# BHURI NATH AND ORS v. STATE OF JAMMU AND KASHMIR AND ORS

- **Citation:** [1997] 1 S.C.R. 138
- **Court:** Supreme Court of India
- **Decided:** 1997-01-10
- **Case number:** Civil Appeal No. 85 of 1997
- **Bench:** K. Ramaswamy, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhuri-nath-and-ors-v-state-of-jammu-and-kashmir-and-ors-15178
- **Pages:** 41

## Headnote

Jammu & Kashmir Shri Mata Vais/mo Devi Shrine Act, 1988: Sections
19 and 2, 4 to 14-Management, administration and govemance of Shri Mata
Vaishno Devi Shrine and Sl11ine Fund-Vested in Shri Mata Vaishno Devi
C Board-Offerings made by pilfi1ims to Slui Mata Vais/1110 Devi Shrin~Right
of Ba1idars to receiv~Extinguished--No provision in Act for compensation
to Balidw:1·for extinguishment of such 1ight-Held : S. 19 which extinguished
such right of Ba1idars not rendered ultra vires Arts. 19(1)([) and 31 which
eve11 after repeal were still available to residents of J&K-Governor exercised
D his statutory power under the Act as ex officio Chainnan of the Board and
not as executive head of State with aid and advice of Council of Minister~Act
regulated management, administration and govemance of Shrine and misuse
of power or mismanagement by Board could not be apprehended-Act effected
transfer of affairs of Shrine from Dhamiarth Trnst to Board and in the process
E it incidentally regulated right to collect offerings-Board not a "controlled"
Corporation under A1t. 12 and, therefore, not a "Corporation owned or controlled by State" withi11 mea11ing of Art. 31 (2-A), the degree of control required
in Cl. (2-A) missing in the Act-Hence, light to collect offerings did not vest
in Stat~There was 110 acquisition or transfer of ownership of right to collect
off e1ings to State under the Act-There[ ore, absence of provision for compenF sation to Baiidars would not render S. 19 violative of Arts. 19(1)([) and
31(2}-Constitution of India, 1950, A1ts. 19(1)([) & 31(2) (as applicable to
State of J&K), 31(2-A) and 12.
Section 5( 1) proviso and S.9-Board-Constitution of-Dissolution or
supersession of Board-To be reco11stituted within three month~In the
G inteTTegnum between dissolution or supersession and reconstitution, Govemor
exercised po.vers of Board-In a situation when Govemor was Non-Hindu,
govemance and management vested in executive govemment in cabinet rystem under tlte Co11stitution and, a Minister and/or for that matter, the Chief
Minister professing Islam would be in offic~Held : In such circumstances,
H functions under the Act could not be discharged by such Chief Minister/Min138
)
)
B. NATII v. STATE
139
ister under the Act.
Section 5(1) proviso and S. 9-Board-Dissolution and supersession
of-Procedure-Power of Govemo1~Held : Reconstitution of Board should
be within pe1iod of three months-If Govemor was non-Hindu, he would get
management done through Chief Executive who would always be a Hindu.
Constitution of I11dia, 1950: Articles 152, 153, 370, 367 a11d Schedule I Item
15.
Govemor of J&K-Executive power of-Held : Pait VI Chapter II
applicable---Constitutio11 of Jammu & Kashmir, Ss. 21 and 57-General
clauses Act, 1897, Ss. 3(23) and 61.
State/Union-Executive power of Exercise of power by President/GoverA
B
c
nor as executive head with aid and advice of Council of Ministers and
exercise of power in official capacity as President/Govemor--Distinction between-Held : Unless President/Govemor was required by" Constitution to
exercise power in his individual discretion, exercise of executive power, which D
was coextensive with legislative power, was with aid and advice of Council of
Ministers.
Article JI-Applicability of-To State of J&K-'Acquisition'-Ingredients of-Held: Alt. 31 applicable to State of J&K even after its deletion E
by 44th Amendment-'Acquisition' must be for public purpose and right, title
ad interest in property coupled with possession thereof must vest in State or
beneficiary-Abolition or extinction did not amount to vestinfj"Person
deprived of property must be entitled to compensatioll-Land Acquisition Act,
1894.
Article 31(2-A) (as applicable to State of J&K-'Corporation owned or
controlled by the 'State'-Meaning of-Held: Word 'controlled' in the context
meant total control to the extent of ownership by the State.
