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CASE NO.:

Appeal (civil) 4596 of 1999

PETITIONER:

Chain Singh

RESPONDENT:

Mata Vaishno Devi Shrine Board & Anr.

DATE OF JUDGMENT: 28/09/2004

BENCH:

Shivaraj V. Patil & B.N. Srikrishna

JUDGMENT:

J U D G M E N T

With

Civil Appeal Nos. 4597-4598 of 1999 and

Civil Appeal No. 6334 of 2004

@ Special Leave Petition(C) No. 8192 of 2001

B.N.SRIKRISHNA, J.

These civil appeals and the special leave petition arise out of and

impugn the same judgment of the Division Bench of the High Court of

Jammu & Kashmir which allowed the Letters Patent Appeals of the

respondents.

A popular Hindu Shrine in Jammu thronged by devotees all round the

year, Mata Vaishno Devi is situated on the Trikuta Hills, approximately 45

kilometers from Jammu city. The Shrine was originally managed by a trust

known as 'Dharmarth Trust', which managed, not only the affairs of the

shrine, but also looked after the welfare of the pilgrims. The actual duties of

performance of Pooja and protection of the Shrine were carried out by

Baridars, who belonged to the two villages in the vicinity of the Shrine.

With the popularity of the Shrine increasing, there was an exponential

increase in the number of pilgrims visiting the Shrine. When the number

of devotees visiting the Shrine became unmanageable, there were

complaints with regard to administration and management of the temple,

and the facilities made available for the pilgrims. This led to the enactment

of 'The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1986'

(Governor's Act No. XXXIII of 1986) which was replaced by an Act of

Legislature, passed in 1988, (Act No. XVI of 1988) called 'The Jammu and

Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 (hereinafter referred to

as the '1988 Act').

A statutory Board is constituted under Section 5 of the 1988 Act, of

which the Governor of Jammu & Kashmir is the ex-officio Chairman. The

administration, management and governance of Shri Mata Vaishno Devi

Shrine and the Shrine Fund vest in the Board, which comprises a Chairman

and not more than ten members. Under Section 6 of the 1988 Act, the Board

is deemed to be a body corporate and shall have perpetual succession and a

common seal and by the said name the Board can sue and be sued. Under

Section 14 of the 1988 Act, the Board is empowered to appoint a Chief

Executive Officer and such other officers and servants as it considers

necessary with such designations, pay, allowances and other conditions of

service as determined from time to time. Section 15 of the 1988 Act

provides that the employees of the Board are deemed to be public servants

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within the meaning of Section 21 of the State Ranbir Penal Code (which

corresponds to the Indian Penal Code) as applicable in Jammu & Kashmir

area.

One of the drastic change brought about by the 1988 Act was that by

reason of Section 19, all rights of Baridars stood extinguished.

Section 20 provides that no suit or other proceedings shall lie in any

court against the Board or its officers for anything done or purported to be

done in good faith under the Act.

Section 24 empowers the Board to make bye-laws 'not inconsistent

with the Act' for carrying out its duties.

Civil Appeal No. 4596 of 1999:

The appellant, Chain Singh, is an ex-service man who claims that in

the year 1983, he became the tenant of a shop premises let out to him by

Shri Mata Vaishno Devi Dharmarth Trust at an annual rent of Rs. 15,000/-.

The appellant was carrying on the business of selling petty items for use of

the pilgrims in his shop and had obtained licences from the different

authorities, including the Assistant Director, Tourism, for carrying on his

trade. After the Jammu & Kashmir Mata Vaishno Devi Shrine Act, 1986

Act came into force (later replaced by the '1988 Act'), the appellant claims

that, by reason of Section 19(3), he became the tenant of the Board. It is his

case that he thereafter continued as a tenant of the Board. Upon the Board

coming into existence, the appellant was shifted from the original shop

allotted to him by the Dharmarth Trust to a new shop constructed by the

Board. According to the appellant, the new shop premises were smaller in

area and there was also interference in his day to day business by the

officers of the Board, who were bent upon throwing him out therefrom, so

that they could extract higher rent from a new tenant.

The appellant filed a writ petition in the High Court of Jammu &

Kashmir being OWP No. 184/94, which was disposed of by a learned Single

Judge of the High Court with the direction that the Board shall consider an

appropriate representation of the petitioner with regard to his grievance.

