SARDAR BAHGINDER SINGH S/O GURUCHARAN SINGH versus SARDAR MANJIEETH SINGH JAGAN SINGH AND ORS. on 20 August 2020

SARDAR BAHGINDER SINGH S/O GURUCHARAN SINGH

v.

SARDAR MANJIEETH SINGH JAGAN SINGH AND ORS.

(Civil Appeal No. 2964 of 2020)

AUGUST 20, 2020

[DR. DHANANJAYA Y CHANDRACHUD AND

K. M. JOSEPH, JJ.]

Nanded Sikh Gurudwara Sachkhand Shri HazurApchalnagar Sahib Act, 1956 __ ss.6(1)(viii); 2(a),(c),(e), 5,6(2)&(3) – Nomination to Board u/s.6(1)(viii) – Conflicting claims– State Government through notification nominated four members(appellants) to the Board u/s.6(1)(viii) – Challenged by respondents– Notification set aside by High Court – On appeal, held: Two distinctentities are dramatis personae in the present case – First is the publictrust registered under the provisions of 1950 Act – Second body isa statutory body – Exclusive statutory authority for making thenomination of four members u/s.6(1)(viii) is vested in the SachkhandHazuri Khalsa Diwan, Nanded – Statute does not expressly definethe expression “Diwan” – Diwan was constituted as a society initiallyin 1350 Fasli and was registered as a public trust under the MPTAct in 1982 – s.6(1)(viii) clearly indicates that it is the Diwan alonewhich has the power to make a nomination of four members – StateGovernment cannot assume that power to itself – Notification issuedby State Government was contrary to s.6(1)(viii) – MaharashtraPublic Trusts Act, 1950 – Nanded Sikh Gurudwara Rules, 1958 –r.6.

Disposing of the appeals, the Court

HELD: 1.1 There is a maze of conflicting claims betweenthe two factions, including the issue of the alleged removal of thefirst respondent as a trustee of the Diwan. The High Court hasappropriately not embarked upon an enquiry to adjudicate uponthese claims. Justifiably so, since two inquiry applications whichhave been filed under Section 22 of the MPT are pending beforethe Assistant Charity Commissioner. The change reports, as theyare called, being the subject matter of a pending enquiry by the

Conclusion

AAssistant Charity Commissioner, it is neither appropriate norproper for this court to enter into the thicket of factual disputesbetween the contesting factions. Essentially, the issue which theCourt has to decide turns upon the interpretation of theprovisions of Section 6(1)(viii) of the Nanded Sikh GurudwaraSachkhand Shri Hazur Apchalnagar Sahib Act, 1956. It is on thisBthat the validity of the notification of the State governmentappointing four persons under Section 6(1)(viii) would rest. Twodistinct entities are dramatis personae in the present case. Thefirst is the public trust which is registered under the provisionsof the MPT Act. Its origins lay in the Sachkhand Hazuri KhalsaCDiwan Association Society which was initially registered underthe Hyderabad Societies’ Registration Act of 1350 Fasli. Thisbody was initially registered as a society with the Registrar ofCompany Law and Co-operative Societies of the then Governmentof Hyderabad under registration no. 22 of 1951. TheMemorandum of Association of the Diwan indicates that it wasDformed to protect and guide the followers of the Sikh religion,protect the interests of the Gurudwara and to work in the interestof the Sikhs of the then State of Hyderabad. The name of thesociety or association was formulated as Sachkhand HazuriKhalsa Diwan. The General Committee of the Diwan consists ofEall the members of the Diwan who meet bi-annually. The membersof the General Committee of the Khalsa Diwan are alone entitledto vote. For the management of the affairs, there is a WorkingCommittee consisting of 28 members The Working Committeewas to be formed by the President or Pradhan at the first meeting.Elections to the Working Committee are required to be held everyFtwo years. The President is entrusted with supervision over theaffairs and working of the General Committee. Several decadesafter the reorganisation of States, a registration certificate wasissued under the MPT Act to the society as a public trust on 11January 1982 by the Assistant Charity Commissioner Nanded inGInquiry Application No 950/1981. This created a round of disputesbetween the contesting factions and it was eventually on 22January 2014 that this Court concluded the issue by recordingthat the registration of the Diwan as a Trust under the MPT Acthave attained finality. Disputes in regard to membership were a H

separate matter which could be adjudicated upon in terms of theremedies available under the MPT Act. As a public trust, theDiwan is governed by the provisions of the MPT Act. [Paras 21,22][365-C-H; 366-A-D]

Sardar Jeewansingh (d) Th. Lrs. v. Shersingh & Ors.Decision of Supreme Court dtd. 22.01.2014 in SLP(C) Nos.10139-10149 of 2011 – referred to.

1.2 The second body with which the present group ofappeals is concerned is a statutory body. This was created whenthe Hyderabad Legislative Assembly enacted the Nanded SikhGurudwara Sachkhand Shri Hazuri Apchalnagar Sahib Act 1956.The statute has defined the expression ‘Gurudwara’ under Section2(c) to mean the institution known as Nanded Sikh GurudwaraSachkhand Shri Hazuri Apchalnagar Sahib and to include thepremises of the Gurudwara together with all its buildings and theshrines which are specified in the Schedule. A statutory board isconstituted under Section 5 to administer the affairs of theGurudwara in accordance with the enactment. The Board consistsof seventeen members. Some of them are nominated by thegovernment (see clauses (i), (ii) and (iii) of sub-section (1) ofSection 6). Some members are nominated by specific bodies:under clause (iv), one member is nominated by ShiromaniGurudwara Prabandhak Committee from among the Sikhs of Stateof Madhya Pradesh; under clause (v) three members arenominated by the Shiromani Gurudwara Prabandhak Committee;under Clause (vii) one member is nominated by the Chief KhalsaDiwan of Amritsar and under clause (viii) four members arenominated by Suchkhand Hazuri Khalsa Diwan, Nanded. Asregards the elected members, clause (vi) stipulates that twomembers shall be elected by and from among Sikh members ofParliament. Sub- Section (2) of Section 6 stipulates that thenomination and election of members under the sprovision “shallbe made in such a manner and within such period as may beprescribed”. The expression ‘prescribed’ is defined by Section2(e) to mean prescribed by rules made by the government underthe Act and to include the bye- laws made by the Board under thestatute. The expression ‘Board’ is defined in Section 2(a) to mean A

