TMI Blog1997 (1) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrine. 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 the service of Hindu religion or culture; (ii) two women, who in the opinion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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 . Section 14 gives power to the Board to appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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 eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, 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 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 endowme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 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 satisfactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Vaishn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguage in that provisions and the scheme of the Act for removal of the Lokayukta, the Division Bench came to hold that the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion between ordinary acquisitions where law provides full compensation and large schemes of social engineering or reform which would have to be located at from the point of view of justice to the individual as well as to the community, is harmonised by the legal view. In the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
