Kashmir Singh Vs Union of India .

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7024 OF 2002

Kashmir Singh ...Appellant

Versus

Union of India & ors. ...Respondents

WITH

CIVIL APPEAL NO..............OF 2008 [arising out of SLP (C) No. 20803 of 2002] CIVIL APPEAL NOS. 5546, 8171-8172, 8169-8170 of 2003 and 3162-3165 of 2004

JUDGMENT

S.B. SINHA, J :

Leave granted.

1. Whether rule of perpetuity would be applicable in respect of a

member of a Sikh Judicial Commission (for short "Commission")

constituted under the Sikh Gurdwaras Act, 1925 (for short "the Act") is

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in question in this appeal which arises out of a judgment and order dated

13.09.2002 passed by a Five-Judge Bench of the Punjab and Haryana

High Court in Civil Writ Petition No. 371 of 1999.

2. The Act was applicable to the entire territories of the undivided

State of Punjab including PEPSU. By reason of the provisions of the

State Reorganisation Act, 1956, the State of Himachal Pradesh was

constituted, having been carved out from the State of Punjab.

3. Another Parliamentary Act, being Punjab Reorganisation Act,

1966 (for short "the 1966 Act") was enacted in terms whereof the State

of Punjab was divided into the State of Punjab, the State of Haryana and

the Union Territory of Chandigarh.

4. The Central Government admittedly is the appropriate authority

for passing requisite orders in relation to the matters involving inter-State

Boards as envisaged under Section 88 of the 1966 Act. It issued a

notification dated 19.10.1978 nominating the State of Punjab for the

purpose of exercising its power under the 1966 Act.

5. In terms of the provisions of the Act, the Shiromani Gurdwara

Prabandhak Committee (hereinafter referred to as "the Board") was

constituted. Appellant was appointed as a member of the Commission in

terms of a notification dated 4.07.1989. He was elected the President

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thereof. Along with him one S. Dara Singh and S. Raghbir Singh were

also appointed as members of the Commission.

6. A new Board was constituted on 21.11.1996. While the

Commission was functioning with the said members, the State of Punjab

issued a notification on 6.01.1999 whereby and whereunder all the

members including the appellant were removed and in their places S.

Man Mohan Singh, S. Amrik Singh and S. Ajwant Singh Mann were

appointed.

7. A writ petition was filed thereagainst in January, 1999. During

pendency of the said writ petition, the State of Punjab issued two more

notifications on or about 12.01.1999. By reason of the first notification

issued under Sections 70 and 71 of the Act, the notification dated

6.01.1999 was rescinded and by reason of the second notification, the

Commission was reconstituted.

8. The writ petition was amended questioning also the validity of the

aforementioned two notifications dated 12.01.1999.

9. The State of Punjab as also the Union of India, however, opposed

the said writ petition contending that the State of Punjab had the requisite

jurisdiction to remove the members of the Commission.

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10. It was furthermore contended that the Union of India in terms of

Section 72 of the 1966 Act had the requisite power to amend the law in

regard to an intra-state body corporate. It was urged that by reason of the

notification dated 19.10.1978, only a clarification had been issued to the

effect that the word "State Government" would mean the "Government

of State of Punjab" and even the State of Haryana consented thereto.

11. As regards the notifications dated 12.01.1999, it was contended

that some inadvertent mistake had crept in; which was corrected by the

said notifications, insofar as the source of power for issuance of the said

notifications being Section 79 of the Act was not available, particularly,

in view of the fact that clause (iv) thereof had been declared ultra vires

by a Full Bench of the Punjab and Haryana High Court in Shiromani

Gurdwaras Parbandhak Committee, Amritsar and another v. Lachhman

Singh Gill and others [AIR 1970 P & H 40].

12. The matter was placed before a Division Bench of the Punjab and

Haryana High Court. By an order dated 19.04.1999, the Division Bench

formulated the following five questions and referred the matter to a Five-

Judge Bench:

"(i) Whether the Government of India has power under Section 72 of the Punjab Re- organisation Act to issue notification dated 19.10.1978 directing the substitution of the

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words "the State Government" with the words "the Government of the State of Punjab" in Sections 70, 71, 74, 78, 79 and 80 of the Sikh Gurdwaras Act, 1925?

(ii) If the answer to question No. (i) is in negative, then

(a) Whether the petitioners and such other members who have been appointed by the Government of Punjab State after reorganization can challenge the notifications dated 19.10.1978 and 12.1.1999 as their own appointments are invalid? (b) Which Government would exercise the powers of the State Government in relation to the various provisions of the Sikh Gurdwara Act, 1925 which deals with the functioning of the Judicial Commission, powers to issue directions in relation to the Judicial Commission?

