1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 2964 of 2020
Arising out of Special Leave Petition (C) No. 7217 of 2020
Sardar Bahginder Singh ...Appellant
s/o Gurucharan Singh
Versus
Sardar Manjieeth Singh Jagan Singh and Ors. ...Respondents
With
Civil Appeal No. 2966 of 2020
Arising out of Special Leave Petition (C) No. 7227 of 2020
And With
Civil Appeal No. 2965 of 2020
Arising out of Special Leave Petition (C) No. 7219 of 2020
2
J U D G M E N T
Dr. Dhananjaya Y. Chandrachud, J
1 Leave granted.
2 Prior to the re-organisation of states, the Hyderabad Legislative Assembly
enacted a law called the Nanded Sikh Gurudwara Sachkhand Shri Hazur
Apchalnagar Sahib Act 19561
. On receiving the assent of the President on 16
September 1956, the Nanded Act 1956 was published in the Hyderabad
Government Gazette on 20 September 1956. Section 2(c) defines the expression
‘Gurudwara’ thus:
“‘Gurudwara’ means the institution known as the Nanded
Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib
and includes the premises called the Gurudwara with all
buildings contained therein, together with all additions
thereto or alterations thereof which may hereafter be made
from time to time and shrines specified in the schedule.”
3 Chapter II is titled “Control of the Gurudwara”. Section 3 provides for the
constitution of a Board for the administration of the Gurudwara and a Committee of
Management. Section 4 provides for the administration of the affairs of the
Gurudwara by the Board in accordance with the provisions of the Nanded Act 1956.
The Board is constituted by the provisions of Section 5 to be a body corporate. The
1 “the Nanded Act 1956”
3
controversy in this case turns on the interpretation of Section 6 which provides for
the composition and constitution of the Board. The provision is extracted below:
“Section 6(1) The Board shall consist of:
i) Two members nominated by the Government;
ii) Three members nominated by the Government from
the Sikhs of the State:
Provided that after the expiration of the first term of
the Board these three members shall be elected from
among the Sikhs of the State in such manner as may
be prescribed;
iii) One member nominated by the Government from
among the Sikhs of the cities of Hyderabad and
Secunderabad;
iv) One member nominated by the Shiromani Gurudwara
Prabandhak Committee from among the Sikhs of the
State of Madhya Pradesh;
v) Three members nominated by the Shiromani
Gurudwara Prabandhak Committee;
vi) Two members elected by and from among the Sikh
members of the Parliament;
vii) One member nominated by the Chief Khalsa Diwan of
Amritsar;
viii) Four members nominated by the Suchkhand Hazur
Khalsa Diwan, Nanded.
4
2) The nomination and election of members under this
section shall be made in such manner and within such
period as may be prescribed.
3) i) If the members mentioned in clauses (iv) to (vii)
(both inclusive) of sub-section (1) are not
nominated or elected, as the case may be within
the prescribed period, the Government shall
specify such further period as it may deem fit
within which such members shall be nominated or
elected. If such members are not nominated or
elected within the further period so specified the
Government shall nominate a person or persons
to fill the vacancy or vacancies, as the case may
be and the person or persons so nominated shall
be deemed to be a member or members duly
nominated or elected by the respective body.
ii) The term of office of the members nominated under
clause (i) shall expire at the time at which it would
have expired if he had been nominated or elected, as
the case may be, within the period prescribed under
sub-section (2).
4) After the members have been nominated or elected,
as the case may be, in accordance with the foregoing
provisions the Government shall notify the fact of the
Board having been duly constituted; and the date of
the publication of the notification shall be deemed to
be the date of the constitution of the Board.”
Section 10 provides that where a vacancy occurs in the Board owing to death,
resignation or for any other reason, the new member is to be nominated or elected
in the manner in which the member whose seat is to be filled was nominated or
elected. Section 11 provides for the election of a President. Section 22 (1) provides
for the constitution of a Committee of Management consisting of (i) the Collector of
Nanded or an officer appointed by the government; (ii) the Superintendent of the
5
Gurudwara as an ex officio member; and (iii) three members nominated by the
Board at its first meeting in the prescribed manner from among the Sikhs of Nanded.
