Holding

The Shri Mata Vaishno Devi Shrine Board is not a corporation owned or controlled by the State, so Section 19’s extinguishment of Baridars' rights is constitutionally valid.

Summary

The Supreme Court examined the constitutionality of the Jammu & Kashmir Shri Mata Vaishno Devi Shrine Act, 1988, which transferred management of the shrine and its endowments to a statutory Board and extinguished the hereditary rights of Baridars to receive offerings. The Baridars argued that the Board was a "controlled corporation" under Article 31(2‑A) of the Constitution, entitling them to compensation for the deprivation of property. The Court held that the Board, though a body corporate, was not owned or controlled by the State within the meaning of Article 31(2‑A), and the Governor exercised powers ex‑officio, not as the executive head of the State. Consequently, Section 19’s extinguishment of Baridars' rights was not ultra vires Articles 19(1)(g) or 31(2), and the Act was upheld. The Court directed that the Baridars may file compensation claims within two months, following the Governor’s guidelines and the Tribunal’s recommendations. The appeals were disposed of without costs.

Issues considered

The Shri Mata Vaishno Devi Shrine Board is a corporation owned or controlled by the State within the meaning of Article 31(2‑A).
Whether Section 19 of the Act, which extinguishes Baridars' rights to receive offerings, violates Articles 19(1)(g) and 31(2) of the Constitution.
Whether the Governor exercises his powers under the Act as the executive head of the State or in his ex‑officio capacity.
Whether the lack of a compensation provision renders the Act unconstitutional.

Legislation cited

Constitution (44th Amendment) Act, 1978
Constitution of Indias. Art. 12, s. Art. 152, s. Art. 153, s. Art. 154, s. Art. 155, s. Art. 156, s. Art. 157, s. Art. 158, s. Art. 162, s. Art. 163, s. Art. 166, s. Art. 19(1)(g), s. Art. 31(2), s. Art. 31(2‑A)
General Clauses Act, 1897s. 3(23), s. 3(61)
Land Acquisition Act, 1894s. 16

Subjects

Shri Mata Vaishno Devi Shrine Actcontrolled corporationArticle 31(2-A)BaridarscompensationGovernorex‑officiosecularismproperty rightsconstitutional lawJammu and Kashmirreligious endowments

Judgment

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

JANUARY 10, 1997
B
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Jammu & Kashmir Shri Mata Vais/mo Devi Shrine Act, 1988: Sections
19 and 2, 4 to 14-Management, administration and govemance of Shri Mata
Vaishno Devi Shrine and Sl11ine Fund-Vested in Shri Mata Vaishno Devi
C Board-Offerings made by pilfi1ims to Slui Mata Vais/1110 Devi Shrin~Right
of Ba1idars to receiv~Extinguished--No provision in Act for compensation
to Balidw:1·for extinguishment of such 1ight-Held : S. 19 which extinguished
such right of Ba1idars not rendered ultra vires Arts. 19(1)([) and 31 which
eve11 after repeal were still available to residents of J&K-Governor exercised
D his statutory power under the Act as ex officio Chainnan of the Board and
not as executive head of State with aid and advice of Council of Minister~Act
regulated management, administration and govemance of Shrine and misuse
ofpower or mismanagement by Board could not be apprehended-Act effected
transfer of affairs of Shrine from Dhamiarth Trnst to Board and in the process
E it incidentally regulated right to collect offerings-Board not a "controlled"
Corporation under A1t. 12 and, therefore, not a "Corporation owned or con-
trolled by State" withi11 mea11ing of Art. 31 (2-A), the degree of control required
in Cl. (2-A) missing in the Act-Hence, light to collect offerings did not vest
in Stat~There was 110 acquisition or transfer of ownership of right to collect
offe1ings to State under the Act-There[ore, absence of provision for compen-
F sation to Baiidars would not render S. 19 violative of Arts. 19(1)([) and
31(2}-Constitution of India, 1950, A1ts. 19(1)([) & 31(2) (as applicable to
State of J&K), 31(2-A) and 12.

Section 5( 1) proviso and S.9-Board-Constitution of-Dissolution or
supersession of Board-To be reco11stituted within three month~In the
G inteTTegnum between dissolution or supersession and reconstitution, Govemor
exercised po.vers of Board-In a situation when Govemor was Non-Hindu,
govemance and management vested in executive govemment in cabinet rys-
tem under tlte Co11stitution and, a Minister and/or for that matter, the Chief
Minister professing Islam would be in offic~Held : In such circumstances,
H functions under the Act could not be discharged by such Chief Minister/Min-
138
)

B. NATII v. STATE 139
)
ister under the Act. A
Section 5(1) proviso and S. 9-Board-Dissolution and supersession
of-Procedure-Power of Govemo1~Held : Reconstitution of Board should
be within pe1iod of three months-If Govemor was non-Hindu, he would get
management done through Chief Executive who would always be a Hindu.
Constitution of I11dia, 1950: Articles 152, 153, 370, 367 a11d Schedule I Item B
15.

Govemor of J&K-Executive power of-Held : Pait VI Chapter II
applicable---Constitutio11 of Jammu & Kashmir, Ss. 21 and 57-General
clauses Act, 1897, Ss. 3(23) and 61. c
State/Union-Executive power of Exercise of power by President/Gover-
nor as executive head with aid and advice of Council of Ministers and
exercise of power in official capacity as President/Govemor--Distinction be-
tween-Held : Unless President/Govemor was required by" Constitution to
exercise power in his individual discretion, exercise of executive power, which D
was coextensive with legislative power, was with aid and advice of Council of
Ministers.

Article JI-Applicability of-To State of J&K-'Acquisition'-In-
gredients of-Held: Alt. 31 applicable to State of J&K even after its deletion E
by 44th Amendment-'Acquisition' must be for public purpose and right, title
ad interest in property coupled with possession thereof must vest in State or
beneficiary-Abolition or extinction did not amount to vestinfj"Person
deprived of property must be entitled to compensatioll-Land Acquisition Act,
1894.
F
Article 31(2-A) (as applicable to State of J&K-'Corporation owned or
controlled by the 'State'-Meaning of-Held: Word 'controlled' in the context
meant total control to the extent of ownership by the State.

Interpretation of Statutes :
G
Presumption-Held: In favour of constitutionality of a statut~Burden
to prove contra was on person challenging validity of statutes.

··~
Words and Phrases : ''Acquisition''-Meaning of-In the context of
Alt.31 of the Constitution of India, 1950. H
140 SUPREME COURT REPORTS [1997) 1 S.C.R.

A "Corporation owned or controlled by the State''-Meaning of-In the
context of Alt. 31(2-A) ·of the Co11Stitutio11 of India, 1950.

The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988
was passed "to provide for the better management, administration and
governance of Shri Mata Vaishno Devi Shrine and its endowments includ-
B ing the land and buildings attached, or appurtenant to the Shrine begin·
ning from·Katra up to the holy cave and adjoining hillocks currently under
the management of Dharmarth Trust". All the Shrine properties as on the
date of the Act, were endowment properties under the management of the
Dharmarth Trust, or property belonging to Baridar or Baridars' Associa-
C tion within the specified in the Preamble of the Act. By operation of the
Act, the administration, management and governance of the Shrine and
the Shrine Fund were vested in Shri Mata Vaishno Devi Shrine Board.
All rights of Baridars stood extinguished from the date of commencement
of the Act vide Section 19(1) of the Act.