(iii) If the answer to question No. (i) is in affirmative, then

(a) Whether the jurisdiction of the Central Government would be ousted in view of the provisions of Sections 3 and 4 of the Inter-state Cooperation Act, 1957? And (b) Whether notification dated 19.10.1978 suffers from the vice of excessive delegation?

(iv) Whether under the Sikh Gurdwara Act, 1925 any period is fixed for which a member of the Commission will hold the office or does he hold the office in perpetuity?

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(v) Whether the notification dated 12.1.1999 is liable to be set aside on account of mala- fide?"

13. The Five-Judge Bench heard the matter for some time and reserved

its judgment on 24.05.2001. On or about 5.07.2002, however, the

purported notification dated 12.01.1999 was withdrawn and the

Commission was restored. Appellant herein filed an application for

withdrawal of the said writ petition which having been opposed, by an

order dated 16.07.2002, permission to withdraw the said writ petition

was refused.

The judgment was delivered on 13.09.2002.

Three Hon’ble Judges were of the opinion:

(i) The tenure of the members of the Commission is co-tenuous

with the term of the Board; and

(ii) The Government of Punjab had the power to issue directions in

regard to the constitution of the Commission.

One of the Hon’ble Judges opined that having regard to the

decision of the Full Bench of the High Court in Shiromani Gurdwaras

Parbandhak Committee (supra), the members of the Commission cannot

be removed.

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The Chief Justice of the High Court, however, was of the opinion

that in view of the terminologies used in the relevant provisions of the

Act and as no fixed period for holding the office has been provided

therein, the Commission can be directed to be wound up only when no

case remains pending before it.

14. We may place on record that during pendency of the writ petition,

members were appointed on 8.07.2002 whereagainst the Board filed writ

petition which was allowed by an order dated 14.08.2003. Civil Appeal

Nos. 8169-8172 of 2003 and 3162-3165 of 2004 are directed against the

said order dated 14.08.2003.

15. The Act was enacted to provide for the legal procedure in terms

whereof Gurdawaras and Shrines which, owning to their origin and

habitual use, are regarded by Sikhs as essentially places of worship may

be brought effectively and permanently under Sikh control and their

administration reformed so as to make it consistent with the religious

views of the said community.

The Act extended to the territories which immediately before

1.11.1956 were in the States of Punjab and Patiala and East Punjab States

Union.

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"Commission" had been defined in Section 2(2) of the Act to mean

"the Judicial Commission constituted under the provisions of Part III" of

the Act.

"Committee" has been defined in Section 2(3) of the Act to mean

"a committee of management constituted under the provisions of Part

III".

Chapter II of the Act consists of Sections 3 to 11. It deals with the

matter relating to filing of petitions to State Government relating to

Gurdwaras.

Chapter III, consisting of Sections 12 to 37, deals with

appointment of the members of the Tribunal and proceedings before it.

Sub-section (1) of Section 12 of the Act reads as under:

"12(1) For the purpose of deciding claims made in accordance with the provisions of this Act the Local Government may from time to time by notification direct the constitution of a tribunal or more tribunals than one and may in like manner direct the dissolution of such tribunal or tribunals."

Chapter V of the Act, occurring in Part III, deals with the control

of Sikh Gurdwaras. Section 40 of the Act deals with the Board,

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Committee and Commission to be constituted for the purposes of this

Act. Section 41 of the Act reads as under:

"41. The management of every Notified Sikh Gurdwara shall be administered by the committee constituted therefor, the Board and the Commission in accordance with the provisions of this Part."

In terms of the provisions of the Act, the Board is the highest

administrative body. It is controlled by the State Government. All

regional political parties participate in the election of the Board.

Section 42 of the Act provides for constitution of the Board.

Process of election is contemplated by Sections 43, 43-A and 50 of the

Act.

Section 43-A of the Act reads as under:

"43-A. Constitution of new Board.-- (1) Whenever a new Board within the meaning of Section 51 is constituted, it shall consist of -- (i) one hundred and forty elected members; (ii) the Head Ministers of the Darbar Sahib, Amritsar, and the following ground Takhats, namely-- the Sri Akal Takht Sahib, Amritsar, the Sri Takhat Keshgarh Sahib, Anandpur, the Sri

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Takhat Patna Sahib, Patna the Sri Takht Hazur Sahib, Nanded; and (iii) fifteen members resident in India, of whom not more than five shall be residents of Punjab, co-opted by the members of the Board as described in clauses (i) and (ii); (2) The State Government shall, as soon as may be, call a meeting of the members of the Board described in clauses (i) and (ii) of sub-section (1) for the purpose of co-opting the members described in clause (ii) of that sub- section, and after the members have been co- opted, the State Government shall notify the fact of the Board having been duly constituted; and the date of the publication of the notification shall be deemed to be the date of the constitution of the Board."