Under Section 36(i), the management, control and superintendence of the
administration of the Gurudwara is to vest in the Board. The Board is entrusted with
the duty of ensuring that the Gurudwara and its endowments are properly
maintained, controlled and administered and that its income is duly applied to the
objects and purposes for which they were intended. The Committee carries on day
to day administration of the Gurudwara under Section 37(I) in accordance with the
directions of the Board. The objects on which the funds of the Gurudwara may be
spent are specified in Section 392
.The Government is empowered to supersede the
2 Section 39:
1) Subject to any rules that may be made by the Government in this behalf, all properties and income of the
Gurudwara shall be under the control of the Board and shall be applied to:-
a) the maintenance or improvement of the Gurudwara.
b) the maintenance of religious worship and the performance and conduct of religious and charitable duties
ceremonies and observances connected with the Gurudwara.
c) the payment of allowances or salaries of officers and servants of the Gurudwara.
d) the fulfilment of the objects of the endowments thereof.
e) the maintenance of the langar.
f) the payment of the cost of audit of the funds and accounts of the Gurudwara.
g) the payment of the salary and allowances of the Secretary and Staff of the Board and the Committee and
the Superintendent of the Gurudwara.
h) the payment of allowances to the President and members of the Board and the Committee and members of
the Committee.
i) the payment of all expenses incurred by the Board in the performance of the duties imposed, and the
exercise of the powers conferred by or under this Act.
2) If any balance remains after meeting the expenditure referred to sub-section [1] the Board may use any
portion of such balance for –
a) the foundation and maintenance of educational or charitable institutions and orphanages for the benefit of
the Sikhs in particular.
b) the establishment of hospitals and dispensaries for the relief of the pilgrim and worshippers resorting to the
Gurudwara.
c) the construction and maintenance of free feeding house and the rest houses for the use of all classes of
pilgrims.
d) the provision of water supply and sanitary arrangements, and the construction and maintenance of roads
and communications and lighting arrangements for the convenience of the pilgrims and worshipper.
e) the establishment and maintenance of a veterinary hospital for the animals of the Gurudwara. Leper asylum
and poor houses for the disabled and helpless.
f) the promotion of the study of the Gurumukhi or any other language and the cultivation of the Indian arts and
architecture , and the prachar of the Sikh religion.
g) the grant of aid to any other deserving religious institution.
h) any other purposes which the Board may deem fit.
6
Board under Section 53 in the event, inter alia, of a default in the performance of
duty or where it has acted in excess or abuse of its powers. Section 61(1) entrusts
a rule making power to the Government. The rule making power extends among
other things to providing the manner in which and the period within which the
members of the Board shall be nominated or elected under Sub-section 1 of Section
6.
4 On 28 December 1951, a society by the name of The Sachkhand Hazuri
Khalsa Diwan Association Society (“Diwan”) was registered under the Hyderabad
Societies’ Registration Act of 1350 Fasli. Its Memorandum of Association specifies
the following objects:
“i). To guide the followers of the Sikh Religion in the
principles of the Sikh faith and to propagate the tenets
of the Sikh religion among other communities
ii). To protect their interest and the interest of
Gurudwara by all possible amicably peaceful means
iii). To be loyal to the Govt. of India
iv). To work and agitate for economic, political
and social rights of the Sikhs of Hyderabad State by
peaceful, amicable and democratic methods wherever
necessary and to adopt such policies which will
improve the standard of Sikhs of Hyderabad State.”
5 The bye-laws of the Sachkhand Hazuri Khalsa Diwan, Nanded provide for the
constitution of a General Committee consisting of all members of the Diwan. The
7
General Committee is to meet twice each year. A Working Committee consisting of
28 members is contemplated for the management of affairs. The General Committee
is to elect a President at the first meeting. Thereafter, the President will form their
Working Committee. Such elections are to be held in every two years. The Working
Committee is to consist of a President, Vice-President, Secretary and other office
bearers. The President has the power to exercise full supervision over the affairs
and working of the General Committee.
6 On 4 November 1981, an application was filed for the registration of a trust
under the provisions of the Maharashtra Public Trusts Act 19503
. The application
which was numbered as Inquiry Application No. 950/1981 was allowed and a
certificate of registration was issued by an order dated 11 January 1982 of the
Assistant Charity Commissioner, Nanded. The issuance of the registration certificate
became a source of internal disputes between rival factions. The dispute was set at
rest by an order dated 22 January 2014 of a two judge Bench of this Court in Special
Leave Petitions4 under Art. 136 of the Constitution. The order of the court concluded
that the issue of the registration of the Diwan as a trust under the MPT Act has
attained finality. However, the Court noted that the dispute in respect of membership
can be adjudicated upon under the provisions of the MPT Act.
