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PETITIONER:

BHURI NATH & ORS. ETC. THE SEWA COMMITTEE BARIDARAN &ORS. (B

Vs.

RESPONDENT:

THE STATE OF JAMMU & KASHMIR & ORS.

DATE OF JUDGMENT: 10/01/1997

BENCH:

K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

THE 10TH DAY OF JANUARY, 1997

Present:

Hon'ble Mr. Justice K. Ramaswamy

Hon'ble Mr. Justice G. B. Pattanaik

N.N. Bhat, Mahesh Aggarwal, G.P. Srivastava, Atul

Sharma, E.C. Agarwala, Advs. for the appellants.

S.K. Dholakia, P.P. Rao, Sr. Advs. J.S. Manhas, Subhash

Sharma, Mulk Raj Vij, N.P. Sharma, Sunil Dogra, Ms. Monica

Sharma, S.S. Shroff, Advs. with them for S.A. Shroff & Co.,

Advs. for the Respondents.

J U D G M E N T

The following Judgment of the Court was delivered:

K. Ramaswamy, J.

Leave granted.

All Hindus, in millions, of India from nook and corner

and those settled abroad, go by foot or carriage, bearing

all arduous journey and inconveniences, covering a distance

of 16 miles from foothill of Katra to have darshan and

blessings of Mata Vaishno Deviji. When the Legislature of

the State of Jammu and Kashmir stepped in for effective and

proper management of the shrine and convenience of the

pilgrims and the Shrine, it gave rise to the present

litigation.

These appeals, sequally, by special leave arise from

the common judgment of the Division Bench of Jammu and

Kashmir High Court, made on March 17, 1994 in CWP Nod.

1328/96 and 1039/95. The appellants challenged the

constitutionality of the Jammu and Kashmir Shri Mata Vaishno

Devi Shrine Act, 1988 (XVI of 1988) (for short, the "Act").

On March 17, 1986, the Governor, exercising the power of

Section 92 of the Constitution of Jammu & Kashmir,

promulgated Ordinance No.1 of 1986 which got transformed

into J & K Shri Mata Vaishno Devi Shrine Act, 1986, the

Governor's Act and is now replaced by the Act. The Act has

come into force by operation of Section 1(2) of the Act

w.e.f. August 13, 1986, the date on which the said Ordinance

had come into force.

The Preamble of the Act manifests that the Act came to

be passed "to provide for the better management,

administration and governance of Shri Mata Vaishno Devi

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shrine and its endowments including the land and buildings

attached, or appurtenant to the Shrine, beginning from Katra

upto the holy cave and adjoining hillocks currently under

the management of Dharmarth Trust". Section 2 gives to the

Act overriding effect and envisages that the Act shall have

effect, notwithstanding anything to the contrary contained

"in any law or in any scheme of management, decree, custom,

usage or instrument". The Act consists of, in all, 25

Section. Section 3(a) defines the "Board" to mean "the Shri

Mata Vaishno Devi Shrine Board constituted under this Act".

Section 3(b) defines "Endowment" to mean all property,

movable or immovable, including the idols installed therein.

The important facet of this definition of "endowment" is

that the sum total of properties belonging to, given or

endowed for the maintenance, improvement, additions to or

worship in the Shrine or for the purpose of any service or

charity connected therewith including the idols installed

therein, the premises of the Shrine, the lands and buildings

attached or appurtenant thereto, beginning from Katra upto

the holy cave and the adjoining hillocks, are the endowment

of Mata Shri Vaishno Deviji. They all, as on the date of the

Act, were endowment properties under the management of the

Dharmarth Trust, or property belonging to Baridar or

Baridars Association within the area specified in the

Preamble of the Act. Section 3(c) defines "Shrine Fund" to

mean the endowment and includes all sums received by or on

behalf of the Shrine or for the time being held for the

benefit of the Shrine; it an inclusive definition and

details of the endowments described therein being not

material, the same are omitted. Section 3(d) is relevant

which defines the "Shrine" to mean the Shrine of Shri Mata

Vaishno Devi Shrine and includes the Shrine, holy cave and

other temples within the premises specified in the preamble

of the Act. It would, thus, be clear that the Act was made

to provide better management, administration and governance

of Shri Mata Vaishno Devi Shrine, its endowments, all

temples, and sum total of the properties, movable and

immovable attached or appurtenant to the Shrine within the

area specified in the preamble of the Act, notwithstanding

the fact that there exist any law, scheme of management,

decree, custom, usage or instrument to the contrary. The

object of the Act, therefore, clearly is proper, efficient

and effective management, administration and governance of

the Shrine, its endowments and properties. All this is aimed

to cater facilities, sources and comfort to the pilgrims who

visit the Shrine.

Section 4 vests the ownership of the Shrine Fund in the

Board envisaging that "the ownership of the Shrine Fund

shall, from the commencement of this Act vest in the Board

and the Board shall be entitled to its possession,

administration and use for the purposes of this Act". The

Board gets constituted under Section 5. Sub-section (1)

adumberates that the administration, management and

governance of Shri Mata Vaishno Devi Shrine and the Shrine

Fund shall vest in the Board comprising a Chairman and not

more than ten members. The composition thereof is elaborated

with the a mandatory language, viz., "shall be". Under

clause (a) of sub-section (1) thereof, the Governor of the

State of Jammu and Kashmir, and if the Governor be not a

Hindu, then an eminent person professing Hindu religion and

qualified to be a member to be nominated by the Governor,

shall be the ex-officio Chairman of the Board. Clause (b)

provides that a Governor shall nominate nine members in the

manner indicated therein, viz., (i) two persons who, in the

opinion of the Governor, have distinguished themselves in

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the service of Hindu religion or culture; (ii) two women,

who in the opinion of the Governor, have distinguished

themselves in the service of Hindu religion, culture or

social work, especially in regard to advancement of women;

(iii) three persons, out of persons who have distinguished

themselves in administration, legal affairs of financial

matters; and (iv) two eminent Hindus of the State of Jammu

and Kashmir. Under the provision, for a period not exceeding

three months from the date the Act came into force, the

Governor shall "act as and exercise all the powers of the

Board under this Act". Sub-section (2) of Section 5 declares

that a person shall not be eligible for being nominated as a

member of the Board, if he suffers or incurs any of the

disqualifications specified in Section 8.

Section 6 declares that the Board shall be a body

corporate and shall have perpetual succession and a common

seal. It is to sue or be sued in the name of the statutory

Board. Section 7 prescribes term of office of the members

for a period of three years from the date of nomination made

under Section 5. Disqualifications for membership of the

Board are enumerated in Section 8 which envisages that a

person shall be disqualified for being nominated as a member

of the Board for any of the disqualifications mentioned in

clauses (a) to (i). Clause (a) is of importance and provides

that if "such person is not a Hindu" he becomes disqualified

to be or be appointed as a member. Clause (b) provides

unsoundness of mind declared by a competent court is a

disqualification. Under clauses (c) to (i) are enumerated

various disqualifications, the details of which are not

material for the purpose of this case. Section 9 gives power

to the Governor for dissolution and supersession of the

Board. Sub-section (1) says that "if in the opinion of the

Governor, the Board is not competent to perform or

persistently makes default in performing the duties imposed

on it under this Act, or exceeds or abuses its powers, the

Governor may, after due enquiry and after giving the Board

reasonable opportunity of being heard, by order, dissolve or

supersede the Board and reconstitute another Board in

accordance with this Act" Thereafter, by operation of

Section 9(2), the Governor "shall assume all the powers and

perform all the functions and exercise all the powers of the

Board for a period not exceeding three months or until the

constitution of another Board whichever is earlier". Filling

up of vacancies is provided for under Section 10; the

details thereof are not material for the present purpose.

