Kashmir Singh Vs.
Union of India &
Ors.  INSC 904 (13 May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7024 OF 2002 Kashmir Singh
...Appellant Versus Union of India & ors. ...Respondents WITH
CIVIL APPEAL NO..............OF 2008 [arising out of SLP (C) No. 20803 of 2002]
CIVIL APPEAL NOS. 5546, 8171-8172, 8169-8170 of 2003 and 3162-3165 of 2004
S.B. SINHA, J :
1. Whether rule of perpetuity
would be applicable in respect of a member of a Sikh Judicial Commission (for
short "Commission") constituted under the Sikh Gurdwaras Act, 1925
(for short "the Act") is 2 in question in this appeal which arises
out of a judgment and order dated 13.09.2002 passed by a Five-Judge Bench of the
Punjab and Haryana High Court in Civil Writ Petition No. 371 of 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 3 thereof. Along with him one S. Dara Singh and S. Raghbir Singh
were also appointed as members of the Commission.
6. A new Board was constituted on
21.11.1996. While the Commission was functioning with the said members, the
State of Punjab issued a notification on 6.01.1999 whereby and whereunder all
the members including the appellant were removed and in their places S.
Man Mohan Singh, S. Amrik Singh
and S. Ajwant Singh Mann were appointed.
7. A writ petition was filed
thereagainst in January, 1999. During pendency of the said writ petition, the
State of Punjab issued two more notifications on or about 12.01.1999. By reason
of the first notification issued under Sections 70 and 71 of the Act, the
notification dated 6.01.1999 was rescinded and by reason of the second
notification, the Commission was reconstituted.
8. The writ petition was amended
questioning also the validity of the aforementioned two notifications dated
9. The State of Punjab as also the
Union of India, however, opposed the said writ petition contending that the
State of Punjab had the requisite jurisdiction to remove the members of the Commission.
10. It was furthermore contended
that the Union of India in terms of Section 72 of the 1966 Act had the
requisite power to amend the law in regard to an intra-state body corporate. It
was urged that by reason of the notification dated 19.10.1978, only a
clarification had been issued to the effect that the word "State
Government" would mean the "Government of State of Punjab" and
even the State of Haryana consented thereto.
11. As regards the notifications
dated 12.01.1999, it was contended that some inadvertent mistake had crept in;
which was corrected by the said notifications, insofar as the source of power
for issuance of the said notifications being Section 79 of the Act was not
available, particularly, in view of the fact that clause (iv) thereof had been
declared ultra vires by a Full Bench of the Punjab and Haryana High Court in
Shiromani Gurdwaras Parbandhak Committee, Amritsar and another v. Lachhman
Singh Gill and others [AIR 1970 P & H 40].
12. The matter was placed before a
Division Bench of the Punjab and Haryana High Court. By an order dated
19.04.1999, the Division Bench formulated the following five questions and
referred the matter to a Five- Judge Bench:
"(i) Whether the Government
of India has power under Section 72 of the Punjab Re- organisation Act to issue
notification dated 19.10.1978 directing the substitution of the 5 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 the office or does he hold the office in perpetuity? 6 (v)
Whether the notification dated 12.1.1999 is liable to be set aside on account
of mala- fide?"
13. The Five-Judge Bench heard the
matter for some time and reserved its judgment on 24.05.2001. On or about
5.07.2002, however, the purported notification dated 12.01.1999 was withdrawn
and the Commission was restored. Appellant herein filed an application for
withdrawal of the said writ petition which having been opposed, by an order
dated 16.07.2002, permission to withdraw the said writ petition was refused.
The judgment was delivered on
Three Hon'ble Judges were of the
(i) The tenure of the members of
the Commission is co-tenuous with the term of the Board; and (ii) The
Government of Punjab had the power to issue directions in regard to the
constitution of the Commission.
One of the Hon'ble Judges opined
that having regard to the decision of the Full Bench of the High Court in
Shiromani Gurdwaras Parbandhak Committee (supra), the members of the Commission
cannot be removed.
7 The Chief Justice of the High
Court, however, was of the opinion that in view of the terminologies used in
the relevant provisions of the Act and as no fixed period for holding the
office has been provided therein, the Commission can be directed to be wound up
only when no case remains pending before it.
14. We may place on record that
during pendency of the writ petition, members were appointed on 8.07.2002
whereagainst the Board filed writ petition which was allowed by an order dated
14.08.2003. Civil Appeal Nos. 8169-8172 of 2003 and 3162-3165 of 2004 are
directed against the said order dated 14.08.2003.