Interpretation of Statutes :
Presumption-Held: In favour of constitutionality of a statut~Burden
to prove co

## Text

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A
BHURI NATH AND ORS.
v.
STATE OF JAMMU AND KASHMIR AND ORS.
JANUARY 10, 1997
B
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]
Jammu & Kashmir Shri Mata Vais/mo Devi Shrine Act, 1988: Sections
19 and 2, 4 to 14-Management, administration and govemance of Shri Mata
Vaishno Devi Shrine and Sl11ine Fund-Vested in Shri Mata Vaishno Devi
C Board-Offerings made by pilfi1ims to Slui Mata Vais/1110 Devi Shrin~Right
of Ba1idars to receiv~Extinguished--No provision in Act for compensation
to Balidw:1·for extinguishment of such 1ight-Held : S. 19 which extinguished
such right of Ba1idars not rendered ultra vires Arts. 19(1)([) and 31 which
eve11 after repeal were still available to residents of J&K-Governor exercised
D his statutory power under the Act as ex officio Chainnan of the Board and
not as executive head of State with aid and advice of Council of Minister~Act
regulated management, administration and govemance of Shrine and misuse
of power or mismanagement by Board could not be apprehended-Act effected
transfer of affairs of Shrine from Dhamiarth Trnst to Board and in the process
E it incidentally regulated right to collect offerings-Board not a "controlled"
Corporation under A1t. 12 and, therefore, not a "Corporation owned or controlled by State" withi11 mea11ing of Art. 31 (2-A), the degree of control required
in Cl. (2-A) missing in the Act-Hence, light to collect offerings did not vest
in Stat~There was 110 acquisition or transfer of ownership of right to collect
off e1ings to State under the Act-There[ ore, absence of provision for compenF sation to Baiidars would not render S. 19 violative of Arts. 19(1)([) and
31(2}-Constitution of India, 1950, A1ts. 19(1)([) & 31(2) (as applicable to
State of J&K), 31(2-A) and 12.
Section 5( 1) proviso and S.9-Board-Constitution of-Dissolution or
supersession of Board-To be reco11stituted within three month~In the
G inteTTegnum between dissolution or supersession and reconstitution, Govemor
exercised po.vers of Board-In a situation when Govemor was Non-Hindu,
govemance and management vested in executive govemment in cabinet rystem under tlte Co11stitution and, a Minister and/or for that matter, the Chief
Minister professing Islam would be in offic~Held : In such circumstances,
H functions under the Act could not be discharged by such Chief Minister/Min138
)
)
B. NATII v. STATE
139
ister under the Act.
Section 5(1) proviso and S. 9-Board-Dissolution and supersession
of-Procedure-Power of Govemo1~Held : Reconstitution of Board should
be within pe1iod of three months-If Govemor was non-Hindu, he would get
management done through Chief Executive who would always be a Hindu.
Constitution of I11dia, 1950: Articles 152, 153, 370, 367 a11d Schedule I Item
15.
Govemor of J&K-Executive power of-Held : Pait VI Chapter II
applicable---Constitutio11 of Jammu & Kashmir, Ss. 21 and 57-General
clauses Act, 1897, Ss. 3(23) and 61.
State/Union-Executive power of Exercise of power by President/GoverA
B
c
nor as executive head with aid and advice of Council of Ministers and
exercise of power in official capacity as President/Govemor--Distinction between-Held : Unless President/Govemor was required by" Constitution to
exercise power in his individual discretion, exercise of executive power, which D
was coextensive with legislative power, was with aid and advice of Council of
Ministers.
Article JI-Applicability of-To State of J&K-'Acquisition'-Ingredients of-Held: Alt. 31 applicable to State of J&K even after its deletion E
by 44th Amendment-'Acquisition' must be for public purpose and right, title
ad interest in property coupled with possession thereof must vest in State or
beneficiary-Abolition or extinction did not amount to vestinfj"Person
deprived of property must be entitled to compensatioll-Land Acquisition Act,
1894.
Article 31(2-A) (as applicable to State of J&K-'Corporation owned or
controlled by the 'State'-Meaning of-Held: Word 'controlled' in the context
meant total control to the extent of ownership by the State.