D The appellants-Baridars challenged the constitutionality of the Act.
This Court directed the Board to frame a scheme for rehabilitation of all
the persons engaged in the performance of Pooja at Shri Mata Vaishno
Devi Shrine and other temples to be displaced by the implementation of
the Act. When the matter came up again the appellants-Baridars stated
E that they did not want rehabilitation. Instead the appellants-Baridars
preferred to receive compensation to be determined under Section 20 of
the Act. The appellants-Baridars pointed out the absence of guidelines fol'.·
determination of the compensation by the Tribunal to be appointed under
the proviso to Section 20 of the Act. Accordingly, this Court ordered that
the issue be left to the Governor to make appropriate guidelines to
F determine the compensation. Pursuant thereto, guidelines framed by the
Governor were published in the State Gazette and placed on record.

The question before this Court was "whether Mata Vaishno Devi
Management Board is a controlled corporation?". If the finding was to go
G in favour of the appellants, they would be entitled to compensation for
deprivation of their right to receive offerings made by the pilgrims to Shri
Mata Vaishno Deviji.
~-

Disposing of the appeal, this Court

H HELD : 1.1. The presumption in law is that an Act is valid and the
)

B. NATH v. STATE 141

? legislature does not intend to enact a law which is ultra vires the Constitu- A
tion. The burden to prove contra is on the appellants to establish the
contrary. [166-F -G]

1.2. In interpretation of the Constitution, by operation of Article 367,
unless the context otherwise requires, the General Clauses Act, 1897 as
modified shall apply. Having regard to Sections 3(23) and 3(61) of the B
General Clauses Act as also Part IV, Chapters I and II and Schedule I
Item 15 of the Constitution it is clear that as regards the State of Jammu
and Kashmir, the distinction is made between the Governor ex-officio and
the Governor as executive head of the State, unless it is applied by exercise
of the power under Article 370(1), (i) and (d). There is no inconsistency in C
the Constitution of Jammu and Kashmir and the Constitution of India in
application of Chapter II of Part VI of the Constitution in relation to
executive power of the Governor of Jammu and Kashmir. [159-A-C]

2.1. The Constitutional mechanism, i.e., Cabinet system of Govern-
ment is devised for convenient transaction of business of the executive D
power of the State. Though constitutionally the executive power of the State
vests in the Governor, he does not, unless Constitution expressly conferred
on him, personally take the decision. The decisions are taken according to
business rules at different levels and ultimately the decision rests with the
authority specified in the business rules and is expressed to be taken in E
the name of the Governor. In substance and in reality, decisions are taken
by the Council of Ministers headed by the Chief Minister or the Minister
or Secretary as per business rules. But they are all expressed to be taken
by the Council of Ministers in the name of the Governor and authenticated
by an authorised officer. The Governor being the constitutional head of
the State, unless he is required to perform the function under the Con- F
stitution in his individual discretion, the performance of the executive
power, which is coextensive with the legislative power, is with the aid and
advice of the Council of Ministers headed by the Chief Minister. This is
subject to Article 370 and the Constitution (Application to Jammu &
Kashmir) Order, 1954 and the Constitution of Jammu & Kashmir, 1957 G
(Part V), [162-B-D]

R.K Jain v. Union of India, [1993] 4 SCC and S.R. Bommai & Ors.
v. Union of India & Ors., [1994] 3 SCC 1, referred to.

2.2. The legislature is aware of the above constitutional mechanism H
142 SUPREMECOURTREPORTS [1997) 1 S.C.R.

A of governance. Equally, the legislature of Jammu and Kashmir, while i,
making the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988
would be presumed to be aware that similar provisions in the Endowment
Acts exist in other States in India. It would be, therefore, apparent from the
scheme of the Act that the legislature, though having been aware of the
executive functions of the Governor, in Part VI, Chapter II of the Constitu-
B tion (Part VI of Jammu and Kashmir Constitution), as head of the State,
did not .entrust the power under the Act to the Governor under. the
mechanism of the Cabinet system devised under the Constitution. The
Governor of the State of Jammu and Kashmir is required to exercise his
ex-officio power as Governor to oversee personally the administration,
C management and governance of Shri Mata Vaishno Devi Shrine, Shrine
Fund and the properties vested in the Shri Mata Vaishno Devi Shrine
Board. A non-Hindu Gover111or shall nominate an eminent Hindu as his
deputy responsible for presiding over the meetings as Chairman to take
decisions to· be taken by the Jlloard in the administration, management and
governance of Shri Mata Vaishno Devi shrine and Shrine fund and sum
D total of properties attached or belonging to the Shrine and vested in the
Board. Sections 9, 11 and 12 of the Act give a clear indication in that behalf
that the Governor as soveriegn ex-officio holder of power, shall be respon-
sible for proper, efficient and effective administration, management and
governance of Shri Mata Vaishno Devi Shrine, Shrine Fund and sum total
E of the properties etc. Considered from this perspective there is no scope to
apprehend that the Board \\ill misuse or abuse the power and mismanage
the funds or properties of the Shrine. Even in case of such necessity, the
Governor as the repository of sovereign power, would always have the
assistance, in any given situation or case, to get the matter examined by an
appropriate authority or officer or collect necessary information or
F material etc. the same having been placed before him for his decision. The
decision is his own decision on his personal satisfaction and not on the aid
and advice of the Council of Ministers. The exercise. of the powers and
functions under the Act is distinct and different from those exercised
formally in his name for which responsibility rests only filth his Council of
G Ministers headed by the Chief Ministers. [163-F -H, 164-A-F]

Hardwari Lal, Rohtak v. G.D. Tapase, Chandigarh & Ors., AIR (1982)
P&H 439 and Kiran Babu v. Government of Andhra Pradesh & Anr., AIR Y-

(1986) AP, 275, approved.

H Ram Nagina Singh v. S. V. Soni, AIR (1976) Pat 39 and Mansingh
)
B. NATH v. STATE 143

) Surajsingh Padvi v. State of Maharashtra, (1988) BLR 654, held inapplicable. A

3.1. For a period of three months from the date the Act came into
force, the Governor shall act and exercise all the powers of the Board until
its constitution. Within three months, the Board has to be constituted or
reconstituted even when it is dissolved or superseded or its term expired
by efflux of time. During the interregnum between its dissolution or B
supersession and reconstitution, the Governor exercises the powers as the
Board. fa a situation when the Governor is a non-Hindu, and the gover-
nance and management vest in the executive Government in cabinet system
under the Constitution and, therefore, a Minister and/or for that matter,
the Chief Minister professing Islam are in office, such Chief Minister/Min- C
ister could not discharge the functions under the Act. [157-D-F]

3.2. In the event of dissolution and supersession of the Board,
reconstitution of the Board should be done within a period of three
months. In case the Governor happens to be a non-Hindu, he obviously
gets the management done through the Chief Executive who would always D
be a Hindu. [158-D]

4.1. Section 2 of the A.ct gives overriding effect to the Act over any
contrary law or any scheme of the management, decree, custom, usage or
instrument. The Act, therefore, abolishes the customary right or duty of E
service as Baridar and the receipt of offerings being conditioned upon
performing Pooja, he loses the right with cessation of performing service.
Right to receive offerings, by operation of Section 19(1) of the Act has
ceased. By operation of Section 6, the Board is a body corporate with
perptual succession and seal with a right to sue or be sued by or in the
name of the Board. The sum total of properties are of and vest in the F
Shrine. The management of the Shrine and the Shrine Fund stood vested
in the Board under Section 4. [169-D-E]

4.2. The appellants had the fundamental right to property guaranteed
by Article 19(1)(g) of the Constitution. Though the Constitution (44th G
Amendment) Act, 1978 which came into force w.e.f. 29.6.1979 deleted Article
19(1) (g) and Article 31 by operation of Sections 2 and 6 thereof, they would
still be available to the residents of the State of Jammu and Kashmir.
Article 31 dealt with compulsory acquisition of property. Acquisition has
the effect of deprivation and enjoyment of the property. The acquisition in
order to be valid must be for a public purpose and the person deprived of H
144 SUPREME COURT REPORTS (1997) 1 S.C.R.

