HARBHAJAN SINGH VERSUS STATE OF HARYANA & ORS

HARBHAJAN SINGH VERSUS STATE OF HARYANA & ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 735 OF 2014
HARBHAJAN SINGH .....APPELLANT(S)
VERSUS
STATE OF HARYANA & ORS. .....RESPONDENT(S)
W I T H
WRIT PETITION (CIVIL) NO. 1116 OF 2019
A N D
CIVIL APPEAL NO. 6614 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 4733 OF 2022)
J U D G M E N T
HEMANT GUPTA, J.
WRIT PETITION (CIVIL) NO. 735 OF 2014 AND WRIT PETITION (CIVIL) NO. 1116
OF 2019
1. The above writ petitions are preferred challenging the Haryana Sikh
Gurdwara (Management) Act, 20141
, creating a separate juristic entity
for the management of historical Gurdwaras in the State of Haryana
mentioned in Schedule I; Gurdwaras having income of more than Rs.20
1 For short, the ‘Haryana Act’
1
lakhs in Schedule II and the Gurdwaras having income of less than
Rs.20 lakhs in Schedule III.
2. The Statement of Objects and Reasons of the Haryana Sikh Gurdwara
Management Bill, 2014 (Bill No. 28-III A of 2014) provides that the Bill
is an earnest effort to provide a legal procedure by which the
Gurdwaras, owing to their origin and habitual use, regarded by the
Haryana Sikhs as essentially pious places of worship, may be brought
effectively and permanently under the exclusive control of the Sikhs of
Haryana for their proper use, administration, control and financial
management reforms to make it consistent with the religious views of
the said community. It was pointed out that the Sikh Gurdwaras in the
State are being governed by the provisions of the Sikh Gurdwaras Act,
19252
 and the rules and regulations made thereunder, but in view of
the demands of the Sikhs in the State of Haryana which were
examined by two committees, it was decided to introduce the Bill in
terms of powers conferred under Article 246 read with Schedule VII,
List II, Entry 32 of the Constitution of India, as also in pursuance of
Section 72 of the Punjab Reorganisation Act, 19663
. It is thereafter, the
Haryana Act was enacted which came into force on 14.7.2014.
3. The first writ petition has been filed by a resident of Haryana and an
elected representative of Shiromani Gurdwara Prabandhak Committee4
from Kurukshetra. The ground of challenge is that the Haryana Act is
2 For short, the ‘1925 Act’
3 For short, the ‘1966 Act’
4 For short, the ‘SGPC’
2
against the constitutional provisions, the statutory provisions of the
1966 Act and is also divisive in its intention to create dissentions
amongst the followers of the Sikh religion. The writ petition was
subsequently amended to challenge the Haryana Act on the ground of
infringement of fundamental rights conferred on the petitioner under
Part III of the Constitution. The second writ petition has been preferred
by the SGPC challenging the Haryana Act on almost similar grounds.
4. The State of Haryana and Haryana Sikh Gurdwara Managing
Committee5
 filed a counter affidavit controverting the stand of the
petitioner whereas respondent No. 3 – SGPC in the first writ petition
supported the petitioner and, in fact, filed an independent writ petition
to challenge the Haryana Act. The Union of India in its reply asserted
that while excluding the jurisdiction of the 1925 Act by the Haryana
Act, it amounts to winding up of the Board constituted under the 1925
Act whose functions necessarily fall under Entry 44 of List I. Therefore,
the contention that the State of Haryana had the jurisdiction to pass
the impugned Haryana Act in terms of Entry 32 of List II of Schedule VII
appears to be misplaced. It is the stand of the Union that only
Parliament has the exclusive power to enact law on the said subject.
There is no justification for the Haryana State Legislature to have
passed a law on the same subject matter, taking away the jurisdiction
of the Board constituted under the 1925 Act.
5. It is submitted that the 1925 Act was enacted to provide for better
5 For short, the ‘Haryana Committee’
3
administration of certain Sikh Gurdwaras and for enquiries into matters
and settlement of disputes connected therewith. The 1925 Act received
the assent of the Governor General on 28.7.1925 and was published in
the Punjab Gazette on 7.8.1925 and thereafter it came into force on
1.11.1925. The 1925 Act extends to the territories which immediately
before 1.11.1956 were comprised in the State of Punjab and Patiala
and East Punjab States Union (PEPSU). It is pointed out that the
management of every notified Sikh Gurdwara is required to be
administered by the Committee constituted thereof, the Board and the
Commission in accordance with the provisions of the Act. SGPC is the
Board so constituted under Section 43. The Board consists of 170
elected members; the Head Ministers of the Darbar Sahib, Amritsar; Sri
Akal Takhat Sahib, Amritsar; Sri Takhat Keshgarh Sahib, Anandpur; Sri
Takhat Patna Sahib, Patna; Sri Hazur Sahib, Nanded; and Sri Takhat
Damdama Sahib, Talwandi Sabo, Bathinda, Punjab and 15 members
who are residents in India, of whom not more than 5 shall be residents
of Punjab, co-opted by the other members of the Board. The
jurisdictional area of the Act has been divided into 120 constituencies
as there are 50 plural constituencies, each returning 2 members for the
election of 170 members. Furthermore, the 1925 Act envisages a
scheme for the administration and management of the property,
endowments, funds and income of the Gurdwaras as described in
Section 85(1). For every such notified Sikh Gurdwara other than a
4
Gurdwara specified in Section 85, a Committee shall be constituted
after it has been declared to be a Sikh Gurdwara consisting of 5
members as provided under Section 87. The Gurdwaras covered by
the 1925 Act are spread over the present States of Punjab, Haryana,
Himachal Pradesh and Union Territory of Chandigarh and are being
administered by the SGPC.
6. It has also been mentioned that the States Reorganisation Act, 19566
increased the area of Punjab by inclusion of State of PEPSU. However,
the existing State of Punjab was thereafter reorganized on linguistic
basis in 1966 when the 1966 Act was enacted. The relevant provisions
of the 1966 Act read thus:
“72(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.
(2) Any direction issued by the Central Government under subsection (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
6 For short, the ‘1956 Act’
5
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.
xxx xxx xxx
88. The provisions of Part II shall not be deemed to have effected
any change in the territories to which any law in force
immediately before the appointed day extends or applies, and
territorial references in any such law to the State of Punjab shall
until otherwise provided by a competent Legislature or other
competent authority be construed as meaning the territories
within that State immediately before the appointed day.
89. For the purpose of facilitating the application in relation to
the State of Punjab or Haryana or to the Union Territory of
Himachal Pradesh or Chandigarh of any law made before the
appointed day, the appropriate Government may, before the
expiration of two years from that day, by order, make such
adaptations and modifications of the law, whether by way of
repeal or amendment, as may be necessary or expedient, and
thereupon every such law shall have effect subject to the
adaptations and modifications so made until altered, repealed or
amended by a competent Legislature or other competent
authority.
Explanation- In this section, the expression “appropriate
Government” means-
(a) as respects any law relating to a matter enumerated in
the Union List, the Central Government; and
(b) as respects any other lawi) in its application to a State, the State Government,
and
ii) in its application to a Union Territory, the Central
Government.
90. (1) Notwithstanding that no provision or insufficient provision
has been made under section 89 for the adaptation of a law
made before the appointed day, any court, tribunal or authority,
required or empowered to enforce such law may, for the purpose
of facilitating its application in relation to the State of Punjab or
Haryana, or to the Union Territory of Himachal Pradesh or
Chandigarh construe the law in such manner, without affecting
the substance, as may be necessary or proper in regard to the
6
matter before the court, tribunal or authority.
(2) Any reference to the High Court of Punjab in any law shall
unless the context otherwise requires be construed, on and from
the appointed day, as a reference to the High Court of Punjab
and Haryana.”
7. It is stated that in terms of the provisions of Section 109 of the 1956
Act, the Inter-State Corporation Act, 19577
 was enacted. The stand of
the Union is that as per Section 3 of the 1957 Act, the State
Governments were enabled to frame the scheme in respect of any
inter-State Corporation functioning within the State, but the scheme
had to be forwarded to the Central Government. The Central
Government after consulting the State Government concerned may
either approve the scheme with or without modifications and give
effect to the scheme so approved under Section 4 of the 1957 Act. The
Central Government had the power to include any body corporate
constituted for a State for functioning in two or more States of the
Schedule. The 1925 Act came to be incorporated in the Schedule in the
1957 Act vide notification dated 26.7.1972. Thus, it is the stand of the
Union that only Central Government could give directions with regard
to functioning and operation of an inter-state body corporate i.e.,
SGPC.
8. Section 109 of the 1956 Act reads thus:
“109. General provision as to statutory corporations-(1) Save as
7 For short, the ‘1957 Act’
7
otherwise expressly provided by the foregoing provisions of this
Part, where any body corporate has been constituted under a
Central Act, State Act or Provincial Act for an existing State or to
a new State, then, notwithstanding such transfer, the body
corporate shall, as 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
direction as may from time to time be issued by the Central
Government, until other provisions is made by law in respect of
the said body corporate.
(2) Any directions issued by the Central Government under subsection (1) in respect of any such body corporate shall 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.”
9. The relevant provisions of the 1957 Act read thus:
“2. Definition - In this Act, “inter-State corporation” means any
body corporate constituted under any of the Acts specified in the
Schedule and functioning in two or more States by virtue of
section 109 of the States Reorganisation Act, 1956, [or of any
other enactment relating to reorganisation of States].
3. Power of State Governments to frame schemes. – If it appears
to the Government of a State in any part of which an inter-State
corporation is functioning that the inter-State corporation should
be reconstituted and reorganized as, one or more inter-State
corporations or that it should be dissolved, the State
Government may frame a scheme for such reconstitution and
reorganisation or such dissolution, as the case may be, including
proposals regarding the transfer of the assets, rights and
liabilities of the inter-State corporation to any other corporations
or State Governments and the transfer or re-employment of
employees of the inter-State corporation and forward the
scheme to the Central Government.
4. Reorganisation of certain inter-State corporations.-(1) On
receipt of a scheme forwarded to it under section 3, the Central
Government may, after consulting the State Governments
concerned, approve the scheme with or without modifications
8
and give effect to the scheme so approved by making such order
as it thinks fit.
(2) An order made under sub-section (1) may provide for all of
any of the following matters, namely:-
xx xx xx
(b) the reconstitution and reorganisation in any manner
whatsoever of the inter-state corporation including the
constitution, where necessary of new corporation;
(c) the area in respect of which the reconstituted corporation or
new corporation shall function and operate;
(d) the transfer, in whole or in part, of the assets, rights and
liabilities of the inter-State corporation (including the rights and
liabilities under any contract made by it) to any other
corporations or State Governments and the terms and conditions
of such transfer;
xx xx xx
5. Power of Central Government to add to the Schedule. – The
Central Government may, by notification in the Official Gazette,
specify in the Schedule any Act under which a body corporate
constituted for a State is functioning in two or more States by
virtue of section 109 of the States Reorganisation Act, 1956, or
of any other enactment for the reorganisation of States, and on
the issue of such notification, the Schedule shall be deemed to
be amended by the inclusion of the said Act therein.”