7 The dispute in the present case relates to the nomination of four members in
terms of the provisions of Section 6(1)(viii) of the Nanded Act 1956. Under this
3 “the MPT Act” 4 Special Leave Petitions (C) Nos. 10139-10149 of 2011- Sardar Jeewansingh (d) Th. Lrs. v. Shersingh & Ors.
8
provision, four members of the Board constituted under Section 5 are nominated by
the Sachkhand Hazuri Khalsa Diwan, Nanded. Sub-Section (2) of Section 6 provides
that the nomination and election of members shall be made in such a manner and
within such period as may be prescribed. Section 2(e) defines the expression
‘prescribed’ thus:
“prescribed’ means prescribed by the rules made by the
Government under this Act and includes the bye-laws made
by the Board under this Act;”
8 On 14 July 1958, the then Government of Bombay notified the Nanded Sikh
Gurudwara Sachkhand Shri Hazuri Apchalnagar Sahib Rules 19585
. Rule 6, inter
alia, provides for the nomination of members under clause (viii) of sub-Section (1) of
Section 6. Under Rule 6, the State Government was to make a request in writing as
soon as may be after the appointed day to the Sachkhand Hazuri Khalsa Diwan,
Nanded to nominate within a period of two months of the date of the receipt of the
request, members on the Board as required.
9 From the affidavit which has been filed by the State of Maharashtra by the
Collector, Nanded, it emerges that on 10 July 2000, the Revenue and Forest
Department of the Government of Maharashtra superseded the Board constituted
under Section 5 of the Nanded Act 1956 due to disputes between two factions of the
Diwan. As a result, the Board was under the Control of the Revenue and Forest
Department of the Government of Maharashtra.
5 “the Nanded Sikh Gurudwara Rules 1958”
9
10 By a notification dated 15 February 2014, the State Government constituted
an interim Board. On 21 February 2015, the State Government addressed a
communication to the Charity Commissioner enquiring whether Sardar Gurucharan
Singh (the fifth respondent in SLP (C) No. 7219 of 2020) or the first petitioner Sardar
Sardul Singh was authorised to represent the Diwan. The Charity Commissioner
informed the Secretary to the State Government that it was the fifth respondent who
was the President of the Diwan. Upon receiving the reply, the State Government
notified four persons nominated by the fifth respondent as members of the Board.
11 The dispute about who was entitled to be nominated under Section 6(1)(viii)
resurfaced in 2019. Multiple and conflicting nominations were made purportedly with
reference to the provisions of Section 6(1)(viii). The affidavit which has been filed by
the State refers to the receipt of several nominations. It would be instructive to
reproduce an extract:
“9. On 4.1.2019…Shershing Hirasingh Fauji addressed a
letter to the Government of Maharashtra in the alleged
capacity of President of Diwan nominating four persons to the
Board. This letter was not supported by any resolution of the
Diwan.
10. On 4.1.2019, one Sardar Surinder Singh Ajabsingh, as
the Secretary of the Diwan nominated four persons to the
Board. The letter was supported by a resolution of the Diwan.
11. On 9.1.2019…Sardar Gurucharan Singh Uttam Singh
Ghadisaj addressed a letter to the Government of
Maharashtra in the alleged capacity of President of Diwan
10
nominating four persons to the Board. This letter was not
supported by any resolution of the Diwan.”
12 A letter was addressed by the State Government to the Assistant Charity
Commissioner in order to seek a solution to the imbroglio with a query about the
authorised office bearers of the Diwan. The Assistant Charity Commissioner, by a
letter dated 2 February 2019, stated that Inquiry Applications Nos. 44 of 2019 and
114 of 2019 were pending in respect of the Diwan. On 15 June 2019, Sardar
Gurucharansingh Uttamsingh Ghadisa gave a fresh letter allegedly in his capacity as
the President of the Diwan nominating a different set of four persons. Eventually, on
21 June 2019, the State Government nominated four members to the Board under
Section 6(1) viii.