The term of the members of the Board is five years from the date

of its constitution or until the constitution of a new Board, whichever is

later as provided under Section 51 of the Act. Life of the Board is also

limited.

Constitution of Judicial Commission is contained in Section 70 of

the Act. The members of the Commission must be Sikhs appointed from

time to time, as may be found necessary by the local Government. Sub-

section (2) of Section 70 provides for the essential qualifications for

being appointed as members. Sub-section (3) of Section 70 of the Act

provides that two of the members of the Commission shall be selected by

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the State Government out of a list of qualified persons prepared and

maintained as specified in Section 71 thereof.

Section 71 of the Act reads as under:

"71. Appointment of members of the Commission.-- (1) For the purpose of the appointment of members of the Commission the Board shall, as soon as may be, after its constitution submit a list of the names of seven persons nominated by the Board, and the State Government shall after being satisfied that the persons are qualified as required by section 70 record the list; provided that if the Board fails to submit a list within ninety days from the constitution of the Board the State Government may itself complete a list of qualified persons. (2) A person whose name is on the list described in sub-section (1) shall be entitled to have his name retained thereon for two years after his nomination has been recorded, provided that the State Government may at any time remove his name, if it is satisfied upon a report made by the Board and any enquiries it may see fit to make, that he is incapable of acting as a member of the commission. (3) If any person whose name is on the list dies, or applies to the Board to have his name removed therefrom the Board shall inform the State Government and his name shall be removed from the list. (4) The State Government shall on request being made to it for this purpose by the Board remove from the list the name of any person whose name has been on the list for more than three years, provided that the name

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of any person shall not be so removed while such person is a member of the commission. (5) When a name has been removed from the list the Board shall nominate a qualified person for the purpose of filling the vacancy, and the State Government shall after being satisfied that such person is qualified, place his name upon the list. (6) If the Board fails to nominate a person to fill a vacancy as required by sub- section (5) the State Government may after giving one month’s notice of its intention to the Board place the name of any qualified person on the list to fill the vacancy."

Section 79 providing for removal of member of Commission

states:

"79. Removal of member of Commission.-- The State Government may remove any member of the Commission-- (i) if he refuses to act or becomes in the opinion of the State Government incapable of acting or unfit to act as a member; or (ii) if he has absented himself from more than the consecutive meetings of the commission, or (iii) if it is satisfied after such enquiry as it may deem necessary that he has flagrantly abused his position as a member; or (iv) if he has served as a member for more than two years."

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16. It may be noted that clause (iv) of Section 79 of the Act, which

was incorporated by Amending Act of 1954 has been declared ultra vires

by the High Court in Shiromani Gurdwaras Parbandhak Committee

(supra).

17. We may also notice that the object of introducing the said

Amending Act was stated to be as under:

"Under the existing provisions of section 83 of the Sikh Gurdwaras Act, 1925, the State Government "may at any time, when there is no proceeding pending before the Commission, dissolve the Commission". So that the State Government can dissolve the Judicial Commission only when there is no proceeding pending before it and as long as there are any proceedings pending before the Commission, it cannot be dissolved.

As fresh cases are instituted in the Court of the Judicial Commission from time to time, the effect of the existing provision of the Act is that a Commission once constituted is more or less perpetuated. In the interest of the efficient working of the Judicial Commission and in order to remedy a possible awkward situation in which the life of a Tribunal may get very unnecessarily prolonged, it is, therefore, desirable that there should be a provision in the Act empowering the State Government to remove any member of the Commission after he has served on it for a specified period, where circumstances may so require. Hence clause (iv) to section 79 is added.

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2. Amendment of section 79 of Punjab Act VIII of 1925 - In section 79 of the Sikh Gurdwaras Act, 1925, after clause (iii), the word "or" and thereafter the following new clause shall be added:- "(iv) if he has served as a member for more than two years"."

18. Section 83 of the Act deals with the dissolution of the Commission

stating that the State Government may at any time, when there is no

proceeding pending before it, dissolve the same.

19. Chapter VIII of the Act deals with the Committee of Gurdwaras.

‘The committee for the gurdwaras known as the Sri Akal Takht Sahib,

Amritsar and Sri Takht Kesgarh Sahib, Anandpur’ is the Board as

contained in Section 85 of the Act. For every notified Sikh Gurdwara,

other than the one specified in Section 85, the Committee is required to

be constituted after it has been declared to be a Sikh Gurdwara under the

provisions of the Act or upon application of the provisions of Part III

thereof. The tenure of the members of the Committee admittedly is five

years from the date of Constitution or until a new Committee is

constituted, whichever is later. All Committees are body corporates

having perpetual succession and a common seal. The vacancy in the

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Committee is to be filled up in the manner in which the predecessor in

office was elected or nominated.

