\t the
\nCorporation is\tonly  a\t conduit  pipe\titself\tto  use\t the
\nproperty as  if it  is owned  by itself.  The control of the
\nState as  envisaged in\tclause (2A),  should have nexus with
\nthe property  transferred to  the Corporation.\tThen only it
\nmay be\tsaid that  there was  compulsory acquisition  of the
\nproperty by  the State\tand the\t property is  owned  by\t the
\nCorporation owned  on controlled by the State as having been
\nvested in  it. Under  the Land\tAcquisition  Act,  when\t the
\nproperty is  acquired, the  right, title and interest of the
\nprevious owner stand extinguished after taking possession of
\nthe land  and is vested in the State under Section 16 f that
\nAct or the transfree-beneficiary free from all encumbrances.
\nThat would  be total divestment of pre-existing right, title
\nand interest  in the  land by the previous owner and vesting
\nof the\tsame in\t the State  or the Corporation controlled by
\nthe State.  In order  to attract  clause (2A) of Article 31,
\nthe law\t in question  should,  therefore,  provide  for\t the
\ntransfer of ownership of the property of the Baridars to the
\nState or  to a Corporation owned or controlled by the State.
\nThere is  no dispute that the impugned Act does not transfer
\nthe ownership of the property of Baridars to the State or to
\na Corporation owned by the State. It merely extinguishes the
\nright of  the Baridars.\t The appellants’  contention is that
\nthe Act\t has merely transferred the right to property of the
\nBaridars  to   the  Shrine  Board  which  is  a\t Corporation
\ncontrolled by  the State.  This is  not correct\t because the
\nword “controlled’  has to  be construed\t in the light of the
\npreceding word\t`owned’. The  control should  be to  such an
\nextent as  would amount to virtual ownership by the State as
\nindicated above. In the instant case, the Act deals with the
\nproperty of a religious institution which cannot be owned by
\nthe  State  under  the\tConstitution  and  which  cannot  be
\ncontrolled by the State, like an owner, having regard to the
\nbasic feature  of secularism  permeating  the  Constitution,
\nwhich separates\t religion from the State. When the property,
\nnamely,\t right\tto  recover  offerings\tis  extinguished  by
\nSection 19(1)  of the Act, it does not vest in the State; on
\nthe other  hand, the  board becomes entitled to the right to
\nthe collection,\t possession and\t management of the offerings
\ngiven  to  the\tShrine\tand  provide  welfare  services\t and
\nfacilities to  the  pilgrims.  The  Governor  exercises\t his
\nstatutory power\t as ex-officio Chairman of the board, though
\nhe is  the repository of State power by virtue of his office
\nas a  Governor. Nonetheless, he exercises it in his capacity
\nas Chairman,  a distinct and separate function and power and
\nnot in\tthe constitutional  sense of  the Cabinet system, of
\nperforming executive  power the\t State Government  has under
\nthe Constitution,  with the aid and advice of the Council of
\nMinisters  headed  by  the  Chief  Minister.  The  power  to
\nsupervise  and\t to   take   remedial\tsteps\tto   correct
\nmismanagement, abuse  of power\tor incompetence\t to exercise
\nthe power or access of the line power are only incidental to
\nthe management,\t administration or  governance of  Shri Mata
\nVaishno\t Devi\tShrine,\t Shrine\t  Fund\tand  the  properties
\nincluding  the\tcollection  and\t taking\t possession  of\t the
\nofferings.  All\t  are  his  individual\tperformance  of\t the