13 The maze of conflicting claims for nomination to the Board under Section
6(1)(viii) led to the institution of proceedings under Art 226 of the Constitution before
the High Court challenging the validity of the notification dated 21 June 2019. The
High Court adverted to the conflicting claims for nomination made to the
government, The High Court held:
“22. In four letters forwarded to the Government for
nomination of the members of the Diwan on the Gurudwara
Board, there does not appear to be consistency. The
Government on its own does not have the authority to
nominate the members of Diwan on the Gurudwara Board.
The Government on its own cannot issue notification
nominating the members of Diwan on the Gurudwara Board.
It is only the Diwan that can nominate the members on the
Gurudwara Board. Considering the inconsistency about the
names to be nominated from the Diwan as members on the
11
Gurudwara Board, the Government could not have issued the
notification nominating the members of Diwan on the
Gurudwara Board. Except the name of the respondent No. 4,
we do not find consistency of other names in all the letters.”
The High Court observed that it was not entering upon the issue of who was the
President and the Secretary of the Diwan. It was considering the dispute only in so
far as it pertained to the nomination of four members of the Diwan on the statutory
Board constituted in terms of the Section 5 of the Nanded Act 1956. The High Court
held that clause (viii) of sub-Section (1) of Section 6 does not authorise the
government to nominate members who will represent the Diwan on the statutory
Board and it was only the Diwan which can do so. Faced with the conflicting claims
that were made to it, the High Court held that:
“30. The State ought to have considered the authenticity of
those letters. In absence of the proper procedure prescribed
in the rules governing nominating members on the
Gurudwara Board, it is not clear as to whether the general
committee and/or executive committee and/or the President
or the Secretary have the powers to nominate the members
on the Gurudwara Board. The bye law and/or the rules of
Diwan are silent in this regard. The member of the Diwan
should take steps to amend the byelaws/ rules to that extent.
The dispute also exists with regard to memberships. As
observed above, we are not entering into the said dispute. It
is for the Assistant Charity Commissioner to decide the
dispute about the membership.
31. The Government cannot arrogate the powers unto itself.
The Government has usurped the powers of the Diwan. In a
system governed by rule of law, the discretion and the
exercise of power has to be confined within the defined limits.
The decision or notification de hors the power under the
statute cannot be sustained. It is well settled that when a
statute requires a particular thing to be done in a particular
manner, it has to be done in that manner only. The
12
notification recommending respondent Nos. 4 to 7 is arbitrary.
Arbitrariness has no role in the society governed by rule of
law. Arbitrariness is antithesis to the rule of law, justice,
equity, fair play and good conscience. The arbitrary action
cannot withstand the test of law.”
14 The notification of the State Government was accordingly set aside.
15 The appellants have questioned the locus standi of the first respondent
(petitioner in the writ proceedings before the High Court) to challenge the
appointment of the members made by the State Government on the ground that he
is not a trustee of the Diwan. It has been submitted that the first respondent was
removed from the post of trustee by Resolution No. 4 of the Working Committee
dated 14 April 2015. A copy of the minutes of the meeting of the Working Committee
on 14 April 2015 has been marked as Annexure 7 to Special Leave Petition (Civil)
No. 7217 of 2020.
16 On behalf of the appellants, a persuasive effort was made by Ms. Meenakshi
Arora, learned Senior Counsel and Mr. Shivaji M. Jadhav, learned Counsel to
demonstrate the steps which were taken by the Diwan in its capacity as a public
trust registered under the MPT Act to ensure the due constitution of its managing
body. It has been submitted that in 1984 Gurucharan Singh was appointed as
President of the Diwan and that the Working Committee which was elected under
his presidency consisted of 28 members. Thereafter, at the lapse of two years,
elections are claimed to have been regularly held to the Working Committee.
According to the appellants, S. Jivansingh Ayyasingh Sahu was elected as
13
President of the Trust on 11 November 1980 and 13 November 1982 for two years
on each occasion. Gurucharan Singh became President on 26 October 1984 in
which capacity he was re-elected on 14 October 1986, 15 November 1988, 20
October 1990, 28 October 1992, 4 November 1994 and 20 October 1998. According
to the appellants, after the registration of the Trust, the Working Committee which
was nominated at the time of the initial registration continued from 1984 till 2001.