20. The Commission is a judicial body. Management of every notified

Sikh Gurdwara is administered by the Committee constituted therefor,

the Board as also the Commission. If a person is aggrieved by a finding

of the Board, he has a remedy of preferring an appeal thereagainst before

the Commission. The order passed by the Commission is final. The

question as to whether a person has become a ‘patit’ or not has to be

determined by the Commission. An election dispute under certain

situations is also amenable to the jurisdiction of the Commission. The

Board can also apply to the Commission for an order allowing it to

devote the whole or part of such surplus sum or income to a particular

and specified religious, educational or other charitable purpose or any

purpose which promotes social welfare as envisaged under Section 106

of the Act whereupon the Commission may determine what portion if

any of such surplus sum or income has to be retained as a reserve fund

for the concerned Gurdwara whereupon it may direct the remainder of

the surplus sum or income to be devoted to any such religious

educational or charitable purpose as it may deem proper.

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21. The Committees and the Commission have various other functions

with which we are not concerned.

22. We may briefly also notice the provisions of the 1966 Act. It was

enacted to reorganize the existing State of Punjab into the States of

Punjab and Haryana and the Union Territory of Chandigarh and to

transfer certain areas of the existing State of Himachal Pradesh. Section

2(f) of the 1966 Act defines "existing State of Punjab" to mean the State

of Punjab as existing immediately before the appointed day, which is

1.11.1966.

23. Section 72 of the 1966 Act, which is relevant for our purpose,

reads, thus:

"72. General provisions as to statutory corporations- (1) Save as otherwise expressly provided by the foregoing provisions of this Part, where any body corporate constituted under a Central Act, State Act or Provincial Act for the existing State of Punjab or any part thereof serves the needs of the successor States or has, by virtue of the provisions of Part II, become an inter-State body corporate, then, the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, until other provision is made by law in respect of the said body corporate.

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(2) Any direction issued by the Central Government under sub-sec. (1) in respect of any such body corporate may include a direction that any law by which the said body corporate is governed shall, in its application to that’ body corporate, have effect, subject to such exceptions and modifications as may be specified in the direction. (3)For the removal of doubt it is hereby declared that the provisions of this section shall apply also to the Punjab University constituted under the Punjab University Act, 1947, the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961, and the Board constituted under the provisions of Part III of the Sikh Gurdwaras Act, 1925. (4) For the purpose of giving effect to the provisions of this section in so far as it relates to the Punjab University and the Punjab Agricultural University referred to in sub- section (3), the successor States shall make such grants as the Central Government may, from time to time, by order, determine."

Section 88 of the 1966 Act provides for the territorial extent of the

laws. Section 89 provides for power to adapt laws. Section 91 provides

for power to name authorities. Section 96 provides for power to remove

difficulties in the following terms:

"96. Power to remove difficulties- If any difficulty arises in giving effect to the provisions of this Act, the President may, by order, do anything not inconsistent with such

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provisions which appears to him to be necessary or expedient for the purpose of removing the difficulty."

24. Mr. P.S. Patwalia, learned senior counsel appearing on behalf of

the appellant, would submit:

(i) Having regard to the fact that Section 79(iv) was deleted by Act

No. 11 of 1944 and the same having been re-introduced by Act

No. 11 of 1954 which having been found to be ultra vires, it

must be held that the tenure of a member of the Commission

being not fixed he would continue in office unless it is

dissolved in terms of Section 83 of the Act, viz., as long as any

proceedings remains pending before the Commission.

(ii) The Board alone being vested with a power to forward a list of

seven persons out of whom two are appointed by the

Government as members, the High Court committed a manifest

error in opining that the tenure of the Commission is co-

terminus with that of the Board.

(iii) The notification issued by the State of Punjab was wholly

illegal as the Commission is an inter-state body corporate as

envisaged under Section 72 of the 1966 Act and in that view of

the matter the Central Government was the only competent

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authority to exercise the requisite jurisdiction as contemplated

under Entry 44 of List I of the Seventh Schedule of the

Constitution of India and Section 72(1) of the 1966 Act.

(iv) The purported delegation of power by the Central Government

in favour of the State Government in terms of the said

notification dated 19.10.1978 is ex facie illegal in view of the

principles contained in the maxim delegatus non potest

delegare as thereby the Central Government abdicated its

essential statutory functions in favour of the delegatee.

25. Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf

of the State of Punjab, on the other hand, would submit:

(i) The Commission is not an occasional body but a perpetual

body.

(ii) Having regard to the tenor of Sections 40 and 70 of the Act

wherein the words "from time to time" have been used, it is

evident that the reasonable meaning which is required to be

given thereto would lead to the conclusion that the Government

has the power to make fresh appointments of the members.

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(iii) For the aforementioned purpose, the provisions of Sections 40

and 70 of the Act have to be given a harmonious construction

and upon giving a holistic reading of the entire Act.

(iv) The Act had an extra-territorial application keeping in view the

provisions of Section 88 of the State Reorganisation Act,

particularly, in view of the fact that no law has been enacted in

that behalf either by the State of Haryana or by the State of

Himachal Pradesh.

(v) The Central Government in exercise of its power under Section

89 of the Act merely directed that the State of Punjab shall

carry out the provisions of the Act. The said order is only

clarificatory in nature and does not amount to delegation or

sub-delegation of its power under the 1966 Act. In any event,

the power of the Central Government in this behalf being not

under challenge nor any act of mala fide having been attributed,

the impugned judgment does not call for any interference.

26. Mr. Jaspal Singh, learned senior counsel appearing on behalf of

the SGPC, supplementing Mr. Vaidyanathan urged:

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(i) Upon reading of the provisions of Sections 40, 41, 51, Sub-

section (3) of Section 70 and Sub-section (6) of Section 71, it

would be evident that the life of the Board is limited.

(ii) Writ Petition must be held to have been given up the challenge

in respect of the notification dated 12.01.1999 as the appellant

being a beneficiary in respect of the said notification, and thus,

he is estopped from challenging the subsequent notification

dated 17.02.2005 also as he should not be permitted to

approbate and reprobate at the same time.

27. The Act was enacted to provide for the better administration of

certain Sikh Gurdwaras and for inquiries into matters connected

therewith. It is a complete Code. The Act provides for not only the

constitution of a Tribunal but also for the constitution of a Commission.

Both the Tribunal as also the Commission play significant and important

roles under the Act. They deal with a large number of disputes. The

disputes which are dealt with by the Commission are contained in

various provisions of the Act, some of which we have noticed

hereinbefore.

28. The holders of the office both of the Tribunal as also the

Commission function under a statute. The Commission/ Tribunal is to be

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constituted from time to time. Whereas sub-section (5) of Section 12

empowers the Local Government to remove any member of the Tribunal

on the grounds enumerated therein, Section 83 of the Act does not deal

with such a situation.

29. Would that by itself mean that the Chairman or the Members of the

Tribunal can hold office at their pleasure? Does it contemplate a rule of

perpetuity is the question involved herein? Answers to these questions

may seem to be difficult as the Full Bench of the High Court noticed.

30. A statute, as is well known, must be read in its entirety. It must

then be read part by part, chapter by chapter, section by section and then

clause by clause.

31. Be it the constitution of the Tribunal or the Commission, it is

required to be done ‘from time to time’. Section 40 provides for

constitution of a Judicial Commission from time to time. Undoubtedly,

the same is required to be done in the manner provided for therein but

that would not take away the power of the Government as regards

constitution of the Judicial Commission from time to time. The

Commission exercises control of management of the Notified Sikh

Gurdwaras alongwith the Committee and the Board.

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32. Chapter VI of the Act deals with Constitution, functions and status

of the Board. Constitution and functions of a Judicial Commission are

dealt with in Chapter VII of the Act.

33. Sub-section (1) of Section 70 provides that the Judicial

Commission shall consist of three members who shall be Sikhs,

appointed from time to time as may be necessary by the Local

Government. Sub-section (2) of Section 70 lays down the qualification

of a Member of the Commission. Sub-section (3) of Section 70, which

has some bearing for our purpose, empowers the State to select two

members out of a list of qualified members as described in Section 71.

34. How the list shall be prepared and the members of the Commission

are to be appointed, is provided for under sub-section (1) of Section 71

of the Act.

35. The fact that each Board must submit a list within 90 days from its

constitution is itself indicative of the fact that the same is imperative in

nature. The Government upon receipt of the said list must perform its

functions.

36. Undoubtedly, the Commission exercises a judicial function but the

same would not mean that in the name of independence in its

functioning, the members will continue to hold office in perpetuity.

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37. It is not for us to prescribe age of superannuation. A

recommendation undoubtedly was made in that behalf by the Full Bench

of the High Court in Shiromani Gurdwaras Parbandhak Committee

(supra), but the recommendations having not been accepted and we,

having been called upon to determine only the question with regard to

construction of statute, will have to do so independent of the said

observations.