Under Section 11, any member may resign his office by giving

notice in writing to the Chief Executive Officer of the

Board and his office becomes vacant from the data of

acceptance of such resignation. Section 12 speaks of

"removal of a member" by the Governor. It reads as under:

12. Removal of a member. - The

Governor may, for good and

sufficient reason, remove any

member after giving him an

opportunity of showing cause

against such removal and after

considering the explanation offered

therefor"

Section 13 gives liberty to the Board to maintain its

office and hold meetings at the place as may be decided by

it. The Governor and in his absence one of the members to be

elected for the purpose, shall preside at the meetings as

Chairman. Coram of every meeting is prescribed under sub-

section (3) as 4 members. Sub-section (4) gives power to the

members of the Board to decide the matters by majority of

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votes and in case of equality of votes, the person presiding

"shall have a second or casting vote". Section 14 gives

power to the Board to appoint officers and servants to

assist the Board. Under sub-section (1), the Board may

appoint, for efficient discharge of the functions assigned

to it under the Act, a Chief Executive Officer and such

other officers and servants as it consider necessary with

such designation, pay etc. as the Board may determine from

time to time. Under the proviso, the Chief Executive Officer

of the Board will not a person below the rank of a "District

Magistrate of the District" and in the case of the Chief

Accounts Officer, not below the rank of a "Deputy Director

of Accounts. The Chief Executive Officer shall be

responsible for proper and efficient management,

administration and governance of the Shrine, its funds and

all arrangements for orderly, peaceful darshan of the Deity

by the pilgrims, their comfortable stay etc. The Accounts

Officer shall be responsible for sound financial management.

The honest, efficient and experienced officers shall be

drawn from the bureaucracy for the purpose on deputation

basis. Subject to the bye-laws made, by operation of sub-

section (2), the Chairman of the Board shall have the power

to transfer, suspend, remove or dismiss any officer or

servant of the Board for the breach of discipline, for

carelessness, unfitness, neglect of duty or misconduct or

for any other sufficient cause. An officer on deputation is

liable to be reverted to the parent cadre or Department in

the Government. Under Section 15, officers and servants of

the Board are public servants.

Section 16 prescribes the liability of members. Section

17 prohibits transfer or alienation of movable and immovable

property without prior sanction of the Board. Under sub-

section 91) without prior sanction of the Board, no

property, movable or immovable, shall not be transferred.

Sub-section (2) of Section 17 prohibits alienation of the

properties including land or other immovable property except

by resolution of the Board.

Section 18 prescribes duties of the Board. Section 19

which is material for the purpose of this case, extinguishes

the rights of Baridars. Sub-section (1) thereof reads as

under:

"(1) All rights of Baridars shall

stand extinguished from the date of

commencement of this Act.

Provided that the Governor may

appoint a Tribunal which shall give

personal hearing to the Baridars

and representatives of the Board,

shall recommend compensation to be

paid by the Board in lieu of

extinction of their rights. While

making its recommendation to the

Board, the Tribunal shall have due

regard to the income which the

Baridar had been deriving as

Baridars. The Board shall examine

the recommendations forwarded to it

by the Tribunal and take such by

the Tribunal and take such decision

as it may deem appropriate. The

decision of the Board should be

final.

Provided further that where the

Baridar surrenders his right to

compensation and offers himself for

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employment to the Board, the Board

shall cause his suitability for

such employment to be adjudged and

may offer him employment in case he

is found suitable by the Selection

Committee to be appointed for the

purpose subject to the Baridar

giving an undertaking to the Board

to abide by the administration and

disciplinary control of the Board

in accordance with bye-laws framed

by the Board."

Constitution of India by Section 2 and 6 respectively

of the Constitution (44th Amendment) Act, 1978 w.e.f. June

20, 1979 does not apply to the State of Jammu and Kashmir.

The right to property is, therefore, still a fundamental

right to the residents of Jammu and Kashmir. The Act does

not make either any provision for payment of compensation or

principle or guidelines for determination of compensation to

Baridars. The Board being a controlled Corporation, as an

arm of the Government, all the properties of the Shrine

stand vested in the Government. The Governor, though is an

ex-officio Chairman, he nominates the members of the Board

as executive-head of the State. If the Governor happens to

be a non-Hindu, he has to nominate an eminent Hindu

qualified to be a member of the Board. The object to empower

the Governor to preside over the Board as its Chairman, is

to ensure its control by the State. The Governor being the

head of the executive, exercises the powers of nomination

with the aid and advice of the Council of Ministers. The

Chief Executive Officer, the District Magistrate and Chief

Accounts Officer, Deputy Director of Accounts are the

Government servants drawn from the different Departments of

the Government. The Governor, therefore, exercises executive

power of the State under the Constitution of the Jammu and

Kashmir and Constitution of India, unless the relevant

provisions of the later are not extended. The executive

power of the Governor, thus, flows from the sovereign power

of the State. The statutory power under the Act is integral

to the executive power which flows from the Constitution.

The Governor, therefore, is the repository of the State

power exercised by the executive. Various powers conferred

on the Hindu Governor are exercisable by virtue of the

statute as Governor. Therefore, in his capacity as the

executive Head, the Governor is required to exercise the

power under the Act with the aid and advice of the Council

of Ministers. Even otherwise, he exercises the powers under

the Act ex-officio as Governor of the State. Therefore, in

either event, he is the repository of executive power of the

State. When the Governor supersedes or reconstitutes the

Board with perpetual succession and seal, he exercises the

executive power of the State Government and, therefore, the

Board is a State controlled Corporation. In support thereof,

he placed reliance on Samsher Singh vs. State of Punjab &

Anr. [(1974) 2 SCC 831] and Ram Nagina Singh & Ors. vs.

Sohni & Ors. [AIR 1976 Patna 39 para 5]. He also placed

reliance on Mansingh Surajsingh Padvi vs. The State of

Maharashtra [(1968 BLR 654]; S. Gurmukh Singh vs. Union of

India & Ors. [AIR 1952 Pun. 143]; Home Telephone &

Under sub-section (2), all existing employees of

Dharmarth Trust engaged in any functions connected with the

Shrine, unless they opt to the contrary, would be subject to

the administration, disciplinary control of the Board. The

terms and conditions of service shall be regulated by the

bye-laws framed by the Board. By operation of sub-section

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(3), the tenants or lease-holders who were till the

commencement of the Act tenants/licensee of the Dharmarth

Trust are transposed to be tenants of the Board. Section 20

prescribes bar of suits and other proceedings. Section 21

gives power to the Board to make grants in favour of any

institution for religious spiritual purposes. Section 22

mandates auditing of the accounts of the Board for every

financial year by the Chartered Accountant to be nominated

by the Board. Section 23 provides procedure for arbitration

of any dispute arising between the Dharamarth Trust and the

Board. Section 24 gives power to make bye-laws and Section

25 provides for repeal of the Governor's Act No.XXIII of

1986.

By order dated January 16, 1995, this Court directed

the Board to frame a scheme for rehabilitation of all the

persons engaged in the performance of Pooja at Shri Mata

Vaishno Devi Shrine and other temples to be displaced by the

implementation of the Act. When the matter had come up on

March 20, 1995, Shri D.D. Thakur, Tearned senior counsel

appearing for Saridars, stated that Baridars do not want

rehabilitation. Instead they prefer to receive compensation

to be determined under Section 20. He pointed out the

absence of guidelines for determination of the compensation

by the Tribunal to be appointed under the proviso to Section

20 of the Act. Accordingly, we ordered that the issue be

left to the Governor to make appropriate guidelines to

determine the compensation. Pursuant thereto, guidelines

were framed by the Governor were published in the State

Gazette and placed on record on May 8, 1995. By order dated

August 21, 1995, the controversy was limited to a question,

as suggested by Shri Thakur, thus; "whether Mata Vaishno

Devi Management Board is a controlled corporation?" If the

finding was to go in favour of the appellants, they would be

entitled to compensation for deprivation of their right to

receive offerings made by the pilgrims to Shri Mata Vaishno

Deviji. The counsel were directed to file the written

arguments. Accordingly, written arguments were filed by the

counsel on both sides.

Shri D.D. Thakur contended that Shri Mata Vaishno Devi

Board is a controlled Corporation. The repeal of Article

19(1) (f) and Article 31 of the Telegraph Company vs. City

of Los Angeles [57 L.ed. 510; 227 US SCR 1913] and a passage

from Shri Kishan Singh & Ors. vs. The State of Rajasthan &

Ors. [(1955) 2 SCR 531 at 539]. On the concept of control

under the Act, he placed strong reliance on the meaning of

the word `control' in Black' Law Dictionary (6th Edn.) at

page 329. The Commissioner of Income-Tax, Kerala, Ernakulam

vs. V.K. Ramakrishnan [AIR 1968 Kerala 156] In re: Kodur

Thimma Reddi & Ors. [AIR 1957 AP 758]. Right to receive

offerings from the pilgrims was held to be property of

Baridars by this Court in Badri Nath & Anr. vs. Mst. Punna

(Dead) By Lrs. and Ors. [AIR 1978 SC 1314 at 1318].