15. The Act was enacted to provide
for the legal procedure in terms whereof Gurdawaras and Shrines which, owning
to their origin and habitual use, are regarded by Sikhs as essentially places
of worship may be brought effectively and permanently under Sikh control and
their administration reformed so as to make it consistent with the religious
views of the said community.
The Act extended to the
territories which immediately before 1.11.1956 were in the States of Punjab and
Patiala and East Punjab States Union.
8 "Commission" had been
defined in Section 2(2) of the Act to mean "the Judicial Commission
constituted under the provisions of Part III" of the Act.
"Committee" 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, 9 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
therefor, the Board and the Commission in accordance with the provisions of
In terms of the provisions of the
Act, the Board is the highest administrative body. It is controlled by the
State Government. All regional political parties participate in the election of
Section 42 of the Act provides for
constitution of the Board.
Process of election is
contemplated by Sections 43, 43-A and 50 of the Act.
Section 43-A of the Act reads as
"43-A. Constitution of new
Board.-- (1) Whenever a new Board within the meaning of Section 51 is
constituted, it shall consist of -- (i) one hundred and forty elected members;
(ii) the Head Ministers of the
Darbar Sahib, Amritsar, and the following ground Takhats, namely-- the Sri Akal
Takht Sahib, Amritsar, the Sri Takhat Keshgarh Sahib, Anandpur, the Sri 10
Takhat Patna Sahib, Patna the Sri Takht Hazur Sahib, Nanded; and (iii) fifteen
members resident in India, of whom not more than five shall be residents of
Punjab, co-opted by the members of the Board as described in clauses (i) and
(2) The State Government shall, as
soon as may be, call a meeting of the members of the Board described in clauses
(i) and (ii) of sub-section (1) for the purpose of co-opting the members
described in clause (ii) of that sub- section, and after the members have been
co- opted, the State Government shall notify the fact of the Board having been
and the date of the publication of
the notification shall be deemed to be the date of the constitution of the
The term of the members of the
Board is five years from the date of its constitution or until the constitution
of a new Board, whichever is later as provided under Section 51 of the Act.
Life of the Board is also limited.
Constitution of Judicial
Commission is contained in Section 70 of the Act. The members of the Commission
must be Sikhs appointed from time to time, as may be found necessary by the
local Government. Sub- section (2) of Section 70 provides for the essential
qualifications for being appointed as members. Sub-section (3) of Section 70 of
the Act provides that two of the members of the Commission shall be selected by
11 the State Government out of a list of qualified persons prepared and
maintained as specified in Section 71 thereof.
Section 71 of the Act reads as
Appointment of members of the Commission.--
purpose of the appointment of members of the Commission the Board shall, 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
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.
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
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 years, provided that the name 12 of any person shall not be so
removed while such person is a member of the commission.
When a name
has been removed from the list the Board shall nominate a qualified person for
the purpose of filling the vacancy, and the State Government shall after being
satisfied that such person is qualified, place his name upon the list.
If the Board
fails to nominate a person to fill a vacancy as required by sub- section (5) the
State Government may after giving one month's notice of its intention to the
Board place the name of any qualified person on the list to fill the vacancy."
Section 79 providing for removal
of member of Commission states:
"79. Removal of member of
Commission.-- The State Government may remove any member of the Commission--
(i) if he refuses to act or becomes in the opinion of the State Government
incapable of acting or unfit to act as a member; or (ii) if he has absented
himself from more than the consecutive meetings of the commission, or (iii) if
it is satisfied after such enquiry as it may deem necessary that he has
flagrantly abused his position as a member; or (iv) if he has served as a
member for more than two years."
16. It may be noted that clause
(iv) of Section 79 of the Act, which was incorporated by Amending Act of 1954
has been declared ultra vires by the High Court in Shiromani Gurdwaras
Parbandhak Committee (supra).
17. We may also notice that the
object of introducing the said Amending Act was stated to be as under:
"Under the existing
provisions of section 83 of the Sikh Gurdwaras Act, 1925, the State Government
"may at any time, when there is no proceeding pending before the
Commission, dissolve the Commission". So that the State Government can
dissolve the Judicial Commission only when there is no proceeding pending
before it and as long as there are any proceedings pending before the
Commission, it cannot be dissolved.