Inquiry Application No. 44 of 2019 regarding the change report filed by the Trust
under Section 22 of the MPT Act is pending. This pertains to the entry of the
Working Committee in Schedule I, including Sardar Gurucharan Singh as President
(elected purportedly at a general meeting on 9 November 2018). On the other hand,
Inquiry Application No 114 of 2019 initiated by Shersingh Hirasingh Fauji showing
him as the elected President of the Diwan Trust is also pending. Contending that
the elections to the Trust have been held periodically, it has been submitted that
there was a settled practice of Gurcharan Singh nominating the four representatives
of the Board under Section 6(1) viii. Hence Ms. Meenakshi Arora and Mr. Shivaji
Jadhav urged that there was no justification for the High Court to interdict the
notification of the State Government accepting the nomination of four members
under Section 6(1)(viii).
17 On the other hand, the contesting respondents who had moved proceedings
under Article 226 of the Constitution before the High Court have submitted that the
first respondent had the locus standi to initiate such proceedings. It has been urged
in the written submissions filed by the first respondent that Resolution No. 4 dated
14
14 April 2015 purported to be passed by the Working Committee is fabricated on the
ground that the date of expulsion of first respondent from the Working Committee is
mentioned as 25 October 2015, while the resolution is dated 14 April 2015. It has
also been submitted that the change report filed by Gurucharan Singh dated 9
November 2018 shows the first respondent as an outgoing member of the Working
Committee. Further, it has been claimed that till date no change report has been
filed to remove the name of the first respondent from the record maintained in
Schedule I, as a de facto member of the Working Committee. It has been stated that
the issue of locus standi of the first respondent was not raised in the original counter
filed by the appellants before the High Court, rather it was raised through an
additional counter as an afterthought in order to dilute the locus standi of the first
respondent. Hence, it has been submitted that the first respondent is still a trustee
under Section 2(18) of the MTP Act and had the locus standi to move a petition
under Article 226 of the Constitution.
18 The contesting respondents seriously questioned the plea of the appellants in
regard to the management of the public trust. Ms. Vibha Dutta Makhija, learned
Senior Counsel submitted that after the decision of this Court dated 22 January
2014 which recognized that the registration of the Trust had attained finality,
Gurucharan Singh filed Miscellaneous Application 833 of 2011 before the Assistant
Charity Commissioner for taking on record an entry in respect of an election which
was held for 2002 - 2004. On 7 March 2015, the Assistant Charity Commissioner
passed an order taking on record the entry pertaining to the election of the
15
committee. According to the contesting respondents, the last entry pertaining to the
Working Committee which was taken on record by the Assistant Charity
Commissioner was for 2002-4. Out of 28 members, nine are stated to be dead while
seventeen continue to subsist on the record maintained in Schedule-I in the office of
the Assistant Charity Commissioner. Hence, it has been submitted that for the
period 2004-6, 2006-8, 2008-10, 2010-12, 2012-14 and 2014-16, neither was any
change report in respect of the election of the President or Working Committee
reported under Section 22 nor has any change been recorded. However, it is
accepted by the respondents that two Inquiry Applications are pending before the
Assistant Charity Commission: (i) Inquiry No. 44 of 2019 filed by Gurucharan Singh
with a claim that he was elected as President or Pradhan and that a Working
Committee of 27 members was elected; and (ii) Inquiry No. 114 of 2019 by
Shersingh Hirasingh Fauji claiming that he was elected as President in 2018 and
that a Working Committee of 27 members has been elected. Both these applications
where there are rival claims for election of the President and for members of the
Working Committee are pending at the stage of evidence.
19 In the written submissions which have been filed on behalf of the First
respondent, the conflicting nominations which were made under Section 6(1)(viii) by
Gurucharan Singh, on the one hand, and by Shersingh Fauji on the other, have
been recorded under the caption “who nominated whom”. For convenience of
reference, the extract is reproduced below:
16
“2. WHO NOMINATED TO WHOM.
I. By letter dated 04/1/2019… Sardar Shersingh
Fauzi nominated to the Sardar Sardulsingh Fauzi and
Sardar Jagwirsingh Shahu (petitioners in SLP No.
7219/2020) and other two persons.
II. On 09/01/2019, by letter dated Sardar
Gurucharansingh s/o Uttamsingh Ghadisaz
nominated himself who is the petitioner in SLP No.
7227/2020 and his son Sardar Bhagendarsingh who
is the petitioner in SLP No. 7217/2020 and nominated
other two persons.