Offerings and other properties were acquired under the Act

and got vested in the controlled Corporation, viz., the

Board. For their abolition, Baridars are entitled to

compensation. Section 19 downs not prescribe compensation

for payment nor it lay any principle to determine

compensation. Therefore, the Act is ultra vires of the power

of the legislature.

Shri P.P. Rao, learned senior counsel contended that by

operation of clause (2-A) of Article 31 of the Constitution,

the transfer of ownership of acquired property or right to

control any Corporation by the State under an Act, should in

law vest in the State, or in the Corporation owned or

controlled by the State, under the Act. The properties or

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the offerings are not owned or controlled by the State. The

Board is not a controlled Corporation. The Act requires to

be read in the light of the scheme it has evolved. The

sovereign power of the State is to supervise and ensure

proper administration or management of religious institution

or an endowment. Secularism, being a basic feature of the

Constitution, the Constitution does not permit the State to

interfere with the management of religious affairs of any

religion or denomination. But the State has power to

interfere with the same for proper supervision and efficient

management of religious institution or endowment which is

secular in its character. The abolition of the right to

receive offerings is part of secular management of the

religious institution or endowment. The legislature,

therefore, enacted the Act vesting the properties including

the offerings, in the Board. The Board is a statutory

authority under the Act set up for better management,

administration and governance of the Shrine and its

endowments including the sum total of properties attached or

appurtenant to the Shrine within the premises specified in

the preamble of the Act. The Board is composed of the

Governor and the nominated nine members. The power to

nominate the members is conferred upon the Governor which he

exercises in his ex-officio capacity but not as the

executive head of the State with the aid and advice of the

Council of Ministers. His power to nominate a member is

conditioned upon his being a Hindu; he downs not suffer from

any disqualification. The power to dissolve or supersede the

Board or reconstitution of the Board within a period of

three months and to assume administration within the

interregnum of three months, stands vested only in the

Governor obviously in his ex-officio capacity but not as

executive head of the State. Section 9, 11 and 12 of the

Act, form back-drop or throw light as the key to understand

the scheme. There is a distinction between the Governor and

the State Government. The analogous provisions in similar

Acts in other States like A.P., Bihar, U.P. and Rajasthan

contain provision for interference by the political

executive for supersession or reconstitution of the Board

and have vested that power in the State Government. The

State Legislature having been aware of that existing law and

practice in that behalf, chose to enact the Act empowering

the Governor to act under the Act. The General Clauses Act,

though would apply in interpretation of the Constitution,

does not define "Governor". On the other hand, it has

defined the "State Government". Therefore, when the Governor

exercises his powers under the Act, he exercises them in his

official capacity as Governor and not as executive head of

the State. In support thereof, he place reliance on Hardwari

Lal, Rohtak vs. G.D. Thapase, Chandigarh & Ors [AIR 1982 P &

H 439]; Mr Kiran Babu vs. Government of Andhra Pradesh &

Anr. [AIR 1986 AP 275]. He also contended that supervising

role of the Governor under Section 9, 11 and 12 is limited

to traditional role and responsibility of the sovereign to

ensure proper management and responsible administration of

the religious institutions or endowments and of their

properties and nothing more. The Governor can seek

assistance only in an appropriate case from the bureaucracy

or Council of Ministers, if necessary. But the exercise of

power under the Act is in his official capacity as Governor.

The properties of the Shrine or the management are not

vested in the State. Article 31 (2A) makes it clear and so

Article 31(2) does not apply to the facts of the case. Shri

Dholakia, learned senior counsel for the State, contended

that the properties of the Shrine and funds are under the

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Control of the State; the property is not vested in the

State and so the Act is a valid law. There is a distinction

between acquisition and deprivation. The Act deprives

Baridars to receive offerings but it is not an acquisition

by the State. Mere deprivation does not amount to

acquisition.

The respective contentions give rise to the two-fold

question: whether the Board is a controlled Corporation and

whether the Governor exercises the powers under the Act as

executive head of the State or in his official capacity as

the Governor of the State of Jammu & Kashmir? We have

elaborately brought out the relevant provisions

hereinbefore; hence there is no need to reproduce them once

over. The preamble of the Act makes it clear that the Act

regulates only better management, administration and

governance of Shri Mata Vaishno Devi Shrine and its

endowments including the lands and the hills attached and

appurtenant to the Shrine within the premises specified

therein, including the Shrine, holy cave and other temples.

The are all the properties of the Shrine. Mutation

proceedings do bear it out. The ownership of the Shrine Fund

is vested in the Board. The Board is made entitled to their

possession, administration and use "for the purpose of the

Act" and "for convenience, comfort or benefit of the

pilgrims".

The administration, management and governance of the

Shrine and the Shrine Fund are vested in the Board

consisting of the Chairman and nine members nominated by the

Governor. The Governor is the ex-officio Chairman. In case,

the Governor happens to be a non-Hindu, his nominee, who has

to be an eminent person professing Hindu religion and

qualified to be a member, shall be ex-officio Chairman of

the Board, obviously, to act as his substitute to preside

over the Board participate in the deliberations of the

Board. In other words, he represents the Governor.

Nonetheless, the Governor bears responsibility for proper,

efficient and effective management, administration and

governance of the Shrine, its properties, the Fund and to

provide facilities and comfort to the pilgrims, the

sustaining source. Nomination of all the persons as members

is conditioned upon the qualifications that they should be

Hindus and do not incur all or any of the disqualifications

enumerated in Section 8 of the Act. By virtue of his office

as Governor, he shall be the ex-officio Chairman of the

Board and has been vested with the power to nominate nine

persons who, in his opinion, have distinguished themselves

in the service of Hindu religion or culture etc. as

mentioned earlier. For a period of three months from the

date the Act came into force, the Governor shall act as and

exercise all the powers of the Board until its constitution.

Within three months, the Board has to be constituted or

reconstituted even when it is dissolved or superseded or its

term expired by efflux of time. During the interregnum

between its dissolution or supersession and reconstitution,

the Governor exercises the powers as the Board. One

important factor that cannot be lost sight of is that in the

absence of the Board during the period of three months,

either initially at the commencement of the Act or

thereafter, it is the Governor that takes over the

management and acts as the Board. But a peculiar situation

may arise when, suppose, the Governor is a non-Hindu, and

the governance and management vest in the executive

Government in Cabinet system under the Constitution. Who

would in that situation assume the power of management?

Suppose, a Minister and/or for that matter, the Chief

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Minister professing Islam are in office, could they

discharge the functions under the Act? Answer is obviously

and definitely `No'.

Section 9 empowers the Governor to supersede or

dissolve the Board, when the Governor forms an opinion that

the Board is not competent to perform the duties imposed on

it under the Act or the Board persistently makes default in

performing the duties imposed on it under the Act or the

Board acts in excess of its authority and power or abuses

its power. He was been empowered to supersede the Board. He

is equally empowered to dissolve the Board. But before doing

it, the Governor is required to have a due enquiry

conducted, after giving the Board reasonable opportunity of

being heard, i.e., observing principle of natural justice or

to avoid any charge of arbitrary action. After having formed

the aforestated opinion, on an objective consideration of

the material before him, he would pass an order either

superseding or dissolving the Board. he would reconstitute

Board, shortly thereafter, but not exceeding three months.

As soon as it is dissolved, the Governor shall assume all

the powers and perform all the functions and exercise all

powers of the Board for a period not exceeding three months

or until the constitution of another Board, whichever is

earlier. This would appear to manifest the legislative

intention that the Governor bestows constant personal care

and attention in proper, efficient and effective

administration, management and governance of the Shrine, the

sum total of properties and facilities and services to the

pilgrims. In case the Governor happens to be a non-Hindu, he

obviously gets the management done through the Board, The

Chief Executive who would always be Hindus and they act

under the directions of the Governor. The Governor has to

bestow added personal attention to the management,

administration and governance of the Shrine etc.

Similarly, Section 12 gives power to the Governor for

good and sufficient reasons to remove any member after

giving him an opportunity of showing cause against his

removal and after consideration of the explanation offered

by him. The resignation of any member shall be by a notice

given in writing to the Chief Executive Officer and

acceptance of the same by the Governor. The Governor, when

he nominates a member, equally has power to remove him when

the Governor finds any member abusing the office etc. as

found in the enquiry. It would, thus, appear that the Act

intends to invest with the Governor the power to nominate

the members in his official personal capacity as the

Governor of the State of the power to constitute the Board

to supersede or to dissolve the Board; the Power to accept

resignation and to fill up the resultant casual vacancies

under Section 10, are conferred on the Governor. The

question, therefore, emerges: whether such exercise of the

powers by the Governor is in his capacity as the executive

head of the State under parliamentary mechanism devised

under the Constitution or in his official capacity as

Governor of the State?