As fresh cases are instituted in
the Court of the Judicial Commission from time to time, the effect of the
existing provision of the Act is that a Commission once constituted is more or
less perpetuated. In the interest of the efficient working of the Judicial
Commission and in order to remedy a possible awkward situation in which the
life of a Tribunal may get very unnecessarily prolonged, it is, therefore,
desirable that there should be 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
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 members of the Committee admittedly is
five years from the date of Constitution or until a new Committee is
constituted, whichever is later. All Committees are body corporates having
perpetual succession and a common seal. The vacancy in the 15 Committee is to
be filled up in the manner in which the predecessor in office was elected or
20. The Commission is a judicial
body. Management of every notified Sikh Gurdwara is administered by the
Committee constituted therefor, the Board as also the Commission. If a person
is aggrieved by a finding of the Board, he has a remedy of preferring an appeal
thereagainst before the Commission. The order passed by the Commission is
final. The question as to whether a person has become a `patit' or not has to
be determined by the Commission. An election dispute under certain situations
is also amenable to the jurisdiction of the Commission. The Board can also
apply to the Commission for an order allowing it to devote the whole or part of
such surplus sum or income to a particular and specified religious, educational
or other charitable purpose or any purpose which promotes social welfare as
envisaged under Section 106 of the Act whereupon the Commission may determine
what portion if any of such surplus sum or income has to be retained as a
reserve fund for the concerned Gurdwara whereupon it may direct the remainder
of the surplus sum or income to be devoted to any such religious educational or
charitable purpose as it may deem proper.
21. The Committees and the
Commission have various other functions with which we are not concerned.
22. We may briefly also notice the
provisions of the 1966 Act. It was enacted to reorganize the existing State of
Punjab into the States of Punjab and Haryana and the Union Territory of
Chandigarh and to transfer certain areas of the existing State of Himachal
Pradesh. Section 2(f) of the 1966 Act defines "existing State of
Punjab" to mean the State of Punjab as existing immediately before the
appointed day, which is 1.11.1966.
23. Section 72 of the 1966 Act,
which is relevant for our purpose, reads, thus:
"72. General provisions as to
statutory corporations- (1) Save as otherwise expressly provided by the
foregoing provisions of this Part, where any body corporate constituted under a
Central Act, State Act or Provincial Act for the existing State of Punjab or
any part thereof 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.
17 (2) Any direction issued by the
Central Government under sub-sec. (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 Act, 1925.
(4) For the purpose of giving effect
to the provisions of this section in so far as it relates to the Punjab
University and the Punjab Agricultural University referred to in sub- section
(3), the successor States shall make such grants as the Central Government may,
from time to time, by order, determine."
Section 88 of the 1966 Act
provides for the territorial extent of the laws. Section 89 provides for power
to adapt laws. Section 91 provides for power to name authorities. Section 96
provides for power to remove difficulties in the following terms:
"96. Power to remove
difficulties- If any difficulty arises in giving effect to the provisions of
this Act, the President may, by order, do anything not inconsistent with such
18 provisions which appears to him to be necessary or expedient for the purpose
of removing the difficulty."
24. Mr. P.S. Patwalia, learned
senior counsel appearing on behalf of the appellant, would submit:
Having regard to the fact that
Section 79(iv) was deleted by Act No. 11 of 1944 and the same having been re-introduced
by Act No. 11 of 1954 which having been found to be ultra vires, it must be
held that the tenure of a member of the Commission being not fixed he would
continue in office unless it is dissolved in terms of Section 83 of the Act,
viz., as long as any proceedings remains pending before the Commission.
alone being vested with a power to forward a list of seven persons out of whom
two are appointed by the Government as members, the High Court committed a
manifest error in opining that the tenure of the Commission is co- terminus with
that of the Board.
notification issued by the State of Punjab was wholly illegal as the Commission
is an inter-state body corporate as envisaged under Section 72 of the 1966 Act
and in that view of the matter the Central Government was the only competent 19
authority to exercise the requisite jurisdiction as contemplated under Entry 44
of List I of the Seventh Schedule of the Constitution of India and Section 72(1)
of the 1966 Act.
The purported delegation of
power by the Central Government in favour of the State Government in terms of
the said notification dated 19.10.1978 is ex facie illegal in view of the
principles contained in the maxim delegatus non potest delegare as thereby the
Central Government abdicated its essential statutory functions in favour of the
25. Mr. C.S. Vaidyanathan, learned
senior counsel appearing on behalf of the State of Punjab, on the other hand,
Commission is not an occasional body but a perpetual body.