10. The State of Himachal Pradesh, respondent No. 6, took a stand that the
1925 Act is applicable only for those areas which are included in
Himachal Pradesh under the 1966 Act. The single member
constituency of the said areas of Himachal Pradesh has 23987 voters.
Therefore, there had been no issue either about conducting of election
for SGPC or managing of Gurdwaras under the existing legislation i.e.,
9
the 1925 Act and the Rules made thereunder. Thus, the State of
Himachal Pradesh is not contesting the petition.
11. In the reply filed on behalf of the State of Punjab dated 24.8.2014, it
has been averred that the power to make law in respect of SGPC as an
inter-State body corporate has been reserved to the Central
Government only. The relevant extract reads thus:
“The power to make law in respect of the SGPC as an Inter-State
Body Corporate has been reserved to the Central Government
only and there is no provision in law for bifurcation of the said
Inter-State Body Corporate or replacement thereof by enacting a
State legislation.
xx xx xx
Thus in light of the above submissions, it is clear that SGPC is
firmly rooted as an inter-state body corporate and only
Parliament is empowered to legislate regarding inter-state
corporations as per Entry 44 of List-I of Schedule 7 to the
Constitution of India. The enactment of the Haryana Sikh
Gurdwara (Management) Act, 2014 in purported exercise of
legislative competence under Entry 32 of List-II of Schedule 7 is
wholly unconstitutional and trespasses into a field exclusively
reserved for Parliamentary legislation, in view of the Statutory
Provisions referred above.”
12. A reference has been made to a Full Bench judgment of Punjab and
Haryana High Court in Sehajdhari Sikh Federation v. Union of
India & Ors.
8
 in the counter affidavit. It was however pointed out that
the aforesaid judgment was the subject matter of challenge in an
appeal before this Court.
13. In the alternative, it was submitted that the legislative competence
8 2012 (1) ILR Punjab and Haryana 347 : 2011 SCC OnLine P&H 17374
10
was to be traced to Entry 28 of List-III of Schedule VII. Therefore, in the
absence of assent of the President in terms of Article 254, the Haryana
Act is directly in conflict with the existing law.
14. However, after the amendment of the first writ petition, an additional
affidavit was filed by the State of Punjab on 22.11.2019. It was stated
that after the affidavits were filed at the initial stage, there have been
subsequent developments when the Parliament enacted Sikh Gurdwara
(Amendment) Act, 2016, amending Sections 49 and 92 of the 1925 Act
with retrospective effect from 8.10.2003. It is pointed out that
challenge to the said amendment carried out by the Parliament is the
subject matter of challenge in Writ Petition No. 11978 of 2017 which is
pending consideration before the High Court. It was averred that the
modification by the Central Government in terms of Section 72(1) of
the 1966 Act is in relation to functioning and operating of the body
corporate i.e., SGPC. However, such power cannot be extended to
amend the statute or issuance of notifications from time to time. The
relevant extract from the additional affidavit reads thus:
“10. The Central Government has done so in exercise of its
powers of modification under Section 72(1) of the Punjab Reorganisation Act, 1966. While Section 72(1) of the Punjab Reorganisation Act, 1966 does indeed empower the Central
Government to modify, such power is confined to directions by
the Central Government in relation to “the functioning and
operating” of such body corporate i.e. the Respondent No. 3.
That such power is limited to the functioning and operation of
the SGPC, cannot extend to amending the statute or that the
issuance of such notifications from time to time do not change
11
the legislative character of the Sikh Gurdwara Act, 1925 (from a
State legislation) to that of a Parliamentary Legislation was
conclusively held by the Hon’ble Full Bench of the Punjab and
Haryana High Court in the matter of Sehajdari Sikh Federation
Vs. Union of India (CWP 17771 of 2003 decided on 20th
December 2011) (2012 (1) ILR (P&H) 347). As stated earlier the
appeal from the above judgment being Civil appeal 9334/2013
came to be disposed as infructuous in view of Parliament
enacting the Sikh Gurdwara (Amendment) Act, 2016 which in
turn now is subject matter of challenge before the Hon’ble High
Court of Punjab and Haryana.
11. The present Respondent reiterates that State Legislation
pertaining to the administration of Gurudwaras within a State
(such as the Sikh Gurudwaras Act, 1925 pertaining to
Gurudwaras in the State of Punjab) is strictly within the dominion
of the State, the power to enact or amend such State Legislation
cannot be usurped by Parliament and the contentions of the
Petitioner and/or the Respondent no. 3 in this regard are denied
as misconceived.
xx xx xx
13. There is a distinction between the Central Government’s
power to issue directions (for the above limited purpose) and the
competence of Parliament to legislate. The existence of one does
not imply the existence of the other. The Petitioner and /or the
Respondent cannot contend that merely because the Central
Government has the power to pass directions, Parliament has
the sole power to legislate.
14. Furthermore, from a bare reading of the language of Section
72, even such limited power of the Central Government to issue
directions would cease to exist when appropriate legislation is
passed by competent legislature in this regard.
xx xx xx
19. It is reiterated that State has the power to enact necessary
legislation as regards "religious and other societies and
association" - (List 2-Entry 32) and the Petitioner and/or
Respondent no. 3's misplaced reliance on the provisions of
Section 72 of the Punjab Reorganization Act 1966, and any
perceived omnibus power of Parliament to legislate /amend such
12
statues, especially in the light of the Sikh Gurudwara
(Amendment) Act 2016, is misplaced.
20. In view of the above, it is most respectfully submitted that
this Hon'ble Court may kindly pass appropriate order upholding
the legislative competence of the State Legislature to
enact/amend legislation in relation to gurdwaras in their
respective States.”
15. Mr. Rakesh Dwivedi, learned senior counsel for the petitioner submitted
that the Haryana Act is practically similar to the 1925 Act except some
contextual changes. The stand of the writ petitioner Harbhajan Singh is
that Section 72(1) of the 1966 Act provides that where any body
corporate constituted for the existing State of Punjab or any part
thereof by any Act of Centre, State or Province becomes an Inter-State
Corporation by virtue of Part II of the 1956 Act, then it shall continue to
operate in those areas in respect of which it was functioning and
operating immediately before that day, subject to such directions as
may be issued by the Central Government, until other provision is
made by law in respect of it. Section 72(3) clarifies that this Section
shall apply to, inter alia, the Board constituted under Part III of the
1925 Act. While Part II (Sections 3-8) of the 1966 Act deals with
reorganisation of the State of Punjab, Part VII (Sections 67-77) deals
with State Electricity Board and State Warehouse Corporation which
provides that these are to continue, subject to Section 67 and
directions of the Central Government, but Section 67(4) enables the
Government of any of the successor States to constitute their own
13
State Electricity Board and State Warehouse Corporation. Section 69
makes similar provisions for the Punjab State Financial Corporation and
empowers the States of Punjab and Haryana to constitute their own
State Financial Corporation with the approval of Central Government.
Section 70 provides a distinct procedure for co-operative societies
specified in the Fifteenth Schedule of the 1966 Act which become a
multi-unit cooperative society by inserting Section 5D in the Multi-Unit
Cooperative Society Act, 1942. Further, Section 73 deals with seven
other corporations which are to continue until otherwise provided for
“in any law” or “in any agreement among the successor States” or “in
any direction issued by the Central Government”. Section 89 of the
1966 Act permits adaptations in laws by the appropriate Government
until the laws are altered, repealed or amended by the competent
legislature or the competent authority. Explanation thereto provides
that “appropriate Government” means the Central Government in
relation to matters enumerated in the Union List. For rest, it is the
State Government.
16. It is also submitted that Article 246 read with Entry 32 List II of the
Seventh Schedule and Section 72 of the 1966 Act cannot confer power
on the Haryana Legislative Assembly to make the impugned law. The
law is thus void, being outside the legislative competence of the
Haryana Legislative Assembly. It is also averred that the impugned law
violates Article 26 of the Constitution of India as it purports to take out
14
specified Gurdwaras and the management of their properties from the
control of the Board under the 1925 Act.
17. It is argued that the States Reorganisation Act is a special kind of
legislation enacted under Articles 2, 3 and 4 of the Constitution. The
Parliament alone is empowered to make such a law. The State of
Haryana can act only in accordance with the 1957 Act if it desires
reconstitution, reorganisation or dissolution of the Board constituted
under the 1925 Act. The only method prescribed under the Act to do so
is to frame a scheme including proposals regarding transfer of assets
of the Board to any other corporation of its own, and thereafter forward
the same to the Central Government. The Central Government then
under Section 4 of the 1957 Act is required to pass an order approving
the scheme with such modifications as it may deem fit, after consulting
the other State Governments. It is also submitted that where a special
procedure has been prescribed for doing a particular thing in a
particular manner, it must be done in that manner and not otherwise.
Reference is made to Privy Council judgment in Nazir Ahmad v. The
King-Emperor
9
. The said principle is again echoed in State of Kerala
& Ors. v. Kerala Rare Earth and Minerals Limited & Ors.
10
.
Various other judgments have been referred to by Mr. Rakesh Dwivedi
but there is no necessity to quote them as the principle is well settled
and established for many decades.
9 AIR 1936 PC 253(2)
10 (2016) 6 SCC 323
15
18. It is submitted that the source of enactment of the Haryana Act is
Section 72 of the 1966 Act read with Entry 32, List II of the VII
Schedule. It is stated that Section 72 deals with body corporates
constituted under the Central Act, State Act or Provincial Act for the
existing State of Punjab. Such body corporate which has become an
inter-state body corporate is mandated to continue to function and
operate in those areas in respect of which it was functioning and
operating immediately before that day. The Central Government is
empowered under Section 72(1) to issue directions from time to time
“until other provision is made by law”. The State of Haryana is thus
not competent to make a law in respect of a body corporate which has
become an inter-state body corporate. It is argued that the 1957 Act is
a special law made by the Parliament and not only Section 72 of the
1966 Act has to be read along with the provisions of the 1957 Act, but
the entire 1966 Act would have to be construed consistently with the
provisions of the 1957 Act. The principle of generalia specialibus non
derogant, (General things do not derogate from the special things)
would apply in the event of any inconsistency or ambiguity. It is also
submitted that inter-state corporations or multi-state corporations
would be covered by Entry 44 of List I. Reference is made to a recent
judgment of this Court in Union of India v. Rajendra N. Shah &
Anr.
11
.