It is true, as contended by Shri D.D. Thakur, that in

interpretation of the Constitution, by operation of Article

367, unless the context otherwise requires, the General

Clauses Act, 1897 (for short, the "GC Act") as modified,

shall apply. Section 3(23) of the GC Act defines "State

Government" to include both the Central Government and the

State Government and Section 3(61) defines "State

Government", as regards anything done or to be done, to mean

the Governor. Part VI of the Constitution titled "State

Government", as regards anything done or to be done, to mean

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the Governor. Part VI of the Constitution titled "The

States" consists of Chapter I "General", Chapter II

"Executive", Chapter III "The Legislature, Chapter IV, "The

Legislative Power of the Governor", Chapter V "The High

Courts in the States (Judicial Power)", and Chapter VI

"Subordinate Courts". Article 152 in Chapter II defines

"State" unless the context otherwise requires, so as not to

include the State of Jammu and Kashmir. Thereby, as regards

the State of Jammu and Kashmir, the distinction is made

between the Governor ex-officio and the Governor as

executive head of the State, unless it is applied by

exercise of the power under Article 370(1), (i) and (d).

Article 370 (1) declares that "notwithstanding anything in

this Constitution", the provisions of article 238 shall not

apply in relation to the State of Jammu & Kashmir and clause

(d) states that subject to such exceptions and modifications

as the President may by order specify, such other provisions

of the Constitution shall apply in relation to the said

State. Chapter II, Part VI deals with the executive power of

the State. Under Article 153, there shall be a Governor for

each State or one Governor for more than one State. By

operation of the First Schedule to the Constitution, Item 15

relates to State of Jammu and Kashmir. Item 15 read with

Articles 1 and 4 of the Constitution, the territories, which

immediately before the commencement of the Constitution was

comprised in the Indian State of Jammu and Kashmir is the

State of Jammu and Kashmir. The Constitution of Jammu and

Kashmir, 1957 contains detailed provisions in this behalf

and the executive powers given under Sections 21 to 45 are

not inconsistent therewith. it would, thus, appear that

there is no inconsistency in the Constitution of Jammu and

Kashmir and the Constitution of India in application of

Chapter II of Part VI of the Constitution in relation to

executive power of the Governor of Jammu and Kashmir.

By operation of Article 154, the executive power of the

State shall be vested in the Governor and shall be exercised

by him either directly or through officers subordinate to

him in accordance with the Constitution. By Operation of

Article 162, subject to the provisions of the Constitution,

the executive power of the State shall extend to all matters

with respect to which the legislature of the State has power

to make law. Thus, except his discretionary powers like that

of appointing Chief Minister, the Governor does not exercise

any power in his individual discretion. The Governor is

aided and advised by the Council of Ministers appointed by

him under Article 163. The executive power of the State is

co-extensive with that of the legislative power of the State

and the Governor in the constitutional sense discharges the

functions under the Constitution with the aid and advice of

the Council of Ministers except in so far as he is by or

under the Constitution required to exercise his functions in

his discretion. This is subject to Article 370 and the

Constitution (Application to Jammu & Kashmir) Order, 1950

repealed and revised by the Constitution (Application to

Jammu & Kashmir) Order, 1954 and the Constitution of Jammu &

Kashmir, 1957 (Part V). All the executive actions of the

State Government shall be expressed to be taken in the name

of the Governor as per the business rules of the Government

made in accordance with Article 166 of the Constitution and

the business rules made by the Governor under clause (3)

thereof (Section 45 of the Constitution of Jammu and

Kashmir). In Samsher Singh's case, a Bench of seven Judges

of this Court had held that under the Cabinet system of

Government, as embodied in our Constitution, the Governor is

the formal head of the State. He exercises all his powers

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and functions conferred on him by or under the Constitution

with the aid and advice of his Council of Ministers save in

spheres where the Governor is required by or under the

Constitution to exercise his functions in his discretion.

The satisfaction of the Governor for the exercise of any

other powers or functions required by the Constitution is

not the personal satisfaction of the Governor but is the

satisfaction in the constitutional sense under the Cabinet

system of Government. The executive is to act subject to the

control of the legislature. The executive power of the State

is vested in the Governor as head of the executive. The real

executive power is vested in the Council Ministers of the

Cabinet. There is a Council of Ministers with the Chief

Minister as its head to aid and advise the Governor in the

exercise of his executive functions. In R.K. Jain vs. Union

of India [(1993) 4 SCC 119], it was held that the Cabinet

system is a constitutional mechanism to ensure that before

important decisions are taken, many sides of the question

are weighed and considered. The Cabinet takes political

decisions of importance and the permanent bureaucracy works

out the details and implements the policy. The Cabine headed

by the Prime Minister bears collective responsibility for

the governance of the country. The Cabinet as a whole is

responsible for the advice and conduct of business by each

of the members of Cabinet of his Department and requires to

maintain secrecy in the performance of the decision making

process individually or collectively. They are also equally

responsible individually and collectively for their acts and

policies. The Cabinet, as a whole, is collectively

responsible for the advice to the President and to the

Parliament and the people. In S.R. Bommai & Ors. vs. Union

of India & Ors. [(1994) 3 SCC 1] at page 238 in paragraph

313 and 314, this Court had held that the executive power of

the Union shall be vested in the President and shall be

exercised by him whether directly or through officers

subordinate to him in accordance with the Constitution. All

the executive actions of the Government shall be expressed

to be taken in the name of the President under Article

77(1). Therefore, he acts with the aid and advice of the

Council of Ministers under Article 78 of the Constitution

headed by the Prime Minister as elaborated under paragraphs

313 to 321. In Samsher Singh's case, this Court had held

thus:

"Under the Cabinet system of

Government as embodied in our

Constitution, the Governor is the

constitutional or formal head of

the State and he exercised all his

powers and functions conferred on

him by or under the Constitution on

the aid and advice of his Council

of Ministers save in spheres where

the Governor is required by or

under the Constitution to exercise

his functions in his discretion.

The executive power is generally

described as the residue which does

not fall within the legislative or

judicial power. But executive power

may also partake of legislative or

judicial actions. All powers and

functions of the President except

his legislative powers as for

example in Article 123, viz.,

ordinance making power and all

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powers and functions of the

Governor except his legislative

power as for example in Article 213

in the President under Article

53(1) in one case and are executive

powers of the State vested in the

Governor under Article 154(1) in

the other case. Clause (2) or

clause (3) of Article 77 is not

limited in its operation to the

executive action of the Government

of India under clause (1) of

Article 77. Similarly, clause (2)

or clause (3) of Article 166 is not

limited in its operation to the

executive action of the Government

of the State under clause (1) of

Article 166. The expression

"Business of the Government of

India" in clause (3) of Article 77,

and the expression "Business of the

Government of the State" in clause

(3) of Article 166 includes all

executive business."

The constitutional mechanism, i.e., Cabinet system of

Government is devised for convenient transaction of business

of the executive power of the State. Though constitutionally

the executive power of the State vests in the Governor, he

does not, unless Constitution expressly conferred on him,

personally take the decision. The decision are taken

according to business rules at different levels and

ultimately the decision rests with the authority specified

in the business rules and is expressed to be taken in the

name of the Governor. In substance and in reality, decisions

are taken by the Council of Ministers headed by the Chief

Minister or the Minister or Secretary as per business rules.

But they are all expressed to be taken by the Council of

Ministers in the name of the Governor and authenticated by

an authorised officer. The Governor being the constitutional

head of the State, unless he is required to perform the

function under the Constitution in his individual

discretion, the performance of the executive power, which is

coextensive with the legislative power, is with the aid and

advice of the Council of Ministers headed by the Chief

Minister.

