Jammu & Kashmir High Court - Srinagar Bench
Sohan Lal And Others vs Shri Mata Vaishno Devi Shrine Board ... on 30 April, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CIMA No. 245 of 2010 Sohan Lal and others Petitioners Shri Mata Vaishno Devi Shrine Board & another Respondents !Mr.Virender Bhat, Advocate ^Mr.D.C. Raina, Advocate Mr. Rohit Kohli, Advocate Mr. Vikram Sharma, Advocate Honble Mr. Justice. Hasnain Massodi, Judge Date: 30/04/2010 :J U D G M E N T:
Shri Mata Vaishno Devi Shrine Act (herein after referred to as Act) was enacted in the year 1988 to provide for the better management, administration, and governance of Shri Mata Vaishno Devi Shrine and its endowments including lands, buildings attached and appurtenant to the Shrine from Katra upto Holy Cave and the adjoining hillocks under the mange met of Dharmarth Trust at the time the Act came into force. Section 3(b) defines Endowment as all property, moveable or and 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. Section 3(c) defines 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. Under Section 4 of the Act ownership of the Shrine Fund, for the commencement of the act is to vest in Shri Mata Vaishno Devi Shrine Board (herein referred to as The Board) constituted under the Act. The administration, management and governance of Shrine and Shrine Fund is in terms of is to vest in The Board. Section 18 of the Act delineates duties of the Board. The duties include a duty to provide facility for the proper performance of worship by the pilgrims and amongst other facilitates to construct for the benefit of worshippers and pilgrims/devotees, buildings for accommodation, buildings relating to sanitary work and also to improve means of communication. The Board is required to undertake the developmental activities concerning the area of the Shrine and its surroundings. The endowments of The Board include shops and such others areas that can be used for commercial activities. The Board being vested with administration, management and governance of the endowments as also Shrine Fund, is required to allot shops at Katra and other places belonging to the Shrine on lease or license basis.
The number of pilgrims/devotees, who visit the Shrine to pay their obeisance and workshop every year, runs into millions. The increasing number of pilgrims every year has resulted in increased responsibility of the Board to make arrangement for proper and hassle free performance of worship at the Shrine as also to make necessary facilities available to the pilgrims/devotees at Base Camp and enroute to the Shrine. Upswing in the number of pilgrims/ devotees that visit the Shrine every day has resulted in a positive spillover for the business activities at Katra and enroute to the Shrine and made manifold enhancement in the rent/fee charged by The Board in consideration of allotment of shops and commercial business premises on lease/license. Resultantly there is neck to neck competition between the businessmen vying for allotment of space owned by the Shrine, capable of being put to commercial use. While keen competition has resulted in hike in the premium/rent/fee amongst the competitors to the advantage of endowments and Shrine Fund, it has also shown its negative side. The allotment of shops etc on lease/license by The Board has resulted in multifarious litigation between the competitors and the Board as also third parties, who have nothing to do with such transactions but complain of mismanagement of The Board property and as worshippers/devotes claim to e stakeholders in the affairs of The Board. In such litigation, all grounds like favoritism, absence of transparent policy or departure from policy in place etc. are taken as grounds to seek judicial intervention. The precious funds that otherwise can be used for improving facilities for the pilgrims/ devotees and for other welfare ventures are claimed by the litigation costs, borne by the Board to defend such actions. It appears that the Board prior to 2007 formulated a Policy to let out/give on license shops etc. by inviting offers from the general public. The highest bidder would bag the lease/license on payment of premium/ rent/ fee. The Board in its 41st meeting held on 23rd March 2007, made a departure from the said Policy and decided to allot 30% shops to the locals in an open competition and allot remaining 70% of the shops etc in clusters to the Enterprises, having a chain of source/restaurants, eating places, throughout the Country. The departure was made as The Board felt that the highest bidders in the open auction after paying high premium/rent/ fee thereafter fleece the pilgrims/devotees and also avoid to maintain good quality of the food and like items and provide deficient services. It was felt that the business enterprises of repute having chain of stores, shall not give a goodbye to the quality and adequate services as that would affect their reputation standing in the business arena at the national level. The earlier practice was also found to make a room for proxy bidding, pooling and cartel formation, defeating the very purpose of open tendering. It is pertinent to point out that The Board made a shift in the Policy, only after civil suits were filed by the interested parties to assail the Policy of open tendering formulated and acted upon by The Board. The Policy of allotment of 30% shops etc to the locals and 70% to the reputed business enterprises, having chain of stores/ restaurants in the country was also assailed before the court at Katra. The objection taken was that the allotment of shops was restricted to a few persons and no opportunity was given to others to compete for allotment of shops. The Board having regard to its experience with the allotment of shops to reputed business enterprises, having chain of stores/restaurants and the eyebrow raised against the Policy of selective allotment decided to shift back to the earlier practice of open tendering.