Interpretation of Statutes :
Presumption-Held: In favour of constitutionality of a statut~Burden
to prove contra was on person challenging validity of statutes.
Words and Phrases : ''Acquisition''-Meaning of-In the context of
F
G
Alt.31 of the Constitution of India, 1950.
H
··~
140
SUPREME COURT REPORTS
[1997) 1 S.C.R.
A
"Corporation owned or controlled by the State''-Meaning of-In the
context of Alt. 31(2-A) ·of the Co11Stitutio11 of India, 1950.
The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988
was passed "to provide for the better management, administration and
governance of Shri Mata Vaishno Devi Shrine and its endowments includB ing the land and buildings attached, or appurtenant to the Shrine begin·
ning from·Katra up to the holy cave and adjoining hillocks currently under
the management of Dharmarth Trust". All the Shrine properties as on the
date of the Act, were endowment properties under the management of the
Dharmarth Trust, or property belonging to Baridar or Baridars' AssociaC tion within the specified in the Preamble of the Act. By operation of the
Act, the administration, management and governance of the Shrine and
the Shrine Fund were vested in Shri Mata Vaishno Devi Shrine Board.
All rights of Baridars stood extinguished from the date of commencement
of the Act vide Section 19(1) of the Act.
D
The appellants-Baridars challenged the constitutionality of the Act.
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 came up again the appellants-Baridars stated
E that they did not want rehabilitation. Instead the appellants-Baridars
preferred to receive compensation to be determined under Section 20 of
the Act. The appellants-Baridars pointed out the absence of guidelines fol'.·
determination of the compensation by the Tribunal to be appointed under
the proviso to Section 20 of the Act. Accordingly, this Court ordered that
F
the issue be left to the Governor to make appropriate guidelines to
determine the compensation. Pursuant thereto, guidelines framed by the
Governor were published in the State Gazette and placed on record.
The question before this Court was "whether Mata Vaishno Devi
Management Board is a controlled corporation?". If the finding was to go
G 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.
Disposing of the appeal, this Court
H
HELD : 1.1. The presumption in law is that an Act is valid and the
~-
)
B. NATH v. STATE
141
?
legislature does not intend to enact a law which is ultra vires the ConstituA
tion. The burden to prove contra is on the appellants to establish the
contrary. [166-F -G]
1.2. In interpretation of the Constitution, by operation of Article 367,
unless the context otherwise requires, the General Clauses Act, 1897 as
modified shall apply. Having regard to Sections 3(23) and 3(61) of the B
General Clauses Act as also Part IV, Chapters I and II and Schedule I
Item 15 of the Constitution it is clear that 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). There is no inconsistency in C
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. [159-A-C]
2.1. The Constitutional mechanism, i.e., Cabinet system of Government is devised for convenient transaction of business of the executive D
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 decisions 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 E
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 ConF
stitution 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. This is
subject to Article 370 and the Constitution (Application to Jammu &
Kashmir) Order, 1954 and the Constitution of Jammu & Kashmir, 1957 G
(Part V), [162-B-D]
R.K Jain v. Union of India, [1993] 4 SCC and S.R. Bommai & Ors.
v. Union of India & Ors., [1994] 3 SCC 1, referred to.
2.2. The legislature is aware of the above constitutional mechanism H
142
SUPREMECOURTREPORTS
[1997) 1 S.C.R.
A
of governance. Equally, the legislature of Jammu and Kashmir, while
i,
B
making the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988
would be presumed to be aware that similar provisions in the Endowment
Acts exist in other States in India. It would be, therefore, 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. The
Governor of the State of Jammu and Kashmir is required to exercise his
ex-officio power as Governor to oversee personally the administration,
C management and governance of Shri Mata Vaishno Devi Shrine, Shrine
Fund and the properties vested in the Shri Mata Vaishno Devi Shrine
Board. A non-Hindu Gover111or shall nominate an eminent Hindu as his
deputy responsible for presiding over the meetings as Chairman to take
decisions to· be taken by the Jlloard in the administration, management and
governance of Shri Mata Vaishno Devi shrine and Shrine fund and sum
D total of properties attached or belonging to the Shrine and vested in the
Board. Sections 9, 11 and 12 of the Act give a clear indication in that behalf
that the Governor as soveriegn ex-officio holder of power, shall be responsible for proper, efficient and effective administration, management and
governance of Shri Mata Vaishno Devi Shrine, Shrine Fund and sum total
E of the properties etc. Considered from this perspective there is no scope to
apprehend that the Board \\ill 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
F material etc. the same having been placed before him for his decision. The
decision is his own decision on his personal satisfaction and not on 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 filth his Council of
G Ministers headed by the Chief Ministers. [163-F -H, 164-A-F]
Hardwari Lal, Rohtak v. G.D. Tapase, Chandigarh & Ors., AIR (1982)
P&H 439 and Kiran Babu v. Government of Andhra Pradesh & Anr., AIR
Y
(1986) AP, 275, approved.