As posed earlier, the question is; when the Governor

discharges the functions under the Act, is it with the aid

and advice of the Council of Ministers or in his official

capacity as the Governor? The legislature is aware of the

above constitutional mechanism of governance. Equally, the

legislature of Jammu and Kashmir, while making the Act would

be presumed to be aware that similar provisions in the

Endowment Acts exist in other States in India. Section 86

read with Section 95 of Andhra Pradesh Charitable Hindu

Religious Institutions and Endowments Act, 1966 gives power

to "the State Government" to dissolve the Board of Trustees

of Tirumala Tirupathi Devasthanams and the Board of Trustees

of other institutions and reconstitution thereof. Similarly,

in Bihar Hindu Religious Trusts Act, 1950, Section 7 and 8

give power to the State Government for appointment of the

members of the Board and Section 80 empowers the State

Government to dissolve the Board. The Bombay Public Trusts

Act, 1950 confers similar powers on the State Government

under Sections 56D, 56G, 56H and 56R. Orissa Hindu Religious

Endowments Act, 1959 contains similar provisions conferring

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power on the State Government, vide Section 4 thereof, for

constitution of the Board. The U.P. Shri Kashi Vishwanth

Temple Act, 1983 is yet another Act where the entire

responsibility is saddled on the Governor.

It would be clear that the legislature entrusted the

powers under the Act to the Governor in his official

capacity. it expressly states that the would preside over

the meetings of the Board. If he is a non-Hindu, his

nominee, an eminent qualified Hindu will be his substitute

to preside over the functions. As seen, no distinction

between the Governor and executive Government is made by the

legislature in the relevant provisions in the Act. Under

Section 9, 11 and 12 of the Act, though the Governor acts as

repository of the sovereign power of the State, the

phraseology employed therein does not indicate that power is

given to the Council of Ministers and the Governor is to act

on its advice as executive head of the State. It is an

admitted position that prior to the Act, Dharmarth Trust was

in management and administration of the Shrine and the

properties attached thereto.

From the material on record, placed in the paper books,

it is clear that originally the immovable properties were

mutated in the name of Shri Mata Vaishno Deviji under the

management of the individuals. Subsequently, they were in,

Column 5, mutated to be in the possession of Dharmarth

Trust. The ownership of Shri Mata Vaishno Deviji is under

the management of Dharmarth Trust. It was mutated by

proceedings dated October 18, 1986 that the properties of

Shri Mata Vaishno Deviji are under the management of the

Shrine Board. It is stated that the mutation has been

effected pursuant to the directions issued by the Deputy

Commissioner and the Shrine Board has taken over possession

of the properties. Accordingly, entry in that behalf was

entered in column 14 thereof. It was effected by order dated

December 27, 1986.

Under Section 5 of the Act, the Board headed by the

Governor as the ex-officio Chairman, shall administer,

manage and govern Shri Mata Vaishno Devi Shrine and the

Shrine Fund is vested in the Board as a body corporate with

perpetual succession with common seal and it can sue and be

sued in a court of law. The Board discharges the functions

and duties under the Act in particular, as enumerated in 14

to 18. It would, therefore, be apparent from the scheme of

the Act that the legislature, though having been aware of

the executive functions of the Governor, in Part VI, Chapter

Ii of the Constitution (Part VI of Jammu and Kashmir

Constitution), as head of the State, did not entrust the

power under the Act to the Governor under the mechanism of

the Cabinet system devised under the Constitution. It

appears, for the reasons stated supra, that the Governor of

the State of Jammu and Kashmir is required to exercise his

ex-officio power as Governor to oversee personally the

administration, management and governance of Shri Mata

Vaishno Devi Shrine, Shrine Fund and the properties vested

in the Board. A non-Hindu Governor shall nominate an eminent

Hindu as his deputy responsible for presiding over the

meetings as Chairman to take decisions to be taken by the

Board in the administration, management and governance of

Shri Mata Vaishno Devi Shrine and the Shrine fund and sum

total of properties attached or belonging to the Shrine

within the premises specified in the premable of the Act and

all other properties belonging to the Shrine and vested in

the Board Sections 9, 11 and 12, as stated earlier, gives a

clear indication in that behalf that the Governor is

sovereign ex-officio holder of power, shall be responsible

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for proper, efficient and effective administration,

management and governance of Shri Mata Vaishno Devi Shrine,

Shrine Fund and sum total of the properties etc. Considered

from this perspective, we hold that there is no scope to

apprehend that the Board will misuse or abuse the power and

mismanage the funds or properties of the Shrine. Even in

case of such necessity, the Governor as the repository of

sovereign power, would always have the assistance, in any

given situation or case, to get the matter examined by an

appropriate authority or officer or collect necessary

information or material etc. the same having been placed

before him for his decision. The decision is his own

decision on his personal satisfaction and not one the aid

and advice of the Council of Ministers. The exercise of the

powers and functions under the Act is distinct and different

from those exercised formally in his name for which

responsibility rests only with his Council of Ministers

headed by the Chief Minister.

In Hardwarilal's case (supra), a Full Bench of the

Punjab and Haryana High Court was to consider whether the

Governor in his capacity as the Chancellor of Maharshi

Dayanand University was to act under Maharshi Dayanand

University Act, 1975 (Haryana Act No.25 of 1975) in his

official capacity as Chancellor or with aid and advice of

the Council of Ministers. The Full Bench, after elaborate

consideration of the provisions of the Act and the statutes,

came to observe in paragraph 121 at page 476 that the Act

and the statutes intended that the State Government would

not interfere in the affairs of the University. The State

Government is an authority quite distinct from the authority

of the Chancellor. The State Government cannot advise the

Chancellor to act in a particular manner. The University, as

a statutory Body, autonomous in character, has been given

certain powers exercisable by the Chancellor in his absolute

discretion without any interference from any quarter. In the

appointment of the Vice-Chancellor or the Pro-Vice-

Chancellor, the Chancellor is not required to consult the

Council of Ministers. Though by virtue of his office as

Governor, he becomes the Chancellor of the University, but

while discharging the functions of his office, he does not

perform any duty or exercise any power of the office of the

Governor individually. However, while discharging the

functions as a Chancellor, he does every act in his

discretion as Chancellor and he does not act on the aid and

advice of his Council of Ministers. The performance of the

functions and duties under the Constitution with the aid and

advice of the Council of Ministers is distinct and different

from his discharge of the powers and duties of his office as

Chancellor of the University. Under the Act and the statute,

the Chancellor has independent existence and exercises his

powers without any interference from any quarter. Therefore,

the office as a Chancellor held by the Governor is a

statutory office quite distinct from the office of the

Governor. Same view was taken by Andhra Pradesh High Court

in Kiran Kumar's case. In Ram Nagina Singh & Ors. vs. S.V.

Sohni & Ors. [AIR 1976 Patna 36], the question was as to the

appointment of a Lokayukta under Section 3 of the Bihar

Lokayukta Act, 1974 to be made by the Governor in his

capacity as Governor of the State, with the aid and advice

of the Council of Ministers. The language of Section 3(1) of

the said Act provides that "the Governor shall be warrant

under his hand and seal appoint a person to be known as the

Lokayukta of Bihar". Considering the language in

that provisions and the scheme of the Act for removal of the

Lokayukta, the Division Bench came to hold that the

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Governor, with the aid and advice of the Council of

Ministers, discharges the function in the appointment of the

Lokayukta under Section 3 of that Act. In the light of the

language therein, there is little difficulty in upholding

correctness of the decision but it renders little assistance

to the present controversy. The ratio in Mansingh Surajsingh

Padvi's case relates to the exercise of the power by the

Governor under West Khandesh Mehwassi Estates (Proprietary

Rights Abolition, etc.) Regulation, 1961. From the

notification issued thereunder the learned Judges appears to

have reached the conclusion that the Governor acts with aid

and advice of the Council of Ministers. They did not

correctly understand the scope of Schedule V to the

Constitution in its relation to the administration of the

scheduled area. The power of State and the Governor in that

behalf was not properly understood nor brought home to the

learned Judges. Therefore, the learned Judges were not right

in holding that the Governor while exercising the power

under Schedule V of the Constitution acts with the aid and

advice of the Council of Ministers. The law laid down

therein is not correct in law.

The next question is: whether the Board is a controlled

Corporation? The thrust which Shri D.D. Thakur forcefully

sought to bring home is that the Governor, be it in exercise

of his executive power in the Cabinet system of Government

devised under the Constitution or in his official capacity

as Governor, draws his power, which flows from the statute,

as the repository of the State executive. He has control

over the nomination f the members to the Board,

supersession, dissolution and reconstitution of the Board as

well as administration, management and governance of Shri

Mata Vaishno Devi Shrine, Shrine Fund and the sum total of

all the properties. He performs the functions with the

assistance of the Chief Executive Officer of the rank not

below the District Magistrate and of the Chief Accounts

Officer of the rank not below Deputy Director of Accounts.