B

C

DEF

G

H

Athe Board which is constituted under the provisions of ChapterII. Thus, the modalities for nomination and election can beprescribed by the rules made by the government under the Actand in the bye-laws framed by the Board. Sub-Section (3) of Section6 provides that if the members mentioned in clauses (iv) and(vii) are not nominated or elected within the prescribed period,Bthe government may specify the period within which the exercisehas to be completed. If the process is not completed within theperiod so stipulated, the Government is empowered to nominatea person or persons to fill the vacancy. Significantly, the provisionsof sub-section (3) of Section 6 do not apply to the nomination toCbe made under clause (viii) of sub-Section (1) of Section 6. Inother words, the exclusive statutory authority for making thenomination of four members under Section 6(1)(viii) is vested inthe Sachkhand Hazuri Khalsa Diwan, Nanded. Section 6(1)(viii)clearly indicates that it is the Diwan alone which has the power tomake a nomination of four members. The State GovernmentDcannot assume that power to itself. That the authority of the Diwanis exclusive is evident from the provisions of sub-section (3) ofSection 6. The Nanded Sikh Gurudwara Rules 1958 contain aprovision for the nomination of members under clauses (iv), (v),(vii) and (viii) of Section 6 (1). [Paras 23-25][366-D-H; 367-A-E]

E1.3 The provisions contained in Rule 6 indicate that for thepurpose of fulfilling the statutory requirement of a nomination,the State Government is to make a request in writing, inter alia,to the Diwan under Clause (viii). The power to make a nominationunder Section 6(1)(viii) is vested in the Sachkhand Hazuri KhalsaFDiwan, Nanded. The statute does not expressly define theexpression “Diwan”. The Diwan was constituted as a societyinitially in 1350 Fasli. It was registered as a public trust underthe MPT Act in 1982. The expression ‘Diwan’ needs elaboration.The Memorandum of Association refers to the Khalsa DiwanGeneral Committee which comprises “of all members of theGDiwan”. They alone are entitled to vote. The Working Committeeis a smaller body consisting of 28 members which is elected for aduration of two years on each occasion. The authority to nominatefour representatives under Section 6(1)(viii) of the Nanded Act H

1956 is entrusted to the Diwan. The Diwan consists of thecollective body of all members who together are entitled to voteunder the Memorandum of Association. Together they constitutethe Diwan. Neither the President individually nor any office bearercan be equated with the Diwan. The authority to nominate fourmembers to the Board under Section 6(1)(viii) is not entrustedto an office bearer of the Working Committee or for that matterto the Working Committee. Evidently, conflicts between the rivalfactions have spilled over into the process of making nominations.The State Government was confronted with conflicting claims. Itwrote to the Charity Commissioner seeking some light on theissue and after receiving a communication that Gurucharan Singhwas the President, proceeded to issue a notification drawing fourmembers from out of the rival claims that were made by theconflicting factions. The High Court was justified in disapprovingof the process that was followed by the State Government but forthe simple reason that the nominations were not made by theDiwan. Multiple claims were made in the letters submitted tothe State Government. The High Court was correct in itsinterpretation of the statute when it observed that it was not opento the State Government to arrogate the power of nomination toitself or to usurp the powers of the Diwan. The statute hasentrusted the authority to make a nomination under Section6(1)(viii) to the Diwan. The Diwan comprises of the collectivebody of all members together to whom the power to make anomination is entrusted. The provisions of sub-section (2) ofSection 6 read with the definition of the expression “prescribed”in sub-Section 2(e) lead to the conclusion that the nominationand election of members under Section 6 has to be made in themanner prescribed by the rules made by the Government underthe Act, including the bye-laws made by the statutory boardconstituted under the provisions of Chapter II. [Paras 26-28][368-A-E, F-H; 369-A-C]

1.4 In authorising the Sachkhand Hazuri Khalsa Diwan,Nanded to nominate four members, Section 6(1)(viii) entruststhat authority to the collective body of members of the Diwanwhich is entitled to select the four individuals to be nominated tothe statutory Board. This process must be initiated forthwith and AB

C

D

EF

G

H

Aconcluded within a period of three months from the date of thisjudgment. The change reports - Inquiry Applications Nos. 44 of2019 and 114 of 2019 - must be enquired into by the AssistantCharity Commissioner expeditiously and the inquiry shall beconcluded within a period of three months from the date of thisjudgment. The notification dated 21 June 2019 is held to be invalidBand the conclusion of the High Court is upheld. Hence, thesubmission to permit the members who were notified on 21 June2019 to continue to function as an interim arrangement cannotbe accepted. The conclusion of the High Court that thenotification issued by the State Government on 21 June 2019Cwas contrary to the provisions of Section 6 (1) (viii) of the NandedAct 1956 is affirmed. Directions issued. [Paras 29-32][369-C-E;370-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2964

of 2020DFrom the Judgment and Order dated 30.04.2020 of the High Courtof Judicature at Bombay, Bench at Aurangabad in Writ Petition No.9537 of 2019.