Soon thereafter, on 10.7.1995, the Board gave a notice informing him that

he had failed to file a representation, as directed by the High Court, and, that

unless he signs an agreement with the Board within three days, he would be

subjected to further action as deemed appropriate. The petitioner protested

against this notice and followed it up by another writ petition OWP No.

523/95 before the High Court by which he asked for various reliefs,

including the relief of quashing the notice issued to him and a mandamus to

the officers of the Board to refrain from interfering with his business

activities. This writ petition came to be dismissed by a learned Single Judge

of the High Court on 8.2.1999 holding that the writ petition was not

maintainable in view of the decision of the Division Bench of the High

Court in LPA No. 182 of 1992 decided on 27.1.1999. Hence, this appeal.

Civil Appeal Nos. 4597-98 of 1999:

The appellants in these two appeals were employees of the Board, who

were holding different posts under the Board. It is the case of the appellants

that, their conditions of service were unsatisfactory and they formed a trade

union for collective bargaining so as to improve their conditions of service.

Their trade union was registered with the Registrar of Trade Union, Jammu

and Kashmir Government under registration No. 705 dated 11.12.1990. On

15.1.1991, the Registrar of Trade Union, J&K, Jammu addressed a letter to

the President, Shrine Board Employees Union, Panthal Road, Katra

informing him that they could not form themselves into a trade union since

the Shrine Board, the employer, was not a Trade or Industry. He further

said, "the terms of employment of all the servants of the Board are governed

by the J&K Mata Vaishno Devi Shrine Act, 1988 and since its employees

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have duly been declared as 'Public Servants' under Section 15 of the

aforementioned Act and, as such, its employees are not registerable as a

Union under the Trade Unions Act, 1926 and cannot be said to be in

employment in any Trade or Industry." He, therefore, informed the trade

union that he felt satisfied that the registration issued under the

aforementioned number had been obtained by mistake which should be

deemed to have been withdrawn from 10th day of March, 1991.

Undaunted by the withdrawal of the registration granted to them, the

appellants and other employees carried on with their trade union activities.

According to the appellants, these trade union activities brought them into

disfavour with the officers of the Board, who started victimising them for

the legitimate trade union activities. Victimisation comprised systematic

action taken against the activists of the trade union, some of whom were

even removed from service. The aggrieved employees filed writ petition

WP No. 497 of 1992 before the High Court challenging the termination of

their services and sought a writ of mandamus and a direction to the Board to

reinstate them with full back wages and all consequential benefits. This writ

petition was opposed by the first Respondent Board. A learned Single Judge

partly allowed the writ petition and granted reliefs to some of the employees

and rejected reliefs to the other employees. The employees who were

refused reliefs filed LPA No. 182 of 1992 before the High Court. The

Board filed LPA No. 183 of 1992 challenging the reliefs granted to some of

the employees. By a common judgment dated 27.1.1999 the Division

Bench of the High Court dismissed the LPAs. by holding:

"The Board does not satisfy the tests laid down by the

Supreme Court referred to in the preceding part of this

judgment. It is not State within the meaning of Article

12 of the Constitution of India. Therefore, writ petition

is not maintainable. Having said so, we need not

examine merits of impugned orders of termination

passed against the petitioners. Preliminary objections

raised by the Appellant succeeds."

The aggrieved employees are before this Court by these appeals.

Special Leave Petition (Civil) No. 8192 of 2001:

The petitioner was appointed as a Chowkidar on 6.10.1978 in the

Dharmarth Trust and claims to have become an employee of the Shrine

Board after coming into force of the Jammu & Kashmir Shri Mata Vaishno

Devi Shrine Act, 1986. It is the case of the petitioner that he was employed

as a Receptionist when the Board came into existence. It is his grievance

that he was not being paid due salary by the Board. The petitioner filed writ

petition SWP No. 663/1993 before the High Court for appropriate reliefs,

which is stated to be pending.

On 2.3.1998 the petitioner was served with a charge sheet levelling

allegations of misconduct against him for alleged misappropriation of

Rs.20/-. An enquiry was held and a show cause notice dated 21.3.1998 was

served on the petitioner to show cause why his service should not be

terminated. Finally, after considering the reply, the petitioner was dismissed

from service on 30.3.1998. The petitioner filed the writ petition before the

High Court challenging termination of his service. The learned Single

Judge referred the writ petition to a larger bench in view of the important

question of law arising therein. Finally, a Division Bench of the High Court

by its judgment dated 23.1.2001, following the earlier Division Bench

judgment in LPA No. 182/92 and 183/92 dated 27.1.1999, held that the writ

petition was not maintainable and dismissed the writ petition. The petitioner

seeks special leave to appeal against the judgment of the High Court.

