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2004 (9) TMI 694

..... the same judgment of the Division Bench of the High Court of Jammu & Kashmir which allowed the Letters Patent Appeals of the respondents. A popular Hindu Shrine in Jammu thronged by devotees all round the year, Mata Vaishno Devi is situated on the Trikuta Hills, approximately 45 kilometers from Jammu city. The Shrine was originally managed by a trust known as 'Dharmarth Trust', which managed, not only the affairs of the shrine, but also looked after the welfare of the pilgrims. The actual duties of performance of Pooja and protection of the Shrine were carried out by Baridars, who belonged to the two villages in the vicinity of the Shrine. With the popularity of the Shrine increasing, there was an exponential increase in the number of pilgrims visiting the Shrine. When the number of devotees visiting the Shrine became unmanageable, there were complaints with regard to administration and management of the temple, and the facilities made available for the pilgrims. This led to the enactment of 'The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1986' (Governor's Act No. XXXIII of 1986) which was replaced by an Act of Legislature, passed in 1988, (Act No. .....

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..... lant was shifted from the original shop allotted to him by the Dharmarth Trust to a new shop constructed by the Board. According to the appellant, the new shop premises were smaller in area and there was also interference in his day to day business by the officers of the Board, who were bent upon throwing him out therefrom, so that they could extract higher rent from a new tenant. The appellant filed a writ petition in the High Court of Jammu & Kashmir being OWP No. 184/94, which was disposed of by a learned Single Judge of the High Court with the direction that the Board shall consider an appropriate representation of the petitioner with regard to his grievance. Soon thereafter, on 10.7.1995, the Board gave a notice informing him that he had failed to file a representation, as directed by the High Court, and, that unless he signs an agreement with the Board within three days, he would be subjected to further action as deemed appropriate. The petitioner protested against this notice and followed it up by another writ petition OWP No. 523/95 before the High Court by which he asked for various reliefs, including the relief of quashing the notice issued to him and a mandamus to th .....

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..... mandamus and a direction to the Board to reinstate them with full back wages and all consequential benefits. This writ petition was opposed by the first Respondent Board. A learned Single Judge partly allowed the writ petition and granted reliefs to some of the employees and rejected reliefs to the other employees. The employees who were refused reliefs filed LPA No. 182 of 1992 before the High Court. The Board filed LPA No. 183 of 1992 challenging the reliefs granted to some of the employees. By a common judgment dated 27.1.1999 the Division Bench of the High Court dismissed the LPAs. by holding: "The Board does not satisfy the tests laid down by the Supreme Court referred to in the preceding part of this judgment. It is not State within the meaning of Article 12 of the Constitution of India. Therefore, writ petition is not maintainable. Having said so, we need not examine merits of impugned orders of termination passed against the petitioners. Preliminary objections raised by the Appellant succeeds." The aggrieved employees are before this Court by these appeals. Special Leave Petition (Civil) No. 8192 of 2001: The petitioner was appointed as a Chowkidar on 6.10.1978 i .....

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..... , the appellants in this case chose to move the High Court by their writ petitions under Article 103 read with Article 10 of the Constitution of Jammu and Kashmir (corresponding to Article 226 of the Constitution of India). Counsel urge that it is unfortunate that the High Court has erroneously held that the Shrine Board is not even amenable to the writ jurisdiction, as it is not "State" within the meaning of Article 12 of the Constitution of India. In the submission of the learned counsel, the High Court has fallen into error on two counts. First, in considering itself bound by certain pronouncements of the decision of this Court in Bhuri Nath and Ors. v. State of J & K and Ors. although, the observations were made in a totally different context, wholly distinguishable, and do not lay down the proposition of law as understood by the High Court. Secondly, for deciding the issue as to whether the Shrine Board was "State", the High Court has applied certain tests which are erroneous, and failed to apply other tests which have now been held necessary in view of the judgment of a Bench of Seven learned Judges of this Court rendered in Pradeep Kumar Biswas v. Ind .....