\nstatutory functions  in his official capacity as Chairman of
\nthe Board  and not as Governor. Therefore, by exercising the
\npower under the Act, it is impressible for the State to deal
\nwith the properties vested in the Board in terms of the Act;
\nthe Act\t does not  permit the  State to\t deal with  the said
\nproperties as  if they\tare  the  properties  of  the  State
\nacquired directly  or indirectly  through the  medium of the
\nBoard. The extent of supervision permitted by the provisions
\nof the\tAct  is\t limited  to  and  only\t to  ensure  proper,
\nefficient,   effective\t and   responsible   administration,
\nmanagement and\tgovernance of  the Shrine, properties of the
\nShrine and  Fund of  the Shrine and nothing more. The degree
\nof control  required  in  clause  (2A)\tof  Article  31\t is,
\ntherefore, missing in the Act.\n<\/p>\n
     In Gullapalli  Nageswara Rao  & Ors. vs. Andhra Pradesh
\nState Road  Transport Corporation & Anr. [1959 Supp. (1) SCR
\n319] it\t was contended\tthat the State by nationalisation of
\nthe Transport  Services, exercised  its power in Chapter IVA
\nof the\tMotor Vehicles Act, 1939 and in effect and substance
\nauthorised in  law to effect the transfer of the business of
\nthe  citizens  to  the\tState  or  a  Corporation  owned  or
\ncontrolled by  the State,  without paying full equivalent of
\nthe compensation  under Article\t 31(2). The acquisition was,
\ntherefore,  contended\tto   be\t  invalid.   Repelling\t the
\ncontention, the\t Constitution Bench  of this  Court had held
\nthat Section  enabled the  Government to  frame a scheme and
\ngive effect  to the approved scheme in respect of a notified
\narea of a notified route and stop the private operators from
\nentering  on  the  notified  route,  from  entertaining\t any
\napplication  for  renewal  of  any  other  permit  and\tfrom
\ncancelling any\texisting permit\t or modifying  the terms  of
\nexisting permit\t so as to render the permit ineffective from
\nthe specified  date. The impugned provision was held to be a
\nregulated power\t conferred on the Transport Authority in the
\ninterest of  the public\t for efficient,\t economical and\t co-
\nordinate regulated  service offered by the STU. The business
\nof the\tprivate operators and the STU has nothing to do with
\none another.  They are two independent businesses carried on
\nunder two different licenses. The contention that the scheme
\nenabled the  nominee of\t the State  to do  the business and,
\nthereby, in  effect and\t substance transfer  the business on
\nthe existing  permit holders  to the  STU was held to be not
\ncorrect. The contention was held to be fallacious. It may be
\nby process  of law  that the  existing\tpermit\tholders\t are
\nprecluded from\tdoing their business and it also may be that
\nthe STU\t carriers on  a similar\t business. By  no stretch of
\nimagination, in\t law it\t can  be  said\tthat  STU  is  doing
\nbusiness carried  on by\t previous permit  holders by  or  on
\nbehalf of the State. Accordingly, it was held that the State
\nhas no control and it is not an acquisition on behalf of the
\nState. In  Union of  India  vs.\t Sudhansu  Mazumdar  &\tOrs.<\/a>
\n[1971]) Supp.  SCR 244],  on September 10, 1958 an agreement
\nwas  entered  into  between  the  Government  of  India\t and
\nPakistan called the “Indo-Pakistan agreement”. Item 3 of the
\nagreement related  to transfer\tof group  of villages  lying
\nwithin the  territory of  India, known as Berubari Union No.