With

C.A. Nos. 2966, 2965 of 2020E

Ms. Meenakshi Arora, Ms. Vibha Dutta Makhija, Sr. Advs.,Shashibhushan P. Adgaonkar, Pradnya S. Adgaonkar, Ms. Surabhi Guleria,Shivaji M. Jadhav, Vishal Jogdand, S. Jasbeer Singh, Ganesh Gadhe,Prashant Dahat, Prakash Ranjan Nayak, Rahul Chitnis, Sachin Patil,Smarhar Singh, Advs. for the appearing parties.FThe Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. Prior to the re-organisation of states, the Hyderabad LegislativeGAssembly enacted a law called the Nanded Sikh Gurudwara SachkhandShri Hazur Apchalnagar Sahib Act 1956[1]. On receiving the assent of thePresident on 16 September 1956, the Nanded Act 1956 was published inthe Hyderabad Government Gazette on 20 September 1956. Section2(c) defines the expression ‘Gurudwara’ thus:

SARDAR BAHGINDER SINGH v. SARDAR MANJIEETH SINGHJAGAN SINGH [DR. DHANANJAYA Y CHANDRACHUD, J.]

“‘Gurudwara’ means the institution known as the Nanded SikhGurudwara Sachkhand Shri Hazur Apchalnagar Sahib and includesthe premises called the Gurudwara with all buildings containedtherein, together with all additions thereto or alterations thereofwhich may hereafter be made from time to time and shrinesspecified in the schedule.”

3. Chapter II is titled “Control of the Gurudwara”. Section 3provides for the constitution of a Board for the administration of theGurudwara and a Committee of Management. Section 4 provides forthe administration of the affairs of the Gurudwara by the Board inaccordance with the provisions of the Nanded Act 1956. The Board isconstituted by the provisions of Section 5 to be a body corporate. Thecontroversy in this case turns on the interpretation of Section 6 whichprovides for the composition and constitution of the Board. The provisionis extracted below:

“Section 6(1) The Board shall consist of:

i)Two members nominated by the Government;

ii)Three members nominated by the Government from the Sikhsof the State:

Provided that after the expiration of the first term of theBoard these three members shall be elected from amongthe Sikhs of the State in such manner as may be prescribed;

iii)One member nominated by the Government from amongthe Sikhs of the cities of Hyderabad and Secunderabad;

iv)One member nominated by the Shiromani GurudwaraPrabandhak Committee from among the Sikhs of the Stateof Madhya Pradesh;

v)Three members nominated by the Shiromani GurudwaraPrabandhak Committee;

vi)Two members elected by and from among the Sikh membersof the Parliament;

vii)One member nominated by the Chief Khalsa Diwan ofAmritsar;

viii)Four members nominated by the Suchkhand Hazur KhalsaDiwan, Nanded.

2) The nomination and election of members under this sectionshall be made in such manner and within such period as maybe prescribed.

A

B

C

D

E

F

G

H

A3)i) If the members mentioned in clauses (iv) to (vii) (bothinclusive) of sub-section (1) are not nominated or elected, asthe case may be within the prescribed period, the Governmentshall specify such further period as it may deem fit withinwhich such members shall be nominated or elected. If suchmembers are not nominated or elected within the furtherBperiod so specified the Government shall nominate a personor persons to fill the vacancy or vacancies, as the case maybe and the person or persons so nominated shall be deemedto be a member or members duly nominated or elected bythe respective body.

C

ii)The term of office of the members nominated under clause(i) shall expire at the time at which it would have expired ifhe had been nominated or elected, as the case may be, withinthe period prescribed under sub-section (2).

4) After the members have been nominated or elected, as theDcase may be, in accordance with the foregoing provisionsthe Government shall notify the fact of the Board havingbeen duly constituted; and the date of the publication of thenotification shall be deemed to be the date of the constitutionof the Board.”

ESection 10 provides that where a vacancy occurs in the Boardowing to death, resignation or for any other reason, the new member isto be nominated or elected in the manner in which the member whoseseat is to be filled was nominated or elected. Section 11 provides for theelection of a President. Section 22 (1) provides for the constitution of aFCommittee of Management consisting of (i) the Collector of Nanded oran officer appointed by the government; (ii) the Superintendent of theGurudwara as an ex officio member; and (iii) three members nominatedby the Board at its first meeting in the prescribed manner from amongthe Sikhs of Nanded. Under Section 36(i), the management, control andsuperintendence of the administration of the Gurudwara is to vest in theGBoard. The Board is entrusted with the duty of ensuring that theGurudwara and its endowments are properly maintained, controlled andadministered and that its income is duly applied to the objects and purposesfor which they were intended. The Committee carries on day to dayadministration of the Gurudwara under Section 37(I) in accordance withHthe directions of the Board. The objects on which the funds of the Gurudwara may be spent are specified in Section 39[2].The Governmentis empowered to supersede the Board under Section 53 in the event,inter alia, of a default in the performance of duty or where it has actedin excess or abuse of its powers. Section 61(1) entrusts a rule makingpower to the Government. The rule making power extends among otherthings to providing the manner in which and the period within which themembers of the Board shall be nominated or elected under Sub-section1 of Section 6.

4. On 28 December 1951, a society by the name of The SachkhandHazuri Khalsa Diwan Association Society (“Diwan”) was registered 2 Section 39:

1) Subject to any rules that may be made by the Government in this behalf, all propertiesand income of the Gurudwara shall be under the control of the Board and shall beapplied to:-

a) the maintenance or improvement of the Gurudwara.

b) the maintenance of religious worship and the performance and conduct of religiousand charitable duties ceremonies and observances connected with the Gurudwara.

c) the payment of allowances or salaries of officers and servants of the Gurudwara.

d) the fulfilment of the objects of the endowments thereof.

e) the maintenance of the langar.

f) the payment of the cost of audit of the funds and accounts of the Gurudwara.g) the payment of the salary and allowances of the Secretary and Staff of the Board andthe Committee and the Superintendent of the Gurudwara.

h) the payment of allowances to the President and members of the Board and theCommittee and members of the Committee.

i) the payment of all expenses incurred by the Board in the performance of the dutiesimposed, and the exercise of the powers conferred by or under this Act.