A the same is entitled to compensation. However, in respect of the property
which was divested from him, i.e., right, title and interest coupled with
possession must be vested in the State or beneficiary. Such deprived person
in entitled to compensation. It is equally settled law that abi11ishing and/or
extinction does not mean vesting. The two are distinct and separate.
Deprivation of property is concomitant to acquisition in that context. The
B right to superintendence of management, administration and governance
of the Shrine is not the property which the State acquires. It carries with it
no beneficial enjoyment of the property to the State. The Act merely regu-
lates the management, administration and governance of the Shrine. It is
not an extinguishment of the right. The appellant-Baridars were rendering
C pooja, a customary right which was abolished and vested in the Board. The
management, administration and governance of the Shrine always
remained with the Dharmarth Trust from whom the Board has taken over
the same for proper administration, management and governance. The
effect of the ena..:tment of the Act is that the affairs of the functioning of the
Shrine merely have got transferred from Dharmarth Trust to the Board.
D The Act merely regulates in that behalf; incidentally, the right to collect
offerings enjoyed by the Baridars by rendering service of pooja has been
put to an and under the Act. The State, resultantly, has not acquired that
right onto itself. [169-F-H, 177-E-H]
I

E Bela Baneljee v. State of West Bengal, [1954) SCR 558; State of West
Bengal v. Kameshwar Singh, AIR (1952) SC 25Z; Chiranjit Lal Chowdhary
v. Union of India, [1950) SCR 669; State of West Bengal v. Subodh Gopal
Bose & Ors., [1954) SCR 587 and Dwarkadas Shrinivas of Bombay v. The
Sholapur Spinning & Weaving Co. Ltd. & Anr., [1954) SCR 674, relied on.

F
5. Reading clauses (2) and (2-A) of Article 31 together the expression
"Corporation owned or controlled by the State" clearly indicates that the
control should be total control which is as good ownership of the Corpora-
tion by the State. The word "controlled" has to be construed in the light of .
the preceding word "owned". The control should be to such an extent as
G would amount to virtual ownership of the Corporation by the State. The
ownership of the acquired property is through its Corporation owned by
the State. The Corporation is only a cloak. The State should be able to
deal with the property transferred to the Corporation by virtue of its
control as if it deals with property transferred to itself or the Corporation
H is only a conduit pipe itself to use the property as if it is owned by itself.
)
B. NATII v. STATE 145
)
The control of the State as envisaged in Clause (2A), should have nexus A
with the property transferred to the Corporation. Then only it may be said
that there was compulsory acquisition of the property by the State and the
property is owned by the Corporation owned or controlled by the State as
having been vested in it. Under the Land Acquisition Act, when the
property is acquired, the right, title and interest of the previous owh~r B
stand extinguished after taking possession of the land and is vested in the
State under Section 16 of the Act or the transferee-beneficiary free from
all encumbrauces. That would be total divestment of pre-existing right,
title and interest in the land by the previous owner and vesting of the same
in State or the Corporation controlled by the State. In order to attract
clause (2A) of Article 31, the law in question should, therefore, provide for C
the transfer of ownership of the property of Baridars to the State or to a
Corporation owned or controlled by the State. The impugned Act does not
transfer the ownership of the property of Baridars to the State or to a
Corporation owned by the State. It merely extinguishes the right of the
Baridars. The Act deals with the property of a religious institution which D
cannot be owned by State under the Constitution and which cannot be
. controlled by the State, like an owner, having regard to the basic feature
of secularism permeating the Constitution, which separates religion from
the State. When the property, namely, right to receive offerings is extin-
guished by Section 19(1) of the Act, it does not vest in the State; on the E
other hand, the Board becomes entitled to the right to the collections,
possession and management of the offerings given to .the Shrine and
provide welfare services and facilities to the pilgrims. The Governor exer-
cises his statutory power as ex-officio Chairman of the Board, though he
is the repository of State power by virtue of his office as Governor. F
Nonetheless, he exercises it in his capacity as Chairman, a distinct and
separate function and power and not in the constitutional sense· of the
Cabinet system, of performing executive power the State Government has
under the Constitution, with the aid and advice of the Council of Ministers
headed by the Chief Minister. The power to supervise and to take remedial
steps to correct mismanagement, abuse of power or incompetence to G
exercise the power or access of the power are only incidental to the
management, administration or governance of Shri Vaishno Devi Shrine,
Shrine Fund and the properties including the collection and taking pos-
session of the offerings. All are his individual performance of the statutory
functions in his official capacity as Chairman of the Board and not as H

\
146 SUPREME COURT REPORTS (1997] 1 S.C.R.

A Governor. Therefore, by exercising the power under the Act, it is imper-
missible for the State to deal with the properties vested in the Board in
terms of the Act; the Act does not permit the State to deal with the said
properties as if they are the properties of the State acquired directly or
indirectly through the medium of the Board. The extent of supervision
B permitted by the provision of the Act is limited to and only to ensure
proper, efficient, effective and responsible administration, management
and governance of the Shrim!, properties of the Shrine and Fund of the
Shrine and nothing more. The degree of control required in clause (2A) of
Article 31 is, therefore, miss'ing in the Act. [172-H, 173-A-H, 174-A-D]

C Gullapalli Nageswara Rao & Ors. v. Andhra Pradesh State Road
Transport Corporation & Anr., [1959] Supp. 1 SCR 319; Union of India v.
Sudhansu Mazumdar & Ors... [1971] Supp. SCR 244; Katra Education
Society, Allahabad v. State of U.P., AIR (1966) SC 1307; Badri Nath & Anr.
v. Mst. Punna (Dead) by LRs. & Ors., AIR (1978) SC 1314 and A.S.
D Narayana Deekshitulu v. State of A.P. & Ors., [1996] 9 SCC 548, relied on.

Shanisher Singh v. State of Punjab & Anr., [1974] 2 SCC 831; S.
Gurumukh.Singh v. Union of India & Ors., AIR (1 QC:?) Pun.143; C/Tv. V.K
Ramakrishnan, AIR (1968) Ker 156; Jn re : Kodur Thimma Reddi & Ors.,
AIR (1957) AP758 and Home Telephone & Telegraph Company v. City of
E Los Angeles, 57 L. ed. 510, referred to.

H.M. Seervai : "Constitutional Law of India", (3rd. Edu.), Vol. II, p
1109 para 30 and Black's Law Dictionary, (Sixth Edition) p. 329, referred
to.

F 6.1. The Board is not a controlled Corporation within the meaning of
Article 12 of the Constitution. By operation of clause (2A) of Article 31 of
the Constitution the Board or the properties of the Shrine did not vest in
the State. The right to collection of the offerings or the divestment of the
properties, if any, of the Baridars or the right to collection or a share in the
G offerings do not vest in State. Consequently, Section 19(1) of the Act is not
Ultra vires of Article 19(1)(t) or Article 31(2) of the Constitution. [177-A-B]

6.2. The guidelines framed by the Governor are by exercising the
rule-making power under Section 24 of the Act. So they acquired the status
as subordinate legislation and became integral part of the proviso to
H Section 19 of the Act. As the constitutionality of the Act has been upheld,
)
B. NATH v. STATE [RAMASWAMY, J.] 147

J the Baridars are at liberty to file their claims within two months from the A
date of this judgment. The Tribunal shall have due regard to the guidelines
in determining the income of Baridars before the Tribunal makes its
recommendations to the Board for consideration and the Board shall also
take a decision, as it may deem appropriate, consistent with proviso to
Section 19(1) and the guidelines, in the light of the recommendations made B
by the Tribunal. In case the Board does not find itself in agreement with
the recommendations made by the Tribunal, it would be required to state
its reasons in that behalf, give an opportunity to the Baridars through
their representatives or a counsel and then take a decision to pay compen-
sation as it may deem appropriate. In case it disagrees with the recom·
mendations of the Tribunal, it should record reasons in writing and would C
communicate the same to all the affected persons. This exercise should be
done within two months from the date of the receipt of the recommenda-
tions of the Tribunal. The Governor would appoint the Tribunal within six
weeks from the date of the receipt of this judgment. The Tribunal would
dispose of the claims as expeditiously as possible since more than a decade D
has passed by now. [177-E-H, 178-A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 85 of 1997
Etc.