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..... ly to the Jammu & Kashmir area. Bhuri Nath (supra) examined the scheme of the 1988 Act and noticed that under sub section (1) of Section 19, all rights of Baridars stood extinguished. It was contended on behalf of the Baridars that repeal of Articles 19(1)(f) and 31 of the Constitution of India by the Constitution (Forty-fourth) Amendment Act, 1978, w.e.f. 20.6.1979, does not apply to the State of Jammu & Kashmir; the right to property continued to be a fundamental right of the residents of Jammu & Kashmir; the 1988 Act made no provision for payment of compensation or guidelines for determination of compensation to Baridars, whose rights are extinguished; the Board being a controlled Corporation, is an arm of the Government; all the properties of the Shrine stand vested in the Government. They relied on several provisions of the 1988 Act with regard to the constitution of the Board in order to contend that the Board is a "State-controlled Corporation". The Baridars further contended that, offerings and other properties were acquired under the 1988 Act and got vested in the controlled Corporation, viz., the Board. For their abolition, the Baridars were entitled .....

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..... and power exercised under the Act by his role as ex officio Chairman. The Division Bench of two learned Judges raised the question, "when the Governor discharged this function under the Act as executive head of the State, is it with the aid and advise under the Council of Ministers or in his official capacity as the Governor?" The Division Bench answered the question and said, "the exercise of power and functions under the Act is distinct and different from those exercises formally in his name with Council of Ministers headed by the Chief Minister." Finally, taking up the question whether the Board is a "Controlled Corporation" within the meaning of clause (2-A) of Article 31, after examining the provisions of the 1988 Act in detail, and noticing the judgments in Gullapalli Nageswara Rao v. A.P. SRTC and Union of India v. Sudhansu Mazumdar , it was observed thus in Paragraph 33: "33. In Constitutional Law of India by H.M. Seervai (3rd Edn.), Vol.II, at p. 1109 in para 30, it is stated that distinction between ordinary acquisitions where law provides full compensation and large schemes of social engineering or reform which would have to be located .....

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..... ts and holds that the Shrine Board is not amenable to the writ jurisdiction of High Court under Article 226 of the Constitution of India. In our view, the contention has no merit. Bhuri Nath was not concerned with the issue as to whether the sweep of Article 226 could extend to the Shrine Board. As already pointed out, the question before the court was whether the right to property of the Baridars had merely been extinguished or it had been transferred to a 'State controlled Corporation', which would determine whether the Baridars had a right to compensation or not. This, in turn, would determine the constitutional validity of the 1988 Act, which prescribed no principles or guidelines on which compensation was to be paid to the Baridars, whose rights were extinguished. None of these issues touched the question whether the Shrine Board was amenable to the writ jurisdiction of the High Court. All that was decided is that the Shrine Board is not a 'State controlled Corporation'. This issue, per se, is not determinative of the issue as to whether the Shrine Board is amenable to the writ jurisdiction of High Court under Article 226 of the Constitution of India. The sweep .....

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..... of the Board to the writ jurisdiction of the High Court in the light of the law laid down in Pradeep Kumar Biswas (supra). The High Court has also not gone into the merits of the cases before it in view of its decision on the maintainability of the writ petitions. Taking all these circumstances into consideration, we are of the view that the impugned judgments of the High Court are required to be set aside. Hence, the following order: We allow the appeals and setting aside the impugned judgments of the High Court, remit LPA No. 182 of 1992, LPA No. 183 of 1993, writ petition, OWP No. 523 of 1995 and writ petition, SWP No. 930 of 1998 to the High Court for hearing and decision in accordance with the law laid down by this Court in Pradeep Kumar Biswas case (supra). We have refrained from expressing any view on the apprehension voiced by the learned counsel for the appellants that Section 20 of the 1988 Act bars civil suits and adjudications under labour laws. The High Court shall, therefore, first consider the maintainability of the writ petitions under Article 226 of the Constitution of India by examining whether the Shrine Board is amenable to the writ jurisdiction of the High Cou .....

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