H
Ram Nagina Singh v. S. V. Soni, AIR (1976) Pat 39 and Mansingh
)
B. NATH v. STATE
143
)
Surajsingh Padvi v. State of Maharashtra, (1988) BLR 654, held inapplicable. A
3.1. For a period of three months from the date the Act came into
force, the Governor shall act 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 B
supersession and reconstitution, the Governor exercises the powers as the
Board. fa a situation when the Governor is a non-Hindu, and the governance and management vest in the executive Government in cabinet system
under the Constitution and, therefore, a Minister and/or for that matter,
the Chief Minister professing Islam are in office, such Chief Minister/MinC
ister could not discharge the functions under the Act. [157-D-F]
3.2. In the event of dissolution and supersession of the Board,
reconstitution of the Board should be done within a period of three
months. In case the Governor happens to be a non-Hindu, he obviously
gets the management done through the Chief Executive who would always D
be a Hindu. [158-D]
4.1. Section 2 of the A.ct gives overriding 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 E
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. By operation of Section 6, the Board is a body corporate with
perptual 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 F
Shrine. The management of the Shrine and the Shrine Fund stood vested
in the Board under Section 4. [169-D-E]
4.2. The appellants had the fundamental right to property guaranteed
by Article 19(1)(g) of the Constitution. Though the Constitution (44th G
Amendment) Act, 1978 which came into force w.e.f. 29.6.1979 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 State of Jammu and Kashmir.
Article 31 dealt with compulsory acquisition of property. 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 H
144
SUPREME COURT REPORTS
(1997) 1 S.C.R.
A the same is entitled to compensation. However, in respect of the property
which was divested from him, i.e., right, title and interest coupled with
possession must be vested in the State or beneficiary. Such deprived person
in entitled to compensation. It is equally settled law that abi11ishing and/or
extinction does not mean vesting. The two are distinct and separate.
B
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 State 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 appellant-Baridars were rendering
C pooja, a customary right which was abolished and vested in the Board. The
management, administration and governance of the Shrine always
remained with the Dharmarth Trust from whom the Board has taken over
the same for proper administration, management and governance. The
effect of the ena..:tment of the Act is that the affairs of the functioning of the
Shrine merely have got transferred from Dharmarth Trust to the Board.
D The Act merely regulates in that behalf; incidentally, the right to collect
offerings enjoyed by the Baridars by rendering service of pooja has been
put to an and under the Act. The State, resultantly, has not acquired that
right onto itself. [169-F-H, 177-E-H]
I
E
Bela Baneljee v. State of West Bengal, [1954) SCR 558; State of West
F
Bengal v. Kameshwar Singh, AIR (1952) SC 25Z; Chiranjit Lal Chowdhary
v. Union of India, [1950) SCR 669; State of West Bengal v. Subodh Gopal
Bose & Ors., [1954) SCR 587 and Dwarkadas Shrinivas of Bombay v. The
Sholapur Spinning & Weaving Co. Ltd. & Anr., [1954) SCR 674, relied on.
5. Reading clauses (2) and (2-A) of Article 31 together the expression
"Corporation owned or controlled by the State" clearly indicates that the
control should be total control which is as good ownership of the Corporation by the State. The word "controlled" has to be construed in the light of .
the preceding word "owned". The control should be to such an extent as
G would amount to virtual 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
H is only a conduit pipe itself to use the property as if it is owned by itself.