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.
2For 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.
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
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 clarificatory in nature and does not amount to delegation or
sub-delegation of its power under the 1966 Act. In any event, the power of the
Central Government in this behalf being not under challenge nor any act of mala
fide having been attributed, the impugned judgment does not call for any interference.
26. Mr. Jaspal Singh, learned
senior counsel appearing on behalf of the SGPC, supplementing Mr. Vaidyanathan
21 (i) Upon reading of the
provisions of Sections 40, 41, 51, Sub- section (3) of Section 70 and
Sub-section (6) of Section 71, it would be evident that the life of the Board
(ii) Writ Petition must be held to
have been given up the challenge in respect of the notification dated
12.01.1999 as the appellant being a beneficiary in respect of the said
notification, and thus, he is estopped from challenging the subsequent
notification dated 17.02.2005 also as he should not be permitted to approbate
and reprobate at the same time.
27. The Act was enacted to provide
for the better administration of certain Sikh Gurdwaras and for inquiries into
matters connected therewith. It is a complete Code. The Act provides for not
only the constitution of a Tribunal but also for the constitution of a
Both the Tribunal as also the
Commission play significant and important roles under the Act. They deal with a
large number of disputes. The disputes which are dealt with by the Commission
are contained in various provisions of the Act, some of which we have noticed
28. The holders of the office both
of the Tribunal as also the Commission function under a statute. The
Commission/ Tribunal is to be 22 constituted from time to time. Whereas
sub-section (5) of Section 12 empowers the Local Government to remove any
member of the Tribunal on the grounds enumerated therein, Section 83 of the Act
does not deal with such a situation.
29. Would that by itself mean that
the Chairman or the Members of the Tribunal can hold office at their pleasure?
Does it contemplate a rule of perpetuity is the question involved herein?
Answers to these questions may seem to be difficult as the Full Bench of the
High Court noticed.
30. A statute, as is well known,
must be read in its entirety. It must then be read part by part, chapter by
chapter, section by section and then clause by clause.
31. Be it the constitution of the
Tribunal or the 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 appointed, is provided for under
sub-section (1) of Section 71 of the Act.
35. The fact that each Board must
submit a list within 90 days from its constitution is itself indicative of the
fact that the same is imperative in nature. The Government upon receipt of the
said list must perform its functions.
36. Undoubtedly, the Commission
exercises a judicial function but the same would not mean that in the name of
independence in its functioning, the members will continue to hold office in
37. It is not for us to prescribe
age of superannuation. A recommendation undoubtedly was made in that behalf by
the Full Bench of the High Court in Shiromani Gurdwaras Parbandhak Committee
(supra), but the recommendations having not been accepted and we, having been
called upon to determine only the question with regard to construction of
statute, will have to do so independent of the said observations.
38. It is, thus, one of the
functions of the Board to submit a list of the names of seven persons to the
Local Government. Two of the members of the Commission are to be selected by
the Local Government out of the list of qualified persons prepared and
maintained in terms thereof. If the Board fails to perform its duties in
preparing a select list enlisting therein the names of seven persons who are
qualified to become a member of the Commission; a' fortiori it would be the
duty of the State Government to select the names of two of them for appointment
as members of the Commission only out of the said list. The said provisions, in
our opinion, clearly indicate the tenure of the Commission.
39. The dichotomy is created in
view of the words "time to time" and the limited power of the State
to dissolve the Commission.
40. The power of dissolution is a
separate power. It is a substantive power. Removal of the members of a body
corporate is also a substantive power. It is one thing to say that on happening
of certain contingencies, which may include misconduct on the part of the
member of a body corporate, the power of removal can be resorted to or the
power of dissolution of the entire body can be taken recourse to, but then the
same by itself would not lead to a conclusion that in the event the said
contingencies cannot be complied with, in a given situation, the Chairman and
members shall continue to hold the office in perpetuity.
41. The Act 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
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
Constitution of India does not
envisage holding of any office in perpetuity.
45. We are not unmindful of the
opinion of the learned Chief Justice of the High Court that the term shall come
to an end when no dispute would remain pending before the Commission.
46. The superior courts must
remember a well-known principle of law that the Court while construing an
ongoing statute must take into consideration the changes in the societal
condition. It would be a relevant fact. It must take into consideration the
development in science and technology. [See Satyawati Sharma (Dead) by LRs. v.