2) If any balance remains after meeting the expenditure referred to sub-section [1] theBoard may use any portion of such balance for –

a) the foundation and maintenance of educational or charitable institutions and orphanagesfor the benefit of the Sikhs in particular.b) the establishment of hospitals and dispensaries for the relief of the pilgrim andworshippers resorting to the Gurudwara.c) the construction and maintenance of free feeding house and the rest houses for theuse of all classes of pilgrims.

d) the provision of water supply and sanitary arrangements, and the construction andmaintenance of roads and communications and lighting arrangements for the convenienceof the pilgrims and worshipper.

e) the establishment and maintenance of a veterinary hospital for the animals of theGurudwara. Leper asylum and poor houses for the disabled and helpless.f) the promotion of the study of the Gurumukhi or any other language and the cultivationof the Indian arts and architecture , and the prachar of the Sikh religion.g) the grant of aid to any other deserving religious institution.h) any other purposes which the Board may deem fit.

A

B

C

D

E

F

G

H

Aunder the Hyderabad Societies’ Registration Act of 1350 Fasli. ItsMemorandum of Association specifies the following objects:

“i).To guide the followers of the Sikh Religion in the principlesof the Sikh faith and to propagate the tenets of the Sikhreligion among other communities B

ii).To protect their interest and the interest of Gurudwara by allpossible amicably peaceful means

iii).To be loyal to the Govt. of India

iv).To work and agitate for economic, political and social rightsCof the Sikhs of Hyderabad State by peaceful, amicable anddemocratic methods wherever necessary and to adopt suchpolicies which will improve the standard of Sikhs ofHyderabad State.”

5. The bye-laws of the Sachkhand Hazuri Khalsa Diwan, NandedDprovide for the constitution of a General Committee consisting of allmembers of the Diwan. The General Committee is to meet twice eachyear. A Working Committee consisting of 28 members is contemplatedfor the management of affairs. The General Committee is to elect aPresident at the first meeting. Thereafter, the President will form theirWorking Committee. Such elections are to be held in every two years.EThe Working Committee is to consist of a President, Vice-President,Secretary and other office bearers. The President has the power toexercise full supervision over the affairs and working of the GeneralCommittee.

6. On 4 November 1981, an application was filed for theFregistration of a trust under the provisions of the Maharashtra PublicTrusts Act 1950[3]. The application which was numbered as InquiryApplication No. 950/1981 was allowed and a certificate of registrationwas issued by an order dated 11 January 1982 of the Assistant CharityCommissioner, Nanded. The issuance of the registration certificatebecame a source of internal disputes between rival factions. The disputeGwas set at rest by an order dated 22 January 2014 of a two judge Benchof this Court in Special Leave Petitions[4] under Art. 136 of the Constitution.The order of the court concluded that the issue of the registration of the 3 “the MPT Act”4 Special Leave Petitions (C) Nos. 10139-10149 of 2011- Sardar Jeewansingh (d)HTh. Lrs. v. Shersingh & Ors.

Diwan as a trust under the MPT Act has attained finality. However, theCourt noted that the dispute in respect of membership can be adjudicatedupon under the provisions of the MPT Act.

7. The dispute in the present case relates to the nomination offour members in terms of the provisions of Section 6(1)(viii) of the NandedAct 1956. Under this provision, four members of the Board constitutedunder Section 5 are nominated by the Sachkhand Hazuri Khalsa Diwan,Nanded. Sub-Section (2) of Section 6 provides that the nomination andelection of members shall be made in such a manner and within suchperiod as may be prescribed. Section 2(e) defines the expression‘prescribed’ thus:

“prescribed’ means prescribed by the rules made by theGovernment under this Act and includes the bye-laws made bythe Board under this Act;”

8. On 14 July 1958, the then Government of Bombay notified theNanded Sikh Gurudwara Sachkhand Shri Hazuri Apchalnagar Sahib Rules1958[5]. Rule 6, inter alia, provides for the nomination of members underclause (viii) of sub-Section (1) of Section 6. Under Rule 6, the StateGovernment was to make a request in writing as soon as may be afterthe appointed day to the Sachkhand Hazuri Khalsa Diwan, Nanded tonominate within a period of two months of the date of the receipt of therequest, members on the Board as required.

9. From the affidavit which has been filed by the State ofMaharashtra by the Collector, Nanded, it emerges that on 10 July 2000,the Revenue and Forest Department of the Government of Maharashtrasuperseded the Board constituted under Section 5 of the Nanded Act1956 due to disputes between two factions of the Diwan. As a result,the Board was under the Control of the Revenue and Forest Departmentof the Government of Maharashtra.

10. By a notification dated 15 February 2014, the State Governmentconstituted an interim Board. On 21 February 2015, the State Governmentaddressed a communication to the Charity Commissioner enquiringwhether Sardar Gurucharan Singh (the fifth respondent in SLP (C) No.7219 of 2020) or the first petitioner Sardar Sardul Singh was authorisedto represent the Diwan. The Charity Commissioner informed the 5 “the Nanded Sikh Gurudwara Rules 1958”

A

B

C

DE

F

G

H

ASecretary to the State Government that it was the fifth respondent whowas the President of the Diwan. Upon receiving the reply, the StateGovernment notified four persons nominated by the fifth respondent asmembers of the Board.

11. The dispute about who was entitled to be nominated underBSection 6(1)(viii) resurfaced in 2019. Multiple and conflicting nominationswere made purportedly with reference to the provisions of Section6(1)(viii). The affidavit which has been filed by the State refers to thereceipt of several nominations. It would be instructive to reproduce anextract:C“9. On 4.1.2019…Shershing Hirasingh Fauji addressed a letter tothe Government of Maharashtra in the alleged capacity ofPresident of Diwan nominating four persons to the Board. Thisletter was not supported by any resolution of the Diwan.