From the Judgment and Order dated 17.3.94 of the Jammu & E
Kashmir High Court in C.W.P. No. 1328 of 1986.

N.N. Bhat, Mahesh Aggarwal, G.P. Srivastava, Atul Sharma, E.C.
Agarwala for the Appellants.

S.K. Dholakia, P.P. Rao, J.S. Manhas, Subhash Sharma, Mulk Raj F
Vij, N.P. Sharma, Sunil Dogra, Ms. Monica Sharma, S.S. Shroff for S.A.
Shroff & Co. for the Respondents.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Leave granted. All Hindus, in millions of India G
from nook and corner and those settled abroad, go by foot or carriage,
bearing all arduous journey and inconveniences, covering a distance of 16
miles from foothill of Katra to have darshan and blessings of Mata Vaishno
Deviji. When the Legislature of the State of J ammu & Kashmir stepped in
for effective and proper management of the shrine and convenience of the H
148 SUPREME COURT REPORTS (1997] 1 S.C.R.
l
A 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 Nos. 1828/96 and 1039/95. The appellants
challenged the constitutionality of the Jammu and Kashmir Shri Mata
B Vaishno Devi Shrine Act, 1988 (XVI of 1988) (for short, the "Act"). On
March 17, 1986, the Governor, exercising the power of Section 92 of the
Constitution of Jammu & Kashmir, promulgated Ordinance No. 1of1986
which got transformed into J & K Shri Mata Vaishno Devi Shrine Act,
1986, the Governor's Act and is now replaced by the Act. The Act has
C come into force by operation of Section 1(2) of the Act w.e.f. August 13,
1986, the date on which the said Ordinance had come into force.

The Preamble of the Act manifests that the Act came to be passed
"to provide for the better management, administration and governance of
D Shri Mata Vaishno Devi shrine and its endowments including the land and
buildings attached, or appurtenant to the Shrine, beginning from Katra
upto the holy cave and adjoining hillocks currently under the management
of Dharmarth Trust". Section 2 gives to the Act over-riding effect and
. envisages that the Act shall have effect, notwithstanding anything to the
contrary contained "in any law or in any scheme of management, decree,
E custom, usage or instrument". The Act consists of, in all, 25 Sections,
Section 3(a) defines the "Board" to mean "the Shri Mata Vaishno Devi
Shrine Board constituted under this Act". Section 3(b) defines "Endow-
ment" to mean all property, movable or immovable, including the idols
installed therein. The important facet of this definition of "endowment" is
p that the sum total .of properties belonging to, given or endowed for the
maintenance, improvement, additions to or worship in the Shrine or for the
purpose of any service or charity connected therewith including the idols
installed therein, the premises of the Shrine, the lands and buildings
attached or appurtenant thereto, beginning from Katra upto the holy cave
and the adjoining hillocks, are the endowment of Mata Shri Vaishno Deviji.
G They all, as on the date of the Act, were endowment properties under the
management of the Dharmarth Trust, or property belonging to Baridar or
Baridars Association within the area specified in the Preamble of the Act.
Section 3(c) defines "Shrine Fund" to mean the endowment and includes
all sums received by or on behalf of the Shrine or for the time being held
H for the benefit of the Shrine; it an inclusive definition and details of the

(
B.NATHv. STATE[RAMASWAMY,J.] 149

endowments described therein being not material, the same are omitted. A
Section 3(d) is relevant which defines the "shrine" to mean the Shrine of
Shri Mata Vaishno Devi Shrine and includes the Shrine, holy cave and
other temples withfo the premises specified in the preamble of the Act. It
would thus, be clear that the Act was made to provide better management,
administration and governance of Shri Mata Vaishno Devi Shrine, its B
endowments, all temples, and sum total of the properties, movable and
immovable attached or appurtenant to the Shrine within the area specified
in the preamble of the Act, notwithstanding the fact that there exist any
law, scheme of management, decree, custom, usage or instrument to the
contrary. The object of the Act, therefore, clearly is proper, efficient and
effective management, administration and governance of the Shrine, its C
endowments and properties. All this is aimed to cater facilities, sources
and comfort to the pilgrims who visit the Shrine.

Section 4 vests the ownership of the Shrine Fund in the Board
envisaging that "the ownership of the Shrine Fund shall, from the commen- D
cement of this Act vest in the Board and the Board shall be entitled to its
possessic::, administration and use for the purposes of this Act". The Board
!
gets constituted under Section 5. Sub-section (1) adumberates that the
administration, management and governance of Shri Mata Vaishno Devi
Shrine and the Shrine Fund shall vest in the Board comprising a Chairman
and not more than ten members. The composition thereof is elaborated E
with the mandatory language, viz., "shall be". Under clause (a) of sub-sec-
tion (1) thereof, the Governor of the State of Jammu and Kashmir, and if
the Governor be not a Hindu, then an eminent person professing Hindu
religion and qualified to be a member to be nominated by the Governor,
shall be the ex-officio Chairman of the Board. Clause (b) provides that a p
Governor shall nominate nine members in the manner,indicated therein,
viz., (i) two persons who, in the opinion of the Governor, have distinguished
themselves in the service of Hindu religion or culture; (ii) two women, who
in the opinion of the Governor, have distinguished themselves in the service
of Hindu religion, culture or social work, especially in regard to advance-
ment of women; (iii) three persons, out of persons who have distinguished G
themselves in administration, legal affairs of financial matters; and (iv)' two
eminent Hindus of the State of Jammu and Kashmir. Under the proviso,
for a period not exceeding three months from the date the Act came intp
force, the Governor shall "act as and exercise all the powers of the Board
1
under this Act". Sub"section (2) of Section 5 declares that a person shall H
150 SUPREME COURT REPORTS [1997] 1 S.C.R.

A not be eligible for being nominated as a members of the Board, if he suffers Z
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
B 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 disqualifica-
tions mentioned in clauses (a) to (i). Clause (a) is of importance and
C provides that if "such person is not a Hindu" he becomes disqualified to be
or be appointed as a member. Clause (b) provides that unsoundness of
mind declared by a competent court is a disqualification. Under clauses
(c) to (i) are enumerated various disqualifications, the details of which are
not material for the purpose of this case. Section 9 gives power to the
D Governor for dissolution and supersession of the Board. Sub-section (1)
says that "if in the opinion of the Governor, the Board is not competent to
perform or persistently makes default in performing the duties imposed on
it under this Act, or exceeds or abuses its powers, the Governor may, after
due enquiry and after giving the Board reasonable opportunity of being
heard, by order, dissolve or supersede the Board and re-constitute another
E Board in accordance with this Act". Thereafter, by operation of Section
9(2), the Governor "shall assume all the powers and perform all the
functions and' exercise all the powers of the Board for a period not
exceeding three months or until the constitution of another Board
whichever is earlier". Filling up of vacancies is provided for under Section
10; the details thereof are not material for rile present purpose. Under
F
Section 11, any member may resign his office by giving notice in writing to
the Chief Executive Officer of the Board and his office becomes vacant
from the date of acceptance of such resignation. Section 12 speaks of
"removal of a member" by the Governor. It reads as under :

G "12. Removal of a member. - The Governor may, for good and
sufficient reason, remove any member after giving him an oppor-
tunity of showing cause against such removal and after considering
the explanation offered therefor."

