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Judgment
Muzaffar Hussain Attar
The Trikuta hills of Katra in Reasi District in the State of Jammu and Kashmir are the abode of Shri Mata Vaishno Devi Ji. It is one of the most
revered places of worship in India. Millions of people, who follow Hinduism, with the earnest and avowed purpose of having blessings and
Darshan of Shri Mata Vaishno Devi Ji (in Hinduism also known as Mata Rani and Vaishnavi, manifestation of Mother Goddess), after undertaking
long journeys, reach Katra and then to the Shrine of Shri Mata Vaishno Devi. Approximately, eight million pilgrims visit the temple every year and
it is the second most visited religious shrine in India. The ever increasing number of pilgrims, it is pleaded, has crossed one crore in the year of
2011. The property of the Shri Mata Vaishno Devi Shrine was under the management of Dharmarth Trust. The State Legislature initially in the year
1986, legislated law called 'J&K Shri Mata Vaishno Devi Shrine Act, 1986' and with the enactment of 'J&K Shri Mata Vaishno Devi Shrine Act,
1988' (for short the Act of 1988), the earlier Act of 1986 stands repealed. The Act of 1988 is brought into existence for providing better
management, administration and governance of Shri Mata Vaishno Devi Shrine and its endowments including the lands and buildings attached, or
appurtenant, to the Shrine, beginning from Katra upto the holy cave and the adjoining hillocks which were under the management of Dharmarth
Trust.
For the convenience of the pilgrims, the Board, constituted under the Act of 1988, has constructed Dharmshalla called 'Vaishnavi Dham' near
Railway Station, Jammu.
The Chief Executive Officer, Commissioner/Secretary to Government, Tourism Department, sent a communication dated 25.04.1995 to Deputy
Commissioner, Jammu wherein the said authority was informed that the Board has taken up the project for construction of the multi-storeyed
Dharmshalla, namely, Vaishnavi Dham for yatries near Railway Station, Jammu. It was also informed that building is nearing completion and is
designed for providing accommodation to around 5,000/- pilgrims everyday. It was also informed that land for construction of the Dharmshalla
was obtained from Jammu Development Authority (for short 'JDA') on lease basis. The said authority was further informed that because of
increase in the number of pilgrims, it has been felt that the said space is inadequate. The Deputy Commissioner was informed that the plot of land
measuring about 5 kanals covered by Khasra No. 70min of village Rakh Bahu near Railway Station, Jammu adjoining to the plot, where
Dharamshalla is being constructed, be acquired immediately. It is in pursuance to this request that the Deputy Commissioner, Jammu issued
notification dated 17.05.1995 and corrigendum dated 09.06.1995, in respect of land measuring 5 kanals covered by khasra No. 70min situated at
Rakh Bahu, Jammu. The Government vide Order No. 6/RD of 1996 dated 15.03.1996, while making declaration u/s 6 of the State Land
Acquisition Act, 1990 (for short the State Act), that the aforementioned land is needed for public purpose, directed the Collector Land
Acquisition, Assistant commission (R), Jammu to take steps u/s 7 of the State Act. The Collector was further authorized u/s 17 of the State Act to
take possession of the aforementioned land, subject to the fulfillment of conditions prescribed under Sections 9(2) and 17 of the State Act read
with Rule 63 of the Land Acquisition Rules. In terms of order dated 13.05.1996 Collector, Land Acquisition, Assistant Commission (R), Jammu,
after complying with the provisions of the State Act, permitted the Board to deposit estimated cost of acquisition, and all the land
owners/interested person were called upon to receive the estimated cost of their land in accordance with law. Tehsildar, Jammu was directed to
take over the possession of the land and hand over the same to the intending authorities by observing necessary norms under rules immediately.