38. It is, thus, one of the functions of the Board to submit a list of the

names of seven persons to the Local Government. Two of the members

of the Commission are to be selected by the Local Government out of the

list of qualified persons prepared and maintained in terms thereof. If the

Board fails to perform its duties in preparing a select list enlisting therein

the names of seven persons who are qualified to become a member of

the Commission; a’ fortiori it would be the duty of the State Government

to select the names of two of them for appointment as members of the

Commission only out of the said list. The said provisions, in our

opinion, clearly indicate the tenure of the Commission.

39. The dichotomy is created in view of the words "time to time" and

the limited power of the State to dissolve the Commission.

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40. The power of dissolution is a separate power. It is a substantive

power. Removal of the members of a body corporate is also a

substantive power. It is one thing to say that on happening of certain

contingencies, which may include misconduct on the part of the member

of a body corporate, the power of removal can be resorted to or the

power of dissolution of the entire body can be taken recourse to, but then

the same by itself would not lead to a conclusion that in the event the

said contingencies cannot be complied with, in a given situation, the

Chairman and members shall continue to hold the office in perpetuity.

41. The Act is a pre-Constitutional Act. Upon coming into force of

the Constitution of India, it must be read in the light of the constitutional

scheme and its provisions. In construing a statute, an interpretation

which would lead to violation of the constitutional provisions, cannot be

taken recourse to.

42. We have noticed hereinbefore the different opinions of the learned

Judges constituting the Full Bench.

43. While agreeing with one or the other view, this Court cannot lose

sight of the constitutional scheme of equality before law and equal

protection of law as adumbrated in Articles 14 and 16 of the Constitution

of India. We may notice some other provisions in this behalf.

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44. Article 310 of the Constitution of India provides for a tenure. It

does not contemplate a life tenure. It does not contemplate a permanent

term. Article 16 of the Constitution of India which is a species of the

equality clauses contained in Articles 14 and 16 of the Constitution of

India, speaks of grant of equal opportunity to all. Allowing a person to

hold public office indefinitely would be opposed to the constitutional

scheme, irrespective of any misconduct or other contingencies.

Constitution of India does not envisage holding of any office in

perpetuity.

45. We are not unmindful of the opinion of the learned Chief Justice

of the High Court that the term shall come to an end when no dispute

would remain pending before the Commission.

46. The superior courts must remember a well-known principle of law

that the Court while construing an ongoing statute must take into

consideration the changes in the societal condition. It would be a

relevant fact. It must take into consideration the development in science

and technology. [See Satyawati Sharma (Dead) by LRs. v. Union of

India (UOI) and Anr. [2008 (6) SCALE 325].

47. Before the Act was enacted, the office of Commission was

hereditary. The Rule of perpetuity was, therefore, very much in the

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mind of the Legislature as would appear from paragraph 5 of the objects

and reasons of the said Act. We are aware that the said paragraph related

to the Tribunal but then evidently the composition of the holder of a

hereditary office was very much in the mind of the Legislature.

48. The Tribunal has a wide jurisdiction. The Commission also deals

with a large number of disputes which have been noticed by the High

Court. The Court while construing a statute cannot shut its eyes towards

the ground realities. The number of cases coming up before the

Commission has gone up. When the Act was enacted, occasional

meeting was probably thought to be sufficient. The period of five years

during which the Commission was to function probably was more than

enough in those days. It is only in that view of the matter, the legislature

might have thought of dissolution of the Commission when no case was

to remain pending.

49. We have noticed hereinbefore that in view of the number of cases

having gone up for all intent and purport the Commission has been

functioning continuously. If the contention of Mr. Patwalia is to be

accepted, the same would lead to an absurd situation, viz., the members

of the Commission would hold office in perpetuity. They may even

abuse their position to keep one or the other matter pending before it. If

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the contention of Mr. Patwalia is to be accepted that having regard to the

doctrine of independence of judiciary, the State Government will have no

role to play in the matter of constitution of the Board, the Government

will never be in a position to dissolve the Commission unless case is

made out under one or the other provisions of the Act. The doctrine of

‘independence of judiciary’ has nothing to do when the tenure is fixed by

a statute. Even in relation to selection of the members of the Board, the

State has a limited role to play.

50. With a view to construe the said provision the past practice may

also be held to be relevant. The High Court has taken notice of the past

practice in this behalf in great details showing as to how the

reconstitution of the Commission had taken place from time to time,

almost at regular intervals.