H Section 13 gives liberty to the Board to maintain its office and hold
)

B. NATH v. STATE [RAMASWAMY,J.] 151
.«
meetings at the place as may be decided by it. The Governor and in his A
absence one of the members to be elected for the purpose, shall preside
at the meetings as Chairman. Coram of every meeting is prescribed under
sub-section (3) as 4 members. Sub-section ( 4) gives power to the members
of the Board to decide the matters by majority of votes and in case of
equality of votes, the person presiding "shall have a second or casting vote".
Section 14 gives power to the Board to appoint officers and servants to
B
.. assist the Board. Under sub-section (1), the Board may appoint, for
efficient discharge of the functions assigned to it under the Act, a Chief
.I Executive Officer and such other officers and servants as it consider
necessary with such designation, pay etc. as the Board may determine from
time to time. Under the proviso, the Chief Executive Officer of the Board c
will not a person below the rank of a "Disllict Magistrate or the District" and
in the case of the Chief Accounts Officer, not below the rank of a "Deputy
Director of Accounts. The Chief Executive Officer shall be responsible for
proper and efficient management, administration and governance of the
Shrine, its funds and all arrangements for orderly, peaceful darshan of the
~· D
Deity by the pilgrims, their comfortable stay etc. The Accounts Officer
shall be responsible for sound financial management. The honest, efficient
and experienced officers shall be drawn from the bureaucracy for the
purpose on deputation basis. Subject to the bye_-laws made, by operation
of sub-section (2), the Chairman of the Board shall have the power to
transfer, suspend, remove or dismiss any officer or servant of the Board E
for the breach of discipline, for carelessness, unfitness, neglect of duty or
misconduct or for any other sufficient cause. An officer on deputation is
liable to be reverted to the parent cadre or Department in the Government.
.; Under Section 15, officers and servants of the Board are public servants .
F
Section 16 prescribes the liability of members. Section 17 prohibits
transfer or alienation of movable and immovable property without prior
sanction of the Board. Under sub-section ( 1) without prior sanction of the
Board, no property, movable or immovable, shall not be transferred. Sub-
section (2) of Section 17 prohibits alienation of the properties including
~ land or other immovable property except by resolution of.the Board.
G
~
Section 18 prescribes duties of the Board. Section 19 which is
material for the purpose of this case, extinguishes the rights of Baridars.
Sub-section ( 1) thereof reads as under : H
152 SUPREME COURT REPORTS [1997] 1 S.C.R.

A "{1) All rights of Baridars shall stand extinguished from the
date 'of commencement of this Act.

Provided that the Governor may appoint a Tribunal which shall
give personal hearing to the Baridars and representative.s of the
Board, shall recommend compensation to be paid by the Board in
B lieu of extinction of their rights. While making its recommendation
to the Board, the Tribunal shall have dqe regard to the income
which the Baridar ha,d been deriving as Baridars. The Board shall
examine the recommendations forwarded to it by the Tribunal and
take such decision as it may deem appropriate. The decision of
c the Board should be final.

Provided further that where the Baridar surrenders his right to
compensation and offers himself for employment to the Board, the
Board shall cause his suitability for S~\:h employment to be ad-
judged and may offer him employment in ca'se he is found suitable _
D by the Selection Committee to· be appointed for the purpose
subject to the Baridar giving an undertaking to the Board to abide
by the administration and disciplinary control of the Board in
accordance with dye-laws framed by the Board."

Under sub-section {2), all existing employees of Oh•r:narth Trust -
'E
engaged in any functions connected with the'Shrine, unlc5s they opt to the
contrary, would be subject to the administration, disciplina1l con.trot of the
Board. The terms and conditions of service shall be regulated by the
bye-laws framed by the Board. By operation of sub-section (3), the tenants
or lease-holders who were till the commencement of the Act tenaiits/licen-
F see of the Dharmarth Trust are transposed to be tenants of the Board.
Section 20 prescribes bar of suits and other proceedings. Sectl~n:21 gives
power to the Board to make grants in favour of any institutimf for religious
spiritual purposes. Section 22. mandates auditing of the accounts of the 1
Board for every financial year by the Chartered Accountant to be
G nominated by the Board. Section 23 provides procedure for arbitration of _
any dispute arising between the Dharmarth Trust and the Board. Section
24 gives power to make bye-laws·and Section 25 provides for repeal of the
Governor's Act No. XXIII of 1986.

By order dated January 16, 1995, this Court direct;d the Board to
H frame a scheme for rehabilitation of all the persons engaged in the perfor- .·
B. NATH v. STATE [RAMASWAMY, J.) 153

mance of Pooja at Shri Mata Valshno Devi Shrine and other temples to be A
displaced by the implementation of the Act. When the matter had come
up on March 20, 1995, Shri D.D. Thakur, learned senior counsel appearing
for Baridars, stated that Baridars do not want rehabilitation. Instead they
prefer to receive compensation to be 4etermined under Section 20. He
pointed out the absence of guidelines for determination of the compensa- B
tion by the Tribunal to be appointed under the proviso to Section 20 of the
Act. Accordingly, we ordered that the issue be left to the Governor to make
appropriate guidelines to determine the compensation. Pursuant thereto,
guidelines were framed by the Governor were published in the State
Gazette and placed on record on May 8, 1995. By order dated August 21,
1995, the controversy was limited to a question, as suggested by Shri C
Thakur thus : "whether Mata Vaishno Devi Management Board is a
controlled corporation?" If the finding was to go in favour of the appellants,
they would be entitled to compensation for deprivation of their right to
receive offerings made by the pilgrims to Shri Mata Vaishno Deviji. The
counsel were directed to file the written arguments. Accordingly, written D
arguments were filed by the counsel on both sides.

Shri D.D. Thakur contended that Shri Mata Vaishno Devi Board is
a controlled Corporation. The repeal of Articl~ 19(1}(t) and Article 31 of
the Constitution of India by Sections 2 and 6 respectively of the Constitu-
tion (44th Amendment) Act, 1978 w.e.f. June 20, 1979 does not apply to E
the State of Jammu and Kashmir. The right to property is, theref~re still a
fundamental right to the residents of Jammu and Kashmir. The Act does
not make either any provision for payment of compensation or principle
or guidelines for determination of compensation to· Baridars. The Board
being a controlled Corporation, as an arm of the Government, all the F
properties of the Shrine stand vested in the Government. 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 robe 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 cpntrol by the ~ate. The Governor.being the G
head of the executive, e:i.:ercises the po~ers of nominatiotfwith the aid and
,_. advice of the· CouIJcil of Ministers. The Chief Executive Officer, the
. -{
District M.igistratir and Chief. Accounts Officei, Deputy Director of Ac-
oeoyn~ are the 6Jovern111ent servants drawn from the different Departments
of the Governme11t&J'he"Go~rnor, there(pre, exercises executive power of H
154 SUPREME COURT REPORTS [1997) 1 S. C.R.
~.
A the State under the Constitution of the Jammu and Kashmir and Constitu-
tion 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
B conferred on the Hindu Governor are exercisable by virtue of the statute
as Governor. Therefore, in his capacity as the executive Head, the Gover-
"i
nor is ~equired 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
c the repository of executive power of the State. When the Governor super·
sedes 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 v. State of Punjab & Anr., (1974) 2 SCC 831 and
Ram Nagina Singh & 01~" v. Salmi & Ors., AIR (1976) Patna 39 para 5. He
D
also placed reliance on Mansingh Surajsingh Padvi v. The State of ~
Maharashtra, (1968) BLR 654; S. Gwmukh Singh v. Union of India & Ors.,
AIR (1952) Pun. 143; Home Telephone & Telegraph Company v. City of Los
Angeles, (57 L. ed. 510; 227 US SCR (1913) and a passage from Shri Kisha11
Singh & Ors. v. T71e State of Rajastha11 & Ors., [1955] 2 SCR 531 at 539. On
E the concept of control under the Act, he placed strong relian~ on the
meaning of the word 'control' in Block's Law Dictionary (6th E:dn.) at page
329 and T71e Commissioner of l11come-Tax1 Kerala, Emakulam v. V.K.
Ramakrisl111a11, AIR (1968) Kerala 156 bl re : Kodur T71i111ma 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. v. Mst. P111111a
F
(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 <loes not prescribe compensation for payment
nor it lay any principle to determine compensation. Therefore, the Act is
G 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
H an Act, should in law vest in the State, or in the Corporation owned or
B. NATH v. STATE (RAMASWAMY, J.) 155