This land was leased out for a period of 99 years to one Mangat Ram Gupta (now dead), whose legal representatives have been brought on
record, as also to Smt. Bholi Devi, appellant No. 2-herein. Lease deed was executed on 19 of August, 1994. The original owner of the land, JDA,
in an open auction, had decided to lease out the aforementioned land to Sh. Mangat Ram Gupta and appellant No. 2 as they quoted highest offer
of Rs. 50.11 lacs as premium and had agreed to pay rent @ Rs. 100/- per marla/annum. Earlier a notice was issued by the JDA expressing its
intention to dispose of the land on lease hold basis at a premium to be determined by open auction. The auction notice contained the conditions
and paragraph 11 thereof is taken note of:
Notwithstanding anything contained in the lease deed, if during the currency of the lease, the Authority is satisfied that the land granted under
these rules is required for any public purpose, the Authority shall be competent to acquire possession of such land and buildings erected thereon
and appurtenants belongings thereto, after paying compensation to the lessee for such buildings and appurtenants and also for such other
improvements as may have been affected on the land by the lessee after a prior notice of three months to the lessee.
The proportionate premium for the un-expired term of lease shall be refunded to the lessee in such case. The compensation shall be assessed by
the Authority who shall notify in writing the assessment made by him to the parties.
Any party aggrieved by the assessment made by the Authority may appeal to the Hon'ble Minister for Housing and Urban Development
Department within a period of two months from the date of service of notice of assessment. The decision of the Minister Housing and UD
Department be final and conclusive.
Sh. Mangat Ram and appellant emerged as successful bidders and lease deed was registered by the Sub- Registrar (Munsiff), Jammu on 27th
September, 1994. Besides incorporating other conditions, it was provided at paragraph 14 thereof that if the authority is satisfied that the land
granted under these rules is required for any public purpose, the authority shall be competent to acquire possession of such land and building
erected thereon. Paragraph 14 thereof is taken note of:
Notwithstanding anything contained in the lease deed, if during the currency of the lease, the authority is satisfied that the land granted under
these rules is required for any public purpose, the authority shall be competent to acquire possession of such land and building erected thereon and
appurtenant, belonging thereto, after paying compensation to the lessee for such buildings and appurtenants and also for such other improvements
as may have been effected on the land by the lessee after prior notice of three months to the lessee.
Sh. Mangat Ram Gupta (now dead) and appellant No. 2, feeling aggrieved of the notifications issued under the State Act, for acquiring the land,
challenged the same in writ petition OWP No. 943/1996. After pleadings were completed by the parties and after hearing them, writ court vide its
judgment dated 29th December, 2000 dismissed three writ petitions, besides writ petition filed by Sh. Mangat Ram Gupta and appellant No. 2. It
is this judgment of the writ court, which is called in question in this LPA.
Mr. S. A. Naik, learned Sr. counsel appearing for the appellants submitted that the impugned judgment is illegal, inter alia, on the grounds: (a)
the Act of 1988 did not authorize the Board to acquire property beyond the limits of Katra town; (b) no public purpose was involved in initiating
proceedings under the State Act; (c) Dharmshalla (Vaishnavi Dham) is used as a commercial premises and the land, which has been leased out to
the appellants, in terms of various notifications issued under State Act, is acquired for the benefit of the Board; the provisions of the State Act
would not be attracted in the facts and circumstances of this case. Learned counsel submitted that since the construction has been raised by the
Board on the land in question, JDA/State Government can be directed to provide alternative site to the appellants for the reason that they have not
only paid entire premium amount, but are also paying ground rent regularly to the JDA. Learned counsel, accordingly, prayed for allowing the LPA
or in the alternative, submitted that State/JDA be directed to provide alternative site to the appellants.
Mr. H. A. Siddiqui, learned counsel appearing for the State submitted that proceedings initiated in terms of State Act are bona fide and legal.
Learned counsel submitted that public purpose is involved in acquiring land. Learned counsel submitted that none of the legal rights of the
appellants have been infringed, as they would be provided compensation in lieu of extinguishment of their rights over the land in question.
