# HARBHAJAN SINGH v. STATE OF HARYANA & ORS

- **Citation:** [2022] 12 S.C.R. 1113
- **Court:** Supreme Court of India
- **Decided:** 2022-09-20
- **Bench:** Hemant Gupta, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harbhajan-singh-v-state-of-haryana-ors-35708
- **Pages:** 54

## Headnote

Punjab Reorganization Act, 1966 - s. 72 - Haryana Sikh
Gurdwara (Management) Act, 2014 - Inter-State Corporation Act.
1957 - ss.3, 4 - States Reorganisation Act, 1956 - Whether s. 72 of
the 1966 Act and ss. 3 and 4 of the 1957 Act, were transitional
provisions - Held: The 1957 Act is a statute to empower the Central
Government to issue directions from time to time so that on account
of creation of separate States, statutory bodies in the new States
can function smoothly - Central Government could issue directions
in terms of the 1957 Act only to give effect to reorganisation of the
States so that the inter-state entity is able to function and discharge
the statutory mandate in the States so constituted - Such directions
were transitional in nature so that the functioning of inter-State
corporations is not obstructed or curtailed on account of
reorganisation of the States - Neither the 1956 Act nor the 1966
Act nor the 1957 Act has taken away the legislative competence of
the States to legislate on the subjects which finds mention in List II
of the Seventh Schedule and/or in respect of matters falling in List
III of the Seventh Schedule in the manner prescribed - Religious
institutions - Gurdwara.
Constitution of India: Legislative competence - Whether the
Haryana Sikh Gurdwara (Management) Act, 2014 falls within the
legislative competence of the Haryana State Legislature or it falls
in Entry 44 of List I of the Seventh Schedule of the Constitution -
Held: There is no provision in the Punjab Reorganization Act, 1966
which confers legislative power upon the Parliament in respect of
the subjects over which the State has legislative competence in terms
of List II - Therefore, the transitional provisions i.e., the 1966 Act
or the Inter-State Corporation Act 1957 do not impinge upon the
legislative competence of the State legislature to enact a law on the
subjects mentioned in the List II - Entry 32 deals with unincorporated
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trading, literary, scientific, religious and other societies and
associations - In respect of such matters, the competent legislature
is the State - In terms of Entry 44 of List I, the Parliament will have
jurisdiction only if the Shiromani Gurdwara Prabandhak Committee
(SGPC) under the Sikh Gurdwaras Act, 1925 continues to be an
inter-State entity - The jurisdiction of the successor States either to
repeal, modify or enact a new law has not been restricted by the
1966 Act - The SGPC became inter-State body corporate not because
of Entry 44 List I but because of reorganisation of the territories of
the erstwhile State of Punjab - Therefore, Entry 44 would have no
applicability in respect of legislative competence of the State of
Haryana to enact the 2014 Act - Sikh Gurdwaras Act, 1925 -
Religious institutions - Gurdwara.
Constitution of India: Art. 254(2) - Presidential assent -
Whether required for Haryana Sikh Gurdwara (Management) Act,
2014 - Held: For entries in concurrent list, assent of the President
would be necessary if there is an existing statute and the State law
is contrary to some of the provisions of the Central law - Though
the Haryana Committee constituted under the 2014 Act is in respect
of religious purposes, but the prime intention is of an incorporation
of juristic entity to manage the affairs of the Sikhs in the State -
Incorporation of such juristic entity more appropriately falls within
the domain of Entry 32 of List II and not within Entry 28 of List III
of Seventh Schedule - Assent of the President is not required for
the validity of 2014 Act.
Constitution of India: Arts. 25 and 26 - Right to freedom of
religion - Whether Haryana Sikh Gurdwara (Management) Act,
2014 violates fundamental rights of the petitioners under Arts. 25
and 26 of the Constitution so as to entitle the petitioners to invoke
the jurisdiction under Art.32 of the Constitution - Held: 2014 Act
is similar to the 1925 Act, inter alia h

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HARBHAJAN SINGH
v.
STATE OF HARYANA & ORS.
(Writ Petition (Civil) No. 735 of 2014)
SEPTEMBER 20, 2022
[HEMANT GUPTA AND VIKRAM NATH, JJ.]
Punjab Reorganization Act, 1966 - s. 72 - Haryana Sikh
Gurdwara (Management) Act, 2014 - Inter-State Corporation Act.