-"' controlled by the State, under the Act. The properties or the offerings are A
not owned or controlled by the State. The Board is not a controiled
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
B
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 of 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 vest- c
ing the properties including the offerings, in the Board. The Board is a
statutory authority under the Act set up for better management, ad-
ministration and governance of the Shrine and its endowments including
the sum total of properties attached or appurtenanJ to the Shrine within
the premises specified in the preamble of the Act. The Board is composed D
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 does not suffer from any dis- E
qualification. The power to dissolve or supersede the Board or reconstitu-
tion o( 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. Sections 9, 11 and 12 of the Act, form back-drop or
,_. throw light as the key to understand the scheme. There is a distinction
F
between the Governor and the State Government. The analogous
provisions in similar Acts in other State like AP., Bihar, U.P. and Rajas-
than contain provision for interference by the political executive for super-
session or reconstitution of the Board and have vested that power in the
State Government. The State Legislature having been aware of that existing G
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
·4
the other hand, it has defined the "State Government". Therefore, when the
Governor exercises his powers under the Act, he exercises them in his H
156 SUPREME COURT REPORTS (1997) 1 S.C.R.

A official capacity as Governor and not as executive head of the Stat!!. hl · "-
support thereof, he placed reliance on Hardwari Lal, Rolltak v. G.fJ..
17iapase, Chandigarh & Ors., AIR (1982) P & H 439; Mr. Kira11 Babu v,
Govemment of Andhra Pradesh & Anr., AIR (1986) AP 275, He also
contended that supervising role of the Governor under Sections 9, 11 and
12 is limited to traditional role and responsibility of the sovereign to ensure
B proper m~nagement and responsible administration of the religious institu·
tions or endowments and of their properties and nothing inore. 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
c 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 Dhillakia, learned senior counsel for the State, contended that the
pr6perties 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 ,._
D
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
E exercises the ·powers under the Act as executive head of ch., C.•aL" ur in his
official capacity as the Governor of the State of Jammu & KashmiJ? 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 the Act regulates only better management, ad- .,..
ministration and governance of Shri Mata Vaishno Devi Shrine and its
F
endowments induding the lands and the hills attached and appurtenant to
the Shrine· within the premises specified therein, including the Shrine, holy
cave and other temples. They 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
G and use "for the purpose of the Act" and "for convenience, comfort or
benefit of the pilgrims" .. ....
\.-

The administration, management and governance of th~ Shrine and
the Shrine Fund are vested in the Board consisting of the Cflairman and
H nine members nominated by the Governor. Thi:: Governor is the ex-officio
B.NATHv. STATE [RAMASWAMY,J.] 157

Chairman. In case, the Governor happens to be a non-Hindu, his nominee, A
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 and participate in the
deliberations of the Board. In other words, he represents the Governor.
Nonetheless, the Governor bears responsibility for proper, efficient and B
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 condi-
tioned upon the qualification 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 C
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
form· 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 D
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 E
thereafter, it is the Governor that takes over the management and acts as
lhe Board. But a peculiar situation may arise when, suppose, the Governor
is a non-Hindu, and the governance and management vest ii), the executive
Government in Cabinet system under the Constitution. Who would in that
I
.situation assume the power of management? Suppose, a Minister and/or F
for that matter, the Chief Minister professing Islam are i~ ~ffice, could they
discharge the functions under the Act? Answer is obviously and de.finitely
'No".

Section 9 empowers the Governor to supersede or dissolve the
Board, when the Governor forms an opinion that the Board is not com- G
petent 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 ha$ bi:;~n empowered to supersede the Board. He is equally
emvowen;d to dissolve the Board. But before doing it, the Governor is H
158 SUPREME COURT REPORTS (1997] 1 S.C.R.

A 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.
B 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 p~wers 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
C in proper, efficient and effectil;e administration, management and gover-
nanc.e 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 Execu-
tive who would always be Hindus and they act under the directions of the
D 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 ex-
E planation 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
F
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
G 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
H of the Constitution, by operation of Article 367, unless the context other-
B.NATHv. STATE[RAMASWAMY,J.] 159

wise requires, the General Clauses Act, 1897 (for short, the "GC Act") as A
modified, shall apply. Section 3(23) of the GC Act defines "State Govern-
ment" to include both the Central Government and the State Government
and Section 3(61) defines "Slate Government", as regards anything done or
to be done, to mean the Governor. Part VI of the Constitution titled "The
State" consists of Chapter I "General":Chapter II "Executive", Chapter III B
"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 other requires, so as not to include the State -0f J ammu and
Kashmir. Thereby, as regards the State of Jammu and Kashmir, the dis-
tinction is made between the Governor ex-officio and the Governor as C
executive head of the State, unless it is applied by exercise of the power under
Article 370(1) and (d). Article 370(1) declares that "notwithstanding any-
thing in this Constitution", the provisions of article 238 shall not apply in
n~lation to the State of Jammu & Kashmir and clause ( d) states that subject
to such exception and modifications as the President may by order specify, D
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 J ammu and Kashmir, under
Item 15 read with Articles 1 and 4 of the Constitution, the territories, which E
immediately before the commencement of the Constitution was comprised
in the Indian State of J ammu and Kashmir is the State of Jammu and
Kashmir. Ihe Constitlition 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 F
inconsistency in the Constitution of Jammu and Kashmir and the Constitu-
tion 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 G
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 H
160 SUPREME COURT REPORTS (1997) 1 S.C.R.

A do1;s 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 dischar~es the functions under the Constitution with the aid and
B 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 (Applic.ation to Jammu &
Kashmir) Order, 1950 repealed and revised by the Constitution (Applica-
tion to Jam~u & Kashmir) Order, 1954 and the Constitution of Jammu &
C 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
D under the Cabinet system of Government, as embodied in.our.Constitution,
the Governor is the formal head· of the State. He exercises iii! 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
E · discretion. The satisfaction of the Governor for the el<'"rl:;,e 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
F 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 bis executive functions. In R.K Jain v. Union
of India, (1993) 4 SCC ·119, it was held that the Cabinet system is a
constitutional mechanism lo ensure that before important decisions are
G 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 Cabinet 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
H of business by each of the members of Cabinet of his Department and
)
B. NATHv. STATE [RAMASWAMY,J.] 161

requires to maintain secrecy in the performance of the decision makirig A
. process individually or collectively. They are also equally responsible in-
dividually and collectively for their acts and policies. The Cabinet, as i\
whole, is collectively responsible for the advice to the President and to the
Parliament and the people. In S.R. Bommai & Ors. v. Union of India &
• Ors., [1994] 3 sec 1 at page 238 in paragraph 313 and 314, this Court had B
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 subdr"
diriate to him in aq;ordance 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 C
the Prime Minister as elaborated under paragraphs 313 to 321. In Samsher
Singh 's case, this Court had held thus :

"Und.er the Cabinet system of Government as embodied in our
Constitution, the Governor is the constitutional or formal head of D
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 re-
quired by or under the Constitution to exercise his functions in his
discretion.
E
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 iri Article 123, viz., ordinance making power and all p
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 executiye powers of the State vested in the
Governor under Article 154(1) in the other case.-Oause (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 G
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) ofArticle 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 H ·
162 SUPREME COURT REPORTS [1997) 1 S.C.R.