Mr. D. C. Raina, learned senior counsel appearing on behalf of the Board submitted that the present proceedings may not be competent and
this appeal would require to be dismissed, inasmuch as, appellants had called in question notice dated 25th of July, 2011 issued by Board in OWP
No. 1267/2011, whereunder, the Board had invited tenders for construction of Kalika Dham, multi-storeyed Building (Basement +5) at Rail Head
Complex, Jammu on the land in question, and for raising such construction permission was granted by the Municipal Corporation, Jammu, which
decision of the Municipal Corporation was also called in question in OWP No. 1267/2011. The Writ Court dismissed the said Writ Petition vide
its judgment dated 10.10.2011. Appellants challenged the said judgement in LPAOW No. 158/2011, which LPA was dismissed by the Letters
Patent Bench of the Court vide its judgment dated 24th October, 2011. Learned counsel also referred to judgement of Hon'ble Supreme Court in
case titled 'Bhuri Nath and others v. State of J&K and others' reported in (1997) 2 Supreme Court Cases, 745. Learned counsel prayed for
dismissal of this Appeal.
Preamble of the Act of 1998, Sections 3(b)(c), 6 and 18 of Act of 1988, Section 3(g) of the State Act, paragraph 17(vi) of the LPA and
paragraph 15 of judgment dated 24.10.2011 passed in LPAOW No. 158/2011 are taken note of:
Preamble of the Act of 1998: An Act to provide for the better management, administration and governance of Shri Mata Vaishno Devi Shrine and
its endowments including the lands and buildings attached, or appurtenant, to the Shrine, beginning from Katra up to the holy cave and the
adjoining hillocks currently under the management of the Dharmarth Trust.
3(b)' Endowment"" means all property, moveable or immovable, belonging to, or given or endowed for the maintenance, improvement, additions to,
or worship in the Shrine or for the performance of any service or charity connected therewith and includes the idols installed therein, the premises
of the Shrine and gifts of property made to any one within the precincts of the Shrine and lands and buildings attached or appurtenant thereto,
beginning from Katra up to the holy cave and the adjoining hillocks currently under the management of the Dharmarth Trust or property belonging
to Baridar or Baridars Association within the area specified in the preamble of this Act.
3( c) ' Shrine Fund' means the endowment and includes all sums received by or on behalf of, or for the time being held for the benefit of the Shrine,
and also includes all the endowments which have been or may hereafter be made for the benefit of the Shrine or any other deity thereof in the name
of any person, or for the convenience, comfort or benefit of the pilgrims thereto, as well as offerings made to any of the deities comprised in the
Shrine.
Incorporation: The Board shall be a body corporate and shall have perpetual succession and a common seal and may by the said name sue and
be sued. 18. Duties of the Board: Subject to the provisions of this Act and of any bye-laws made thereunder, it shall be the duty of the Board:-
(1) to arrange for the proper performance of worship at the Shrine.
(2) To provide facilities for the proper performance of worship by the pilgrims
(3) To make arrangements for the safe custody of the funds, valuable security and jewellery and for the preservation of the Shrine Fund:
(4) To undertake for the benefit of worshippers and pilgrims-
(a) the construction of buildings for their accommodations;
(b) the construction of sanitary work; and
(c) the improvement of means of communication;
(5) to undertake the developmental activities concerning the area of the Shrine and its surroundings;
(6) to make suitable arrangements for the imparting of religious instructions and general education;
(7) to make provision of medical relief for worshippers and pilgrims;
(8) to make provision for the payment of suitable emoluments to the salaried staff.
(9) To do all such things as may be incidental and conducive to the efficient management, maintenance and administration of the Shrine and the
Shrine Fund and the convenience of the pilgrims.
3(g) The expression ' Public Purpose' includes:
(i) the provision of village sites, or the extension planned development or improvement of existing village sites;
(ii) the provision of land for town or ruler planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of the Government;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purpose to the poor or landless or to persons residing in areas affected by natural calamities or to persons
displaced or affected by reasons of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or
controlled by the State;
(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority
established by the Government for carrying out any such scheme or with the prior approval of Government, by a local authority or a society
registered under the Societies Registration Act, Samvat 1998 or a Cooperative Societies, within the meaning of the Co-operative Societies Act
1960;
(vii) the provision of land for any other scheme of development sponsored by the State or Central Government or with the prior approval of the
Government, by a local authority:
Provided that the land shall not be allowed or leased out to a person other than permanent resident of the State for residential purposes:
(viii) the Provision of any premises or building for locating a public office:
Provided that the disposal of land by way of lease or otherwise shall be made by the authority in accordance with the provisions of the law
governing alienation, lease, transfer, sale etc:
(ix) the provision of land for any university or other educational institution established by the State Government.