1957 - ss.3, 4 - States Reorganisation Act, 1956 - Whether s. 72 of
the 1966 Act and ss. 3 and 4 of the 1957 Act, were transitional
provisions - Held: The 1957 Act is a statute to empower the Central
Government to issue directions from time to time so that on account
of creation of separate States, statutory bodies in the new States
can function smoothly - Central Government could issue directions
in terms of the 1957 Act only to give effect to reorganisation of the
States so that the inter-state entity is able to function and discharge
the statutory mandate in the States so constituted - Such directions
were transitional in nature so that the functioning of inter-State
corporations is not obstructed or curtailed on account of
reorganisation of the States - Neither the 1956 Act nor the 1966
Act nor the 1957 Act has taken away the legislative competence of
the States to legislate on the subjects which finds mention in List II
of the Seventh Schedule and/or in respect of matters falling in List
III of the Seventh Schedule in the manner prescribed - Religious
institutions - Gurdwara.
Constitution of India: Legislative competence - Whether the
Haryana Sikh Gurdwara (Management) Act, 2014 falls within the
legislative competence of the Haryana State Legislature or it falls
in Entry 44 of List I of the Seventh Schedule of the Constitution -
Held: There is no provision in the Punjab Reorganization Act, 1966
which confers legislative power upon the Parliament in respect of
the subjects over which the State has legislative competence in terms
of List II - Therefore, the transitional provisions i.e., the 1966 Act
or the Inter-State Corporation Act 1957 do not impinge upon the
legislative competence of the State legislature to enact a law on the
subjects mentioned in the List II - Entry 32 deals with unincorporated
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trading, literary, scientific, religious and other societies and
associations - In respect of such matters, the competent legislature
is the State - In terms of Entry 44 of List I, the Parliament will have
jurisdiction only if the Shiromani Gurdwara Prabandhak Committee
(SGPC) under the Sikh Gurdwaras Act, 1925 continues to be an
inter-State entity - The jurisdiction of the successor States either to
repeal, modify or enact a new law has not been restricted by the
1966 Act - The SGPC became inter-State body corporate not because
of Entry 44 List I but because of reorganisation of the territories of
the erstwhile State of Punjab - Therefore, Entry 44 would have no
applicability in respect of legislative competence of the State of
Haryana to enact the 2014 Act - Sikh Gurdwaras Act, 1925 -
Religious institutions - Gurdwara.
Constitution of India: Art. 254(2) - Presidential assent -
Whether required for Haryana Sikh Gurdwara (Management) Act,
2014 - Held: For entries in concurrent list, assent of the President
would be necessary if there is an existing statute and the State law
is contrary to some of the provisions of the Central law - Though
the Haryana Committee constituted under the 2014 Act is in respect
of religious purposes, but the prime intention is of an incorporation
of juristic entity to manage the affairs of the Sikhs in the State -
Incorporation of such juristic entity more appropriately falls within
the domain of Entry 32 of List II and not within Entry 28 of List III
of Seventh Schedule - Assent of the President is not required for
the validity of 2014 Act.
Constitution of India: Arts. 25 and 26 - Right to freedom of
religion - Whether Haryana Sikh Gurdwara (Management) Act,
2014 violates fundamental rights of the petitioners under Arts. 25
and 26 of the Constitution so as to entitle the petitioners to invoke
the jurisdiction under Art.32 of the Constitution - Held: 2014 Act
is similar to the 1925 Act, inter alia having similar provisions of
constituting a committee to manage the affairs under the Act - The
affairs of the religious minority in the State i.e., Sikhs is left in the
hands of the Sikhs alone in the same manner as was under the
1925 Act - Since, the affairs of the Sikh minority in the State are to
be managed by the Sikhs alone, therefore, it cannot be said to be
violative of any of the fundamental rights conferred under Arts. 25
and 26 of the Constitution - Writ petition is maintainable on the
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ground that the said writ petitions have been pending before this
Court for almost 8 years wherein an interim order has been in
operation throughout - Additionally, the questions, being purely
legal, have been examined to give finality to the issues arising in
the two matters.
Dismissing the writ petitions and the appeal, the Court
HELD: 1. Whether Section 72 of the Punjab Reorganisation
Act, 1966 and Sections 3 and 4 of the Inter-state Corporation
Act, 1957 were transitional provisions to meet the immediate
requirement of the issues arising out of creation of separate
States?
1.1 The 1957 Act empowers the Central Government to
issue directions from time to time so that on account of creation
of separate States, such statutory bodies in the new States can
function smoothly. It defines the "inter-State corporation" as any
body corporate constituted under any of the Acts specified in the
Schedule and functioning in two or more States by virtue of Section
109 of the 1956 Act. Therefore, in respect of such inter-State
corporations, the Central Government could issue directions in
terms of the 1957 Act only to give effect to the reorganisation of
States so that the inter-state entity is able to function and discharge
the statutory mandate in the States so constituted. Such directions
were transitional in nature so that the functioning of inter-State
corporations is not obstructed or curtailed on account of
reorganisation of the States. Neither the 1956 Act nor the 1966
Act nor the 1957 Act has taken away the legislative competence
of the States to legislate on the subjects which finds mention in
List II of the Seventh Schedule and/or in respect of matters falling
in List III of the Seventh Schedule in the manner prescribed.
