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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.