10. On 4.1.2019, one Sardar Surinder Singh Ajabsingh, as theDSecretary of the Diwan nominated four persons to the Board.The letter was supported by a resolution of the Diwan.

11. On 9.1.2019…Sardar Gurucharan Singh Uttam Singh Ghadisajaddressed a letter to the Government of Maharashtra in the allegedcapacity of President of Diwan nominating four persons to theEBoard. This letter was not supported by any resolution of theDiwan.”

12. A letter was addressed by the State Government to theAssistant Charity Commissioner in order to seek a solution to the imbrogliowith a query about the authorised office bearers of the Diwan. TheFAssistant Charity Commissioner, by a letter dated 2 February 2019, statedthat Inquiry Applications Nos. 44 of 2019 and 114 of 2019 were pendingin respect of the Diwan. On 15 June 2019, Sardar GurucharansinghUttamsingh Ghadisa gave a fresh letter allegedly in his capacity as thePresident of the Diwan nominating a different set of four persons.GEventually, on 21 June 2019, the State Government nominated fourmembers to the Board under Section 6(1) viii.

13. The maze of conflicting claims for nomination to the Boardunder Section 6(1)(viii) led to the institution of proceedings under Art226 of the Constitution before the High Court challenging the validity ofHthe notification dated 21 June 2019. The High Court adverted to the SARDAR BAHGINDER SINGH v. SARDAR MANJIEETH SINGHJAGAN SINGH [DR. DHANANJAYA Y CHANDRACHUD, J.]

conflicting claims for nomination made to the government, The HighCourt held:

“22. In four letters forwarded to the Government for nominationof the members of the Diwan on the Gurudwara Board, theredoes not appear to be consistency. The Government on its owndoes not have the authority to nominate the members of Diwanon the Gurudwara Board. The Government on its own cannotissue notification nominating the members of Diwan on theGurudwara Board. It is only the Diwan that can nominate themembers on the Gurudwara Board. Considering the inconsistencyabout the names to be nominated from the Diwan as members onthe Gurudwara Board, the Government could not have issued thenotification nominating the members of Diwan on the GurudwaraBoard. Except the name of the respondent No. 4, we do not findconsistency of other names in all the letters.”

The High Court observed that it was not entering upon the issueof who was the President and the Secretary of the Diwan. It wasconsidering the dispute only in so far as it pertained to the nomination offour members of the Diwan on the statutory Board constituted in termsof the Section 5 of the Nanded Act 1956. The High Court held thatclause (viii) of sub-Section (1) of Section 6 does not authorise thegovernment to nominate members who will represent the Diwan on thestatutory Board and it was only the Diwan which can do so. Faced withthe conflicting claims that were made to it, the High Court held that:

“30. The State ought to have considered the authenticity of thoseletters. In absence of the proper procedure prescribed in the rulesgoverning nominating members on the Gurudwara Board, it is notclear as to whether the general committee and/or executivecommittee and/or the President or the Secretary have the powersto nominate the members on the Gurudwara Board. The bye lawand/or the rules of Diwan are silent in this regard. The member ofthe Diwan should take steps to amend the byelaws/ rules to thatextent. The dispute also exists with regard to memberships. Asobserved above, we are not entering into the said dispute. It is forthe Assistant Charity Commissioner to decide the dispute aboutthe membership.

31. The Government cannot arrogate the powers unto itself. TheGovernment has usurped the powers of the Diwan. In a system AB

C

DE

F

G

H

Agoverned by rule of law, the discretion and the exercise of powerhas to be confined within the defined limits. The decision ornotification de hors the power under the statute cannot be sustained.It is well settled that when a statute requires a particular thing tobe done in a particular manner, it has to be done in that manneronly. The notification recommending respondent Nos. 4 to 7 isBarbitrary. Arbitrariness has no role in the society governed by ruleof law. Arbitrariness is antithesis to the rule of law, justice, equity,fair play and good conscience. The arbitrary action cannotwithstand the test of law.”

A

14. The notification of the State Government was accordingly setCaside.

15. The appellants have questioned the locus standi of the firstrespondent (petitioner in the writ proceedings before the High Court) tochallenge the appointment of the members made by the State Governmenton the ground that he is not a trustee of the Diwan. It has been submittedDthat the first respondent was removed from the post of trustee byResolution No. 4 of the Working Committee dated 14 April 2015. A copyof the minutes of the meeting of the Working Committee on 14 April2015 has been marked as Annexure 7 to Special Leave Petition (Civil)No. 7217 of 2020.

E

E

16. On behalf of the appellants, a persuasive effort was made byMs. Meenakshi Arora, learned Senior Counsel and Mr. Shivaji M. Jadhav,learned Counsel to demonstrate the steps which were taken by the Diwanin its capacity as a public trust registered under the MPT Act to ensurethe due constitution of its managing body. It has been submitted that inF1984 Gurucharan Singh was appointed as President of the Diwan andthat the Working Committee which was elected under his presidencyconsisted of 28 members. Thereafter, at the lapse of two years, electionsare claimed to have been regularly held to the Working Committee.According to the appellants, S. Jivansingh Ayyasingh Sahu was electedas President of the Trust on 11 November 1980 and 13 November 1982Gfor two years on each occasion. Gurucharan Singh became Presidenton 26 October 1984 in which capacity he was re-elected on 14 October1986, 15 November 1988, 20 October 1990, 28 October 1992, 4November 1994 and 20 October 1998. According to the appellants, afterthe registration of the Trust, the Working Committee which was nominatedHat the time of the initial registration continued from 1984 till 2001. Inquiry Application No. 44 of 2019 regarding the change report filed by theTrust under Section 22 of the MPT Act is pending. This pertains to theentry of the Working Committee in Schedule I, including SardarGurucharan Singh as President (elected purportedly at a general meetingon 9 November 2018). On the other hand, Inquiry Application No 114 of2019 initiated by Shersingh Hirasingh Fauji showing him as the electedPresident of the Diwan Trust is also pending. Contending that theelections to the Trust have been held periodically, it has been submittedthat there was a settled practice of Gurcharan Singh nominating the fourrepresentatives of the Board under Section 6(1) viii. Hence Ms.Meenakshi Arora and Mr. Shivaji Jadhav urged that there was nojustification for the High Court to interdict the notification of the StateGovernment accepting the nomination of four members under Section6(1)(viii).