Union of India (UOI) and Anr. [2008 (6) SCALE 325].
47. Before the Act was enacted,
the office of Commission was hereditary. The Rule of perpetuity was, therefore,
very much in the 27 mind of the Legislature as would appear from paragraph 5 of
the objects and reasons of the said Act. We are aware that the said paragraph
related to the Tribunal but then evidently the composition of the holder of a
hereditary office was very much in the mind of the Legislature.
48. The Tribunal has a wide
jurisdiction. The Commission also deals with a large number of disputes which
have been noticed by the High Court. The Court while construing a statute
cannot shut its eyes towards the ground realities. The number of cases coming
up before the Commission has gone up. When the Act was enacted, occasional
meeting was probably thought to be sufficient. The period of five years during
which the Commission was to function probably was more than enough in those
days. It is only in that view of the matter, the legislature might have thought
of dissolution of the Commission when no case was to remain pending.
49. We have noticed hereinbefore
that in view of the number of cases having gone up for all intent and purport
the Commission has been functioning continuously. If the contention of Mr.
Patwalia is to be accepted, the same would lead to an absurd situation, viz.,
the members of the Commission would hold office in perpetuity. They may even
abuse their position to keep one or the other matter pending before it. If 28
the contention of Mr. Patwalia is to be accepted that having regard to the
doctrine of independence of judiciary, the State Government will have no role
to play in the matter of constitution of the Board, the Government will never
be in a position to dissolve the Commission unless case is made out under one
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 29 constitution and reconstitution of the
Board had taken place from time to time. The very fact that it has been working
continuously and the members of the Board have been constituted at intervals is
also a pointer to show that the members had not been holding office at their
will, far less in perpetuity. It had been noticed by us heretobefore that the
same persons have been nominated more than once, even successively.
52. In a case of this nature
literal interpretation is not possible. If the statute has to be read keeping
in view the constitutional schemes and make it workable, the provisions thereof
are required to be given a purposive construction. [See New India Assurance
Company Ltd. v.
Nusli Neville Wadia and Anr. JT
2008 (1) SC 31] For the said purpose, even the past practice as also the
Statement of Objects and Reasons of the Act can be looked into.
53. In Pannalal Binjraj v. Union
of India [AIR 1957 SC 397], where the vires of Section 5(7-A) of the Income tax
Act, 1922 were put in issue before this Court, the challenge was repelled and
during the course of the judgment the previous history of the earlier Income
tax Acts was taken into account to decide what policy could be said to underlie
the provisions of the impugned Section.
30 That judgment has been followed
by this court in a plethora of decisions for the purpose of looking into the
statement of objects and reasons of enacting an Act for appreciating the background
of legislature's classification. [See for instance, The Quarry Owners
Association v. The State of Bihar & Ors., (2000) 8 SCC 655, Gurudevdatta
VKSSS Maryadit & Ors. v. State of Maharashtra & Ors., (2001) 4 SCC 534,
K.T.M.S. Mohd. and another v. Union of India With Amanullah Quareshi v. Union
of India, (1992) 3 SCC 178, Gopal Narain v. State of Uttar Pradesh and Anr.
(1964) 4 SCR 869, Bhatnagars and Co.
Ltd. v. The Union of India, (1957)
1 SCR 701]
54. Clause (iv) of Section 79
might have been declared ultra vires but the same by itself is not sufficient
to hold that save and except the power of the State Government to dissolve the
Commission there does not exist any provision to bring to an end its tenure and
it would continue to function till a case remains pending. The said
interpretation would not only lead to an anomalous situation, but also
frustrate the constitutional scheme.
55. For the aforementioned
purpose, we must bear in mind two salient principles, i.e., the `power to
appoint' carries with it the `power to remove' under the General Clauses Act.
If the Commission is to be 31 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 therefor.
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 therefor 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 been
declared ultra vires by the Punjab High Court in the case of Shiromani
Gurdwaras Parbandhak 32 Committee (supra), but the same by itself, in our
considered opinion, is not sufficient to hold that save and except for the
power of the State Government under Section 83 of the Act for dissolution of
the Commission, it would continue to function till any case is pending.
60. For the purpose of giving an
effective and meaningful construction of the provisions, the court is bound to
take into consideration the situational change. The statute is an ongoing one.