A 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,
B personally take the decision. The decisions are taken according to business
rules at different levels and ultimately the decision rests with the authority
specified in the business rules and is expressed to be taken in 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
C 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 Constitu-
tion in his individual discretion, the performance of the executive power,
D which is co-extensive 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
E 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
F 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 an.d Section 80 empowers the
State Government to dissolve the Board. The Bombay Public Trusts Act,
G 1950 confers sil]lilar powers on the State Government under Sections 560,
56G, 56H and 56R. Orissa Hindu Religious Endowments Act, 1959 con-
tains similar provisions conferring power on the State Government, vide
Section 4 thereof, for constitution of the Board. The U .P. Shri Kashi
Vishwanath Temple Act, 1983 is yet another Act where the entire respon-
H sibility is saddled on the Governor.
)
B. NATH v. STATE [RAMASWAMY, J.] 163

It would be clear that the legislature entrusted the powers under the A
Act to the Governor in his official capacity. It expressly states that he 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 distins;tion between the Governor and executive
Government is made by the legislature in the relevant provisions in the Act. B
Under Sections 9, 11 and 12 of the Act, though the Governor acts as
repository of the r.overeign 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, D harmarth Trust was in
management and administration of the Shrine and the properties attached C
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. Sub- D
· sequently, 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 E
been effected pursuant to the directions issued by the Deputy Commis-
sioner 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
F
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, G
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 Constitu- H
164 SUPREME COURT REPORTS (1997] 1 S.C.R.

A tion. It appears, for the reasons stated supra, that the Governor of the
State of Jammu and Kashmir is required to exercise his as 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
B eminent Hindu as his deputy responsible for presiding over the meetings
as Chairman to take decisions to be taken by the Board in the administra-
tion, managem~nt 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 preamble of the Act and all
other properties belonging to the Shrine and vested in the Board. Sections
C 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
for proper, efficient and effective administration, management and gover-
nance 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
D 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 infor-
E mation 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 on the aid and advice of the Council of Ministers. The exercise of the
powers and functions under the .~::• is distinct and different from those
exercised formally in his name for which responsibility rests only with his
p 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
G 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 GovernmenP.is an
H authority quite distinct from the aut.hority of the Chancellor. The State
) I

B.NATIIv. STATE[RhMASWAMY,J.] 165

Government c;annot advise the Chancellor to act in a particular manner. A
The University, as a statutory body, autonomous in character, has been
given certain powers exercisable by the Chancellor in .his absolute discre-
tion without any interference from any qilarter. In the appointment of the
Vice-Chancellor or the Pro-Vice-Chancellor, the Chancellor is not re-
quired to consult the Council of Ministers. Though by virtue of his office B
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 c
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 power without any
interference from any quarter. Therefore, the office as a Chancellor held D
,.. 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. v. S. V. Soltni & Ors., AIR (1976)
Patna 36, the question was as to the appointment of the Lokayukta under
Section 3 of the Bihar Lokayukta Act, 1974 to be made by the Governor E
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 by 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 Governor, with the aid and advice F
of
of the Council Mini~ters, discharges the function in the appointment of
the Lokayukata 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 Mansi11g
Surajsinglt Padvi's case relates to the exercise of the power by the Governor G
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 under-
stand the scope of Schedule V to the Constitution in its relation to the H
166 SUPREME COURT REPORTS (1997] 1 S.C.R.

A 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 lid down therein is not correct in law.
B
The next question is : whether the Board is a controlled Corpora-
tion? 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
C capacity as Governor, draws his power, which flows from the statute, as
the repository of the State executive. He has control over the nomination
of the members to the Board, supersession, dissolution and reconstitution
1
oI the Board as well as administration, management and governance -0f Shri
Mata Vaishno Devi Shrine, Shrine Fund and the sum total of all the
D properties. He performs the functions with the assistance of the Chief
Executive Officer of the rank not below the District Magistrate and of ih::
Chief Accounts Officer of the rank not below Deputy Director of Ac-
counts. Government bureaucrats on deputation and all officers of the
Board are under the control and supervision of the Chief Executive Officer.
E Therefore, it is a controlled Corporation. Section 19 of the Act, while
extinguishing all rights of the Baridars from 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
F 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
G 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
dated 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
H that they perform Pooja and would appropriate part of the offerings. Their
B.NATHv. STATE[RAMASWAMY,J.] 167

right to perform Pooja is only customary right coming from generations. A
Section 2 of the Act gives over-riding effect to any custom, usage or
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 v. State of A.P. &
Ors., [1996] 9 SCC 548 at 604 Section 144 of the Andhra Pradesh Charitable B
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 of-
fended 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 C
to the person having faith and belief in the religion. The religion in 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
indiv.idual with what he regards as Cosmos, his Maker or his Creat~r which,
he believes, regulates the existence of insentient beings and the forces of D
the universe. Religion is not necessarily theistic. A religion undoubtedly has
its basis in a system of beliefs and doctrine which are ~egarded by those
who profess religion to be conducive to their spiritual well-being. Right to
religion guaranteed u·nder 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 E
the religious belief, faith, practice or custom. They 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
much 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 F
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 storic - 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 G
religion, secularism, therefore, consciously denounces all forms of super-
naturalism or superstitious belief or actions and acts which are not essen-
-.; tially or integrally matters of religion or religious belief or faith or religious
practice. Non-religious or anti-religious practices and anti-thesis to
secularism which seeks to contribute in some degree to the process of H
168 SUPREME COURT REPORTS (1997) 1 S.C.R.

A 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
B and maintenance of charitable and Hindu religious institutions and endow-
ments 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
C 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 e:xtent 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
D 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
E abolished by sovereign legislature, it can equally regulate the service con-
ditions sequel to the abolition of the hereditary right of suu::ssion 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
F on par with other members of the establishment. Abolition of emoluments -,L I

,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 thf: religion. It was, therefore, held that the legislature has P'-·.ver 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
G 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
H nature priestly or req11ired a personal qualification. All of them were of
B. NATHv. STATE[RAMASWAMY,J.] 169

non-religious or secular in character which could be performed by the A
Baridar's agents 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 and duties of a shebait. The Baridars are not B
managers of the Shrine in the sense that a shebait is in relation to a temple
in his charge. The right to a 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 C
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 managements, decree, customs, usage or
instrument. The Act, therefore, abolishes the customary right or duty of
. service as Baridar and the receipt of offerings being conditioned upon D
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 E
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 Shine. 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 F
the Constitution (44th Amendment) Act, 1978 which came into force w.e.f.
J~e 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
State of Janunu and Kashmir. In Bela Banerjee v. 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 G
'compensation' must mean a full and fair money equivalent. The same ratio
was followed in State of West Bengal v. Kameshwar Singh, AIR (1952) SC
252. The Constituiion (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 .r H
170 SUPREME COURT REPORTS [1997] 1 S.C.R.

A operative in the filed when the Act was enacted. They read as under:

"3L Compulsory <1cquisition of property - (1) No person shall be
· deprived of his property save by authority of law.