17. On the other hand, the contesting respondents who had movedproceedings under Article 226 of the Constitution before the High Courthave submitted that the first respondent had the locus standi to initiatesuch proceedings. It has been urged in the written submissions filed bythe first respondent that Resolution No. 4 dated 14 April 2015 purportedto be passed by the Working Committee is fabricated on the ground thatthe date of expulsion of first respondent from the Working Committee ismentioned as 25 October 2015, while the resolution is dated 14 April2015. It has also been submitted that the change report filed byGurucharan Singh dated 9 November 2018 shows the first respondentas an outgoing member of the Working Committee. Further, it has beenclaimed that till date no change report has been filed to remove thename of the first respondent from the record maintained in Schedule I,as a de facto member of the Working Committee. It has been statedthat the issue of locus standi of the first respondent was not raised inthe original counter filed by the appellants before the High Court, ratherit was raised through an additional counter as an afterthought in order todilute the locus standi of the first respondent. Hence, it has beensubmitted that the first respondent is still a trustee under Section 2(18)of the MTP Act and had the locus standi to move a petition underArticle 226 of the Constitution.

18. The contesting respondents seriously questioned the plea ofthe appellants in regard to the management of the public trust. Ms. VibhaDutta Makhija, learned Senior Counsel submitted that after the decisionof this Court dated 22 January 2014 which recognized that the registration AB

C

D

E

F

G

H

Aof the Trust had attained finality, Gurucharan Singh filed MiscellaneousApplication 833 of 2011 before the Assistant Charity Commissioner fortaking on record an entry in respect of an election which was held for2002 - 2004. On 7 March 2015, the Assistant Charity Commissionerpassed an order taking on record the entry pertaining to the election ofthe committee. According to the contesting respondents, the last entryBpertaining to the Working Committee which was taken on record by theAssistant Charity Commissioner was for 2002-4. Out of 28 members,nine are stated to be dead while seventeen continue to subsist on therecord maintained in Schedule-I in the office of the Assistant CharityCommissioner. Hence, it has been submitted that for the period 2004-6,C2006-8, 2008-10, 2010-12, 2012-14 and 2014-16, neither was any changereport in respect of the election of the President or Working Committeereported under Section 22 nor has any change been recorded. However,it is accepted by the respondents that two Inquiry Applications are pendingbefore the Assistant Charity Commission: (i) Inquiry No. 44 of 2019filed by Gurucharan Singh with a claim that he was elected as PresidentDor Pradhan and that a Working Committee of 27 members was elected;and (ii) Inquiry No. 114 of 2019 by Shersingh Hirasingh Fauji claimingthat he was elected as President in 2018 and that a Working Committeeof 27 members has been elected. Both these applications where thereare rival claims for election of the President and for members of theEWorking Committee are pending at the stage of evidence.

19. In the written submissions which have been filed on behalf ofthe First respondent, the conflicting nominations which were made underSection 6(1)(viii) by Gurucharan Singh, on the one hand, and by ShersinghFauji on the other, have been recorded under the caption “who nominatedFwhom”. For convenience of reference, the extract is reproduced below:

“2. WHO NOMINATED TO WHOM.

I. By letter dated 04/1/2019… Sardar Shersingh Fauzi nominatedto the Sardar Sardulsingh Fauzi and Sardar Jagwirsingh Shahu(petitioners in SLP No. 7219/2020) and other two persons.

G

II. On 09/01/2019, by letter dated Sardar Gurucharansingh s/oUttamsingh Ghadisaz nominated himself who is the petitioner inSLP No. 7227/2020 and his son Sardar Bhagendarsingh who isthe petitioner in SLP No. 7217/2020 and nominated other twopersons.

H

III. Sardar Gurucharansingh s/o Uttamsingh Ghadisaz by letterdated 09/01/2019 claimed to be the President of “Diwan” as wellas Sardar Shersingh Fauzi by letter dated 04/01/2019 also claimedto the President of “Diwan”.”

20. The State Government is stated to have appointed two personsfrom the letter dated 9 January 2019 and from the letter dated 4 January2019. The nominated members are appellants before this Court sincetheir appointments have been set aside.

21. Our analysis of the submissions must be prefaced by advertingto the fact that there is a maze of conflicting claims between the twofactions, including the issue of the alleged removal of the first respondentas a trustee of the Diwan. The High Court has appropriately not embarkedupon an enquiry to adjudicate upon these claims. Justifiably so, sincetwo inquiry applications which have been filed under Section 22 of theMPT 1960 are pending before the Assistant Charity Commissioner. Thechange reports, as they are called, being the subject matter of a pendingenquiry by the Assistant Charity Commissioner, it is neither appropriatenor proper for this court to enter into the thicket of factual disputesbetween the contesting factions.