\n12 and\tit was\taccordingly transferred\t to Pakistan. It was
\ncontended that\tit was\tan acquisition\twithout compensation
\nviolating Article  31(1) and  (2) of  the Constitution. This
\nCourt by  a Constitution  Bench had  held that\tin order  to
\nconstitute  acquisition\t  or  requisition,   there  must  be
\ntransfer of  ownership or  of right  to\t possession  of\t any
\nproperty to  the State or Corporation owned or controlled by
\nthe State.  It was held that the effect of the Constitution,
\nby the\tConstitution (9th Amendment) Act, 1960 by no stretch
\nof imagination\tcould be  regarded as  transfer of  Berubari
\nUnion No.12  to Pakistan  as transfer of the ownership or of
\nright to  possession of\t any property  of the respondents in
\nthe State  under Article  31(2)\t of  the  Constitution.\t The
\nAmendment Act,\t1955 made  it clear that mere deprivation of
\nthe property,  unless its  acquisition\tor  requisition\t was
\nwithin the  meaning of clause (2A), shall not attract clause
\n(2) and\t no  application  to  pay  compensation\t will  arise
\nthereunder. In\tKatra Education Society, Allahabad vs. State
\nof U.P.\t [AIR 1966  SC 1307 at 1311] the contention was that
\nSection 16F(4)\tof the U.P. Intermediate Education Act, 1921
\nviolated their\tfundamental right under Article 14, 19 or 31
\nof the\tConstitution. It was contended that since the scheme
\nof management  did not\tprovide for any compensation, it was
\nultra  vires   the  Constitution.   The\t Constitution  Bench
\nrejected the  contention by  holding  that  the\t educational
\nauthorities, after  considering the  representation  of\t the
\nmanagement, had\t the  power  to\t make  recommendation  after
\nselectmen.  The\t  power\t to  appoint  persons  possessed  of
\nprescribed qualifications  vests  in  the  institution.\t The
\neducation authorities  did not accept suitability of persons
\nselected by  the management  on the  specified grounds,\t and
\nreasons therefor.  It is  only an  exercise of\tthe  control
\nenvisaged by the amendment of Section 16D(3) of the Act with
\na view\tto prevent  appointment of  unqualified person.\t The
\npower under  Section  16D(4)  entrusted\t to  the  authorised
\ncontroller  was\t  merely  of   management.   Management\t  of
\ninstitution in\trespect of  which Authorised  Controller had
\nbeen appointed\thad to\tbe  conducted  and  carried  out  in
\naccordance with\t the  directions  given\t by  the  Authorised
\nControlled. IT\twas held  that the  property did not vest in
\nthe State  but continued  to  remain  the  property  of\t the
\ninstitution as Article 31(2A) saves such control and Section
\n31(2) has no application.\n<\/p>\n
     In Constitutional\tLaw of\tIndia by H.M. Seervai (Third
\nEdn.) Volume  II at  page 1109\tin para 30 it is stated that
\ndistinction between ordinary acquisitions where law provides
\nfull compensation and large schemes of social engineering or
\nreform which  would have  to be located at from the point of
\nview of\t justice  to  the  individual  as  well\t as  to\t the
\ncommunity, is  harmonised by  the legal\t view. In  the after
\nlight of  Bela Banerjee’s case (supra), it is clear that the
\neminent\t lawyers  (founding  fathers  of  the  Constitution)
\ncommitted a  grave error in leaving to implication what they
\ncould  have   clearly  expressed   in  Article\t31(2).\tBela
\nBanerjee’s case\t showed that  the intention  of the  framers
\nfailed because\tit was\tnot expressly  embodied\t in  Article
\n31(2). Obviously,  an amendment of the Constitution is meant
\nto change  the\texisting  law,\tand  the  4th  Amendment  by
\nexcluding  the\tchallenge  on  the  ground  of\tadequacy  of
\ncompensation was  meant to  change the law laid down in Bela
\nBanerjee’s case\t that compensation under Article 31(2) meant
\na full\tand fair  money equivalent. After the 4th Amendment,
\nthe word  “compensation”, could\t not mean  a full  and\tfair
\nmoney equivalent, for if it did, the law would have remained
\nunchanged and  the 4th\tAmendment would\t have failed  of its
\npurpose. By  excluding a  challenge on\tthe ground  that the
\ncompensation provided  by the  law was not adequate, the 4th
\nAmendment removed  the restriction  on legislative  power in
\nthe sense  that for  the law  to be  valid it  was no longer
\nobligatory to provide for the payment of full and fair money