III. Sardar Gurucharansingh s/o Uttamsingh
Ghadisaz by letter dated 09/01/2019 claimed to be
the President of “Diwan” as well as Sardar Shersingh
Fauzi by letter dated 04/01/2019 also claimed to the
President of “Diwan”.”
20 The State Government is stated to have appointed two persons from the letter
dated 9 January 2019 and from the letter dated 4 January 2019. The nominated
members are appellants before this Court since their appointments have been set
aside.
21 Our analysis of the submissions must be prefaced by adverting to the fact that
there is a maze of conflicting claims between the two factions, including the issue of
the alleged removal of the first respondent as a trustee of the Diwan. The High Court
has appropriately not embarked upon an enquiry to adjudicate upon these claims.
Justifiably so, since two inquiry applications which have been filed under Section 22
of the MPT 1960 are pending before the Assistant Charity Commissioner. The
change reports, as they are called, being the subject matter of a pending enquiry by
17
the Assistant Charity Commissioner, it is neither appropriate nor proper for this court
to enter into the thicket of factual disputes between the contesting factions.
22 Essentially, the issue which the Court has to decide turns upon the
interpretation of the provisions of Section 6(1)(viii). It is on this that the validity of the
notification of the State government appointing four persons under Section 6(1)(viii)
would rest. Two distinct entities are dramatis personae in the present case. The first
is the public trust which is registered under the provisions of the MPT Act. Its origins
lay in the Sachkhand Hazuri Khalsa Diwan Association Society which was initially
registered under the Hyderabad Societies’ Registration Act of 1350 Fasli6
. This
body was initially registered as a society with the Registrar of Company Law and
Co-operative Societies of the then Government of Hyderabad under registration no.
22 of 1951. The Memorandum of Association of the Diwan indicates that it was
formed to protect and guide the followers of the Sikh religion, protect the interests of
the Gurudwara and to work in the interest of the Sikhs of the then State of
Hyderabad. The name of the society or association was formulated as Sachkhand
Hazuri Khalsa Diwan. The General Committee of the Diwan consists of all the
members of the Diwan who meet bi-annually. The members of the General
Committee of the Khalsa Diwan are alone entitled to vote. For the management of
the affairs, there is a Working Committee consisting of 28 members. The Working
Committee was to be formed by the President or Pradhan at the first meeting.
Elections to the Working Committee are required to be held every two years. The
6 “1350 Fasli”
18
President is entrusted with supervision over the affairs and working of the General
Committee. Several decades after the reorganisation of States, a registration
certificate was issued under the MPT Act to the society as a public trust on 11
January 1982 by the Assistant Charity Commissioner Nanded in Inquiry Application
No 950/1981. This created a round of disputes between the contesting factions and
it was eventually on 22 January 2014 that this Court concluded the issue by
recording that the registration of the Diwan as a Trust under the MPT Act have
attained finality. Disputes in regard to membership were a separate matter which
could be adjudicated upon in terms of the remedies available under the MPT Act.
As a public trust, the Diwan is governed by the provisions of the MPT Act.
23 The second body with which the present group of appeals is concerned is a
statutory body. This was created when the Hyderabad Legislative Assembly enacted
the Nanded Sikh Gurudwara Sachkhand Shri Hazuri Apchalnagar Sahib Act 1956.
The statute has defined the expression ‘Gurudwara’ under Section 2(c) to mean the
institution known as Nanded Sikh Gurudwara Sachkhand Shri Hazuri Apchalnagar
Sahib and to include the premises of the Gurudwara together with all its buildings
and the shrines which are specified in the Schedule. A statutory board is constituted
under Section 5 to administer the affairs of the Gurudwara in accordance with the
enactment. The Board consists of seventeen members. Some of them are
nominated by the government (see clauses (i), (ii) and (iii) of sub-section (1) of
Section 6). Some members are nominated by specific bodies: under clause (iv), one
member is nominated by Shiromani Gurudwara Prabandhak Committee from among
19
the Sikhs of State of Madhya Pradesh; under clause (v) three members are
nominated by the Shiromani Gurudwara Prabandhak Committee; under Clause (vii)
one member is nominated by the Chief Khalsa Diwan of Amritsar and under clause
(viii) four members are nominated by Suchkhand Hazuri Khalsa Diwan, Nanded. As
regards the elected members, clause (vi) stipulates that two members shall be
elected by and from among Sikh members of Parliament. Sub- Section (2) of
Section 6 stipulates that the nomination and election of members under the
provision “shall be made in such a manner and within such period as may be
prescribed”. The expression ‘prescribed’ is defined by Section 2(e) to mean
prescribed by rules made by the government under the Act and to include the byelaws made by the Board under the statute. The expression ‘Board’ is defined in
Section 2(a) to mean the Board which is constituted under the provisions of Chapter
II. Thus, the modalities for nomination and election can be prescribed by the rules
made by the government under the Act and in the bye-laws framed by the Board.
