TMI Blog2008 (5) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1999. 2. The Act was applicable to the entire territories of the undivided State of Punjab including PEPSU. By reason of the provisions of the State Reorganisation Act, 1956, the State of Himachal Pradesh was constituted, having been carved out from the State of Punjab. 3. Another Parliamentary Act, being Punjab Reorganisation Act, 1966 (for short the 1966 Act ) was enacted in terms whereof the State of Punjab was divided into the State of Punjab, the State of Haryana and the Union Territory of Chandigarh. 4. The Central Government admittedly is the appropriate authority for passing requisite orders in relation to the matters involving inter-State Boards as envisaged under Section 88 of the 1966 Act. It issued a notification dated 19.10.1978 nominating the State of Punjab for the purpose of exercising its power under the 1966 Act. 5. In terms of the provisions of the Act, the Shiromani Gurdwara Prabandhak Committee (hereinafter referred to as the Board ) was constituted. Appellant was appointed as a member of the Commission in terms of a notification dated 4.07.1989. He was elected the President thereof. Along with him one S. Dara Singh and S. Raghbir Singh were als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directing the substitution of the words the State Government with the words the Government of the State of Punjab in Sections 70, 71, 74, 78, 79 and 80 of the Sikh Gurdwaras Act, 1925? (ii) If the answer to question No. (i) is in negative, then (a) Whether the petitioners and such other members who have been appointed by the Government of Punjab State after reorganization can challenge the notifications dated 19.10.1978 and 12.1.1999 as their own appointments are invalid? (b) Which Government would exercise the powers of the State Government in relation to the various provisions of the Sikh Gurdwara Act, 1925 which deals with the functioning of the Judicial Commission, powers to issue directions in relation to the Judicial Commission? (iii) If the answer to question No. (i) is in affirmative, then (a) Whether the jurisdiction of the Central Government would be ousted in view of the provisions of Sections 3 and 4 of the Inter-state Cooperation Act, 1957? And (b) Whether notification dated 19.10.1978 suffers from the vice of excessive delegation? (iv) Whether under the Sikh Gurdwara Act, 1925 any period is fixed for which a member of the Commission will hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been defined in Section 2(3) of the Act to mean a committee of management constituted under the provisions of Part III . Chapter II of the Act consists of Sections 3 to 11. It deals with the matter relating to filing of petitions to State Government relating to Gurdwaras. Chapter III, consisting of Sections 12 to 37, deals with appointment of the members of the Tribunal and proceedings before it. Sub-section (1) of Section 12 of the Act reads as under: 12(1) For the purpose of deciding claims made in accordance with the provisions of this Act the Local Government may from time to time by notification direct the constitution of a tribunal or more tribunals than one and may in like manner direct the dissolution of such tribunal or tribunals. Chapter V of the Act, occurring in Part III, deals with the control of Sikh Gurdwaras. Section 40 of the Act deals with the Board, Committee and Commission to be constituted for the purposes of this Act. Section 41 of the Act reads as under: 41. The management of every Notified Sikh Gurdwara shall be administered by the committee constituted therefore, the Board and the Commission in accordance with the provisions of this Part. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as soon as may be, after its constitution submit a list of the names of seven persons nominated by the Board, and the State Government shall after being satisfied that the persons are qualified as required by Section 70 record the list; provided that if the Board fails to submit a list within ninety days from the constitution of the Board the State Government may itself complete a list of qualified persons. (2) A person whose name is on the list described in Sub-section (1) shall be entitled to have his name retained thereon for two years after his nomination has been recorded, provided that the State Government may at any time remove his name, if it is satisfied upon a report made by the Board and any enquiries it may see fit to make, that he is incapable of acting as a member of the commission. (3) If any person whose name is on the list dies, or applies to the Board to have his name removed therefrom the Board shall inform the State Government and his name shall be removed from the list. (4) The State Government shall on request being made to it for this purpose by the Board remove from the list the name of any person whose name has been on the list for more than three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a provision in the Act empowering the State Government to remove any member of the Commission after he has served on it for a specified period, where circumstances may so require. Hence Clause (iv) to Section 79 is added. 2. Amendment of Section 79 of Punjab Act VIII of 1925 - In Section 79 of the Sikh Gurdwaras Act, 1925, after Clause (iii), the word or and thereafter the following new clause shall be added: (iv) if he has served as a member for more than two years. 18. Section 83 of the Act deals with the dissolution of the Commission stating that the State Government may at any time, when there is no proceeding pending before it, dissolve the same. 19. Chapter VIII of the Act deals with the Committee of Gurdwaras. `The committee for the gurdwaras known as the Sri Akal Takht Sahib, Amritsar and Sri Takht Kesgarh Sahib, Anandpur' is the Board as contained in Section 85 of the Act. For every notified Sikh Gurdwara, other than the one specified in Section 85, the Committee is required to be constituted after it has been declared to be a Sikh Gurdwara under the provisions of the Act or upon application of the provisions of Part III thereof. The tenure of the member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of serves the needs of the successor States or has, by virtue of the provisions of Part II, become an inter-State body corporate, then, the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, until other provision is made by law in respect of the said body corporate. (2) Any direction issued by the Central Government under Sub-section (1) in respect of any such body corporate may include a direction that any law by which the said body corporate is governed shall, in its application to that' body corporate, have effect, subject to such exceptions and modifications as may be specified in the direction. (3) For the removal of doubt it is hereby declared that the provisions of this section shall apply also to the Punjab University constituted under the Punjab University Act, 1947, the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961, and the Board constituted under the provisions of Part III of the Sikh Gurdwaras Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions in favour of the delegatee. 25. Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the State of Punjab, on the other hand, would submit: (i) The Commission is not an occasional body but a perpetual body. (ii) Having regard to the tenor of Sections 40 and 70 of the Act wherein the words from time to time have been used, it is evident that the reasonable meaning which is required to be given thereto would lead to the conclusion that the Government has the power to make fresh appointments of the members. (iii) For the aforementioned purpose, the provisions of Sections 40 and 70 of the Act have to be given a harmonious construction and upon giving a holistic reading of the entire Act. (iv) The Act had an extra-territorial application keeping in view the provisions of Section 88 of the State Reorganisation Act, particularly, in view of the fact that no law has been enacted in that behalf either by the State of Haryana or by the State of Himachal Pradesh. (v) The Central Government in exercise of its power under Section 89 of the Act merely directed that the State of Punjab shall carry out the provisions of the Act. The said order is only c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commission, it is required to be done `from time to time'. Section 40 provides for constitution of a Judicial Commission from time to time. Undoubtedly, the same is required to be done in the manner provided for therein but that would not take away the power of the Government as regards constitution of the Judicial Commission from time to time. The Commission exercises control of management of the Notified Sikh Gurdwaras alongwith the Committee and the Board. 32. Chapter VI of the Act deals with Constitution, functions and status of the Board. Constitution and functions of a Judicial Commission are dealt with in Chapter VII of the Act. 33. Sub-section (1) of Section 70 provides that the Judicial Commission shall consist of three members who shall be Sikhs, appointed from time to time as may be necessary by the Local Government. Sub-section (2) of Section 70 lays down the qualification of a Member of the Commission. Sub-section (3) of Section 70, which has some bearing for our purpose, empowers the State to select two members out of a list of qualified members as described in Section 71. 34. How the list shall be prepared and the members of the Commission are to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a pre-Constitutional Act. Upon coming into force of the Constitution of India, it must be read in the light of the constitutional scheme and its provisions. In construing a statute, an interpretation which would lead to violation of the constitutional provisions, cannot be taken recourse to. 42. We have noticed hereinbefore the different opinions of the learned Judges constituting the Full Bench. 43. While agreeing with one or the other view, this Court cannot lose sight of the constitutional scheme of equality before law and equal protection of law as adumbrated in Articles 14 and 16 of the Constitution of India. We may notice some other provisions in this behalf. 44. Article 310 of the Constitution of India provides for a tenure. It does not contemplate a life tenure. It does not contemplate a permanent term. Article 16 of the Constitution of India which is a species of the equality clauses contained in Articles 14 and 16 of the Constitution of India, speaks of grant of equal opportunity to all. Allowing a person to hold public office indefinitely would be opposed to the constitutional scheme, irrespective of any misconduct or other contingencies. Constitution of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne or the other provisions of the Act. The doctrine of `independence of judiciary' has nothing to do when the tenure is fixed by a statute. Even in relation to selection of the members of the Board, the State has a limited role to play. 50. With a view to construe the said provision the past practice may also be held to be relevant. The High Court has taken notice of the past practice in this behalf in great details showing as to how the reconstitution of the Commission had taken place from time to time, almost at regular intervals. 51. Our attention, however, has been drawn to a chart filed by the appellant to show that the reconstitution of the Commission has not taken place immediately after the reconstitution of the Board. That may be so but the very fact that the constitution of Commission had taken place, for instance in October, 1949; January, 1955 ; April, 1955 ; March, 1957 ; September, 1965; April, 1968 ; July, 1980 ; July, 1981 ; July, 1989 ; August, 1989 ; January, 1999 and July, 2002 clearly goes to show that constitution and reconstitution of the Board had taken place from time to time. The very fact that it has been working continuously and the member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. If the Commission is to be constituted from time to time, it must be held that to effectuate this power it would be reasonable to conclude that such power can be exercised as and when a necessity arises therefore. 56. It may be true that the Court shall not interfere with the judicial authority. It should be allowed to function independently and impartially, but at the same time it cannot be allowed to continue in perpetuity. A balance, thus, must be struck. 57. Whereas, on the one hand, the discretionary jurisdiction of the State would not lightly be assumed having regard to the nature of the office held by the appellant, it cannot also be held that no tenure is fixed therefore at all. 58. The State of Punjab, in this appeal, also opposes the appellant's contention. 59. With a view to find out an answer to the question as to what meaning should be assigned to the words from time to time , in our opinion, a holistic reading of the statutes should be resorted to. It has to be borne in mind that perpetuity in office is neither contemplated under Act nor the constitutional scheme permits the same. It may be true that Clause (iv) of Section 79 of the Act has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mchari Sangh v. M.P. Electricity Board (2004)IILLJ470SC , the question which fell for this Court's determination was whether an agreement despite expiry would prevail over a regulation made under Section 79(c) of the Electricity (Supply) Act, 1948 as regards the age of superannuation of an employee of the Respondent-Board having regard to the use of the words time to time in Section 2 of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 which applies to every undertaking wherein the number of employees on any day during the twelve months preceding or on the day the said Act came into force or any day thereafter was or is more than twenty and such other class or classes of undertakings as the State Government may, from time to time, by notification, specify in this behalf, this Court observed: 44. The power of the Board, therefore, to lay down the conditions of service of its employees either in terms of regulation or otherwise would be subject only to any valid law to the contrary operating in the field. Agreement within the meaning of proviso appended to Rule 14A is not a law and, thus, the regulations made by the Board shall prevail thereover. 45. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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