The number of litigations in the year 1925 might have been small. Occasional
formation of the Commission might be contemplated keeping in view the number of
litigations at that point of time. The Act, however, must be interpreted
differently as the court cannot ignore the ground realities. If it is to be
held that in terms of Section 83 of the Act, the State Government has the power
to dissolve the Commission only in terms thereof, for all intent and purport,
the Commission shall continue till a member dies or resigns.
61. On the appellant's own
showing, the Commission is not an occasional body. It has continued to function
for a long time. If that be so, the object and purpose for which the statute
contemplated constitution of such occasional body has lost its purpose. Apart
from Section 40 of the Act, even in terms of Section 70 of the Act, the Members
are to be appointed from time to time. If the tenure is for the 33 whole life
of the Member, there cannot be any fresh appointment. If there cannot be any
fresh appointment, the same would be clearly violative of Article 16 of the
62. In Sri Nasiruddin v. State
Transport Appellate Tribunal [(1975) 2 SCC 671], the interpretation of the
words "such Judges of the new High Court, not less than two in number, as
the Chief Justice, may, from time to time nominate, shall sit at Lucknow as
used in The United Provinces High Courts (Amalgamation) Order, 1948 came up for
consideration before this court.
It was held by this court that the
words "from time to time" suggest not only that Judges who may come
from Allahabad to Lucknow or vice versa but also that the number may be
increased or decreased according to exigencies, the only limitation being that
it shall not be less than two.
63. In a more recent decision of
this court in M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board [(2004) 9
SCC 755], 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 34 "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. The Board has power to make
regulations which having regard to the provisions of General Clauses Act would
mean that they can make such regulations from time to time."
64. We, therefore, are of the
opinion that in view of the situational change, a meaning which could be
attributed in the year 1925 cannot be given the same meaning today. For the
aforementioned purpose, Sections 40 and 70 of the Act must be read together.
Therefor a holistic 35 reading of the entire Act would be necessary. So read,
the opinion of the majority appeals to us. By reason of such an interpretation,
the apprehension that the State would be endowed with the arbitrary power is
65. The term `from time to time'
should be given an effective and purposeful meaning. If any other meaning is
assigned, sub-section (3) of Section 70 and sub-section (1) of Section 72 would
be rendered otiose.
We cannot, thus, agree with the
contention of Mr. Patwalia.
66. There is another aspect of the
matter which cannot be lost sight of.
Appellant herein has questioned
the validity of the Notification dated 6th January, 1999 on the premise that
the Chief Minister of the State had acted mala fide. The Full Bench noticed
that factual foundation had not been laid therefor. For all intent and purport,
the said point was given up. Furthermore, the appellant has again been
appointed as a Chairman of the Commission by a Notification dated 17th March,
2005. The Notification used the words "Reconstitution of the Commission".
He, therefore, is a functionary thereof. He cannot be permitted to approbate
67. By reason of the notification
dated 19.10.1978, the Central Government has not delegated its power. The 1966
Act has an extra- 36 territorial application. It is not in dispute that no law
has been enacted either by the State of Haryana or by the State of Himachal
Pradesh. In absence of any law having been enacted to the contrary, the
functions under the 1966 Act must be performed by some authority. The Central
Government with the consent of the State of Haryana has merely nominated the
State of Punjab to do so. By reason thereof, it has not delegated any power.
Sub-section (1) of Section 72 of the 1966 Act envisages a direction upon the
Central Government. Such a direction has been issued by reason of the impugned
notification. When a power has been conferred upon the State of Punjab by the
Central Government, it exercises a statutory power. It would, therefore, not a
case where the functions of the State Government must be held to be confined to
its territorial jurisdiction.
68. Articles 245 or 246 or for
that matter, Articles 73 and 172 of the Constitution of India will have no
69. Even such questions have not
been raised before the High Court.
In issuing the notification, the
Central Government was merely exercising its statutory functions. It has not
exercised a power of delegation. The ground of excessive delegation of power,
thus, does not 37 arise. Some authority is required to function. If an
authority has been nominated, all other questions become academic.
70. For the reasons
aforementioned, Civil Appeal Nos. 7024 of 2002 and 8171-8172 of 2003 are
dismissed and Civil Appeal arising out of SLP (C) No. 20803 of 2002 as also
Civil Appeal Nos. 5546 of 2003, 8169-8170 of 2003 and 3162-3165 of 2004 are
allowed. No costs.
[V.S. Sirpurkar] New Delhi;
Pages: 1 2 3