24 Sub-Section (3) of Section 6 provides that if the members mentioned in
clauses (iv) and (vii) are not nominated or elected within the prescribed period, the
government may specify the period within which the exercise has to be completed. If
the process is not completed within the period so stipulated, the Government is
empowered to nominate a person or persons to fill the vacancy. Significantly, the
provisions of sub-section (3) of Section 6 do not apply to the nomination to be made
under clause (viii) of sub-Section (1) of Section 6. In other words, the exclusive
statutory authority for making the nomination of four members under Section
20
6(1)(viii) is vested in the Sachkhand Hazuri Khalsa Diwan, Nanded. Section 6(1)(viii)
clearly indicates that it is the Diwan alone which has the power to make a
nomination of four members. The State Government cannot assume that power to
itself. That the authority of the Diwan is exclusive is evident from the provisions of
sub-section (3) of Section 6.
25 The Nanded Sikh Gurudwara Rules 1958 contain a provision for the
nomination of members under clauses (iv), (v), (vii) and (viii) of Section 6 (1). Rule 6
is in the following terms:
“6. Nomination of members under clause iv], v], vii] and viii] of
sub-section 1 of section 6, -
1 As soon as may be after the appointed day, the State
Government shall make a request in writing to1] The Shiromani Gurudwara Prabhandhak Committee.
2] The Chief Khalsa Diwan, Amritsar, and
3] The Sachkhand Huzur Khalsa Diwan, Nanded to nominate
within a period of two months from the date of the receipt of
the request members on the Board, as required by clauses
iv], v], vii] and viii] of sub-section 1 of section 6.
2] The members so nominated shall function as the members
on the Board from the date of the constitution of the Board.”
21
26 The provisions contained in Rule 6 indicate that for the purpose of fulfilling the
statutory requirement of a nomination, the State Government is to make a request in
writing, inter alia, to the Diwan under Clause (viii).
27 The power to make a nomination under Section 6(1)(viii) is vested in the
Sachkhand Hazuri Khalsa Diwan, Nanded. The statute does not expressly define
the expression “Diwan”. The Diwan was constituted as a society initially in 1350
Fasli. It was registered as a public trust under the MPT Act in 1982. The expression
‘Diwan’ needs elaboration. The Memorandum of Association refers to the Khalsa
Diwan General Committee which comprises “of all members of the Diwan”. They
alone are entitled to vote. The Working Committee is a smaller body consisting of 28
members which is elected for a duration of two years on each occasion. The
authority to nominate four representatives under Section 6(1)(viii) of the Nanded Act
1956 is entrusted to the Diwan. The Diwan consists of the collective body of all
members who together are entitled to vote under the Memorandum of Association.
Together they constitute the Diwan. Neither the President individually nor any office
bearer can be equated with the Diwan. The authority to nominate four members to
the Board under Section 6(1)(viii) is not entrusted to an office bearer of the Working
Committee or for that matter to the Working Committee. Ms Meenakshi Arora,
learned Senior Counsel and Mr Shivaji Jadhav, learned Counsel sought to
emphasise that as a matter of practice nominations were made by Gurucharan
Singh from time to time. The practice that was followed cannot be contrary to the
interpretation of the provisions of the statute.
22
28 Evidently, conflicts between the rival factions have spilled over into the
process of making nominations. The State Government was confronted with
conflicting claims. It wrote to the Charity Commissioner seeking some light on the
issue and after receiving a communication that Gurucharan Singh was the
President, proceeded to issue a notification drawing four members from out of the
rival claims that were made by the conflicting factions. The High Court was justified
in disapproving of the process that was followed by the State Government but for the
simple reason that the nominations were not made by the Diwan. Multiple claims
were made in the letters submitted to the State Government. The High Court was
correct in its interpretation of the statute when it observed that it was not open to the
State Government to arrogate the power of nomination to itself or to usurp the
powers of the Diwan. The statute has entrusted the authority to make a nomination
under Section 6(1)(viii) to the Diwan. The Diwan comprises of the collective body of
all members together to whom the power to make a nomination is entrusted. The
provisions of sub-section (2) of Section 6 read with the definition of the expression
“prescribed” in sub-Section 2(e) lead to the conclusion that the nomination and
election of members under Section 6 has to be made in the manner prescribed by
the rules made by the Government under the Act, including the bye-laws made by
the statutory board constituted under the provisions of Chapter II.