C.A. Nos. 4596/99, 4597-4598/99 and SLP(C) No. 8192/2001:

Leave granted in the special leave petition.

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At the outset, we asked the learned counsel appearing for the

appellants as to why they did not seek relief before an appropriate

forum-Civil Court in the case of the dispute with regard to licence/tenancy,

and Labour Court, with regard to the dispute pertaining to the service

matter. Learned counsel replied that the appellants have been placed in a

very unenviable predicament, being treated neither as fowl nor fish.

According to the appellants, Section 20 of the 1988 Act bars the civil court

from entertaining a suit or proceeding against the Board or its officers for

anything done or purported to be done in good faith under the 1988 Act.

Learned counsel contended that the section is so widely worded that it

conceivably bars all proceedings in Civil Courts as also before Labour

Courts/Tribunals. On this understanding of the provision of Section 20, the

appellants in this case chose to move the High Court by their writ petitions

under Article 103 read with Article 10 of the Constitution of Jammu and

Kashmir (corresponding to Article 226 of the Constitution of India).

Counsel urge that it is unfortunate that the High Court has erroneously held

that the Shrine Board is not even amenable to the writ jurisdiction, as it is

not "State" within the meaning of Article 12 of the Constitution of India. In

the submission of the learned counsel, the High Court has fallen into error

on two counts. First, in considering itself bound by certain pronouncements

of the decision of this Court in Bhuri Nath and Ors. v. State of J & K

and Ors. although, the observations were made in a totally different

context, wholly distinguishable, and do not lay down the proposition of law

as understood by the High Court. Secondly, for deciding the issue as to

whether the Shrine Board was "State", the High Court has applied certain

tests which are erroneous, and failed to apply other tests which have now

been held necessary in view of the judgment of a Bench of Seven learned

Judges of this Court rendered in Pradeep Kumar Biswas v. Indian

Institute of Chemical Biology and Ors. . The High Court has relied on the

tests prescribed in Sabhajit Tewary v. Union of India , which has been

specifically overruled in Pradeep Kumar Biswas (supra).

The learned counsel for the respondents, however, maintained that the

observations made in Bhuri Nath (supra) were directly relevant and

applicable. On the second issue, however, learned counsel for the

respondents contended that if this Court comes to the conclusion that the

present appeals are not concluded by the decision in Bhuri Nath (supra)

then the matters may be remitted to the High Court for deciding the

tenability of the writ petitions in the light of the law laid down in Pradeep

Kumar Biswas (supra).

The facts in Bhuri Nath (supra) and the background in which the

relevant observations in Paragraph 33 were made need to be considered in

detail.

As already recounted, the direct result of the 1988 Act coming into

force was the extinction of the rights of the Baridars by reason of sub

section (1) of Section 19 of the 1988 Act. Sub section (1) of Section 19

provides, "all rights of Baridars shall stand extinguished from the date of

commencement of this Act." There is a proviso thereto under which the

Governor is empowered to appoint a Tribunal which could recommend the

compensation to be paid by the Board in lieu of extinction of the rights of

the Baridars, after having due regard to the income which the Baridar had

been deriving as Baridars. The Board is, thereafter, required to examine the

recommendations forwarded to it by the Tribunal and take such decision as

it may deem appropriate and its decision shall be final. Where a Baridar

surrenders his rights and offers himself for employment to the Board, there

is certain preferential right of appointment, subject to suitability. Section 19

deals with three kinds of persons: (i) Baridars -- their rights stand

extinguished on the coming into force of the 1988 Act, (ii) Employees of the

Dharmarth Trust -- they become employees of the Board on the

commencement of the 1988 Act, (iii) Shopkeepers and other lease holders,

who were tenants -- they become the tenants of the Board.

Some of the Baridars, whose rights stood extinguished by reason of

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the 1988 Act, challenged the constitutional validity of the 1988 Act, as

infringing Articles 19(1)(f) and 31 of the Constitution of India, which

continue to apply to the Jammu & Kashmir area.