)
)
\
B. NATII v. STATE
145
The control of the State as envisaged in Clause (2A), should have nexus A
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 or 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 owh~r B
stand extinguished after taking possession of the land and is vested in the
State under Section 16 of the Act or the transferee-beneficiary free from
all encumbrauces. 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 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 C
the transfer of ownership of the property of Baridars to the State or to a
Corporation owned or controlled by the State. 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 Act deals with the property of a religious institution which D
cannot be owned by 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 receive offerings is extinguished by Section 19(1) of the Act, it does not vest in the State; on the E
other hand, the Board becomes entitled to the right to the collections,
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 Governor. F
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 G
exercise the power or access of the power are only incidental to the
management, administration or governance of Shri 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 H
146
SUPREME COURT REPORTS
(1997] 1 S.C.R.
A Governor. Therefore, by exercising the power under the Act, it is impermissible 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
B permitted by the provision of the Act is limited to and only to ensure
proper, efficient, effective and responsible administration, management
and governance of the Shrim!, 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, miss'ing in the Act. [172-H, 173-A-H, 174-A-D]
C
Gullapalli Nageswara Rao & Ors. v. Andhra Pradesh State Road
Transport Corporation & Anr., [1959] Supp. 1 SCR 319; Union of India v.
Sudhansu Mazumdar & Ors... [1971] Supp. SCR 244; Katra Education
Society, Allahabad v. State of U.P., AIR (1966) SC 1307; Badri Nath & Anr.
v. Mst. Punna (Dead) by LRs. & Ors., AIR (1978) SC 1314 and A.S.
D Narayana Deekshitulu v. State of A.P. & Ors., [1996] 9 SCC 548, relied on.
Shanisher Singh v. State of Punjab & Anr., [1974] 2 SCC 831; S.
Gurumukh.Singh v. Union of India & Ors., AIR (1 QC:?) Pun.143; C/Tv. V.K
Ramakrishnan, AIR (1968) Ker 156; Jn re : Kodur Thimma Reddi & Ors.,
AIR (1957) AP758 and Home Telephone & Telegraph Company v. City of
E Los Angeles, 57 L. ed. 510, referred to.
H.M. Seervai : "Constitutional Law of India", (3rd. Edu.), Vol. II, p
1109 para 30 and Black's Law Dictionary, (Sixth Edition) p. 329, referred
to.
F
6.1. 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
G offerings do not vest in State. Consequently, Section 19(1) of the Act is not
Ultra vires of Article 19(1)(t) or Article 31(2) of the Constitution. [177-A-B]
6.2. 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
H Section 19 of the Act. As the constitutionality of the Act has been upheld,
)
B. NATH v. STATE [RAMASWAMY, J.]
147
J
the Baridars are at liberty to file their claims within two months from the A
date of this judgment. The Tribunal shall have due regard to the guidelines
in determining the income of Baridars before the Tribunal makes its
recommendations to the Board for consideration and the Board shall also
take a decision, as it may deem appropriate, consistent with proviso to
Section 19(1) and the guidelines, in the light of the recommendations made B
by the Tribunal. 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 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 recom·
mendations of the Tribunal, it should record reasons in writing and would C
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 this judgment. The Tribunal would
dispose of the claims as expeditiously as possible since more than a decade D
has passed by now. [177-E-H, 178-A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 85 of 1997
Etc.
From the Judgment and Order dated 17.3.94 of the Jammu & E
Kashmir High Court in C.W.P. No. 1328 of 1986.
N.N. Bhat, Mahesh Aggarwal, G.P. Srivastava, Atul Sharma, E.C.
Agarwala for the Appellants.
S.K. Dholakia, P.P. Rao, J.S. Manhas, Subhash Sharma, Mulk Raj F
Vij, N.P. Sharma, Sunil Dogra, Ms. Monica Sharma, S.S. Shroff for S.A.
Shroff & Co. for the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Leave granted. All Hindus, in millions of India G
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 J ammu & Kashmir stepped in
for effective and proper management of the shrine and convenience of the H
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(1997] 1 S.C.R.
A
pilgrims and the Shrine, it gave rise to the present litigation.
B
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 Nos. 1828/96 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. 1of1986
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
C 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
D Shri Mata Vaishno Devi shrine and its endowments including the land and
buildings attached, or appurtenant to the Shrine, beginning from Katra
upto the holy cave and adjoining hillocks currently under the management
of Dharmarth Trust". Section 2 gives to the Act over-riding 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,
E custom, usage or instrument". The Act consists of, in all, 25 Sections,
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
p
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.