29 We therefore hold that in authorising the Sachkhand Hazuri Khalsa Diwan,
Nanded to nominate four members, Section 6(1)(viii) entrusts that authority to the
collective body of members of the Diwan which is entitled to select the four
23
individuals to be nominated to the statutory Board. This process, in our view, must
be initiated forthwith and concluded within a period of three months from the date of
this judgment.
30 The change reports - Inquiry Applications Nos. 44 of 2019 and 114 of 2019 -
must be enquired into by the Assistant Charity Commissioner expeditiously and the
inquiry shall be concluded within a period of three months from the date of this
judgment.
31 Ms. Meenakshi Arora, learned Senior Counsel and Mr. Shivaji Jadhav,
learned Counsel have made an earnest appeal to this court that pending the
finalization of the process of making nominations under Section 6(1)(viii), the four
members who were notified by the State government on 21 June 2019 may be
allowed to continue. It was urged that during the pendency of these proceedings the
judgment of the High Court was stayed. By an interim order passed on 31 July 2020
a direction was issued restraining the Board from taking any major financial or policy
decisions. The court however made it clear that this shall not affect the distribution of
langar and the activities of the Gurudwara. Hence, it was urged that the four
members who have been notified by the State Government may be permitted to
continue subject to the conditions contained in the interim order. This request has
been opposed by Ms. Vibha Dutta Makhija, learned Senior Counsel. Mr Rahul
Chitnis, Standing Counsel for the State of Maharashtra has also submitted that if the
Court were to hold that the notification issued by the State Government on 21 June
24
2019 is not valid, it would not be appropriate to allow the four members, so
nominated, to continue. We have held the notification dated 21 June 2019 to be
invalid and have upheld the conclusion of the High Court. Hence, we cannot accept
the submission of Ms. Meenakshi Arora, learned Senior Counsel and Mr. Shivaji
Jadhav, learned Counsel permitting the members who were notified on 21 June
2019 to continue to function as an interim arrangement.
32 We accordingly dispose of the appeals by affirming the conclusion of the High
Court that the notification issued by the State Government on 21 June 2019 was
contrary to the provisions of Section 6 (1) (viii) of the Nanded Act 1956. We direct
that:
(i) Inquiry Application No. 44 of 2019 and Inquiry Application No. 114 of 2019
pending before the Assistant Charity Commissioner, Nanded shall be
concluded and disposed of in accordance with law within a period of three
months from the date of this judgment;
(ii) The statutory authority to make a nomination under Section 6(1)(viii) is
entrusted to the Sachkhand Hazuri Khalsa Diwan, Nanded. The Diwan
signifies the entire body of members, as explained in the text of the judgment;
(iii) The process of making the nomination under the provisions of Section
6(1)(viii), as explained above, shall be initiated and completed within a period
25
of three months from the date of this judgment. The Assistant Charity
Commissioner, Nanded shall fix a date for the meeting of the Diwan and shall
act as an observer at the meeting convened for finalising the nominations.
The Assistant Charity Commissioner is entrusted with the authority to
determine the members borne on the role of members of the Diwan who are
entitled to vote at the ensuing meeting in accordance with the above
directions. The Assistant Charity Commissioner is at liberty to adopt
appropriate modalities for holding a meeting, including by way of a virtual
meeting in view of the outbreak of Covid-19; and
(iv) If any further directions of a consequential nature are necessary to implement
this judgment, the Assistant Charity Commissioner will be at liberty to move
the Aurangabad bench of the Bombay High Court for directions.
33 The appeals are disposed of in the above terms. No order as to costs.
34 Pending application(s), if any, shall stand disposed of.
…….………….…………………...........................J.
[Dr. Dhananjaya Y Chandrachud]
…….…………………………...............................J.
[K M Joseph]
New Delhi;
August 20, 2020.