(2) No property shall be cumpulsorily acquired or requisitioned .
B 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
c 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 otherwise than in cash :

Provided that in making any law providing for the compulsory
acquisition of any property of an educational institution established
D 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 c ·· ti1e owner-
E ship 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."
F
In Chara11jit Lal Chowdhary v. U11io11 of !11dia, (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
G nothing in the former, In State of West Be11gal v. 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 ont the scope of contents, and under- .\-
stood as dealing with the same subject, viz., the protection of the right to
property by means of limitations on tk State's power. Wider meaning,
H therefore, was given to the word 'acquisition'. Deprivation contemplated
)
B. NATI! v. STATE [RAMASWAMY, J.] 171

therein was interpreted to mean divesting title and vesting it in the State A
and the word 'requisition' to mean taking possession of the property other
than by acquisition of the property mentioned in clau~e (2) of Article 31.
Same view was expressed in Kameshwar Singh's case (supra). In Dw01*adas
Sluinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd. & Anr.,
[1954] SCR 674, it was held that acquisition was a quite wider concept, B
meaning thereby procuring of the property and takini:-of it permanently or
temporarily. It was not confined only to the acquisiti!m 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 provid~s that where
law does not envisage transfer of ownership or right to possession of any C
property to the State or to a Corporation owned or controlled by {he State,
which shall not be deemed to provide for the compulsory acquisition or
requisition of the property, notwithstanding that, it dep;ives 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 D
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, i.e., right, title and interest coupled with possession must be
vested in the \State Jor beneficiary. Such depraved person in entitled to E
compensation. It is equally settled law that abolishing and/or extinction
does not mean vesting. The two are distinct and separate. Deprivation of
, is concomitant to acquisition in that context. The right to super-
property
intendence of management, administration and governance of the Shrine
is not the property which the State acquires. It carries with it no beneficial F
enjoyment of the property to the State. The Act merely regulates the
management, administration and governance of the S¥rine. 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 whom the Board has taken over G
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 transfered from Dharmarth Trust
to the Board. The Act merely regulates in that behalf; incidentally, the right
to collect offerings enjoyed by the Baridarans by rendering service of pooja H
172 SUPREME COURT REPORTS [1997) 1 S.C.R.

A has been put it 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
exercises, as the repository of the State power or State executive power in
the matter of nomination of nine members of the Board, the superses-
B sion/dissolution and reconstitution of the Board and filling up of the
vacancies of appointment of a new post and taking care of the manage-
ment, 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.
c
It is true that the word "control", as defined in Black's law Dictionary
(Sixth Edition) at page 329, means as 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,
D direct, superintend, restrict, regulate, govern, administer or oversee. The
a
ability to exercise restraining or directing influence over something". In
S. Gunnukh Si11gl1 '· 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 hiin. The Government
is for all practical purposes synonymous with the Executive of the country.
E H 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 Constitu-
tion. Therefore, the State is synonymous with the President or, at any rate,
F includes his official personality when acts of the State are under Article 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 had 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.
G 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
H or controlled by the State" clearly indicates that the control should be total
)
B. NATH v. STATE [RAMASWAMY, J.] 173

control which is as good as ownership of the Corporation by the State. The A
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 is owned by itself. The control of the B
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 or controlled by the State as having been
vested in it. Under the Land Acquisition Act, when the property is ac-
quired, the right, title and interest of the previous owner stand extinguished C
after taking possession of the land and is vested in the State under Section
16 of 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 Corpora-
tion controlled by the State. In order to attract clause (2A) of Article 31, D
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. Th~re 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 E
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 controlledbyJhe. 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 extent as would amount to virtual
ownership by the State as indicated above. In the instant case, the Act deals F
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 proper-
ty, namely right to receive offerings is extinguished by Section 19(1) of the G
Act, it does not vest in the State; on the other hand, the Board be.comes
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 H
174 SUPREME COURT REPORTS [1997] 1 S.C.R.

A of his office as 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
B supervise and to take remedial steps to correct mismanagement, abuse of
power or incompetence to exercise the power or access of the 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
C of the Board and not as Governor. Therefore, by exercising the power
under the Act, it is impermissible for the State to deal with the properties
vested in the Board in terms of the Act; the Act does not permit the State
to deal with the said properties as if ihey are the properties of the State
acquired directly or indirectly through the medium of the Board. The
D extent of supervision permitted by the provisions of the Act is limited to
and only to ensure proper, -efficient, effective and responsible administra-
tion, 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.

E In Gullapalli Nageswara Rao & Ors. v. A11dhra Pradesh State Road
Transport Corporation & Anr., [1959) Supp. 1 SCR 319 it was contended
j

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
F 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 68C
enabled the Governmynt to frame a scheme and give effect to the approved
scheme in respect of a notified area or a notified route and stop the private
G operations 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 ,1--
the permit ineffective from the specified date. The impugned provision was
held to be a regulated power conferred on the Transport Authority in the
H interest of the public for efficient, economical and co-ordinate regulated
)
B. NATH v. STATE (RAMASWAMY, J.) 175

service offered by the STU. The business of the private operators and the A
STU has nothing to do with one another. They are two independent
businesses carried on under two different licences. The contention that the
scheme enabled the nominee of the State to do the business and, thereby,
in effect and substances transfer the business on the existing permit
holders to the STU was held to be not correct. The contention was held B
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
carries 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 wae held that. the State has no
control and it is not an acquisition on behalf of the State. In Union of India c
v. Sudhansu Mawmdar & Ors., (1971] Supp. SCR 244, on September 10,
1958 an agreement was entered into between the Government of India and
Pakistan called the "Inda-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 D
).. Pakistan. It was contended that it was an acquisition without compensation
violating Article 31(1) and (2) of the Constitution. This Court by a Con-
stitution Bench had held that in order to constitute acquisition or requisi-
tion, there must be transfer or of ownership or of right to possession of
any property to the State or Corporation owned or controlled by the State. E
It was held that the effect on 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 F
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 v. State of U.P., AIR (1966) SC 1307 at 1311
the contention was that Section 16F(4) of th.o U.P. Intermediate Education
Act, 1921 violated their fundamental right under Articles 14, 19 or 31 of G
the Constitution. It was contended that siqce the scheme of management
did not provide for any compensation, it was ultra vires the. Constitution.
The Constitution Bench rejected the co~tention by holding that the educa-
tional authorities, after considering the representation of the management,
had the power to make recommendation after selection. The power to H
176 SUPREME COURT REPORTS [1997] 1 S.C.R.

A appoint persons possessed of prescribed qualifications vests in the institu-
tion. 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
160(3) of the Ad with a view to prevent appointment of unqualified
B persons. 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 Controller. It was held that the property did not vest in the
State but continued to remain the property of the institution as Article
C 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 full compensation and large schemes of
D social engineering or reform which would have to be located at from the
point of view of justice to the individual as well as to the community, is
harmonised by the legal view. In the afterlight of Bela Baneljee'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 Ba;,eljee's case showed
E that the intention of the framers failed because it was not expressly em-
bodied in Article 31(2). IJbviously, 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 Baneljee's case that compensation under Article
F 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 Amend-
ment would have failed in its purpose. By excluding a challenge on the
ground that the compensation provided by the law was not adequate, the
4th Amendment removed the restriction on legislative power in the sense
G 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 inade-
H quate compensation. On consideration of above provisions, we have, there-
)
B. NATH v. STATE [RAMASWAMY, J.] 177

fore, no hesitation to hold that the Board is not a controlled Corporation A
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, B
Section 19(1) of the Art is not ultra vires of Article 19(1)(t) 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 representatives of the Board, "shall recommend compensation to C
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 driving as Baridars". The Board shall
examine the recommendations forwarded to it by the Tribunal and take
such decision as it may deem app~opriate. The decision of the Board shall D
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 them to lay claims for compensation. It would
_ appear that while the matter remained pending, the Baridars do not seem
to have laid their claims. The guidelines framed by the Governor are by E
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 p
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 G
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 H
178 SUPREME COURT REPORTS [1997) 1 S.C.R.

A persons. This exercise should be done within two months from the date of
the receipt of t~e 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 had passed by now.

B Tlie appeals are a_ccordingly /disposed of but, in the circumstances,
there is no order as to costs.

v.s.s. appeals are dispose& of.