Bhuri Nath (supra) examined the scheme of the 1988 Act and

noticed that under sub section (1) of Section 19, all rights of Baridars stood

extinguished. It was contended on behalf of the Baridars that repeal of

Articles 19(1)(f) and 31 of the Constitution of India by the Constitution

(Forty-fourth) Amendment Act, 1978, w.e.f. 20.6.1979, does not apply to

the State of Jammu & Kashmir; the right to property continued to be a

fundamental right of the residents of Jammu & Kashmir; the 1988 Act made

no provision for payment of compensation or guidelines for determination

of compensation to Baridars, whose rights are extinguished; the Board being

a controlled Corporation, is an arm of the Government; all the properties of

the Shrine stand vested in the Government. They relied on several

provisions of the 1988 Act with regard to the constitution of the Board in

order to contend that the Board is a "State-controlled Corporation". The

Baridars further contended that, offerings and other properties were acquired

under the 1988 Act and got vested in the controlled Corporation, viz., the

Board. For their abolition, the Baridars were entitled to compensation and

inasmuch as Section 19 makes no provision for compensation, the 1988 Act

was unconstitutional and ultra vires the powers of the legislature.

On behalf of the Board, clause (2-A) of Article 31 of the Constitution

of India was emphasised, which reads as under:

"(2-A) 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."

It was contended that the Shrine Board is not a 'controlled Corporation' and

the properties and offerings vested in it are not owned or controlled by the

State or their ownership is not transferred to any State controlled

Corporation. It was also contended that the Board is a statutory authority

under the 1988 Act set up for better management, administration and

governance of the Shrine and its endowments including the lands and

buildings attached, or appurtenant to the Shrine within the premises

specified in the preamble of the 1988 Act. Relying on the judgments of

Punjab & Haryana High Court in Hardwari Lal v. G.D. Tapase and

Andhra Pradesh High Court in Kiran Babu v. Govt. of A.P. , it was urged

that when the Governor exercises his power under the Act in the capacity of

ex-officio Chairman, he does not exercise power as the executive head of

the State and his role is limited to the traditional role to ensure proper

management and responsible administration of the religious institutions or

endowments and of their properties and nothing more. Hence, it was

contended by the counsel of the Shrine Board as well as the counsel for the

State that, though the properties of the Shrine and funds are under the

control of the State, the properties were not vested in the State and so the

1988 Act was a valid law. They distinguished between acquisition and

deprivation. While the 1988 Act deprives Baridars of their right to receive

offerings, there was no acquisition by the State, since mere deprivation does

not amount to acquisition. Hence, it was urged that the 1988 Act was not

ultra vires the Constitution.

This Court in Bhuri Nath (supra) accepted the distinction drawn

between the executive power of the Governor as executive head of the State

and power exercised under the Act by his role as ex officio Chairman. The

Division Bench of two learned Judges raised the question, "when the

Governor discharged this function under the Act as executive head of the

State, is it with the aid and advise under the Council of Ministers or in his

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official capacity as the Governor?" The Division Bench answered the

question and said, "the exercise of power and functions under the Act is

distinct and different from those exercises formally in his name with

Council of Ministers headed by the Chief Minister."

Finally, taking up the question whether the Board is a "Controlled

Corporation" within the meaning of clause (2-A) of Article 31, after

examining the provisions of the 1988 Act in detail, and noticing the

judgments in Gullapalli Nageswara Rao v. A.P. SRTC and Union of

India v. Sudhansu Mazumdar , it was observed thus in Paragraph 33:

"33. In Constitutional Law of India by H.M. Seervai

(3rd Edn.), Vol.II, at p. 1109 in para 30, it is stated that

distinction between ordinary acquisitions where law

provides full compensation and large schemes of social

engineering or reform which would have to be located at

from the point of view of justice to the individual as

well as to the community, is harmonised by the legal

view. In the afterlight of Bela Banerjee case , 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 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

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 in 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 (2-A) 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 Article 19(1)(f) or Article 31(2) of

the Constitution."

It became necessary for us to make an indepth examination of the

ratio in Bhuri Nath (supra), as it is strongly contended by the respondents,

and accepted by the High Court, that Bhuri Nath clinches the argument

against the appellants and holds that the Shrine Board is not amenable to the

writ jurisdiction of High Court under Article 226 of the Constitution of

India.

In our view, the contention has no merit. Bhuri Nath was not

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concerned with the issue as to whether the sweep of Article 226 could

extend to the Shrine Board. As already pointed out, the question before the

court was whether the right to property of the Baridars had merely been

extinguished or it had been transferred to a 'State controlled Corporation',

which would determine whether the Baridars had a right to compensation or

not. This, in turn, would determine the constitutional validity of the 1988

Act, which prescribed no principles or guidelines on which compensation

was to be paid to the Baridars, whose rights were extinguished. None of

these issues touched the question whether the Shrine Board was amenable to

the writ jurisdiction of the High Court. All that was decided is that the

Shrine Board is not a 'State controlled Corporation'. This issue, per se, is

not determinative of the issue as to whether the Shrine Board is amenable to

the writ jurisdiction of High Court under Article 226 of the Constitution of

India. The sweep of Article 226 of the Constitution is much wider. It can be

exercised against "any person or authority", including in appropriate cases

"any Government".