Government bureaucrats on deputation and all officers of the

Board are under the control and supervision of the Chief

Executive Officer. Therefore, it is a controlled

Corporation. Section 19 of the Act, while extinguishing all

rights of the Baridars form the date of the commencement of

the Act, does not provide for compensation in a specified

sum nor it lay any principles to determine compensation.

Therefore, the Act is void offending their fundamental

rights guaranteed by Article 19(1)(f) and Article 31(2) of

the Constitution. Though, prima facie, the argument is

alluring but on deeper probe, we find it difficult to give

acceptance to the same. The presumption in law is that an

Act is valid and the legislature does not intend to enact a

law which is ultra vires the Constitution. The burden to

prove contra is on the appellants to establish the contrary.

The provisions of the Act are required to be examined

carefully to find whether it is purported to have that

effect. Section 19 in this behalf is relevant. It is already

seen that "all rights of Baridars shall stand extinguished

from the date of the commencement of the Act" by operation

of sub-section (1) of Section 19 of the Act. It is an

admitted case of the appellants themselves that they perform

Pooja and would appropriate part of the offerings. Their

right to perform Pooja is only customary right coming from

generations. Section 2 of the Act gives over-riding effect

to any custom, usage of instrument or any law, decree or

scheme of management, notwithstanding anything contained

contra to the Act etc. It declares that the Act shall have

over-riding effect thereon. In A.S. Narayana Deekshitulu vs.

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State of A.P. & Ors. [(1996) 9 SCC 548 at 604] Section 144

of the Andhra Pradesh Charitable and Hindu Religious

Institutions and Endowments Act, 1987 abolished the right of

the appellants to receive offerings with the abolition of

the hereditary right of Archaka service. The question arose;

whether it offended the religion or protection of Articles

25 and 26? It was held that the word `religion' used in

Articles 25 and 26 of the Constitution is personal to the

person having faith and belief in the religion. The religion

is that which binds a man with his Cosmos, his Creator or

super force. Essentially, religion is a matter of personal

faith and belief or personal relations of an individual with

what the regards as Cosmos, his Maker or his Creator which,

he believes, regulates the existence of insentient beings

and the forces of the universe. Religion is not necessarily

theistic. A religion undoubtedly has its basis in a system

of beliefs and doctrine which are regarded by those who

profess religion to be conducive to their spiritual well-

being. Right to religion guaranteed under Article 25 or 26

is not an absolute or unfettered right but is subject to

legislation by the State limiting or regulating any activity

- economic, financial, political or secular which are

associated with the religious belief, faith, practice or

custom. The are subject to reform as social welfare by

appropriate legislation by the State. Though religious

practices and performances of acts in pursuance of religious

belief are, as must as, a part of religion, as faith or

belief in a particular doctrine, that by itself is not

conclusive or decisive. What are essential parts of religion

or religious belief or matters of religion and religious

practice is essentially a question of fact to be considered

in the context in which the question has arisen and the

evidence - factual or legislative presented in that context

is required to be examined and a decision reached. In

secularising the matters of religion which are not

essentially and integrally parts of religion, secularism,

therefore consciously denounces all forms of supernaturalism

or superstitious beliefs or actions and acts which are not

essentially or integrally matters of religion or religious

belief or faith or religious practice. Non-religious or

anti-religious practices are anti-thesis to secularism which

seeks to contribute in some degree to the process of

secularisation of the matters of religion or religious

practices. A balance, therefore, has to be struck between

the rigidity of right to religious belief and faith and

their intrinsic restrictions in matters of religion,

religious beliefs or religious practices guaranteed under

the Constitution. The Andhra Pradesh Act impugned Therein,

was held to regulate administration and maintenance of

charitable and Hindu religious institutions and endowments

in their secular administration. It laid emphasis on

preserving Hindu Dharma and performance of religious worship

ceremonies and Pooja in religious institutions according to

their prevailing Sampradayams and Agamas. There is a

distinction between religious service and the person who

performs the service; performance of the religious service

according to the tenets, Agamas, customs and usages

prevalent in the temple etc. is an integral part of the

religious faith and belief and to that extent the

legislature cannot intervene to regulate. But the service of

the priest (Archaka) is a secular part. The hereditary right

as such is not an integral part of the religious practice

but a source to secure the services of a priest independent

of it. Though performance of the ritual ceremonies is an

integral part of the religion, the person who performs it or

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associates himself with performance of ritual ceremonies, is

not. Therefore, when the hereditary right to perform service

in the temple can be terminated or abolished by sovereign

legislature, it can equally regulate the service conditions

sequel to the abolition of the hereditary right of

succession in the office of an Archaka. Though an archaka

integrally associates himself with the performance of

ceremonial rituals and daily pooja to the Deity, he is the

holder of an office of priest in the temple. He is subject

to the discipline on par with other members of the

establishment. Abolition of emoluments attached to the

office of the Archaka, therefore, cannot be said to be

invalid. The customs or usages in that behalf were held not

an integral part of the religion. It was, therefore, held

that the legislature has power to regulate the appointment

of the Archaka, emoluments and abolition of customary share

in the offerings to the Deity. The same ratio applies to the

facts in this case.

In a private litigation between Baridar holders, this

Court in Badri Nath's case (supra) had held that though the

right to receive a share in the offerings was subject to

performance of those duties, none of them was in nature

priestly or required a personal qualification. All of them

were of non-religious or secular character which could be

performed by the Baridar's agented or servants incurring

expense on his account. When the right to receive the

offerings made at a temple is independent of an obligation

to render services involving qualification of personal

nature such a right is heritable as well as alienable. The

right of the baridars cannot be equated with the right ad

duties of a shebait. The Baridars are not managers of the

Shrine in the sense that a shebait is in relation to a

temple in his charge. The right to share in the offerings

being a right coupled with duties other than those involving

personal qualification and being heritable property, it will

descend in accordance with the dictates of the Hindu

Succession Act in supersession of all customs to the

contrary in view of Section 4 of the Hindu Succession Act.

It is seen that Section 2 gives over-riding effect to the

Act over any contrary law or any scheme of the management,

decree, custom, usage or instrument. The Act, therefore,

abolishes the customary right or duty of service as Baridar

and the receipt of offerings being conditioned upon

performing Pooja, he loses the right with cessation of

performing service. Right to receive offerings, by operation

of Section 19(1) of the Act has ceased. The question is;

whether the State controls the vesting of the properties and

the Board is a controlled Corporation within the meaning of

Article 12 of the Constitution? By operation of Section 6,

the Board is a body corporate with perpetual succession and

seal with a right to sue or be sued by or in the name of the

Board. The sum total of properties are of and vest in the

Shrine. The management of the Shrine and the Shrine Fund

stood vested in the Board under Section 4. The appellants

had the fundamental right to property guaranteed by Article

19(1) (g) of the Constitution. Though the Constitution (44th

Amendment) Act, 1978 which came into force w.e.f. June 29,

1979, deleted Article 19(1) (g) and Article 31 by operation

of Sections 2 and 6 thereof, they would still be available

to the residents of the Stat of Jammu and Kashmir. In Bela

Banerjee vs. State of West Bengal [(1954) SCR 558] Article

31(1) and Article 31(2) of the Constitution were interpreted

by the Constitution Bench and it was held that the word

`compensation' must mean a full and fair money equivalent.

The same ratio was followed in State of West Bengal vs.

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Kameshwar Singh [AIR 1952 SC 252]. The Constitution (5th

Amendment) Act was made in 1955 amending Article 31(2) and

also introducing Article 31(2A). It would, therefore, be

necessary to look into those provisions relevant to the case

since they were operative in the field when the Act was

enacted. They read as under:

"31. Compulsory acquisition of

property - (1) No person shall be

deprived of his property save by

authority of law.

(2) No property shall be

compulsorily acquired or

requisitioned save for a public

purpose and save by authority of a

law which provides for acquisition

or requisitioning of the property

for a compensation which may be

fixed by such law or which may be

determined in accordance with such

principles and given in such manner

as may be specified in such law;

and no such law shall be called in

question in any court on the ground

that the amount so fixed or

determined is not adequate or that

the whole or any part of such

amount is to be given a otherwise

than in cash:

Provided that in making any law

providing for the compulsory

acquisition of any property of an

educational institution established

and administered by a minority,

referred to in clause (1) of

Article 30, the State shall ensure

that the amount fixed by or

determined under such law for the

acquisition of such property is

such as would not restrict or

abrogate the right guaranteed under

that clause.