G 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
H for the benefit of the Shrine; it an inclusive definition and details of the
l
(
!
B.NATHv. STATE[RAMASWAMY,J.]
149
endowments described therein being not material, the same are omitted. A
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 withfo 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 B
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 C
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 commen- D
cement of this Act vest in the Board and the Board shall be entitled to its
possessic::, 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 E
with the 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 p
Governor shall nominate nine members in the manner,indicated therein,
viz., (i) two persons who, in the opinion of the Governor, have distinguished
themselves in the service of Hindu religion or culture; (ii) two women, who
in the opinion of the Governor, have distinguished themselves in the service
of Hindu religion, culture or social work, especially in regard to advancement of women; (iii) three persons, out of persons who have distinguished G
themselves in administration, legal affairs of financial matters; and (iv)' two
eminent Hindus of the State of Jammu and Kashmir. Under the proviso,
for a period not exceeding three months from the date the Act came intp
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 H 1
150
SUPREME COURT REPORTS
[1997] 1 S.C.R.
A not be eligible for being nominated as a members of the Board, if he suffers
Z
B
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
C provides that if "such person is not a Hindu" he becomes disqualified to be
or be appointed as a member. Clause (b) provides that 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
D 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 re-constitute another
E 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
F
G
10; the details thereof are not material for rile 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 date 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."
H
Section 13 gives liberty to the Board to maintain its office and hold
)
B. NATH v. STATE [RAMASWAMY,J.]
151
.«
meetings at the place as may be decided by it. The Governor and in his A
absence one of the members to be elected for the purpose, shall preside
at the meetings as Chairman. Coram of every meeting is prescribed under
sub-section (3) as 4 members. Sub-section ( 4) gives power to the members
of the Board to decide the matters by majority of votes and in case of
equality of votes, the person presiding "shall have a second or casting vote". B
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
.I
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 c
will not a person below the rank of a "Disllict Magistrate or 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 D
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 E
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 .
F
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 ( 1) without prior sanction of the
Board, no property, movable or immovable, shall not be transferred. Subsection (2) of Section 17 prohibits alienation of the properties including G
~
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 :
H
A
B
c
D
'E
152
SUPREME COURT REPORTS
[1997] 1 S.C.R.
"{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 representative.s 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 dqe regard to the income
which the Baridar ha,d 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 should be final.
Provided further that where the Baridar surrenders his right to
compensation and offers himself for employment to the Board, the
Board shall cause his suitability for S~\:h employment to be adjudged and may offer him employment in ca'se 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 dye-laws framed by the Board."
Under sub-section {2), all existing employees of Oh•r:narth Trust -
engaged in any functions connected with the'Shrine, unlc5s they opt to the
contrary, would be subject to the administration, disciplina1l con.trot of the
Board. The terms and conditions of service shall be regulated by the
bye-laws framed by the Board. By operation of sub-section (3), the tenants
or lease-holders who were till the commencement of the Act tenaiits/licenF see of the Dharmarth Trust are transposed to be tenants of the Board.
Section 20 prescribes bar of suits and other proceedings. Sectl~n:21 gives
power to the Board to make grants in favour of any institutimf for religious
spiritual purposes. Section 22. mandates auditing of the accounts of the 1
Board for every financial year by the Chartered Accountant to be
G nominated by the Board. Section 23 provides procedure for arbitration of _
any dispute arising between the Dharmarth 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 direct;d the Board to
H frame a scheme for rehabilitation of all the persons engaged in the perfor- . ·
,_.
.
-{
B. NATH v. STATE [RAMASWAMY, J.)
153
mance of Pooja at Shri Mata Valshno Devi Shrine and other temples to be A
displaced by the implementation of the Act. When the matter had come
up on March 20, 1995, Shri D.D. Thakur, learned senior counsel appearing
for Baridars, stated that Baridars do not want rehabilitation. Instead they
prefer to receive compensation to be 4etermined under Section 20. He
pointed out the absence of guidelines for determination of the compensaB
tion 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 C
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 D
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 Articl~ 19(1}(t) and Article 31 of
the Constitution of India by Sections 2 and 6 respectively of the Constitution (44th Amendment) Act, 1978 w.e.f. June 20, 1979 does not apply to E
the State of Jammu and Kashmir. The right to property is, theref~re 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 F
properties of the Shrine stand vested in the Government.