IMPORTANT POINT
Under the provisions of the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 the Governor of the State of Jammu & Kashmir is required to exercise his ex-officio power as Governor to oversee personally the administration, management and governance of Shri Mata Vaishno Devi Shrine, Shrine Fund and the properties vested in the Board and the Board is not a controlled Corporation within the meaning of Article 12 of the Constitution.

Headnote:(i) Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988-Sections 5, 9, 11 & 12-Constitutional validity of the Act-Challenged -Powers of Governor under the Act-Whether Governor exercises powers under the Act as executive head of State or in his official capacity as Governor of State of Jammu & Kashmir ?-Held, Governor is required to exercise his ex-officio power as Governor to oversee personally the administration, management and governance of Shri Mata Vaishno Devi Shrine, Shrine Fund and properties vested in Board-Decision is his own decision on his personal satisfaction and not on aid and advice of Council of Ministers.
       Held that the Governor of the State of Jammu and Kashmir is required to exercise his ex-officio power as Governor to oversee personally the administration, management and governance of Shri Mata Vaishno Devi Shrine, Shrine Fund and the properties vested in the Board. A non-Hindu Governor shall nominate an eminent Hindu as his deputy responsible for presiding over the meetings as Chairman to take decisions to be taken by the Board in the administration, management and governance of Shri Mata Vaishno Devi Shrine and the Shrine fund and sum total of properties attached or belonging to the Shrine within the premises specified in the preamble of the Act and all other properties belonging to the Shrine and vested in the Board. Sections 9, 11 and 12, as stated earlier, gives a clear indication in that behalf that the Governor is sovereign ex-officio holder of power, shall be responsible for proper, efficient and effective administration, management and governance of Shri Mata Vaishno Devi Shrine, Shrine Fund and sum total of the properties etc. Considered from this perspective, we hold that there is no scope to apprehend that the Board will misuse or abuse the power and mismanage the funds or properties of the Shrine. Even in case of such necessity, the Governor as the repository of sovereign power, would always have the assistance, in any given situation or case, to get the matter examined by an appropriate authority or officer or collect necessary information or material etc. The same having been placed before him for his decision. The decision is his own decision on his personal satisfaction and not 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 with his Council of Ministers headed by the Chief Minister. (Para 15)
       (ii) Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988-Section 19-Constitutional validity of the Act-Presumption in law is that an Act is valid-Burden to prove contra-Act abolishes customary right or duty of service as Baridar-Right to receive offerings has ceased-Claim of compensation-Whether State controls vesting of properties? -(No)-Whether Board is a controlled Corporation within the meaning of Article 12 of Constitution ?-(No)-Section 19(1) of the Act is not ultra vires of Article 19(1)(f) or Article 31(2) of the Constitution. [Constitution of India-Articles 19(1)(f) and 31(2)]
       Held : When the property, namely, right to receive offerings is extinguished by Section 19(1) of the Act, it does not vest in the State; on the other hand, the Board becomes entitled to the right to the collection, possession and management of the offerings given to the Shrine and provide welfare services and facilities to the pilgrims. The Governor exercises his statutory power as ex-officio Chairman of the Board, though he is the repository of State power by virtue of his office as Governor. Nonetheless, he exercise it in his capacity as Chairman, a distinct and separate function and power and not in the constitutional sense of the Cabinet system, of performing executive power the State Government has under the Constitution, with the aid and advice of the Council of Ministers headed by the Chief Minister. The power to supervise and to take remedial steps to correct mismanagement, abuse of power or incompetence to exercise the power or access of the power are only incidental to the management, administration or governance of Shri Mata Vaishno Devi Shrine, Shrine Fund and the properties including the collection and taking possession of the offerings. All are his individual performance of the statutory functions in his official capacity as Chairman of the Board and not as Governor. Therefore, by exercising the power under the Act, it is impermissible for the State to deal with the properties vested in the Board in terms of the Act; the Act does not permit the State to deal with the said properties as if they are the properties of the State acquired directly or indirectly through the medium of the Board. The extent of supervision permitted by the provisions of the Act is limited to and only to ensure proper, efficient, effective and responsible administration, management and governance of the Shrine, properties of the Shrine and Fund of the Shrine and nothing more. The degree of control required in clause (2A) of Article 31 is, therefore, missing in the Act. (Para 20)
       Further held; we have, therefore, no hesitation to hold that the Board is not a controlled Corporation within the meaning of Article 12 of the Constitution. By operation of clause (2A) of Article 31 of the Constitution the Board or the properties of the Shrine did not vest in the State. The right to collection of the offerings or the divestment of the properties, if any, of the Baridars or the right to collection or a share in the offerings do not vest in the State. Consequently, Section 19(1) of the Act is not ultra vires of Article 19(1)(f) or Article 31(2) of the Constitution. (Para 22)
       (iii) Constitution of India-Article 31(2A)-Acquisition of property-Acquisition in order to be valid must be for a public purpose-Person deprived of the same is entitled to compensation-In respect of property which was divested from him, right title and interest coupled with possession must be vested in State or beneficiary-Abolishing and/or extinction does not mean vesting. (Para 18)
       (iv) Words And Phrases-Word Control -Meaning-Constitution of India-Article 12 and clauses (2) and (2A) of Article 31-Expression Corporation owned or controlled by State -Word controlled has to be construed in light of preceding word owned -Control should be to such an extent as would amount to virtual ownership by the State-Control of State as envisaged in clause (2A), should have nexus with property transferred to Corporation. (Para 20)
       (v) Constitution of India-Article 367-General Clauses Act, 1897-Interpretation of Constitution-Unless the context otherwise requires, General Clauses Act, 1897, as modified, shall apply-There is no inconsistency in Constitution of Jammu and Kashmir and Constitution of India in application of Chapter II of Part VI of Constitution in relation to executive power of Governor of Jammu & Kashmir. (Paras 9 & 10)