17 (vi). That before the appellants obtained the land pursuant to an open auction, the said land was owned by JDA which is a department of the
State. The land aforesaid was given on perpetual lease to the appellants. A valid contract agreement was executed between the appellants and the
JDA. Law is well settled that under the provisions of the Constitution of India, if a valid agreement is executed between a private individual and the
State, it cannot be cancelled except by a valid legislation. The impugned acquisition was nothing; but a colorable exercise of powers by misusing
the provisions of the land Acquisition Act. A validly executed agreement has been cancelled and the land which was given on perpetual lease to the
appellants, has been taken back and given to another individual. The whole exercise is contrary to the provisions of the Constitution of India and
deserved to be set aside by Hon'ble Single Judge, However, Hon'ble Single Judge not having appreciated all these points, has committed an error
which deserves to rectified by this Hon'ble Court.'
(Emphasis supplied)
Mr. Naik, learned Senior Counsel only attempted to contend that the above highlighted statement made in the grounds of appeal cannot be
taken to be an admission on the part of the appellants that the lease was cancelled and the possession was handed over the 4th respondent-Shrine
Board. According to the learned senior counsel, reading of the whole paragraph (vi) would only show that the appellants only tried to explain what
would have been the effect of the acquisition proceedings. We are not inclined to accept such an explanation now sought to be made with
reference to the said statement found in para (vi) in the grounds of appeal. Having regard to the fact that subsequent to the acquisition proceedings
possession was taken over by the Acquisition Authorities and the land was also handed over to the 4th respondent-Shrine Board. The appellants
were curious of the said fact which necessitated the appellants to make such a categoric statement in their grounds of appeal. The further fact that
the appellants were not able to come out successful in the other writ petition challenging the acquisition proceedings, as well as, the absence of any
order of this Court in the pending appeal bearing LPA No. 170/2001, protecting the rights of the appellants with reference to their possession
were sufficient top convince this Court that by allowing the appellants to challenge the impugned notice issued by the 4th respondent-Shrine Board
calling for tenders, the appellants cannot be permitted to challenge indirectly the acquisition proceedings made in the year 1996 which was once
unsuccessfully challenged by the appellants. Therefore, conclusion of the learned Single Judge in holding that appellants cannot be permitted once
again to challenge the notification of 4th respondent-Shrine board was perfectly justified and we are not inclined to interfere with the judgment of
the learned Single Judge.
(Emphasis supplied)
The preamble of the Act of 1988 provide that the said Act has been brought into existence for the better management, administration and
governance of Shri Mata Vaishno Devi Shrine and its endowments. It is also provided in the preamble that endowments would include lands and
buildings attached, or appurtenant, to the Shrine, beginning from Katra up to the Holy Cave and the adjoining Hillocks currently under the
management of the Dharmarth Trust. The preamble of the Act, besides providing for management of the lands and buildings attached, or
appurtenant, to Shrine, beginning from Katra upto the Holy Cave and the adjoining Hillocks which at the time of coming into force of the Act of
1988, were under the management of the Dharmath Trust, also projects a noble cause and holy mission to provide for the better management,
administration and governance of Shri Mata Vaishno Devi Shrine and its endowments. The preamble did not, in any manner whatsoever, restrict
the operation of the act for providing better management, administration and governance to Shri Mata Vaishno Devi Shrine and its endowments to
Katra only. It does not, otherwise, also stand to reason as to how the efforts for the better management, administration and governance of Shri
Mata Vaishno Devi Shrine and its endowments can be restricted to Katra only, when pilgrims not only throng the Shrine from the entire length and
breadth of the India, but also from abroad. The holy Shrine is the only attraction for pilgrims. Thus, the management, administration and
governance of shrine would include taking steps for providing paraphernalia for the convenience of the pilgrims. This duty to provide necessary
facilities to pilgrims is inherent in the responsibility as also the power to manage and administer the holy Shrine. Paraphernalia for the convenience
of the pilgrims can be provided at Katra and beyond the territory of Katra. The preamble of the Act 1988, if, held to be restricting the operation of
the Board only to Katra, will defeat the purpose sought to be achieved under the Act of 1988. The preamble of the Act of 1988 has not to be
read in isolation, but along side all provisions thereof. The preamble, otherwise, does not control the provisions of the Act of 1988.