19. It is averred that the Haryana Act is not creating a society or a
11 2021 SCC OnLine SC 474
16
corporation at State level but it seeks to curtail the jurisdiction of the
1925 Act, therefore, it is not an enactment with reference to Entry 32
List II. It is also contended that in fact, the Haryana Act adversely
impacts the unity of management of religious place of worship and
takes away the management of the Gurdwaras from the control of
SGPC, thus, breaching the fundamental right guaranteed under Article
26. Hence, the argument is that the Haryana Act violates the mandate
of Articles 25 and 26 of the Constitution.
20. The SGPC challenged the Haryana Act, inter alia, on the ground that
the legislature of the State of Haryana has taken away the right of
administration of Gurdwaras and its properties situated in the State of
Haryana from SGPC and handed it over to the Haryana Committee. It
is the stand of SGPC that it is running various charitable activities in
the State of Haryana i.e., schools, colleges, hospitals and other
religious institutions and also managing the Gurdwaras situated in the
State of Haryana. SGPC thus has a fundamental right under Article 26
to establish and maintain institutions for religious and charitable
purposes. It was stated as under:
“5. Under the Act of 1925, the SGPC became a legal institution
of the Sikhs for managing the Sikh Gurdwaras. It became the
supreme body of the Sikhs which was directly elected by the
Sikhs to manage their religious affairs for themselves. It came to
be appropriately and rightly as a government within the
government or a mini parliament of the Sikhs. It’s working
achievement and contribution of the last almost hundred years
clearly display, that the SGPC has played a significant role in the
affairs of the Sikhs, and the Sikh community has great reverence
17
for its efforts and contributions made for raising religious ands
social issues concerning the community, not only in India, but all
over the world, even dehorsit’s statutory enactment, i.e. Act of
1925.
6. …The Haryana Sikh Gurdwaras (Management) Act, 2014 in its
objects and reasons specifically states that the Act of 2014 has
been enacted for managing religious affairs including
management of Sikh Gurdwaras in the territorial jurisdiction of
the State of Haryana. It provides for division of property vested
with the Board-SGPC under the act of 1925 and thus, infringes
Article 26 of the Constitution of India….
7. It is submitted that Article 26(d) of the Constitution uses the
expression “in accordance with law”, it is trite to submit that the
word ‘law’ encompasses an Act and it has to be a valid piece of
legislation. This Hon’ble Court has held in the context of Article
26 that in matters of administration of property belonging to the
religious denomination or section thereof, the secular authorities
can regulate the same in accordance with the law laid down by
the competent legislature. Although, only clause (d) of Article 26
uses the expression in accordance with law, however, the same
expression has to be read into all the clauses of Article 26, since,
it cannot be the case that state can meddle in the fundamental
rights of freedom to manage religious affairs etc., without
enacting a valid piece of legislation, thus, violation of
fundamental rights under Article 26, as available to the SGPC
and its elected members.
xx xx xx
9. It is also submitted that this Hon’ble Court has held in context
of various Articles of the Constitution that the law must be a
valid law. Article 25(2) of the Constitution permits the state for
making any law regulating or restricting any economic, financial,
political or other secular activities, which may be associated with
religious practice, and the similar logic as stated hereinabove in
regard to validity of law on the touchstone of competence of
legislature would be applicable on all fours in regard to
provisions of Article 25(2) as well. Further, this logic would be
applicable even to provisions of Article 13 as well.”
21. It is contended that the State of Haryana relies upon Entry 32, List II of
18
the Seventh Schedule, whereas, the SGPC under the 1925 Act is an
inter-state body corporate covered by Entry 44 of List I. The two
entries read thus:
List II List I
32. Incorporation, regulation
and winding up of corporation,
other than those specified in
List I, and universities;
unincorporated trading,
literary, scientific, religious
and other societies and
associations; co-operative
societies.
44. Incorporation,
regulation and winding up of
corporations, whether
trading or not, with objects
not confined to one State,
but not including
universities.
22. Since the object of SGPC is not confined to one State, therefore,
Haryana State legislature is not competent to enact law. In respect of
Entry 32, it is stated that it refers to only those corporations which are
based within the territories of a particular state whereas the inter-state
corporations covered under Entry 44 of List I are excluded from the
operation of Entry 32 of List II. The 1957 Act is a special statute
regulating inter-state corporations and it has been enacted under
Articles 2 and 3 of the Constitution of India read with Entry 44 of List I
of the Seventh Schedule, therefore, legislature of Haryana could not
have enacted the Haryana Act in violation of the 1957 Act. Reference
was made to a judgment of this Court reported as Maa Vaishno Devi
Mahila Mahavidyalaya v. State of Uttar Pradesh & Ors.
12
. Thus, it
is argued that the provisions of Section 72(1) read with Section 72(3) of
12 (2013) 2 SCC 617
19
the 1966 Act specifically deal with inter-state corporate body like
SGPC, and the legislature for the State of Haryana has made an
incompetent Act. In view of Section 88 of the 1966 Act, the 1925 Act
which was applicable prior to the appointed day continued to function
and operate in the States of Punjab, Haryana, parts of Himachal
Pradesh and U.T. Chandigarh.
23. The argument on behalf of the State of Haryana or on behalf of the
Haryana Committee is that this Court vide its order dated 29.3.2022
while holding the maintainability of the present writ petition before this
Court held that two aspects need to be examined; first, whether any
fundamental right of the petitioner is invaded or violated and, second,
unless and until violation of the fundamental right of the petitioner is
found, this Court need not go into the question of vires of the
impugned Act.
24. Reliance is placed upon a Full Bench judgment of the Punjab and
Haryana High Court reported as Dayanand Anglo-Vedic College
Managing Committee v. The State of Punjab & Ors.
13
 to contend
that Panjab University, an inter-State body corporate by virtue of
Section 72 of the 1966 Act was to continue its functions and operations
subject to the directions issued by the Central Government. The
directions could be issued for a limited period i.e., until other provision
was made by law in respect of Panjab University. Reliance is also
13 1971 SCC OnLine P&H 257
20
placed upon Himachal Pradesh University, Shimla v. Punjab
University, Chandigarh & Ors.
14 wherein this Court held that the
institutions and properties which were situated in Himachal Pradesh of
the Panjab University, being an inter-state corporation, were succeeded
by the University of the successor State insofar as its functioning and
operation at Shimla was concerned. It is, thus, sought to be contended
that the irretrievable conclusion is that the 1956 Act was only a
transitional provision. It is submitted as under:
“1. The Impugned Act is pari materia to the Sikh Gurdwara Act,
1925. As per Chapter-II – ‘The Committee’ of the Impugned Act,
a committee by the name of Haryana Sikh Gurdwara Committee
(Respondent No. 5) has been established for the proper
management and control of the Sikh Gurdwaras situated in
jurisdiction of the State of Haryana. As per Section 4 –
‘Composition of Committee’, the committee consists of 40
members who are elected from various wards from the State of
Haryana. This scheme grants the Impugned Act a democratic
framework as every person is given a fair say in the
management of religious affairs.
2. The Punjab Reorganisation Act, 1966 was passed by the
Parliament under Article 3 of the Constitution of India to facilitate
reorganisation of the existing State of Punjab and for matters
connected therewith. Section 72 of the 1966 Act was enacted to
make general provisions for such bodies corporate for which no
provision had been made in other parts of the Act.
3. Section 72(1) starts with the words “Save as otherwise
expressly provided by the foregoing provisions of this Part”. It
further specifically mentions that the Central Government has
the power to issue directions qua the corporation “until other
provision is made by law in respect of the said body corporate”.
Section 72(3) specifically provides that the provision of this
section shall apply to the “Board constituted under the
provisions of Part III of the Sikh Gurdwara Act, 1925.”
14 (1996) 11 SCC 411
21
4. The Inter-State Corporation Act, 1957 was enacted as per
Section 109 of the State Reorganisation Act, 1956 as a
transitional provision for the purpose of
reconstitution/dissolution/ reorganisation of certain corporations
functioning in two or more States. The statement of purpose of
the 1957 Act is “this was only intended to be a transition
provision”.
25. Reference is also made to five-Judges Bench judgment of the Punjab
and Haryana High Court in Kashmir Singh v. Union of India & Ors.
15
which was affirmed by this Court in a judgment reported as Kashmir
Singh v. Union of India & Ors.
16
 to contend that the State legislature
is competent to enact a law in respect of the 1925 Act when the State
of Punjab nominated members to the Judicial Commission constituted
under the 1925 Act.
26. The 1925 Act is a State Act. It was enacted by Punjab Provincial
Council. The State of Punjab has amended this 1925 Act thirty times
from the date of its passing in 1925 upto 1966. Entry 32 of List II
specifically includes the power of the State Legislature to make laws in
relation to incorporation, regulation and winding up of corporations,
other than those specified in List I. The State is competent to frame
laws in respect of universities, unincorporated trading, literary,
scientific “religious and other societies” and associations. This express
power has not been conferred on the Parliament under Entry 44, List I.
It is also contended that the Haryana Act is not covered by Entry 28 of
15 2002 SCC OnLine P&H 766 : ILR (2003) 1 P&H 345. For short, Kashmir Singh - I
16 (2008) 7 SCC 259. For short, Kashmir Singh - II
22
List III i.e., charities and charitable institutions, charitable and religious
endowments and religious institutions. It is contended that
endowments are in essence properties, whether movable or
immovable, designated to be used for a specific purpose which would
fall within Entry 28 of List III of the Seventh Schedule but the
corporations are legal entities that can sue and be sued which are
covered by Entry 32 of List II.
27. The State of Punjab in its written submissions has asserted that it is an
undisputed fact that the 1925 Act is an act of State legislature. It was
enacted for the administration of certain Sikh Gurdwaras within the
State of Punjab as it then existed and thereafter various amendments
have been made to it by the Punjab Legislature. It is only due to
Section 72 of the 1966 Act that the Board under the 1925 Act became
an inter-state corporation, which was only a temporary measure until
law is made by the competent legislature. It was asserted as follows:
“3. From the date of enactment of the Constitution of India, the
State of Punjab adopted the 1925 Act and since then the Punjab
Legislative Assembly has been making amendments to the 1925
Act. It was only after the 1966 Act was passed, the power to
issue direction was granted to the Central Government by the
virtue of Section 72 of the 1966 Act. The power to make
amendment was temporarily shifted to the Parliament till the
time the Successor States came up with their own laws.
4. It is essential to note that shift of power was only transitional
in nature, and the Central Government was given the power to
merely issue directions. The Full Bench of the Punjab and
Haryana High Court while deciding CWP No. 17771/2003 vide
judgment dated 20.12.2011 in the matter of Sehajdari Sikh
Federation Vs. Union of India 2012 (1) ILR (P&H) 347
23
negated the power of the Central Government to amend the Sikh
Gurudwaras Act 1925, by way of notification.
