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’

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’

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’

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

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’

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

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’

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

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;

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.,

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.

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

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

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

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

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

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

. The said principle is again echoed in State of Kerala

& Ors. v. Kerala Rare Earth and Minerals Limited & Ors.

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

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.

19. It is averred that the Haryana Act is not creating a society or a

11 2021 SCC OnLine SC 474

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

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

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.

. Thus, it

is argued that the provisions of Section 72(1) read with Section 72(3) of

12 (2013) 2 SCC 617

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.

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

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

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.

which was affirmed by this Court in a judgment reported as Kashmir

Singh v. Union of India & Ors.

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

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

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.

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

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?

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

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

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.

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

directions issued by the Central Government under Section 84 of the

Act. This Court relied upon Jagtar Singh v. State of Punjab

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

“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,

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.

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

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

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

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

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

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

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

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

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

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

(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

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

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.

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

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

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

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

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

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

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

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

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

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.

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.

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

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

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

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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