Section 3(b) defines 'endowment' to mean all property movable or immovable, belonging to, or given or endowed for the maintenance,
improvement, additions to, or worship in Shrine or for the performance of any service or charity connected therewith and would include the idols
installed therein, the premises of the Shrine and the gifts of property made by any one within the precincts of the Shrine, and lands and buildings,
which have been at the time of coming into force the Act of 1988 under the management of Dharmarth Trust or property belonging to Baridar or
Baridars Association within the area specified under the preamble of Act of 1988.
On the plain interpretation of Section 3(b), it is concluded that the moveable or immovable properties would include those properties
mentioned in the preamble of Act of 1988 and also those properties which are mentioned in this clause.
Section 3(b) of the Act of 1988 composes of two limbs, inasmuch as, first limb describes meaning of 'endowment' which ends at the
expression 'and includes' and second limb commences from, 'the idols installed' and concludes at the expression, 'the preamble of Act'. In the first
limb the expressions, 'belonging to', 'or given or endowed' cannot be connected with past and present only. These expressions in view of their
setting and placement in the provision, and being tied to Shrine, are bound to spill over to future as well. Endowment will be made in future as well,
thus, these properties, which will be given in future by devotees, will 'belong to' the Shrine.
The existing properties, which are defined after the expression 'and includes' in Section 3(b) of the Act of 1988 are properties of the Shrine
which were under the control of Dharmarth Trust. The Shrine, it cannot be assumed would stop acquiring the properties both movable and
immovable in future. The pilgrims and devotes keep on donating valuable properties both movable and immovable to the Shri Mata Vaishno Devi
Shrine. Further the expression 'belonging to, or given or endowed for the maintenance, improvement, additions to, or worship in the Shrine or for
the performance of any service' cannot be restricted to the area of the Katra only. Till such time the devotees/pilgrims would come to the Shrine of
Shri Mata Vaishno Devi Ji, the contributions/gifts would continue to pour in. The aforementioned quoted expressions occurring in Section 3(b) of
the Act of 1988, on a sensible interpretation, cannot be restricted to the past and present only, and to the territory of Katra only. Property can be
acquired anywhere in the State of J&K and would thus 'be the part of endowments which would 'belong to' the Shri Mata Vaishno Devi Shrine.
The expression 'belong to' does not refer to existing properties only, but transcends all the barriers of time and would refer to properties which
would be acquired in future as well. The property can be given or endowed, which property necessarily would continue to be given and endowed
in future also. The property can be given at any place in the State of J&K. Assume a situation that devotee gifts immovable property in the State of
J&K beyond Katra, can it be said that such property cannot be gifted by any devotee and cannot be accepted by the Board. Accepting such
interpretation, in law, would defeat the plain methodology of construing a Statute.