5. It is stated that the 1925 Act was indisputably conceived as a
State Act. The Respondent No.3-SGPC is a creation of Section 40
of the 1925 Act. Section 40 inter alia read with the preamble of
the 1925 Act provides that Respondent No. 3 is a Board
constituted for the better administration of certain/notified
Sikh Gurudwaras and for enquiries into matters and settlement
of disputes connected therewith. Section 42(3) grants on to the
Respondent No.3 the status of a “body corporate”.
6. After the passing of the States Reorganisation Act, 1956 (in
short “1956 Act”) and the 1966 Act, the Central Government has
by notification from time to time “modified” the provisions of
Section 85 (Constitution of committees of management of
certain gurdwaras) of the 1925 Act to amend/add such list of
notified Sikh Gurudwaras whose management would be
supervised by the Respondent No.3.
7. The Central Government has done so in exercise of its powers
of modification under Section 72(1) of the 1966 Act. While
Section 72(1) of the 1966 Act does indeed empower the Central
Government to modify, such power is confined to directions by
the Central Government in relation to “the functioning and
operating” of such body corporate i.e. the Respondent No.3.
That such power is limited to the functioning and
operation of the SGPC, cannot extend to amending the
statute or that the issuance of such notifications from
time to time do not change the legislative character of
the 1925 Act (from a State legislation) to that of a
Parliamentary Legislation. This position was conclusively
settled by the Hon’ble Full Bench of the Punjab and Haryana
High Court in the matter of Sehajdari Sikh Federation case
(Supra).
8. The present Respondent reiterates that State Legislation
pertaining to the administration of Gurudwaras within a State
(such as the Sikh Gurudwaras Act, 1925 pertaining to
Gurudwaras in the State of Punjab) is strictly within the dominion
of the State, the power to enact or amend such State
Legislation cannot be usurped by Parliament and the
contentions of the Petitioner and/or the Respondent No.3 in this
regard are not maintainable.
24
9. Section 72 of the 1966 Act cannot be read against a State
Government in the manner in which the Petitioner and/or the
Respondent No.3 are now proceeding to do so. The power of the
Central Government in terms of Section 72 is limited to the
passing of directions relating to the functioning and operating of
Respondent No.3.
10. Furthermore, from a bare reading of the language of Section
72, even such limited power of the Central Government to issue
directions would cease to exist when appropriate legislation is
passed by competent legislature in this regard.
11. Moreover amending/enacting the legislation pertaining to
the administration of Gurudwaras within a State (such as the
Sikh Gurudwaras Act, 1925 pertaining to the Gurudwaras in the
State of Punjab) is within the legislative domain of the State and
such power to enact or amend such State Legislation cannot be
usurped by the Parliament. It is submitted that State has the
power to enact necessary legislation as regards “religious and
other societies and association” (List-2, Entry 32) and the
petitioner and/or Respondent No.3’s misplaced reliance on the
provisions of Section 72 of the Punjab Reorganisation Act, 1966
and any perceived omnibus power of Parliament to
legislate/amend such statutes is misplaced.
12. Reliance on Entry No.44 of List I to the 7th Schedule which
pertains to “incorporation, regulation and winding up of
corporations” cannot be placed as there is no legislation at hand,
which deals with the incorporation, regulation or the winding up
of the Respondent No.3 [even assuming without admitting that
the Respondent No.3 is a corporation envisaged under Entry 44
List 1, which it is not].
13. The Respondent No.3 is a creation of and continues to owe
its legal position, existence and functioning to Section 39-42 of
the 1925 Act which is a State Legislation enacted by a State
Legislature in terms of the Entry 32 of List II and not by the
Parliament. Entry 4 List 1 does not even relate to or mention
such “Inter State Corporations”. Rather it pertains to the
“incorporation, regulation and winding up of corporations”.
28. In the light of arguments addressed and/or submitted, we find the
25
following questions arise for consideration:
(i) Whether any fundamental rights of the petitioners under
Articles 25 and 26 of the Constitution of India are violated, so
as to entitle the petitioners to invoke the jurisdiction of this
Court under Article 32 of the Constitution?
(ii) Whether Section 72 of the Punjab Reorganisation Act, 1966
and Sections 3 and 4 of the Inter-State Corporation Act, 1957
were transitional provisions to meet the immediate
requirement of the issues arising out of creation of separate
States?
(iii) Whether the impugned enactment (Haryana Act) falls within
the legislative competence of the Haryana State Legislature or
does it fall under Entry 44 of List I of the Seventh Schedule of
the Constitution?
(iv) Whether the Impugned Act falls in List-III (Concurrent List) of
Schedule VII, which required the assent of the President of
India as per Article 254(2) of the Constitution of India, and in
the absence of such assent, void?
29. We will take up Question Nos. (ii), (iii), and (iv) first and thereafter
advert to Question No. (i).
Question No. (ii) - Whether Section 72 of the Punjab
Reorganisation Act, 1966 and Sections 3 and 4 of the Inter-state
Corporation Act, 1957 were transitional provisions to meet the
immediate requirement of the issues arising out of creation of
separate States?
26
30. The writ petitioners, SGPC and the Union have taken one line of
argument that the Haryana State Legislature does not have any power
to legislate in respect of an inter-state corporation which is evident
from the reading of sub-section (3) of Section 72 of the 1966 Act. In
respect of such inter-state body, it is averred that the Central
Government alone is the competent authority to issue directions in
terms of sub-section (1) of Section 72 of the 1966 Act. Alternatively,
the right of the State of Haryana is to frame a scheme in terms of the
provisions of Section 3 of the 1957 Act and forward it to the Central
Government for its consideration and approval, with or without
modifications. Mr. Nataraj pointed out that Section 3, as referred to by
the learned counsel for the parties, is not factually correct. If an interState corporation is required to be reconstituted and reorganized as
one or more ‘intra-State corporations’, or that it has to be dissolved,
the State of Haryana was expected to frame a scheme for the
reconstitution and reorganization to have intra-State management of
Gurdwaras in the State of Haryana.
31. The State of Haryana, Haryana Committee and State of Punjab have
taken one stand and argued that power to legislate the impugned
Haryana Act is not with the parliament but with the State, i.e., State of
Haryana. It was argued that the 1957 Act was enacted in pursuance of
Section 109 of the 1956 Act which is also mentioned in the Preamble of
the said Act, and was intended to be a transitional provision as
27
mentioned in the Statement of Objects and Reasons when the Bill
leading to the enactment of 1957 Act was introduced. Section 109 of
the 1956 Act is to the effect that where any body corporate has been
constituted under a Central Act, State Act or Provincial Act for an
existing State, the whole or any part of which is by virtue of Part II
transferred to any existing State or to a new State, then, 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. Such functioning is subject to such direction as may from time
to time be issued by the Central Government, until other provision is
made by law in respect of such body corporate.
32. The 1957 Act is a statute to empower the Central Government to issue
directions from time to time so that on account of creation of separate
States, such statutory bodies in the new States can function smoothly.
It defines the “inter-State corporation” as any body corporate
constituted under any of the Acts specified in the Schedule and
functioning in two or more States by virtue of Section 109 of the 1956
Act. As mentioned above, the 1925 Act came to be inserted in the
Schedule in the year 1972. Therefore, in respect of such inter-State
corporations, the Central Government could issue directions in terms of
the 1957 Act only to give effect to the reorganisation of States so that
the inter-state entity is able to function and discharge the statutory
mandate in the States so constituted. Such directions were transitional
28
in nature so that the functioning of inter-State corporations is not
obstructed or curtailed on account of reorganisation of the States.
Neither the 1956 Act nor the 1966 Act nor the 1957 Act has taken
away the legislative competence of the States to legislate on the
subjects which finds mention in List II of the Seventh Schedule and/or
in respect of matters falling in List III of the Seventh Schedule in the
manner prescribed.
33. The 1956 Act or the 1966 Act empowers the Central Government to
issue directions to make the inter-state entity functional, but the
Central Government has not been empowered to legislate in respect of
such inter-State bodies which came to be operational in one or more
States due to the reorganisation of the States.
34. The issue has been examined firstly by this Court in a judgment
reported as Smt. Swaran Lata v. Union of India & Ors.
17
 wherein, in
respect of Union Territory of Chandigarh, the question arose as to
whether the post of a Principal, Government Central Crafts Institute for
Women was a deputation post and required to be filled up by the
Chandigarh Administration only by an officer on deputation, or could it
also be filled up by appointment of a suitable candidate by advertising
the post through the Union Public Service Commission. The argument
was raised that in terms of Section 84 of the 1966 Act, the post in
question, admittedly under the control of the Administrator,
Chandigarh Administration, stands circumscribed by the terms of the
17 (1979) 3 SCC 165
29
directions issued by the Central Government under Section 84 of the
Act. This Court relied upon Jagtar Singh v. State of Punjab
18
 to hold
that the instructions issued under Section 84 of the 1966 Act were
supplemental, incidental or consequential provisions under the
reorganisation of the States. Such instructions are binding on the State
Governments of Punjab and Haryana as also on the Chandigarh
Administration. This Court in Swaran Lata thus held as under:
“35. These instructions were in conformity with the earlier
decision of the Government of India Ministry of Home Affairs
conveyed by the letter of the Chief Secretary to the Government
of erstwhile State of Punjab dated August 9, 1966 stating that
the Government had set up a committee headed by Sri v.
Shankar, ICS. for the finalisation of the proposals of the
Departmental Committees in regard to the allocation of the
personnel to the reorganised States of Punjab and Haryana and
the Union territory of Chandigarh. In regard to the Union territory
of Chandigarh, the decision of the Government of India was in
these terms:
“It may be presumed that personnel for the Union territory
of Chandigarh will be provided on deputation by the two
States of Punjab and Haryana.”
The aforesaid instructions issued under Section 84 of the Act
were supplemental, incidental or consequential provisions for the
reorganisation of the States. The instructions were binding on
the State Governments of Punjab and Haryana as also on the
Chandigarh Administration in the matter of integration of
services: Jagtar Singh v. State of Punjab [(1972) 1 SCC 171].
37. It seems to us that for a proper determination of the
question, it is necessary first of all to formulate as clearly as
possible the precise nature and the effect of the directions
issued by the Central Government under Section 84 of the
Punjab Re-organisation Act, 1966, which reads:
18 (1972) 1 SCC 171
30
“84. Power of Central Government to give directions.—
The Central Government may give such directions to the
State Governments of Punjab and Haryana and to the
Administrators of the Union Territories of Himachal
Pradesh and Chandigarh as may appear to it to be
necessary for the purpose of giving effect to the
foregoing provisions of this Part and the State
Governments and the Administrators shall comply with
such directions.”