JUDGMENT

K. Ramaswamy, J.-Leave granted.

2. All Hindus, in millions, of India from nook and corner and those settled abroad, go by foot or carriage, bearing all arduous journey and inconveniences, covering a distance of 16 miles from foothill of Katra to have darshan and blessings of Mata Vaishno Deviji. When the Legislature of the State of Jammu and Kashmir stepped in for effective and proper management of the shrine and convenience of the pilgrims and the shrine, it gave rise to the present litigation.

3. 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. 1328/96 and 1039/95. The appellants challenged the constitutionality of the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 (XVI of 1988) (for short, the "Act"). On March 17, 1986, the Governor, exercising the power of Section 92 of the Constitution of Jammu & Kashmir, promulgated Ordinance No. 1 of 1986 which got transformed into J & K Shri Mata Vaishno Devi Shrine Act, 1986, the Governor s Act and is now replaced by the Act. The Act has come into force by operation of Section 1(2) of the Act w.e.f. August 13, 1986, the date on which the said Ordinance had come into force.

4. The Preamble of the Act manifests that the Act came to be passed "to provide for the better management, administration and governance of Shri Mata Vaishno Devi Shrine and its endowments including the land and buildings attached, or appurtenant to the Shrine, beginning from Katra upto the holy cave and adjoining hillocks currently under the management of Dharmarth Trust". Section 2 gives to the Act overriding effect and envisages that the Act shall have effect, notwithstanding anything to the contrary contained "in any law or in any scheme of management, decree, custom, usage or instrument". The Act consists of, in all, 25 Sections. Section 3(a) defines the "Board" to mean "the Shri Mata Vaishno Devi Shrine Board constituted under this Act". Section 3(b) defines "Endowment" to mean all property. movable or immovable, including the idols installed therein. The important facet of this definition of "endowment" is that the sum total of properties belonging to, given or endowed for the maintenance, improvement, additions to or worship in the Shrine or for the purpose of any service or charity connected therewith including the idols installed therein, the premises of the Shrine, the lands and buildings attached or appurtenant thereto, beginning from Katra upto the holy cave and the adjoining hillocks, are the endowment of Mata Shri Vaishno Deviji. They all, as on the date of the Act, were endowment properties under the management of the Dharmarth Trust, or property belonging to Bandar or Bandars Association within the area specified in the Preamble of the Act. Section 3(c) defines "Shrine Fund" to mean the endowment and includes all sums received by or on behalf of the Shrine or for the time being held for the benefit of the Shrine; it an inclusive definition and details of the endowments described therein being not material, the same are omitted. Section 3(d) is relevant which defines the "Shrine" to mean the Shrine of Shri Mata Vaishno Devi Shrine and includes the Shrine, holy cave and other temples within the premises specified in the preamble of the Act. It would, thus, be clear that the Act was made to provide better management, administration and governance of Shri Mata Vaishno Devi Shrine, its endowments, all temples, and sum total of the properties, movable and immovable attached or appurtenant to the Shrine within the area specified in the preamble of the Act, notwithstanding the fact that there exist any law, scheme of management, decree, custom, usage or instrument to the contrary. The object of the Act, therefore, clearly is proper, efficient and effective management, administration and governance of the Shrine, its endowments and properties. All this is aimed to cater facilitie

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1997 Supreme(SC) 26

Cases Referred (15)