The Board on 31st of July 2009 and Ist of August 2009 issued/published two tender notices, inviting offers for shops mentioned in the tender notices, intended to be granted to the successful bidder on license basis for a period of two years. The tendering process was yet to be taken to its logical end that the appellants herein filed a Civil Suit in representative capacity against the respondents and prayed for grant of declaratory decree, declaring tender notice dated 31.7.2009 and 1.8.2009 contrary to the Policy framed in 41st Board meeting dated 23rd of March 2007 and thus null and void. The appellants also sought decree for permanent injunction, restraining the respondents from allotting or handing over the possession of any shop under its management pursuant to the tender notices impugned in the suit. The Trial court vide order dated 27th of August 2009 permitted the appellants to sue in a representative capacity and directed issue of publication, inviting the interested persons to participate. The sheet anchored the appellants sought before the Trial Court was that the respondents/ Board had while issuing tender notices in question made a departure and goodbye to the policy formulated by The Board in its 41st meeting held on 23rd of March 2007. The appellants claiming to be devotees of Shri Mata Vaishno Devi Shrine and thus interested in proper management of the Shrine property and Shrine funds; that the policy formulated on 41st Board Meeting dated 23rd of March 2007 was well reasoned and necessitated by imperatives of the interest of the pilgrims/devotees as also of Shrine fund. The appellant No.1 claimed not to have any shop at Katra but insisted that the appellants 2 & 3 had applied for allotment of shop No.29 at Lamkeri under the Policy of 2007. The other grievances of the appellants voiced in the plaint was that qualification prescribed for open bidding in tender notices dated 31.7.2009 and 1.8.2009, was intended to keep the interested persons from other towns away from allotment process and allot the shops to the tradesman from Katra.
The respondents took the stand that the shift in the Policy was made and tendering process on case to case decided to be followed after careful working out of parameters. It was pleaded that the Board having regard to its experience gained from following the earlier Policy, decided to have the bids on technical basis i.e. nature and quality of items and capacity and capability of the bidder. It was insisted that it was for the Board to devise the Policy and fix the parameters for safeguarding the interests of The Board as also the pilgrims/ devotees to the Shrine. The respondents insisted that the appellants have no right to call in question the Policy formulated by the Board. The respondents also complained that the civil suits resulting immense loss to The Board and at time filing of the civil suit resulted in blocking transaction and later the civil suit is very conveniently withdrawn, leaving The Board uncompensated for the loss it has suffered. The respondents have in this regard referred to an earlier civil suit titled Joginder Singh versus Shri Mata Vaishno Devi Shrine Board Katra (Civil Suit No.32) instituted in the Court of Sub Judge Katra, which was again in representative capacity that was later dismissed as not pressed. The respondents also pleaded that the present appellant even prior to the civil suit in question instituted a civil suit in the Court of Sub Judge Katra titled Sunil Sharma versus Mata Vaishno Devi Shrine Board and others, questioning policy of 2007 that was now being eulogized and projected as a well reasoned policy.
Alongside Suit, the appellants filed temporary injunction application for praying therein that the respondents be restrained from allotting any shop owned by the Shrine on the basis of tender notices dated 31.7.2009 and 1.8.2009, impugned in the suit. The Trial court on 27th of August 2009 granted an ad-interim injunction in favour of the appellant, restraining the respondents from making allotment of shop(s) till the temporary injunction application was disposed of. The application came to be disposed of vide order dated 9.3.2010, impugned in the present appeal. Learned Trial Judge in a detailed and elaborate order spread over on 21 pages rejected the temporary injunction application subject to the undertaking to be furnished by the respondents to retender the shops.
(Hasnain Massodi) Judge Srinagar 30.04.2010