The use of the words “for the purpose of giving effect to the
foregoing provisions of this part” clearly curtails the ambit of the
section. The directions that the Central Government issues
under the section are only for a limited purpose i.e. for the
implementation of the scheme for the reorganisation of services.
When the process relating to integration of services as
envisaged by the supplemental, incidental or consequential
provisions for reorganisation of services under a law made by
the Parliament in exercise of its power under Articles 2, 3 and 4
of the Constitution is completed, such an incidental provision like
Section 84 necessarily ceases to have effect.”
(Emphasis supplied)
35. The directions from the Central Government are only for a limited
purpose i.e., for implementation of the scheme for reorganisation of
the services. It was held that when the process relating to integration
of services in exercise of powers of the Parliament under Articles 2, 3
and 4 of the Constitution is completed, such an incidental provision like
Section 84 necessarily ceases to have effect. It may be noticed that
the question of directions arose in respect of filling up of the post of
Principal vide advertisement published by the Union Public Service
Commission on 1.2.1975. Since there were no statutory rules framed in
respect of Chandigarh Administration in terms of proviso to Article 309,
it was held that directions of the Central Government are binding,
31
Chandigarh being a Union Territory. Though the said judgment is in
respect of Section 84 of the 1966 Act, but ratio of the said judgment is
applicable in respect of inter-state entities covered by Section 72 of the
1966 Act as well.
36. This Court in a judgment reported as D.A.V. College, Etc. Etc. v.
State of Punjab & Ors.
19
 was examining 14 writ petitions filed by
many colleges managed and administered by Dayanand Anglo Vedic
College (D.A.V. College) Trust. The challenge was against certain
provisions of the Guru Nanak University, Amritsar, Act 1969 (Act no 21
of 1969). In pursuance of the provisions of the Act, a notification dated
16.3.1970 was published specifying the districts of Amritsar,
Gurdaspur, Jullundur and Kapurthala in the State of Punjab as the areas
in which the Guru Nanak University, Amritsar shall exercise its powers
and discharge its duties. This Court held that the impugned statute
does not affect the fundamental rights of the petitioners, therefore, the
question of legislative competence or deciding the validity of Section 5
of the 1969 Act did not arise. This Court held as under:
“49. This being the legal position in our view when once an
impugned law does not affect the fundamental rights of the
petitioners as in this case we have founded it to be so, it is not
necessary to go into the question of legislative competence or to
decide on the validity of Section 5.
50. We have therefore no hesitation in holding that the
notification under which the colleges have been affiliated to the
Universities is legally valid and from the date specified therein
petitioners colleges cease to be affiliated to the Punjab
19 (1971) 2 SCC 269
32
University. In the result these petitions are allowed to the extent
that clause 2(1)(a) and clause 17 of Chapter V of the statutes are
struck down as affecting the fundamental rights of the
petitioners, but in the circumstances without costs.”
37. After the aforesaid judgment, the petitioners filed a writ petition before
the Punjab and Haryana High Court in Dayanand Anglo-Vedic
College Managing Committee challenging the Act on the ground of
lack of territorial nexus since the Panjab University is located at
Chandigarh, outside the territory of Punjab. It may be noticed at this
stage that the Panjab University and the Board constituted under the
1925 Act falls under sub-section (3) of Section 72 of the 1966 Act. It
was held that the power of Central Government to issue directions was
for a limited period i.e., till other provision was made by law in respect
of Panjab University. It was held as under:
“4..........................On the appointed day and immediately before
that, various colleges were affiliated to that University which
were situate in, the successor States of Punjab and Haryana,
Union Territory of Chandigarh and the Union Territory of Himachal
Pradesh, to which certain areas of the Punjab had been
transferred. It was, therefore, provided in section 72 that the
Panjab University was to continue to function and operate in
those areas in respect of which it was functioning and operating
immediately before the appointed day in order not to deprive the
successor States of the educational facilities immediately on the
re-organisation of the erstwhile State of Punjab. The continuity of
the Punjab University was desirable in the interest of the
successor States but the Panjab University was to serve those
successor States only till they made any other provision for
appropriate education in their own territories under Entry 11 of
List II in the Seventh Schedule to the Constitution. Till any
successor State took action by law in this behalf, the Panjab
University was to continue its functions and operations subject to
the directions issued by the Central Government. The power of
the Central Government to issue directions was for a limited
33
period, that is, till other provision was made by law in respect of
the Panjab University. If the successor States desired the Panjab
University to continue as before in their territories, there was no
necessity for them to make any provision by enacting a law on
the subject but in order to avoid conflict amongst the successor
States over the functioning of the Panjab University, the power
to issue directions with regard to the said University was rightly
given to the Central Government, so that the University should
continue to function and operate fairly and justly in the areas in
which it was operating and functioning before the appointed day.
In my view if it was intended that other provision by law was
also to be made by the Central Government, the Parliament
would have clearly stated so in section 72 instead of saying
“until other provision is made by law in respect of the said body
corporate.” For the issuance of the directions, the authority is
expressly mentioned as the Central Government but the
Parliament has not been mentioned as the Legislature to enact
the law making other provision. While interpreting section 72, we
have not to confine ourselves only to the Act but to all such
bodies corporate which were intra State prior to the appointed
day and because of the re-organisation of the erstwhile State of
Punjab became inter-State bodies corporate on and after the
appointed day. The first part of sub-section (1) of section 72
clearly points out that the Parliament was making the provision
in section 72 with regard to the bodies corporate which had been
constituted under a Central Act, State Act or Provincial Act and
that is why the legislative authority for making a law in respect
of these bodies corporate was not specified. It may be for the
reason that with regard to the bodies corporate constituted
under a Central Act, the Parliament was the appropriate
Legislature to make the law while with regard to the
Corporations constituted under any State Act or a Provincial Act,
the State Legislature was to be the appropriate Legislature.
Education including Universities is a State subject as per entry
11 in List II of the Seventh Schedule to the Constitution and the
Panjab University was incorporated under a Panjab Act. Till the
re-organisation of the erstwhile State of Punjab, it continued to
function according to the provisions of the said Act. It cannot be
imagined that with regard to all inter-State bodies corporate
which were constituted under any State or Provincial Act, the
jurisdiction to make any other provision by law was taken over
by the Parliament itself. These bodies corporate were and are to
function and operate for the people of a particular State and
have to cater to their needs. Their needs are expressed by their
34
elected representatives and, therefore. It cannot be assumed
that the Parliament wanted to deprive the successor States of an
important field of their legislation with regard to education which
is absolutely necessary for the development and progress of any
State.
xx xx xx
Every State can make laws with regard to education and
universities within its State and can control and regulate their
functions and operations therein irrespective of the location of
the seat of the University. What has to be seen is that the
subject-matter of the legislation falls within the jurisdiction of the
State Legislature and if that be so, it can affect all persons and
institutions within the State to which it may be applied. In my
opinion, therefore, the mere fact that the Panjab University is
located at Chandigarh, which is outside the territory of the
Punjab State, does not debar the Punjab State Legislature from
enacting a law affecting the functions and operations of the
Panjab University within its own territory.
xx xx xx
6.....................It is, therefore, submitted that while enacting
section 72 of the Punjab Re-organisation Act, the Parliament
intended to amend entry 11 in List II of the Seventh Schedule to
the Constitution by taking Panjab University out of the said List
and to vest the power of legislation with regard thereto in the
Parliament, thereby impliedly amending Articles 245 and 246 of
the Constitution. In view of what I have said above, this
submission has no force. The Parliament did not specify the law
as meaning the law made by it. All that it said was “until other
provision is made by law in respect of the body corporate”. I
have interpreted the word “law” in that sentence to mean the
law made by the appropriate Legislature, that is, with regard to
the bodies corporate constituted under any Central Act or qua
which legislation is to be made on a subject enumerated in List I
of the Seventh Schedule to the Constitution, the law had to be
made by the Parliament, but in respect of a body corporate
constituted under a State or a Provincial Act, wherein the subject
of legislation was to be found in List II of the Seventh Schedule
to the Constitution, the appropriate Legislature to make the law
is to be the State Legislature........................................The power
to issue directions with regard to the Panjab University which
35
was given to the Central Government by section 72 was
essentially for a limited period, that is, till the Legislature of the
appropriate State made a provision with regard to the
functioning and operation of the Panjab University within its own
area. It cannot, therefore, be said that section 72 of the Punjab
Re-organisation Act effectuated an amendment of Articles 245
and 246 and entry 11 in List II of Seventh Schedule to the
Constitution with regard to the Panjab University. It is not only
the Panjab University that is governed by section 72 of the
Punjab Re-organisation Act, but many other bodies corporate
constituted under any Central, State or Provincial Act, which
were intra State in operation before the appointed day and
became inter-State bodies corporate because of the reorganisation.”
(Emphasis supplied)
38. Before the Full Bench of the Punjab and Haryana High Court in
Sehajdhari Sikh Federation, the issue was about the validity of the
notification dated 8.10.2003 inserting a proviso to Sections 49 and 92
of the 1925 Act to the effect that no person shall be registered as an
elector who trims or shaves his beard or keshas, smokes, and takes
alcoholic drinks. The High Court held that in terms of Section 72 of the
1966 Act, the Central Government cannot issue a direction which has
the effect of modifying the statute i.e., the 1925 Act. The High Court
thus struck down the notification holding that Section 72 of the 1966
Act empowers the Central Government to issue directions pertaining to
functioning and operation of an inter-State body corporate (the Board
i.e., SGPC) in the areas where it was functioning or operating
immediately before 1st November, 1966; any tangible material or a
fact-finding enquiry established the factum of such obstruction or
36
difficulty; the cases(s) of such obstruction or difficulty originated out of
the ‘law’, namely, the 1925 Act under which the Board was
established; and the obstruction or difficulty, if any, acknowledged by
the Central Government could be removed by ‘modifying’ the 1925 Act
or an ‘amendment’ in that Act was necessitated. It was held that
Section 72(2) of the 1966 Act does not empower the Central
Government to modify Central Act, State Act, Provincial Act so as to
amend such Acts. Consequently, the notification dated 8.10.2003 was
quashed. However, certain findings returned by the Full Bench of the
Punjab and Haryana High Court in respect of scope of Section 72 of the
1966 Act are relevant for the purposes of the present writ petition
which read as under:
“67. The scope of supplemental, incidental and consequential
provisions has been authoritatively resolved in Mangal Singh
laying down that Articles 2 & 3 empower the Parliament to form
new States conforming to the “democratic pattern envisaged by
the Constitution“, and that the power, which the Parliament may
exercise by law, is supplemental, incidental or consequential to
the admission, establishment or formation of a State as
contemplated by the Constitution and ‘is not a power to override
the Constitutional scheme’. The democratic polity engrafted and
integrated in our Constitutional scheme, postulates a separate
Legislative Assembly and/or Council, representation in
Parliament, a High Court & subordinate Judiciary, and its own
Consolidated Fund etc. for every State. It is thus obligatory on
the Parliament while forming a new State by exercise of law, to
add such supplemental, incidental and consequential provisions
in the Reorganization Act that all the ingredients of a ‘State’ as
perceived by the Constitution are brought into existence.