22. Essentially, the issue which the Court has to decide turns uponthe interpretation of the provisions of Section 6(1)(viii). It is on this thatthe validity of the notification of the State government appointing fourpersons under Section 6(1)(viii) would rest. Two distinct entities aredramatis personae in the present case. The first is the public trustwhich is registered under the provisions of the MPT Act. Its origins layin the Sachkhand Hazuri Khalsa Diwan Association Society which wasinitially registered under the Hyderabad Societies’ Registration Act of1350 Fasli[6]. This body was initially registered as a society with theRegistrar of Company Law and Co-operative Societies of the thenGovernment of Hyderabad under registration no. 22 of 1951. TheMemorandum of Association of the Diwan indicates that it was formedto protect and guide the followers of the Sikh religion, protect the interestsof the Gurudwara and to work in the interest of the Sikhs of the thenState of Hyderabad. The name of the society or association wasformulated as Sachkhand Hazuri Khalsa Diwan. The General Committeeof the Diwan consists of all the members of the Diwan who meet bi-annually. The members of the General Committee of the Khalsa Diwan A

D

E

F

G

H

Aare alone entitled to vote. For the management of the affairs, there is aWorking Committee consisting of 28 members. The Working Committeewas to be formed by the President or Pradhan at the first meeting.Elections to the Working Committee are required to be held every twoyears. The President is entrusted with supervision over the affairs andworking of the General Committee. Several decades after theBreorganisation of States, a registration certificate was issued under theMPT Act to the society as a public trust on 11 January 1982 by theAssistant Charity Commissioner Nanded in Inquiry Application No 950/1981. This created a round of disputes between the contesting factionsand it was eventually on 22 January 2014 that this Court concluded theCissue by recording that the registration of the Diwan as a Trust under theMPT Act have attained finality. Disputes in regard to membership werea separate matter which could be adjudicated upon in terms of theremedies available under the MPT Act. As a public trust, the Diwan isgoverned by the provisions of the MPT Act.

D23. The second body with which the present group of appeals isconcerned is a statutory body. This was created when the HyderabadLegislative Assembly enacted the Nanded Sikh Gurudwara SachkhandShri Hazuri Apchalnagar Sahib Act 1956. The statute has defined theexpression ‘Gurudwara’ under Section 2(c) to mean the institution knownas Nanded Sikh Gurudwara Sachkhand Shri Hazuri Apchalnagar SahibEand to include the premises of the Gurudwara together with all its buildingsand the shrines which are specified in the Schedule. A statutory board isconstituted under Section 5 to administer the affairs of the Gurudwara inaccordance with the enactment. The Board consists of seventeenmembers. Some of them are nominated by the government (see clausesF(i), (ii) and (iii) of sub-section (1) of Section 6). Some members arenominated by specific bodies: under clause (iv), one member is nominatedby Shiromani Gurudwara Prabandhak Committee from among the Sikhsof State of Madhya Pradesh; under clause (v) three members arenominated by the Shiromani Gurudwara Prabandhak Committee; under Clause (vii) one member is nominated by the Chief Khalsa Diwan ofGAmritsar and under clause (viii) four members are nominated bySuchkhand Hazuri Khalsa Diwan, Nanded. As regards the electedmembers, clause (vi) stipulates that two members shall be elected byand from among Sikh members of Parliament. Sub- Section (2) of Section6 stipulates that the nomination and election of members under theH

Statutes

provision “shall be made in such a manner and within such period asmay be prescribed”. The expression ‘prescribed’ is defined by Section2(e) to mean prescribed by rules made by the government under the Actand to include the bye- laws made by the Board under the statute. Theexpression ‘Board’ is defined in Section 2(a) to mean the Board whichis constituted under the provisions of Chapter II. Thus, the modalities fornomination and election can be prescribed by the rules made by thegovernment under the Act and in the bye-laws framed by the Board.

24. Sub-Section (3) of Section 6 provides that if the membersmentioned in clauses (iv) and (vii) are not nominated or elected withinthe prescribed period, the government may specify the period withinwhich the exercise has to be completed. If the process is not completedwithin the period so stipulated, the Government is empowered to nominatea person or persons to fill the vacancy. Significantly, the provisions ofsub-section (3) of Section 6 do not apply to the nomination to be madeunder clause (viii) of sub-Section (1) of Section 6. In other words, theexclusive statutory authority for making the nomination of four membersunder Section 6(1)(viii) is vested in the Sachkhand Hazuri Khalsa Diwan,Nanded. Section 6(1)(viii) clearly indicates that it is the Diwan alonewhich has the power to make a nomination of four members. The StateGovernment cannot assume that power to itself. That the authority ofthe Diwan is exclusive is evident from the provisions of sub-section (3)of Section 6.

25. The Nanded Sikh Gurudwara Rules 1958 contain a provisionfor the nomination of members under clauses (iv), (v), (vii) and (viii) ofSection 6 (1). Rule 6 is in the following terms:

“6. Nomination of members under clause iv], v], vii] and viii] ofsub-section 1 of section 6, - 1 As soon as may be after the appointed day, the State Governmentshall make a request in writing to- 1] The Shiromani Gurudwara Prabhandhak Committee.

2] The Chief Khalsa Diwan, Amritsar, and 3] The Sachkhand Huzur Khalsa Diwan, Nanded to nominatewithin a period of two months from the date of the receipt of therequest members on the Board, as required by clauses iv], v], vii]and viii] of sub-section 1 of section 6.

A

B

C

D

E

F

G

H

A2] The members so nominated shall function as the members onthe Board from the date of the constitution of the Board.”

26. The provisions contained in Rule 6 indicate that for the purposeof fulfilling the statutory requirement of a nomination, the StateGovernment is to make a request in writing, inter alia, to the DiwanBunder Clause (viii).