(2A) Where a law does not provide

for the transfer of the ownership

or right to possession of any

property to the State or to a

corporation owned or controlled by

the State, it shall not be deemed

to provide for the compulsory

acquisition or requisitioning of

property, notwithstanding that it

deprives any person of his

property."

In Charanjit Lal Chowdhary vs. Union of India [(1950)

SCR 869 at 902] it was held by the Constitution Bench that

the acquisition means and implies the acquiring of the

entire title of the appropriate owner, whatever the nature

or extent of the title might be. All rights which were

vested in the original holder would pass on acquisition to

the acquirer leaving nothing in the former. In State of West

Bengal vs. Subodh Gopal Bose & Ors. [(1954) SCR 587], the

view taken was that clauses (1) and (2) of Article 31 were

to be read together to call out the scope of contents, and

understood as dealing with the same subject, viz., the

protection of the right to property by means of limitations

on the State's power. Wider meaning, therefore, was given to

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the word `acquisition'. Deprivation contemplated therein was

interpreted to mean divesting title and vesting it in the

State and the word `requisition' to mean taking possession

of the property other than by acquisition of the property

mentioned in clause (2) of Article 31. Same view was

expressed in Kameshwar Singh' case (supra). In Dwarkadas

Shrinivas of Bombay vs. The Sholapur Spinning & Weaving Co.

Ltd. & Anr. [(1954) SCR 674], it was held that acquisition

was a quite wider concept, meaning thereby procuring of the

property and taking of it permanently or temporarily. It was

not confined only to the acquisition of the legal title by

the State in the property taken possession of. As a

consequence, clause (2A) of Article 31 was brought on the

Constitution by Constitution (4th Amendment) Act in 1955.

Clause (2A) of Article 31 provides that where law does not

envisage transfer of ownership or right to possession of any

property to the State or to a Corporation owned or

controlled by the State, which shall not be deemed to

provide for the compulsory acquisition or requisition of the

property, notwithstanding that, it deprives any person of

his property. At this juncture, we may dispose of the

contentions of Shri Dholakia as being untenable. Acquisition

has the effect of deprivation and enjoyment of the property.

the acquisition in order to be valid must be for a public

purpose and the person deprived of the same is entitled to

compensation. However, in respect of the property which was

divested from him, e.e., right, title and interest coupled

with possession must be vested in the State or beneficiary.

Such deproved person is entitled to compensation. It is

equally settled law that abolishing and/or extinction does

not mean vesting. The two are distinct and separate.

Deprivation of property is concomitant to acquisition in

that context. The right to superintendence of management,

administration and governance of the Shrine is not the

property which the Stat acquires. It carries with it no

beneficial enjoyment of the property to the State. The Act

merely regulates the management, administration and

governance of the Shrine. It is not an extinguishment of the

right. The appellants-Baridarans were rendering pooja, a

customary right which was abolished and vested in the Board.

The management, administration and governance of the Shrine

alwayed remained with the Dharmarth Trust from who the Board

has taken over the same for proper administration,

management and governance. In other words, the effect of the

enactment of the Act is that the affairs of the functioning

of the Shrine merely have got transferred from Dharmarth

Trust to the Board. The At merely regulates in that behalf

incidentally, the right to collect offering enjoyed by the

Baridarans by rendering service of Pooja has been put ti an

end under the Act. The State, resultantly, has not acquired

that right onto itself. The contention of Shri D.D. Thakur

is that the word "control" is of wider connotation and,

therefore, requires to be interpreted in the light of the

scheme of the Act, i.e., the Governor exercise, as the

repository of the State power or State executive power in

the matter of nomination of nine members of the Board, the

supersession/dissolution and reconstitution of the Board and

filling up of the vacancies or appointment of a new post and

taking care of the management, administration and governance

of the properties of the Shrine through the Board. So, the

Governor exercises his executive power of the State as

Governor and, therefore, the Board is a controlled

Corporation.

It is true that the word "control", as defined in

Black's Law Dictionary [Sixth Edition] at page 329, means as

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verb "to exercise restraining or directing influence over;

to regulate; restrain; dominate; curb; to hold from action;

overpower; counteract; govern; Power of authority to manage,

direct, superintend, restrict, regulate, govern, administer

or oversee. The ability to exercise a restraining or

directing influence over something". In S. Gurmukh Singh vs.

Union of India & Ors. [AIR 1952 Pun. 143], a Full Bench of

the High Court had held that the Executive power of the

Union of India is vested in the President and is exercised

by him. The Government is for all practical purposes

synonymous with the Executive of the country. If the

executive power of the country is vested in the President

and is exercised by him, the act of the President must be

deemed to be the act of the Government or of the State. The

official acts of the President are the official acts of the

State for the purposes of Article 15 of the Constitution.

Therefore, the State is synonymous with the President or, at

any rate, includes his official personality when acts of the

State are under Articles 15 and 341 of the Constitution. The

Division Bench of the Andhra Pradesh High Court in Re: Kodur

Thimma Reddi & Ors. [supra] in the context of Section 19F of

the Arms Act had held that the word "control" over a fire

arm by the person in possession means a conscious possession

in his control but when it is accessible to others, it was

held that he was not having the control. Similar view was

taken by the Kerala High Court. However, these decisions do

not assist us in deciding this case.

To appreciate the contentions, it is necessary to deal

clauses (2) and (2A) of Article 31 together. If so read, the

expression "Corporation owned or controlled by the State"

clearly indicates that the control should be total control

which is as good as ownership of the Corporation by the

State. The ownership of the acquired property is through its

Corporation owned by the State. The Corporation is only a

cloak. The State should be able to deal with the property

transferred to the Corporation by virtue of its control as

if it deals with property transferred to itself or the

Corporation is only a conduit pipe itself to use the

property as if it is owned by itself. The control of the

State as envisaged in clause (2A), should have nexus with

the property transferred to the Corporation. Then only it

may be said that there was compulsory acquisition of the

property by the State and the property is owned by the

Corporation owned on controlled by the State as having been

vested in it. Under the Land Acquisition Act, when the

property is acquired, the right, title and interest of the

previous owner stand extinguished after taking possession of

the land and is vested in the State under Section 16 f that

Act or the transfree-beneficiary free from all encumbrances.

That would be total divestment of pre-existing right, title

and interest in the land by the previous owner and vesting

of the same in the State or the Corporation controlled by

the State. In order to attract clause (2A) of Article 31,

the law in question should, therefore, provide for the

transfer of ownership of the property of the Baridars to the

State or to a Corporation owned or controlled by the State.

There is no dispute that the impugned Act does not transfer

the ownership of the property of Baridars to the State or to

a Corporation owned by the State. It merely extinguishes the

right of the Baridars. The appellants' contention is that

the Act has merely transferred the right to property of the

Baridars to the Shrine Board which is a Corporation

controlled by the State. This is not correct because the

word "controlled' has to be construed in the light of the

preceding word `owned'. The control should be to such an

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extent as would amount to virtual ownership by the State as

indicated above. In the instant case, the Act deals with the

property of a religious institution which cannot be owned by

the State under the Constitution and which cannot be

controlled by the State, like an owner, having regard to the

basic feature of secularism permeating the Constitution,

which separates religion from the State. When the property,

namely, right to recover offerings is extinguished by

Section 19(1) of the Act, it does not vest in the State; on

the other hand, the board becomes entitled to the right to

the collection, possession and management of the offerings

given to the Shrine and provide welfare services and

facilities to the pilgrims. The Governor exercises his

statutory power as ex-officio Chairman of the board, though

he is the repository of State power by virtue of his office

as a Governor. Nonetheless, he exercises it in his capacity

as Chairman, a distinct and separate function and power and

not in the constitutional sense of the Cabinet system, of

performing executive power the State Government has under

the Constitution, with the aid and advice of the Council of

Ministers headed by the Chief Minister. The power to

supervise and to take remedial steps to correct

mismanagement, abuse of power or incompetence to exercise

the power or access of the line power are only incidental to

the management, administration or governance of Shri Mata

Vaishno Devi Shrine, Shrine Fund and the properties

including the collection and taking possession of the

offerings. All are his individual performance of the

statutory functions in his official capacity as Chairman of

the Board and not as Governor. Therefore, by exercising the

power under the Act, it is impressible for the State to deal

with the properties vested in the Board in terms of the Act;

the Act does not permit the State to deal with the said

properties as if they are the properties of the State

acquired directly or indirectly through the medium of the

Board. The extent of supervision permitted by the provisions

of the Act is limited to and only to ensure proper,

efficient, effective and responsible administration,

management and governance of the Shrine, properties of the

Shrine and Fund of the Shrine and nothing more. The degree

of control required in clause (2A) of Article 31 is,

therefore, missing in the Act.