xx xx xx
70. We find it wholly illogical to say that an action taken by the
37
Executive as a delegate under the re-organization law becomes
a part of the Constitution. Since a re-organization law itself is the
creation of the Constitution, an administrative or quasi-judicial
action taken thereunder cannot be equated even to a degree
with any provision of the Constitution. The converse proposition
propounded on behalf of the contesting respondents must be
rejected also for the reason that it attempts to dilute the
supremacy of our Constitution.
xx xx xx
75. The unambiguous object of the 1966 Act is firstly to :
reorganize the erstwhile State of Punjab; form the new States of
Punjab, Haryana and Union Territory of Chandigarh; transfer
certain areas of Punjab to Himacal Pradesh and establish a
democratic set-up in the newly formed States comprising
representation in their respective Legislatures and delimitation
of the constituencies; a common High Court; authorization of
expenditure and distribution of revenues and apportionment of
assets and liabilities etc. Part-VU relates “to certain
Corporations” whereas Part-VIII deals with the management of
Bhakra-Nangal-Beas Projects and allocation of members of All
India Services & other Services. Lastly. Part-X of the Act enlists
legal and miscellaneous provisions. The 1966 Act is thus a
complete code in itself which is in conformity with the
Constitutional scheme and includes supplemental, incidental and
consequential provisions to resolve all the foreseen or
unforeseen issues that may arise due to the re-organization of
erstwhile State of Punjab.
xx xx xx
82. It appears to us that the power under Section 72 cannot be
invoked to issue directions or cause ‘exceptions’ or to ‘modify’
those Central, Provincial or State Acts which are alien to Part VII
and have no bearing on giving effect to the re-organisational
scheme propounded by the 1966 Act. Section 72 is only one
amongst several other components of Part VII. While the other
provisions (of Part VII) like Sections 67 to 71 deal with specific
Boards, Corporation(s) and institution(s), Section 72 is an
omnibus provision to regulate the ‘functioning’ and ‘operation’ of
the remainder, who either serve the needs of the successor
States or have become inter-State body corporates. The legal
boundaries, wide or restricted, determined for exercising the
38
powers under Section 72 shall mutatis-mutandis apply to the
other provisions of Part VII also.
83. Section 72 comprises four parts and is essentially a
‘consequential’ provision added by Parliament to deal with those
unspecified juristic entities who were in service of the needs of
the successor States or after the re-organization of the State of
Punjab had acquired the status of inter-State body corporate(s).
84. Sub-Section (1) of Section 72 begins with the phrase ‘save
as otherwise expressly provided by the foregoing provisions of
this Part’. The aforesaid phrase in our considered view is in the
nature of an ‘exception’ to the extent it excludes the class of
body-corporates expressly dealt with under Sections 67 to 71 of
Part VII, from the purview of Section 72. Subject to that
‘exception’ and if Section 72(1) is dissected into parts for its
better understanding, it reveals that:—
(i) when a body corporate constituted under a Central Act, State
Act or Provincial Act for the existing State of Punjab or for any
part thereof,
(ii) serves the needs of the successor States or by virtue of
reorganization of the State of Punjab becomes an inter-State
body corporate as on the appointed day i.e. 1 st November,
1966,
(iii) such body corporate shall continue to function and operate
in the original areas of its operation though these areas have
become territory of the successor States,
(iv) but the ‘functioning’ and ‘operation’ of the'said body
corporate in the areas of the successor States shall be subject
to:— (a) such directions as may, from time to time, be issued by
the Central Government; and (b) until other provision is made by
law in respect of the said body corporate,
xx xx xx
87. On the same analogy, sub-Section (2) of Section 72 cannot
be assigned a different purpose or meaning, hence we hold that
the nature, scope and sweep of the power entrusted to the
Central Government to cause ‘exception’ or ‘modification’ in a
Central Act, State Act or Provincial Act resembles the power
39
exercisable by it under Section 67(2) and is subject to the same
limitations. Any attempt, if made to widen the scope of Section
72(2) beyond that, will not only be violent to the elementary
principles of statutory interpretation briefly noticed in para 85,
but will also amount to transcending the delegated legislative
powers. We say so also for the reason that the legislative object
behind Section 67(2) or sub-Section (2) of Section 72 is to ensure
that the functioning of a body corporate is not paralysed on its
becoming an inter-State body corporate due to re-organization of
the erstwhile State of Punjab. The scope of the directions
issueable under sub-Section (2) of Section 72 is restricted to the
applicability of the ‘law’ governing the body corporate, hence
the aforesaid direction mast relate to the ‘functioning’ or
‘operation’ of such body corporate. It has to be held, as a
necessary corollary thereto, that no direction can be issued by
the Central Government under Section 72(2) unless it pertains to
the ‘law’ applicable to the body corporate on the appointed day
when it acquired the legal character of an inter-State body
corporate. The wordage of sub-Section (2) especially the word
‘may’ leaves no room to doubt that it is an enabling provision
only and nowhere does it expect the Central Government to
issue directions, even if not so required.
xx xx xx
95. It appears convincing that if the Parliament intended to
confer power on the Central Government to ‘amend’ a Statue or
if it could do so, there was no impediment for it to have made a
specific provision to that effect. The Parliament while making
provision to adapt laws under Section 89 of the 1966 Act has
authorized the appropriate Government(s) to make such
adaptations and modifications of the law, whether by way of
repeal or amendment, as may be necessary within a period of
two years from the appointed day till such law is altered,
repealed or amended by a competent Legislature or by other
competent authority. The phrase ‘amendment’ has been referred
to in Sections 70 & 86 with reference to the legislative powers of
the State Legislature and the Pari iament, respectively. The
Parliament has thus used the expressions ‘amendment’ or
‘modification’ frequently but distinctly. It is also a wellestablished rule of construction of a Statute that when the
Legislature uses two different words at different places, they
carry different meanings as the Legislature seldom overlaps or
uses superfluous words. The Court shall always proceed on the
40
premise that the Legislature has inserted every expression for a
purpose and the legislative intention is that none of the
provisions of the Statute is found redundant. If the Parliament's
intention while using the phrase ‘modification’ were to confer the
power of ‘amendment’ it would have inserted the latter phrase in
Section 72 to avoid any ambiguity. The word “modification” in
Section 72. therefore, cannot be construed analogous to the
word ‘amendment’ which finds mention in Sections 70 & 86 of
the 1966 Act.
96. Our understanding of Section 72(2), as stated above, also
appears to be consistent with the view taken by the Full Bench in
Dayanand Anglo-Vedic College Managing Committee observing
that “… if it was intended that other provision by law was also to
be made by the Central Government, the Parliament would have
clearly stated so in Section 72 instead of saying “until other
provision is made by law in respect of the said body corporate…”
It may be for the reason that with regard to the bodies corporate
constituted under a Central Act, the Parliament was the
appropriate legislature to make the law while with regard to the
Coiporations constituted under any State Act or a Provincial Act
the State Legislature was to be the appropriate Legislature.”
97. Adverting to sub-Section (3) of Section 72, the scope and
object whereof is also disputed by counsel for the parties, it may
be seen that sub-Section (3) has three significant constituents,
namely, (a) it is meant to remove doubts; (b) it is declaratory in
nature; and (c) it actually declares that Section 72 shall apply to
Panjab University. Punjab Agriculture University and the Board
constituted under Part III of the Sikh Gurdwara Act, 1925. SubSection (3) does not occupy a new field nor does it vest the
Central Government with any additional power to issue
directions. It merely removes doubts and brings both the abovementioned Universities and the Board within the ambit of Section
72(1)&(2) whereunder the Central Government is competent to
issue directions in relation to their functioning and the area of
their operation, they being the inter-State body corporates.
xx xx xx
CONCLUSIONS:
122.
xx xx xx
41
(v) We hold that Section 72 of the 1966 Act empowers the
Central Government to issue directions pertaining to the
‘functioning’ and ‘operation’ of an inter-State body corporate in
the areas where it was functioning and operating immediately
before the appointed day. These directions may include that the
‘Law’ governing the affairs of the body-corporate before it
became an inter-State body corporate, shall continue to apply to
it for the purpose of its ‘functioning’ or ‘operation’ in those areas
which have gone out of jurisdictional control of the State under
whose law such body-corporate was constituted.
(vi) The power exercisable by the Central Government under
sub-Section (2) of Section 72 of the 1966 Act to ‘modify’ the
Central Act, State Act or Provincial Act does not include the
power to ‘amend’ such Acts. The power to ‘modify’ a Statute
delegated under Section 72 docs not authorize to change any
essential legislative features or the policy built into such Statute.
The Parliament while empowering the Central Government to
‘modify’ an Act under Section 72(2) neither intended nor could it
delegate the power to ‘repeal’ or ‘amend’ an Act, for such a
power under the Constitutional scheme is exercisable by the
Legislature alone. The delegated legislative power cannot run
parallel to the principal legislation and must exercise its power
within the framework of the Statute.
(vii) Section 72 of the 1966 Act is an enabling provision and the
power to cause ‘exception’ or ‘modification’ in a Central Act,
State Act or Provincial Act is not unguided, unfettered or
unbridled and is subject to the inherent limitations to be read
into the phrase that the “bodycorporate shall continue to
function and operate in those areas in respect of which it was
functioning and operating immediately before the appointed
day.”
(viii) The directions issued by the Central Government under
Section 72 though shall amount to ‘law’ within the meaning of
Article 13(3)(a) of the Constitution but they do not partake the
character of a Parliamentary legislation.”
39. In the counter affidavit filed, it has been mentioned that the appeal
against the above order passed by the Full Bench of the Punjab and
42
Haryana High Court was pending consideration. The said Civil Appeal
No. 9334 of 2013 came to be decided on 15.9.2016. During the
pendency of the appeal, the Parliament passed the Sikh Gurdwara
(Amendment) Act, 2016 with a view to amend the 1925 Act
retrospectively w.e.f. 8.10.2003, i.e., the date of notification quashed
by the High Court. This Court disposed of the appeal by observing as
under:
“7. We find merit in the submission of Mr. Ganguli. The High
Court has, as seen earlier, specifically left the issue open for the
consideration of the appropriate legislature whether or not any
amendment is called for in the 1925 Act. The Parliament has
accordingly brought the amending Act referred to earlier and
amended the 1925 Act retrospectively w.e.f. 08.10.2003 i.e. the
date when the notification impugned in the writ petition was
issued. The result is that, for all intents and purposes, the
amendment made by the amending Act, 2016 shall be deemed
to have come into force with effect from the said date. That
being the case, the quashing of notification dated 08.10.2003 by
the High Court is rendered inconsequential in the light of the
subsequent parliamentary legislation by which the purpose
which the notification sought to be achieve has been achieved
by the legislative measure taken by the Parliament….”