51. Our attention, however, has been drawn to a chart filed by the

appellant to show that the reconstitution of the Commission has not taken

place immediately after the reconstitution of the Board. That may be so

but the very fact that the constitution of Commission had taken place, for

instance in October, 1949; January, 1955 ; April, 1955 ; March, 1957 ;

September, 1965; April, 1968 ; July, 1980 ; July, 1981 ; July, 1989 ;

August, 1989 ; January, 1999 and July, 2002 clearly goes to show that

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constitution and reconstitution of the Board had taken place from time to

time. The very fact that it has been working continuously and the

members of the Board have been constituted at intervals is also a pointer

to show that the members had not been holding office at their will, far

less in perpetuity. It had been noticed by us heretobefore that the same

persons have been nominated more than once, even successively.

52. In a case of this nature literal interpretation is not possible. If the

statute has to be read keeping in view the constitutional schemes and

make it workable, the provisions thereof are required to be given a

purposive construction. [See New India Assurance Company Ltd. v.

Nusli Neville Wadia and Anr. JT 2008 (1) SC 31]

For the said purpose, even the past practice as also the Statement

of Objects and Reasons of the Act can be looked into.

53. In Pannalal Binjraj v. Union of India [AIR 1957 SC 397], where

the vires of Section 5(7-A) of the Income tax Act, 1922 were put in issue

before this Court, the challenge was repelled and during the course of the

judgment the previous history of the earlier Income tax Acts was taken

into account to decide what policy could be said to underlie the

provisions of the impugned Section.

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That judgment has been followed by this court in a plethora of

decisions for the purpose of looking into the statement of objects and

reasons of enacting an Act for appreciating the background of

legislature’s classification. [See for instance, The Quarry Owners

Association v. The State of Bihar & Ors., (2000) 8 SCC 655,

Gurudevdatta VKSSS Maryadit & Ors. v. State of Maharashtra & Ors.,

(2001) 4 SCC 534, K.T.M.S. Mohd. and another v. Union of India With

Amanullah Quareshi v. Union of India, (1992) 3 SCC 178, Gopal Narain

v. State of Uttar Pradesh and Anr. (1964) 4 SCR 869, Bhatnagars and Co.

Ltd. v. The Union of India, (1957) 1 SCR 701]

54. Clause (iv) of Section 79 might have been declared ultra vires but

the same by itself is not sufficient to hold that save and except the power

of the State Government to dissolve the Commission there does not exist

any provision to bring to an end its tenure and it would continue to

function till a case remains pending. The said interpretation would not

only lead to an anomalous situation, but also frustrate the constitutional

scheme.

55. For the aforementioned purpose, we must bear in mind two salient

principles, i.e., the ‘power to appoint’ carries with it the ‘power to

remove’ under the General Clauses Act. If the Commission is to be

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constituted from time to time, it must be held that to effectuate this power

it would be reasonable to conclude that such power can be exercised as

and when a necessity arises therefor.

56. It may be true that the Court shall not interfere with the judicial

authority. It should be allowed to function independently and

impartially, but at the same time it cannot be allowed to continue in

perpetuity. A balance, thus, must be struck.

57. Whereas, on the one hand, the discretionary jurisdiction of the

State would not lightly be assumed having regard to the nature of the

office held by the appellant, it cannot also be held that no tenure is fixed

therefor at all.

58. The State of Punjab, in this appeal, also opposes the appellant’s

contention.

59. With a view to find out an answer to the question as to what

meaning should be assigned to the words "from time to time", in our

opinion, a holistic reading of the statutes should be resorted to. It has to

be borne in mind that perpetuity in office is neither contemplated under

Act nor the constitutional scheme permits the same. It may be true that

Clause (iv) of Section 79 of the Act has been declared ultra vires by the

Punjab High Court in the case of Shiromani Gurdwaras Parbandhak

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Committee (supra), but the same by itself, in our considered opinion, is

not sufficient to hold that save and except for the power of the State

Government under Section 83 of the Act for dissolution of the

Commission, it would continue to function till any case is pending.

60. For the purpose of giving an effective and meaningful construction

of the provisions, the court is bound to take into consideration the

situational change. The statute is an ongoing one. The number of

litigations in the year 1925 might have been small. Occasional formation

of the Commission might be contemplated keeping in view the number of

litigations at that point of time. The Act, however, must be interpreted

differently as the court cannot ignore the ground realities. If it is to be

held that in terms of Section 83 of the Act, the State Government has the

power to dissolve the Commission only in terms thereof, for all intent

and purport, the Commission shall continue till a member dies or resigns.

61. On the appellant’s own showing, the Commission is not an

occasional body. It has continued to function for a long time. If that be

so, the object and purpose for which the statute contemplated

constitution of such occasional body has lost its purpose. Apart from

Section 40 of the Act, even in terms of Section 70 of the Act, the

Members are to be appointed from time to time. If the tenure is for the

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whole life of the Member, there cannot be any fresh appointment. If

there cannot be any fresh appointment, the same would be clearly

violative of Article 16 of the Constitution.