In Gullapalli Nageswara Rao & Ors. vs. Andhra Pradesh

State Road Transport Corporation & Anr. [1959 Supp. (1) SCR

319] it was contended that the State by nationalisation of

the Transport Services, exercised its power in Chapter IVA

of the Motor Vehicles Act, 1939 and in effect and substance

authorised in law to effect the transfer of the business of

the citizens to the State or a Corporation owned or

controlled by the State, without paying full equivalent of

the compensation under Article 31(2). The acquisition was,

therefore, contended to be invalid. Repelling the

contention, the Constitution Bench of this Court had held

that Section enabled the Government to frame a scheme and

give effect to the approved scheme in respect of a notified

area of a notified route and stop the private operators from

entering on the notified route, from entertaining any

application for renewal of any other permit and from

cancelling any existing permit or modifying the terms of

existing permit so as to render the permit ineffective from

the specified date. The impugned provision was held to be a

regulated power conferred on the Transport Authority in the

interest of the public for efficient, economical and co-

ordinate regulated service offered by the STU. The business

of the private operators and the STU has nothing to do with

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one another. They are two independent businesses carried on

under two different licenses. The contention that the scheme

enabled the nominee of the State to do the business and,

thereby, in effect and substance transfer the business on

the existing permit holders to the STU was held to be not

correct. The contention was held to be fallacious. It may be

by process of law that the existing permit holders are

precluded from doing their business and it also may be that

the STU carriers on a similar business. By no stretch of

imagination, in law it can be said that STU is doing

business carried on by previous permit holders by or on

behalf of the State. Accordingly, it was held that the State

has no control and it is not an acquisition on behalf of the

State. In Union of India vs. Sudhansu Mazumdar & Ors.

[1971]) Supp. SCR 244], on September 10, 1958 an agreement

was entered into between the Government of India and

Pakistan called the "Indo-Pakistan agreement". Item 3 of the

agreement related to transfer of group of villages lying

within the territory of India, known as Berubari Union No.

12 and it was accordingly transferred to Pakistan. It was

contended that it was an acquisition without compensation

violating Article 31(1) and (2) of the Constitution. This

Court by a Constitution Bench had held that in order to

constitute acquisition or requisition, there must be

transfer of ownership or of right to possession of any

property to the State or Corporation owned or controlled by

the State. It was held that the effect of the Constitution,

by the Constitution (9th Amendment) Act, 1960 by no stretch

of imagination could be regarded as transfer of Berubari

Union No.12 to Pakistan as transfer of the ownership or of

right to possession of any property of the respondents in

the State under Article 31(2) of the Constitution. The

Amendment Act, 1955 made it clear that mere deprivation of

the property, unless its acquisition or requisition was

within the meaning of clause (2A), shall not attract clause

(2) and no application to pay compensation will arise

thereunder. In Katra Education Society, Allahabad vs. State

of U.P. [AIR 1966 SC 1307 at 1311] the contention was that

Section 16F(4) of the U.P. Intermediate Education Act, 1921

violated their fundamental right under Article 14, 19 or 31

of the Constitution. It was contended that since the scheme

of management did not provide for any compensation, it was

ultra vires the Constitution. The Constitution Bench

rejected the contention by holding that the educational

authorities, after considering the representation of the

management, had the power to make recommendation after

selectmen. The power to appoint persons possessed of

prescribed qualifications vests in the institution. The

education authorities did not accept suitability of persons

selected by the management on the specified grounds, and

reasons therefor. It is only an exercise of the control

envisaged by the amendment of Section 16D(3) of the Act with

a view to prevent appointment of unqualified person. The

power under Section 16D(4) entrusted to the authorised

controller was merely of management. Management of

institution in respect of which Authorised Controller had

been appointed had to be conducted and carried out in

accordance with the directions given by the Authorised

Controlled. IT was held that the property did not vest in

the State but continued to remain the property of the

institution as Article 31(2A) saves such control and Section

31(2) has no application.

In Constitutional Law of India by H.M. Seervai (Third

Edn.) Volume II at page 1109 in para 30 it is stated that

distinction between ordinary acquisitions where law provides

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full compensation and large schemes of social engineering or

reform which would have to be located at from the point of

view of justice to the individual as well as to the

community, is harmonised by the legal view. In the after

light of Bela Banerjee's case (supra), it is clear that the

eminent lawyers (founding fathers of the Constitution)

committed a grave error in leaving to implication what they

could have clearly expressed in Article 31(2). Bela

Banerjee's case showed that the intention of the framers

failed because it was not expressly embodied in Article

31(2). Obviously, an amendment of the Constitution is meant

to change the existing law, and the 4th Amendment by

excluding the challenge on the ground of adequacy of

compensation was meant to change the law laid down in Bela

Banerjee's case that compensation under Article 31(2) meant

a full and fair money equivalent. After the 4th Amendment,

the word "compensation", could not mean a full and fair

money equivalent, for if it did, the law would have remained

unchanged and the 4th Amendment would have failed of its

purpose. By excluding a challenge on the ground that the

compensation provided by the law was not adequate, the 4th

Amendment removed the restriction on legislative power in

the sense that for the law to be valid it was no longer

obligatory to provide for the payment of full and fair money

equivalent. After the 4th Amendment a law which fixed

compensation which amounted to 80 per cent of full and fair

money equivalent would not violate Article 31(2) and was a

valid law. The 4th Amendment achieved this result by

introducing the concept of inadequate compensation. On

consideration of above provisions, we have, therefore, no

hesitation to hold that the Board is not a controlled

Corporation within the meaning of Article 12 of the

Constitution. By operation of clause (2A) of Article 31 of

the Constitution the Board or the properties of the Shrine

did not vest in the State. The right to collection of the

offerings or the divestment of the properties, if any, of

the Baridars or the right to collection or a share in the

offerings do not vest in the State. Consequently, Section

19(1) of the Act is not ultra vires of Article 19(1)(f) or

Article 31(2) of the Constitution.

It is seen that the proviso to Section 19 provides that

the Governor may appoint a Tribunal which, after giving

personal hearing to the Baridars and the representations of

the Board, "shall recommend compensation to be paid by the

Board in lieu of extinction of their right". While making

its recommendations to the Board, the Tribunal "shall have

due regard to the income which the Baridars had been

deriving as Baridars". The Board shall examine the

recommendations forwarded to it by the Tribunal and take

such decision as it may deem appropriate. The decision of

the Board shall be final. Pursuant to the directions issued

by this Court, the Governor made guidelines which were duly

notified in the Gazette. Another notification inviting

claims from Baridars was published and time was extended

from time to time informing to lay claims for compensation.

It would appear that while the matter remained pending, the

Baridars do not seem to have not laid their claims. The

guidelines framed by the Governor are by exercising the

rule-making power under Section 24 of the Act. So they

acquired the status as subordinate legislation and became

integral part of the proviso to Section 19 of the Act. As we

have upheld the Act, they are at liberty to file their

claims within two months from today. The Tribunal shall have

due regard to the guidelines in determining the income of

Baridars before the Tribunal makes its recommendations to

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the Board for consideration and the Board shall also take a

decision, as it may deem appropriate, consistent with

proviso to Section 19(1) and the guidelines, in the light of

the recommendations made by the Tribunal. It would be

obvious that in case the Board does not find itself in

agreement with the recommendations made by the Tribunal, it

would be required to state its reasons in that behalf, give

an opportunity to the Baridars and, if necessary, a personal

hearing through their representatives or a counsel and then

take a decision to pay compensation as it may deem

appropriate. In case it disagrees with the recommendations

of the Tribunal, it should record reasons in writing and

would communicate the same to all the affected persons. This

exercise should be done within two months from the date of

the receipt of the recommendations of the Tribunal. The

Governor would appoint the Tribunal within six weeks from

the date of the receipt of the judgment. We hope and trust

that the Tribunal would dispose of the claims as

expeditiously as possible since more than a decade has

passed by now.

The appeals are accordingly disposed of but, in the

circumstances, there is no order as to costs.