40. A reference was made to a judgment reported as Himachal Pradesh
University, Shimla wherein the State of Himachal Pradesh enacted
the Himachal Pradesh University Act, 1970. Section 8 of the said Act
provides for vesting of assets of the Panjab University in the State of
Himachal Pradesh to the Himachal Pradesh University. This Court held
that the appellant University failed to establish the second condition
for the applicability of Section 8 of the Act that suit premises were
43
belonging to two institutions and forming part and parcel of their
assets at Shimla. It is not a case that the Act framed by the State of
Himachal Pradesh was found to be lacking in legislative competence
but the scope of the statute was not found to be in respect of the
assets of the Panjab University located in the State of Himachal
Pradesh.
41. Another judgment which is referred to is Mullaperiyar
Environmental Protection Forum v. Union of India & Ors.
20
 where
Mullaperiyar Dam was an inter-State body of the State of Kerala and
Tamil Nadu. The question raised was whether the water level could be
allowed to be increased in such dam to 142 feet or not. The State of
Kerala opposed the increase of the water level beyond 136 feet
whereas the State of Tamil Nadu sought increase in the water level to
142 feet. Section 108 of the 1956 Act deals with irrigation, power or
multipurpose projects. The said provision contemplates that if any
agreement is not reached between the States, the decision would be
taken by the Central Government. An argument was raised that
Section 108 of the 1956 Act is invalid as it affects the right of the State
in terms of Entry 17 of List II. This Court held as under:
“21. … The new State owes its very existence to the law made
by Parliament. It would be incongruous to say that the provision
in an Act which gives birth to a State is ultra vires a legislative
entry which the State may operate after it has come into
existence. The power of the State to enact laws in List II of the
Seventh Schedule are subject to parliamentary legislation under
20 (2006) 3 SCC 643
44
Articles 3 and 4. The State cannot claim to have legislative
powers over such waters which are the subject of an inter-State
agreement which is continued by a parliamentary enactment,
namely, the States Organisation Act, enacted under Articles 3
and 4 of the Constitution. The effect of Section 108 is that the
agreement between the predecessor States relating to irrigation
and power generation, etc. would continue. There is a statutory
recognition of the contractual rights and liabilities of the new
States which cannot be affected unilaterally by any of the party
States either by legislation or executive action. The power of
Parliament to make law under Articles 3 and 4 is plenary and
traverses over all legislative subjects as are necessary for
effectuating a proper reorganisation of the States. We are unable
to accept the contention as to the invalidity of Section 108 of the
Act.”
42. The said judgment is in respect of irrigation or water projects wherein
the issues were to be decided between the two states by agreement,
which is not an issue in the present proceedings. Section 108 of the
1956 Act itself contemplated that if disputes are not settled, the
Central Government would decide. Thus, the issue raised and decided
is quite distinct from the issue arising in the present case.
43. The High Court of Punjab and Haryana in Kashmir Singh-I was
dealing with the appointment of the member of Sikh Gurdwara Judicial
Commission vide notification dated 4.7.1989. The Central Government
had issued a notification dated 19.10.1978 nominating the State of
Punjab in consultation with the State of Haryana for the purposes of
exercising its powers under the 1966 Act. The five-Judges Bench of the
High Court dealing with the legality of the notification also dealt with
the scope of Section 72 of the 1966 Act. The majority of the Bench held
45
that the Board is an inter-State body corporate and the Central
Government can give directions with regard to its functioning and
operation. Since the successor State neither adopted nor repealed nor
made any provisions with regard to the 1925 Act, the Central
Government would be competent to give directions and the Board shall
operate accordingly in the successor States. It was held as under:
“57................... A reading of sub-sections (1), (2) and (3) of
Section 72 of the Act of 1966 would leave no one in doubt that
the Board is an inter-State body corporate and the Central
Government can give directions with regard to its functioning
and operation. Inasmuch as the successor States have neither
adopted nor repealed nor made any provisions with regard to the
Act of 1925 or for the Board, in particular, the Central
Government, till such time provisions are so made, would be
competent to issue directions and the Board shall operate in
successor States................
xx xx xx
66. ….............It is significant to note that till such time other
provisions were made, that may cater for needs of the successor
States, by and large, Central Government was to issue
directions. The territories of the successor States having been
defined, if provisions vesting power with the Central Government
were not to be made, it would have resulted into chaos as no
successor State could have issued directions in the territories not
specified in the said State. These were certainly supplemental,
incidental and consequential provisions so that there was
smooth functioning of all the bodies and laws in the respective
successor States till such time proper arrangements were made
for each successor State to issue directions within their own
territory. Provisions of Section 72 also appear to be
supplemental, incidental and consequential, covered under Part
VII of the Act itself. This inter-State body Corporation under the
directions of the Central Government was to function and
operate in the areas in respect of which it was functioning and
operating immediately before the appointed day untill other
provision was made by law, as has been specifically provided in
46
sub-section (1) of Section 72 itself. Sub-sections (2) and (3) of
Section 72 are nothing but elaboration or clarification if the
doubts, might still persist with regard to directions that can be
issued under sub-section (1) of Section 72. ............... …
xx xx xx
69. It appears that significant words ‘until other provision is
made by law in respect of the body corporate’ escaped notice of
the Hon'ble Full Bench. Section 72, dealing with general
provisions as to statutory corporations, like the Board under the
Act, of 1925, is not intended to be a measure for all times to
come, as the words, quoted above, do suggest to the contrary in
unequivocal terms. The object of Act of 1966 also clearly
suggests that the provisions contained therein are to make
necessary supplemental, incidental and consequential provisions
in relation to reorganisation of the State of Punjab. All measures
taken thereunder, unless specifically said otherwise, like the
Board for Bhakra Nangal and Beas Projects, are temporary in
nature. The words ‘until otherwise provided by competent
legislature or other competent authority’ which find mention in
Section 88 also escaped notice of the Hon'ble Full Bench. The
provisions of Part II which deal with reorganisation and creation
of successor States, do not effect any change in the territories to
which any law in force immediately before the appointed day
extends or applies. It clearly means and is accepted position at
all ends that the existing laws by virtue of provisions contained
in Section 88 would automatically apply. The position in relation
to Act, of 1925 is no different. But this provision is once again
not an all time measure inasmuch as a competent legislature,
which necessarily means legislature of successor State as well,
would be well within its power and competent enough to provide
otherwise then the existing laws. If that be so and in a given
case, the successor State may, in its wisdom, say otherwise, i.e.,
the Act of 1925 would not apply to the said State, as mentioned
above, the Board would no more be an inter-state body
corporate. The power to legislate in that case would not be with
the Central Government under Entry 44 List-I (Union List) 7th
Schedule. The provisions contained in Section 89, vesting power
and jurisdiction with the appropriate Government, would
necessarily include successor States to repeal or amend any law
made before the appointed day, once again, it appears, escaped
notice of the Hon'ble Full Bench in arriving at the conclusion,
referred to above. We have already held while determining
47
question No. IV that in construing the provisions of a Statute the
courts should be slow to adopt a construction which tends to
make any part of the statute meaningless or ineffective. There is
no need to elaborate as we have already discussed in sufficient
details that the courts have necessarily to give meaning to all
parts of the provisions of the Act and to make whole of it
effective and operative.
xx xx xx
70. ...............…We may also mention here that the finding by
the Full Bench that continuation of directions to be given by the
Central Government by virtue of Entry 44 in the Union List, the
Board being an inter-State body corporate by virtue of Section
72 of the Act of 1966, also can not sustain as, in our view, if the
States might adapt, modify or repeal the Act of 1925, the Board,
which is an inter-State body corporate, shall no more remain an
inter-State body corporate and its position shall revert to that
what it was under the Act of 1925, namely, body corporate.”
(Emphasis Supplied)
44. The aforesaid majority opinion was upheld by this Court in a judgment
reported as Kashmir Singh-II wherein, it was held as under:
“72. 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. Therefore, a holistic 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 wiped
off.”
45. A perusal of the judgments in Kashmir Singh-I and Kashmir SinghII would show that the successor States might adopt, modify or repeal
the 1925 Act. The Board, an inter-State body corporate, shall then no
longer remain an inter-State body corporate and the position was to
48
revert to what it was under the 1925 Act i.e., body corporate
simplicitor. It was held that Section 72(1) is not intended to be a
measure for all times to come and that successor States are competent
to make other provisions by law in respect of such body corporates.
The object of the 1966 Act was to make necessary, supplemental,
incidental and consequential provisions in relation to reorganisation of
the State of Punjab. It was also held that the competent legislature,
which necessarily means legislature of the successor State would be
well within its power and competence to provide otherwise than the
existing laws. Therefore, the successor State may, in its wisdom, could
say that the 1925 Act would not apply to the said State.
46. The consistent view of the three Full Benches of the High Court and of
this Court is that the power of the Centre to issue directions under
Section 72 of the 1966 Act is a transitional provision. Therefore, we
have no hesitation to hold that the power of the Centre to issue
directions under Section 72 of the 1966 Act is indeed a transitional
provision to ensure smooth and continuous functioning of a body
corporate so that it is not paralyzed on becoming an inter-State body
corporate due to reorganisation of the erstwhile State of Punjab. The
directions contemplated by Section 72 relates to functioning and
operation of such body corporate. A competent State legislature is not
deprived of its power to legislate on the subjects falling within its
jurisdiction in terms of List II of the Seventh Schedule. The 1966 Act
49
does not bar the State Legislature to legislate on the fields of its
legislative competence falling under List II of the Seventh Schedule or
even in List III of the Seventh Schedule, subject to the limitations as
are prescribed in the Constitution.
Question No. (iii) - Whether the impugned enactment (Haryana
Act) falls within the legislative competence of the Haryana State
Legislature or it falls in Entry 44 of List I of the Seventh Schedule
of the Constitution?