27. The power to make a nomination under Section 6(1)(viii) isvested in the Sachkhand Hazuri Khalsa Diwan, Nanded. The statutedoes not expressly define the expression “Diwan”. The Diwan wasconstituted as a society initially in 1350 Fasli. It was registered as aCpublic trust under the MPT Act in 1982. The expression ‘Diwan’ needselaboration. The Memorandum of Association refers to the Khalsa DiwanGeneral Committee which comprises “of all members of the Diwan”.They alone are entitled to vote. The Working Committee is a smallerbody consisting of 28 members which is elected for a duration of twoyears on each occasion. The authority to nominate four representativesDunder Section 6(1)(viii) of the Nanded Act 1956 is entrusted to the Diwan.The Diwan consists of the collective body of all members who togetherare entitled to vote under the Memorandum of Association. Togetherthey constitute the Diwan. Neither the President individually nor anyoffice bearer can be equated with the Diwan. The authority to nominateEfour members to the Board under Section 6(1)(viii) is not entrusted to anoffice bearer of the Working Committee or for that matter to the WorkingCommittee. Ms Meenakshi Arora, learned Senior Counsel and Mr ShivajiJadhav, learned Counsel sought to emphasise that as a matter of practicenominations were made by Gurucharan Singh from time to time. Thepractice that was followed cannot be contrary to the interpretation ofFthe provisions of the statute.

28. Evidently, conflicts between the rival factions have spilled overinto the process of making nominations. The State Government wasconfronted with conflicting claims. It wrote to the Charity Commissionerseeking some light on the issue and after receiving a communication thatGGurucharan Singh was the President, proceeded to issue a notificationdrawing four members from out of the rival claims that were made bythe conflicting factions. The High Court was justified in disapproving ofthe process that was followed by the State Government but for the simplereason that the nominations were not made by the Diwan. Multiple claimsHwere made in the letters submitted to the State Government. The High Court was correct in its interpretation of the statute when it observedthat it was not open to the State Government to arrogate the power ofnomination to itself or to usurp the powers of the Diwan. The statute hasentrusted the authority to make a nomination under Section 6(1)(viii) tothe Diwan. The Diwan comprises of the collective body of all memberstogether to whom the power to make a nomination is entrusted. Theprovisions of sub-section (2) of Section 6 read with the definition of theexpression “prescribed” in sub-Section 2(e) lead to the conclusion thatthe nomination and election of members under Section 6 has to be madein the manner prescribed by the rules made by the Government underthe Act, including the bye-laws made by the statutory board constitutedunder the provisions of Chapter II.

29. We therefore hold that in authorising the Sachkhand HazuriKhalsa Diwan, Nanded to nominate four members, Section 6(1)(viii)entrusts that authority to the collective body of members of the Diwanwhich is entitled to select the four individuals to be nominated to thestatutory Board. This process, in our view, must be initiated forthwithand concluded within a period of three months from the date of thisjudgment.

30. The change reports - Inquiry Applications Nos. 44 of 2019and 114 of 2019 - must be enquired into by the Assistant CharityCommissioner expeditiously and the inquiry shall be concluded within aperiod of three months from the date of this judgment.

31. Ms. Meenakshi Arora, learned Senior Counsel and Mr. ShivajiJadhav, learned Counsel have made an earnest appeal to this court thatpending the finalization of the process of making nominations underSection 6(1)(viii), the four members who were notified by the Stategovernment on 21 June 2019 may be allowed to continue. It was urgedthat during the pendency of these proceedings the judgment of the HighCourt was stayed. By an interim order passed on 31 July 2020 a directionwas issued restraining the Board from taking any major financial orpolicy decisions. The court however made it clear that this shall notaffect the distribution of langar and the activities of the Gurudwara.Hence, it was urged that the four members who have been notified bythe State Government may be permitted to continue subject to theconditions contained in the interim order. This request has been opposedby Ms. Vibha Dutta Makhija, learned Senior Counsel. Mr Rahul Chitnis,Standing Counsel for the State of Maharashtra has also submitted that if AB

C

D

E

F

G

H

Athe Court were to hold that the notification issued by the State Governmenton 21 June 2019 is not valid, it would not be appropriate to allow the fourmembers, so nominated, to continue. We have held the notification dated21 June 2019 to be invalid and have upheld the conclusion of the HighCourt. Hence, we cannot accept the submission of Ms. Meenakshi Arora,learned Senior Counsel and Mr. Shivaji Jadhav, learned Counsel permittingBthe members who were notified on 21 June 2019 to continue to functionas an interim arrangement.

32. We accordingly dispose of the appeals by affirming theconclusion of the High Court that the notification issued by the StateGovernment on 21 June 2019 was contrary to the provisions of SectionC6 (1) (viii) of the Nanded Act 1956. We direct that:

(i) Inquiry Application No. 44 of 2019 and Inquiry ApplicationNo. 114 of 2019 pending before the Assistant CharityCommissioner, Nanded shall be concluded and disposed ofin accordance with law within a period of three months fromDthe date of this judgment;

(ii) The statutory authority to make a nomination under Section6(1)(viii) is entrusted to the Sachkhand Hazuri Khalsa Diwan,Nanded. The Diwan signifies the entire body of members,as explained in the text of the judgment;E

(iii) The process of making the nomination under the provisionsof Section 6(1)(viii), as explained above, shall be initiatedand completed within a period of three months from the dateof this judgment. The Assistant Charity Commissioner,Nanded shall fix a date for the meeting of the Diwan andFshall act as an observer at the meeting convened for finalisingthe nominations. The Assistant Charity Commissioner isentrusted with the authority to determine the members borneon the role of members of the Diwan who are entitled tovote at the ensuing meeting in accordance with the aboveGdirections. The Assistant Charity Commissioner is at libertyto adopt appropriate modalities for holding a meeting, includingby way of a virtual meeting in view of the outbreak of Covid-19; and

(iv) If any further directions of a consequential nature arenecessary to implement this judgment, the Assistant CharityH

Commissioner will be at liberty to move the Aurangabadbench of the Bombay High Court for directions.

33. The appeals are disposed of in the above terms. No order asto costs.

34. Pending application(s), if any, shall stand disposed of.

Divya Pandey

Appeals disposed of

371

A

B

C

D

E

F

G

H