Section 3(c) defines 'Shrine Fund' to mean endowment and includes all sums received by or on behalf of, or for the time being held for the
benefit of the Shrine, and would also include all the endowments which have been, or may hereafter be made for the benefit of the Shrine or any
other deity thereof in the name of any person, or for the convenience, comfort or benefit of the pilgrims thereto. Legislatures themselves have, thus,
made it clear that the acquiring of 'Shrine fund', which includes 'endowment', defined in Section 3(b), to mean 'all moveable and immovable
property etc.', is a ceaseless process. Properties which have been identified in the preamble of the Act and which were under the management of
Dharmarth Trust, were so identified as they were existing at the time of coming into force of Act of 1988. It is only for this reason that these
properties have been delineated in the preamble of the Act. Otherwise, opening lines of the preamble of the Act do not restrict the management,
administration and governance of Shri Mata Vaishno Devi Shrine and its endowments to the territory of Katra alone as the endowment would
continue to pour in from different parts of the country, as also from abroad and the Board, for the convenience of the pilgrims, is duty bound to
provide facilities not only at Katra, but also at the different parts of the State, which includes Jammu, the gateway to the Shrine of Shri Mata
Vaishno Devi Ji. Property can be, thus, acquired beyond the territory of Katra. Placing any other interpretation on the provisions of Act of 1988 or
taking any other view would not be conducive and in tandem with the purpose sought to be achieved under the Act of 1988. Section 18 (9)
authorizes the Board to do all such things as will be incidental and conducive to the efficient management, maintenance and administration of the
Shrine and the 'Shrine Fund' and the convenience of the pilgrims. The convenience of the pilgrims, thus, requires for providing facilities of boarding
and lodging at Jammu, more particularly, in the area adjoining Jammu Railway Station, as thousand of pilgrims land at Jammu Railway Station
every day to visit Shri Mata Vaishno Devi Shrine. These pilgrims have to be provided minimum bearest facilities, which would include their
boarding and lodging. For this purpose, Shrine Board can acquire property at Jammu. This right cannot be denied to the Shrine Board and power
to acquire property outside limits of Katra is not restricted in terms of Act of 1988.
Section 3 (g) of the State Act defines the expression 'public purpose' and includes clauses (i) to (ix). Clauses (i) to (ix), thus, are not only
situations, which would define public purpose. The expressions 'public purpose' is a wide expression and is not all inclusive. The expression 'public
purpose' gains its meaning in the backdrop and background of the place, time and circumstances, where same is to be achieved. A particular cause
may not amount to 'public purpose' at one place, but it may conform to the definition of 'public purpose' at another place. Providing facilities like
boarding and lodging at cheaper and affordable rates to section of population, who assemble at a place in huge number, would definitely come
within the expression 'public purpose'. The 'Board' is providing boarding and lodging at most cheaper and affordable rates in its Dharmshalla at
Jammu. The Board in its reply filed to OWP No. 943/1996 has given the details at paragraph 7 therein that the Vaishnavi Dham, has thirty three
dormitories in three floors with capacity of 465 beds; each bed is given to a yatri @ 25/- per bed per day; bed with very superior mattress/bed
sheets pillows are being provided; bed sheets and pillow covers are changed after every use and are replaced with freshly washed linen; blankets
as per the number requisitioned by the pilgrims are being provided; Electricity and fans facility is provided; modern toilets and bathroom facility is
also available. Food is served at very subsidized rates. It is also pleaded that though there are three suites and 12 double bed rooms in the first
floor, but they mostly remain un-occupied and are being used for accommodating the guests of the Board including the Members of the Board
when they come from out side for holding meetings. It is also pleaded that tariff of the suites is @ Rs. 600/- per day and tariff of double bed room
is @ Rs. 450/- per day. The construction of the Dharamshalla, in the aforementioned circumstances, is to accomplish 'public purpose' and cannot
be equated with commercial activity.
The contentions raised by Mr. S. A. Naik, learned Sr. Counsel appearing for the appellants, in view of our above discussions and for the
above stated reasons fall to ground lock, stock and barrel.
This appeal, otherwise, would suffer collapse, as appellants themselves in the memo of appeal at paragraph 17(vi) have admitted that lease has
been cancelled and the possession has been handed over to the Board. Since it is admitted by the appellant, in the memo of the appeal, which
admission was taken note by the Division Bench of this Court in LPA(OW) No. 158/2011, and explanation tendered to wriggle out of the said
admission, was not accepted by the Court, thus, the foundation on which the appellants have based their claim in the writ petition is, knocked out.
Lease deed being not in existence in view of the admission of appellants, same having been cancelled, appellants are not clothed with any right in
law to sustain any of their claim excepting for recovery of amount already paid.
In the auction notice and lease deed, it was provided that leased property can be taken back for accomplishing public purpose. This agreed
clause of lease-deed further strips-off the appellants of all their rights qua the property in question, excepting for seeking recovery of money paid
by them. This appeal, in the aforementioned backdrop, does not survive and is dismissed along with connected CMA(s).