Article 12 finds its place in Part III, and reads as under:

12. Definition.- In this part, unless the context

otherwise requires, "the State" includes the Government

and Parliament of India and the Government and the

Legislature of each of the States and all local or other

authorities within the territory of India or under the

control of the Government of India."

Its purpose is to define the word 'State' where it occurs in Part III relating to

fundamental rights. Here also, the inclusive definition takes within its fold,

apart from the Government, Parliament of India and the Legislature of the

States, "all local or other authorities". It is in this context, that the theory of

'instrumentality' or 'agency of State' was developed in Ajay Hasia v.

Khalid Mujib , and Ramanna v. International Airport Authority of

India , wherein detailed tests were laid down. Notwithstanding the tests

laid down, certain institutions, which were incorporated as Societies, were

held to fall outside the purview of Article 12 in Sabhajit Tewary's case

(supra). The apparent inconsistencies which had developed in the law were

reconciled by the larger Bench of Seven learned Judges in Pradeep Kumar

Biswas (supra) which has laid down the correct tests to be applied to decide

whether any entity is an instrumentality or agency of the State, and

therefore, amenable to the writ jurisdiction of the High Court.

Perhaps, in some respects, the correctness of some of the

observations in Bhuri Nath (supra) are open to debate in the light of the

principles laid down in Pradeep Kumar Biswas case (supra). Since,

however, the High Court had no occasion or benefit of considering the law

laid down in Pradeep Kumar Biswas (supra), it would be inappropriate for

us to express any opinion thereupon. Suffice it for us to say that, Bhuri

Nath does not, in any way, lay down the law as understood by the High

Court, namely, that the Shrine Board is not amenable to the writ jurisdiction

of the High Court.

We are inclined to agree with the learned counsel for the respondents,

Shri P.P. Rao, that the matter should be remitted to the High Court for

consideration of the issue of the amenability of the Board to the writ

jurisdiction of the High Court in the light of the law laid down in Pradeep

Kumar Biswas (supra). The High Court has also not gone into the merits

of the cases before it in view of its decision on the maintainability of the

writ petitions.

Taking all these circumstances into consideration, we are of the view that

the impugned judgments of the High Court are required to be set aside.

Hence, the following order:

We allow the appeals and setting aside the impugned judgments of

the High Court, remit LPA No. 182 of 1992, LPA No. 183 of 1993, writ

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petition, OWP No. 523 of 1995 and writ petition, SWP No. 930 of 1998 to

the High Court for hearing and decision in accordance with the law laid

down by this Court in Pradeep Kumar Biswas case (supra).

We have refrained from expressing any view on the apprehension

voiced by the learned counsel for the appellants that Section 20 of the 1988

Act bars civil suits and adjudications under labour laws. The High Court

shall, therefore, first consider the maintainability of the writ petitions under

Article 226 of the Constitution of India by examining whether the Shrine

Board is amenable to the writ jurisdiction of the High Court, by applying the

principles and tests laid down in Pradeep Kumar Biswas case (supra).

The High Court shall also consider whether any alternative remedy is

available to the writ petitioners by way of civil suit or industrial

adjudication. It shall be open to the High Court to take an appropriate

decision thereupon, including the relegation of the parties to the appropriate

remedy, if the High Court upon interpretation of the provision of Section 20

of the 1988 Act comes to the conclusion that such alternative remedy is

available to the writ petitioners before it.

In case the High Court takes the view that writ petitions are

tenable, and that no other equally efficacious alternative remedy is available

to the writ petitioners, then the High Court shall decide the writ petitions on

their merits.

Although, learned counsel have cited before us a large number of

authorities, we consider it unnecessary to refer to them in the view we are

inclined to take.

All contentions of the parties are kept open to be canvassed before the

High Court.

Considering that the writ petitions have been pending for quite some

time, and that they also pertain to cases of termination of services of

employees, it is preferable that the hearing of the writ petitions is expedited.

The High Court is requested to dispose of the writ petitions, preferably,

within a period of six months from the receipt of this judgment.