62. In Sri Nasiruddin v. State Transport Appellate Tribunal [(1975) 2

SCC 671], the interpretation of the words "such Judges of the new High

Court, not less than two in number, as the Chief Justice, may, from time

to time nominate, shall sit at Lucknow as used in The United Provinces

High Courts (Amalgamation) Order, 1948 came up for consideration

before this court.

It was held by this court that the words "from time to time" suggest

not only that Judges who may come from Allahabad to Lucknow or vice

versa but also that the number may be increased or decreased according

to exigencies, the only limitation being that it shall not be less than two.

63. In a more recent decision of this court in M.P. Vidyut Karamchari

Sangh v. M.P. Electricity Board [(2004) 9 SCC 755], the question which

fell for this Court’s determination was whether an agreement despite

expiry would prevail over a regulation made under Section 79(c) of the

Electricity (Supply) Act, 1948 as regards the age of superannuation of an

employee of the Respondent-Board having regard to the use of the words

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"time to time" in Section 2 of the Madhya Pradesh Industrial

Employment (Standing Orders) Act, 1961 which applies to every

undertaking wherein the number of employees on any day during the

twelve months preceding or on the day the said Act came into force or

any day thereafter was or is more than twenty and such other class or

classes of undertakings as the State Government may, from time to time,

by notification, specify in this behalf, this court observed :

"44. The power of the Board, therefore, to lay down the conditions of service of its employees either in terms of regulation or otherwise would be subject only to any valid law to the contrary operating in the field. Agreement within the meaning of proviso appended to Rule 14A is not a law and, thus, the regulations made by the Board shall prevail thereover.

45. The Board has power to make regulations which having regard to the provisions of General Clauses Act would mean that they can make such regulations from time to time."

64. We, therefore, are of the opinion that in view of the situational

change, a meaning which could be attributed in the year 1925 cannot be

given the same meaning today. For the aforementioned purpose,

Sections 40 and 70 of the Act must be read together. Therefor a holistic

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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.

65. The term ‘from time to time’ should be given an effective and

purposeful meaning. If any other meaning is assigned, sub-section (3) of

Section 70 and sub-section (1) of Section 72 would be rendered otiose.

We cannot, thus, agree with the contention of Mr. Patwalia.

66. There is another aspect of the matter which cannot be lost sight of.

Appellant herein has questioned the validity of the Notification dated 6th

January, 1999 on the premise that the Chief Minister of the State had

acted mala fide. The Full Bench noticed that factual foundation had not

been laid therefor. For all intent and purport, the said point was given

up. Furthermore, the appellant has again been appointed as a Chairman

of the Commission by a Notification dated 17th March, 2005. The

Notification used the words "Reconstitution of the Commission". He,

therefore, is a functionary thereof. He cannot be permitted to approbate

and reprobate.

67. By reason of the notification dated 19.10.1978, the Central

Government has not delegated its power. The 1966 Act has an extra-

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territorial application. It is not in dispute that no law has been enacted

either by the State of Haryana or by the State of Himachal Pradesh. In

absence of any law having been enacted to the contrary, the functions

under the 1966 Act must be performed by some authority. The Central

Government with the consent of the State of Haryana has merely

nominated the State of Punjab to do so. By reason thereof, it has not

delegated any power. Sub-section (1) of Section 72 of the 1966 Act

envisages a direction upon the Central Government. Such a direction has

been issued by reason of the impugned notification. When a power has

been conferred upon the State of Punjab by the Central Government, it

exercises a statutory power. It would, therefore, not a case where the

functions of the State Government must be held to be confined to its

territorial jurisdiction.

68. Articles 245 or 246 or for that matter, Articles 73 and 172 of the

Constitution of India will have no application.

69. Even such questions have not been raised before the High Court.

In issuing the notification, the Central Government was merely

exercising its statutory functions. It has not exercised a power of

delegation. The ground of excessive delegation of power, thus, does not

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arise. Some authority is required to function. If an authority has been

nominated, all other questions become academic.

70. For the reasons aforementioned, Civil Appeal Nos. 7024 of 2002

and 8171-8172 of 2003 are dismissed and Civil Appeal arising out of

SLP (C) No. 20803 of 2002 as also Civil Appeal Nos. 5546 of 2003,

8169-8170 of 2003 and 3162-3165 of 2004 are allowed. No costs.

...............................J. [S.B. Sinha]

................................J. [V.S. Sirpurkar] New Delhi; May 12, 2008

KASHMIR SINGH Vs UNION OF INDIA .

KASHMIR SINGH Vs UNION OF INDIA .

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