47. The primary reliance of the writ petitioner is on the judgment of this
Court reported as Rajendra N. Shah. The issue before this Court in
the said judgment was whether the Constitution 97th Amendment
introducing Part IX-B, which was found to be non est by the Gujarat
High Court for want of ratification by half of the States under the
proviso to Article 368(2), is sustainable. This Court upheld the view of
the High Court and observed as under:
“23. So far as co-operative societies are concerned, it can be
seen that it is entirely a matter for the States to legislate upon,
being the last subject matter mentioned in Entry 32 List II. At
this stage, it is important to note that Entry 43 of List I, which
deals with incorporation, regulation and winding up of trading
corporations including banking, insurance and financial
corporations expressly excludes co-operative societies from its
ambit. Entry 44 List I, which is wider than Entry 43 in that it is
not limited to trading corporations, speaks of corporations with
objects not confined to one State. This Court has therefore held,
on a reading of these entries, that when it comes to Multi State
Co-operative Societies with objects not confined to one state,
the legislative power would be that of the Union of India which is
contained in Entry 44 List I. Thus, in Daman Singh v. State of
Punjab, (1985) 2 SCC 670, this Court laid down:—
“7. …. … According to Mr. Ramamurthi the express exclusion of
50
cooperative societies in Entry 43 of List I and the express
inclusion of cooperative societies in Entry 32 of List II separately
and apart from but along with corporations other than those
specified in List I and universities, clearly indicated that the
constitutional scheme was designed to treat cooperative
societies as institutions distinct from corporations. On the other
hand one would think that the very mention of cooperative
societies both in Entry 43 of List I and Entry 32 of List II along
with other corporations gave an indication that the Constitution
makers were of the view that cooperative societies were of the
same genus as other corporations and all were corporations. In
fact the very express exclusion of cooperative societies from
Entry 43 of List I is indicative of the view that but for such
exclusion, cooperative societies would be comprehended within
the meaning of expression “corporations”.
26. It may thus be seen that there is no overlap whatsoever so
far as the subject ‘co-operative societies’ is concerned. Cooperative societies as a subject matter belongs wholly and
exclusively to the State legislatures to legislate upon, whereas
multi-State cooperative societies i.e., co-operative societies
having objects not confined to one state alone, is exclusively
within the ken of Parliament. This being the case, it may safely
be concluded, on the facts of this case, that there is no overlap
and hence, no need to apply the federal supremacy principle as
laid down by the judgments of this court. What we are therefore
left with is the exclusive power to make laws, so far as cooperative societies are concerned, with the State Legislatures,
which is contained in Article 246(3) read with Entry 32 of List II.
In fact, in K. Damodarasamy Naidu & Bros. v. State of
T.N., (2000) 1 SCC 521, this court held:
“21. Parliament, when exercising the powers to amend the
Constitution under Article 368, cannot and does not amend
State Acts. There is no other provision in the Constitution which
so permits and there is no judgment of this Court that so
holds. The power to make laws for the States in respect of
matters listed in List II in the Seventh Schedule is exclusively
that of the State Legislatures. …..”
(Emphasis supplied)
81. The judgment of the High Court is upheld except to the
extent that it strikes down the entirety of Part IXB of the
Constitution of India. As held by us above, it is declared that Part
IXB of the Constitution of India is operative only insofar as it
51
concerns multi-State cooperative societies both within the
various States and in the Union territories of India. The appeals
are accordingly disposed of.”
48. The said judgment is not applicable to the facts of the present case
though it deals with Entry 44 of List I and Entry 32 of List II. The Court
was dealing with the legality of the Constitutional Amendment and
found that it is entirely for the States to legislate in respect of
cooperative societies falling in Entry 32 of List II. It is only multi-State
cooperative societies which fall within the power of the Parliament to
legislate in terms of Entry 44. The amendment made by Parliament in
respect of co-operative societies was not with the approval of half of
the States. The said judgment has no applicability to the facts of the
present case as the Haryana Act does not have any extra-territorial
jurisdiction that it is not applicable to more than one State. The SGPC
was a Board which was intra-State body corporate prior to
reorganisation of the State in the year 1966. The reorganisation has
rendered the SGPC as an inter-State body corporate but the legislative
power to legislate on the subject of incorporation of the Corporations
would be within the jurisdiction of the Haryana State Legislature. Entry
32 deals with unincorporated trading, literary, scientific, religious and
other societies and associations. In respect of such unincorporated
trading, literary, scientific, religious and other societies and
associations, the competent legislature is the State. In terms of Entry
44 of List I, the Parliament will have jurisdiction only if the SGPC under
52
the 1925 Act continues to be an inter-State entity. The jurisdiction of
the successor States either to repeal, modify or enact a new law has
not been restricted by the 1966 Act, though it is a special law within
the meaning of Articles 2, 3 and 4 of the Constitution. The SGPC
became inter-State body corporate not because of Entry 44 List I but
because of reorganisation of the territories of the erstwhile State of
Punjab. Therefore, Entry 44 would have no applicability in respect of
legislative competence of the State of Haryana to enact the Haryana
Act.
49. The argument of Mr. Shyam Divan and Mr. Ranjit Kumar, learned senior
counsels for the State of Haryana and Haryana Committee
respectively, is that the source of power of enactment of the Haryana
Act is Entry 32, List II of the Seventh Schedule. In exercise of such
power, a statutory body is sought to be created; whereas, Entry 28 of
List III deals with charities and charitable institutions, charitable and
religious endowments and religious institutions. Therefore, any law
dealing with charities, charitable institutions and endowments falls
within List III. Such law contemplated by List III is a regulatory law to
regulate the functioning of charitable institutions or charitable and
religious endowments and religious institutions. Whereas, incorporation
of a statutory body falls in Entry 32 of List II, as also unincorporated
religious and other societies. Therefore, the Haryana Act falls within
the legislative competence of the State.
53
50. The argument of Mr. Nataraj is that under Section 3 of the 1957 Act,
which deals with inter-State bodies, the State Government is required
to frame a scheme as SGPC under the 1925 Act is sought to be
reconstituted and reorganized being inter-State corporation. Such
scheme is required to be forwarded to the Central Government. It is
thus the Central Government who is competent to modify the scheme
so framed. Therefore, it is contended that the SGPC under the 1925 Act
being an inter-State corporation can be dealt with only in the manner
provided in the 1957 Act.
51. The 1966 Act as well as the 1957 Act confer power on the Central
Government for smooth transition of new States coming into existence
as a consequence of the reorganization. There is no provision in the
1966 Act which confers legislative power upon the Parliament in
respect of the subjects over which the State has legislative
competence in terms of List II. Therefore, the transitional provisions
i.e., the 1966 Act or the 1957 Act do not impinge upon the legislative
competence of the State legislature to enact a law on the subjects
mentioned in the List II.
Question No. (iv)- Whether, the impugned Act falls in List-III
(Concurrent List) Schedule VII, which required the assent of the
President of India as per Article 254(2) of the Constitution of
India, and in the absence of such assent, void?
52. The said question does not arise for consideration as the impugned
Haryana Act does not fall in Entry 28 of List III of the Seventh Schedule.
54
Such Entry reads thus:
“28. Charities and charitable institutions, charitable and religious
endowments and religious institutions.”
53. In view of such Entry being in the concurrent list, the State can
legislate in respect of charities, charitable institutions, charitable and
religious endowments and religious institutions. The assent of the
President would be necessary if there is an existing statute and the
State law is contrary to some of the provisions of the Central law. The
Haryana Committee is the incorporation of a juristic entity which more
appropriately falls within the domain of Entry 32 of List II. Though the
Haryana Committee is in respect of religious purpose, but the prime
intention is of an incorporation of a juristic entity to manage the affairs
of the Sikhs in the State. Thus, Entry 32 is wide enough to include
incorporation of such statutory entity.
54. Alternatively, even if it is assumed that the Haryana Act is in
furtherance of Entry 28 of List III, the same cannot be said to be void
for the reason that it has not been kept reserved for the assent of the
President. Such an argument is based upon the reason that the 1925
Act is an inter-State legislation, therefore, the assent of the President is
necessary. As stated before, the 1925 Act was originally an intra-State
legislation enacted by the State legislature. It subsequently became an
inter-State body only by virtue of the 1966 Act. Since the power to
legislate conferred on the State legislature has not been affected in
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any manner, therefore, the State would have power to legislate both
under Entry 28 of List III or Entry 32 of List II for the reason that the
1925 Act is not an inter-State body corporate in respect of which the
Parliament incorporated such Board. Therefore, we do not find any
merit in the said argument.
Question No. (i) - Whether any fundamental rights of the
petitioners under Articles 25 and 26 of the Constitution of India
are violated, so as to entitle the petitioners to invoke the
jurisdiction of this Court under Article 32 of the Constitution?
55. It is not disputed that the Haryana Act is similar to the 1925 Act having
similar provisions of constituting a committee to manage the affairs
under the Act. The Haryana Committee is the Committee constituted
under Section 3 of the Haryana Act for the management and control of
the Gurdwaras and Gurdwara properties within the State of Haryana.
The Gurdwara property in terms of Section 2(f) of the Haryana Act
means all movable and immovable properties of a Gurdwara or any
institution which, immediately before the appointed day, vested or was
kept in deposit in the name of any Board, Trust, Committee, Gurdwara
Management or was being regulated under the provisions of the 1925
Act. The members of the Committee have to be elected from the
eligible voters who is Amritdhari Sikh, a Sikh, and who is eighteen years
of age, but not a Patit Sikh and is not an insolvent, mentally retarded or
an insane person. The co-option is from the members of the
community alone. Therefore, the affairs of the religious minority in the
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State i.e., Sikhs is left in the hands of the Sikhs alone in the same
manner as was under the 1925 Act. The Haryana Act also provides for
Haryana Sikh Gurdwara Judicial Commission in the same manner as is
provided under the 1925 Act. The affairs of the Gurdwara are again
required to be managed by local Gurdwara Committee. Since the
affairs of the Sikh minority in the State are to be managed by the Sikhs
alone, therefore, it cannot be said to be violative of any of the
fundamental rights conferred under Articles 25 and 26 of the
Constitution.
56. The question as to whether the writ petition is maintainable is
answered in the affirmative, inter-alia on the ground that the said writ
petitions have been pending before this Court for almost 8 years
wherein an interim order has been in operation throughout.
Additionally, the questions, being purely legal, have been examined to
give finality to the issues arising in the two matters.
57. In view of the above, we do not find any merit in the writ petitions.
The same are dismissed.
CIVIL APPEAL NO. 6614 OF 2022
58. The challenge in the present appeal is to an order dated 8.3.2018
passed by the High Court of Punjab and Haryana. The challenge is to
the notification dated 6.3.2018 whereby the notification dated
29.8.2014 appointing the appellant as Additional Commissioner
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Gurdwara Elections was rescinded.
59. The appellant was appointed for five years as Additional Commissioner
Gurdwara Elections on 29.8.2014. The post of Additional
Commissioner Gurdwara Elections was under the Haryana Sikh
Gurdwaras (Management) Act, 2014. The vires of the aforesaid Act
stands upheld by this Court.
60. The appellant has not discharged any functions in view of the stay by
this Court. Therefore, the appointment was rescinded. The appellant
was appointed for a period of five years, even the term for which the
appellant was appointed has come to an end by afflux of time.
61. Therefore, the appellant has no subsisting cause in the present appeal.
The appeal is, thus, dismissed.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(VIKRAM NATH)
NEW DELHI;
SEPTEMBER 20, 2022.
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