\nequivalent. After  the\t4th  Amendment\ta  law\twhich  fixed
\ncompensation which  amounted to 80 per cent of full and fair
\nmoney equivalent  would not  violate Article 31(2) and was a
\nvalid  law.  The  4th  Amendment  achieved  this  result  by
\nintroducing  the  concept  of  inadequate  compensation.  On
\nconsideration of  above provisions,  we have,  therefore, no
\nhesitation to  hold that  the  Board  is  not  a  controlled
\nCorporation  within   the  meaning  of\tArticle\t 12  of\t the
\nConstitution. By  operation of\tclause (2A) of Article 31 of
\nthe Constitution  the Board  or the properties of the Shrine
\ndid not\t vest in  the State.  The right to collection of the
\nofferings or  the divestment  of the  properties, if any, of
\nthe Baridars  or the  right to\tcollection or a share in the
\nofferings do  not vest\tin the\tState. Consequently, Section
\n19(1) of  the Act  is not ultra vires of Article 19(1)(f) or
\nArticle 31(2) of the Constitution.\n<\/p>\n
     It is seen that the proviso to Section 19 provides that
\nthe Governor  may appoint  a Tribunal  which,  after  giving
\npersonal hearing  to the Baridars and the representations of
\nthe Board,  “shall recommend  compensation to be paid by the
\nBoard in  lieu of  extinction of  their right”. While making
\nits recommendations  to the  Board, the Tribunal “shall have
\ndue regard  to\tthe  income  which  the\t Baridars  had\tbeen
\nderiving  as   Baridars”.  The\t Board\tshall\texamine\t the
\nrecommendations forwarded  to it  by the  Tribunal and\ttake
\nsuch decision  as it  may deem\tappropriate. The decision of
\nthe Board  shall be final. Pursuant to the directions issued
\nby this\t Court, the Governor made guidelines which were duly
\nnotified  in  the  Gazette.  Another  notification  inviting
\nclaims from  Baridars was  published and  time was  extended
\nfrom time  to time informing to lay claims for compensation.
\nIt would  appear that while the matter remained pending, the
\nBaridars do  not seem  to have\tnot laid  their claims.\t The
\nguidelines framed  by the  Governor are\t by  exercising\t the
\nrule-making power  under Section  24 of\t the  Act.  So\tthey
\nacquired the  status as\t subordinate legislation  and became
\nintegral part of the proviso to Section 19 of the Act. As we
\nhave upheld  the Act,  they are\t at liberty  to\t file  their
\nclaims within two months from today. The Tribunal shall have
\ndue regard  to the  guidelines in  determining the income of
\nBaridars before\t the Tribunal  makes its  recommendations to
\nthe Board  for consideration and the Board shall also take a
\ndecision,  as  it  may\tdeem  appropriate,  consistent\twith
\nproviso to Section 19(1) and the guidelines, in the light of
\nthe recommendations  made  by  the  Tribunal.  It  would  be
\nobvious that  in case  the Board  does not  find  itself  in
\nagreement with\tthe recommendations made by the Tribunal, it
\nwould be  required to state its reasons in that behalf, give
\nan opportunity to the Baridars and, if necessary, a personal
\nhearing through\t their representatives or a counsel and then
\ntake  a\t  decision  to\tpay  compensation  as  it  may\tdeem
\nappropriate. In\t case it  disagrees with the recommendations
\nof the\tTribunal, it  should record  reasons in\t writing and
\nwould communicate the same to all the affected persons. This
\nexercise should\t be done  within two months from the date of
\nthe receipt  of the  recommendations of\t the  Tribunal.\t The
\nGovernor would\tappoint the  Tribunal within  six weeks from
\nthe date  of the  receipt of the judgment. We hope and trust
\nthat  the   Tribunal  would   dispose  of   the\t claims\t  as
\nexpeditiously as  possible since  more\tthan  a\t decade\t has
\npassed by now.\n<\/p>\n
     The appeals  are accordingly  disposed of\tbut, in\t the
\ncircumstances, there is no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhuri Nath & Ors. Etc. The Sewa … vs The State Of Jammu & Kashmir & Ors on 10 January, 1997 Author: K Ramaswamy Bench: K. Ramaswamy, G.B. Pattanaik PETITIONER: BHURI NATH & ORS. ETC. THE SEWA COMMITTEE BARIDARAN &ORS. (B Vs. RESPONDENT: THE STATE OF JAMMU & KASHMIR & ORS. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-388","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhuri Nath & Ors. Etc. 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