The 1956 Act or the 1966 Act empowers the Central Government
to issue directions to make the inter-state entity functional, but
the Central Government has not been empowered to legislate in
respect of such inter-State bodies which came to be operational
in one or more States due to the reorganisation of the States.
[Paras 32 and 33][1141-F-H; 1142-A-B]
1.2 The power of the Centre to issue directions under
Section 72 of the 1966 Act is a transitional provision to ensure
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smooth and continuous functioning of a body corporate so that it
is not paralyzed on becoming an inter-State body corporate due
to reorganisation of the erstwhile State of Punjab. The directions
contemplated by Section 72 relates to functioning and operation
of such body corporate. A competent State legislature is not
deprived of its power to legislate on the subjects falling within its
jurisdiction in terms of List II of the Seventh Schedule. The 1966
Act does not bar the State Legislature to legislate on the fields of
its legislative competence falling under List II of the Seventh
Schedule or even in List III of the Seventh Schedule, subject to
the limitations as are prescribed in the Constitution [Para
46][1160-A-C]
2. Whether the impugned enactment (Haryana Act of 2014)
falls within the legislative competence of the Haryana State
Legislature or it falls in Entry 44 of List I of the Seventh Schedule
of the Constitution?
2.1 The SGPC was a Board which was intra-State body
corporate prior to reorganisation of the State in the year 1966.
The reorganisation has rendered the SGPC as an inter-State body
corporate but the legislative power to legislate on the subject of
incorporation of the Corporations would be within the jurisdiction
of the Haryana State Legislature. Entry 32 deals with
unincorporated trading, literary, scientific, religious and other
societies and associations. In respect of such unincorporated
trading, literary, scientific, religious and other societies and
associations, the competent legislature is the State. In terms of
Entry 44 of List I, the Parliament will have jurisdiction only if the
SGPC under the 1925 Act continues to be an inter-State entity.
The jurisdiction of the successor States either to repeal, modify
or enact a new law has not been restricted by the 1966 Act, though
it is a special law within the meaning of Articles 2, 3 and 4 of the
Constitution. The SGPC became inter-State body corporate not
because of Entry 44 List I but because of reorganisation of the
territories of the erstwhile State of Punjab. Therefore, Entry 44
would have no applicability in respect of legislative competence
of the State of Haryana to enact the Haryana Act. [Para 48][1162E-H; 1163-A]
2.2 The 1966 Act as well as the 1957 Act confer power on
the Central Government for smooth transition of new States
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coming into existence as a consequence of the reorganization.
There is no provision in the 1966 Act which confers legislative
power upon the Parliament in respect of the subjects over which
the State has legislative competence in terms of List II. Therefore,
the transitional provisions i.e., the 1966 Act or the 1957 Act do
not impinge upon the legislative competence of the State
legislature to enact a law on the subjects mentioned in the List
II. [Para 51][1163-F-G]
3. Whether, the impugned Act falls in List-III (Concurrent
List) Schedule VII, which required the assent of the President of
India as per Article 254(2) of the Constitution of India, and in the
absence of such assent, void?
3.1 The impugned Haryana Act does not fall in Entry 28 of
List III of the Seventh Schedule. Entry 28 covers Charities and
charitable institutions, charitable and religious endowments and
religious institutions. In view of such Entry being in the concurrent
list, the State can legislate in respect of charities, charitable
institutions, charitable and religious endowments and religious
institutions. The assent of the President would be necessary if
there is an existing statute and the State law is contrary to some
of the provisions of the Central law. The Haryana Committee is
the incorporation of a juristic entity which more appropriately
falls within the domain of Entry 32 of List II. Though the Haryana
Committee is in respect of religious purpose, but the prime
intention is of an incorporation of a juristic entity to manage the
affairs of the Sikhs in the State. Thus, Entry 32 is wide enough to
include incorporation of such statutory entity. [Paras 52 and
53][1164-A-D]
3.2 Even if it is assumed that the Haryana Act is in
furtherance of Entry 28 of List III, the same cannot be said to be
void for the reason that it has not been kept reserved for the
assent of the President. Such an argument is based upon the
reason that the 1925 Act is an inter-State legislation, therefore,
the assent of the President is necessary. The 1925 Act was
originally an intra-State legislation enacted by the State legislature.
It subsequently became an inter-State body only by virtue of the
1966 Act. Since the power to legislate conferred on the State
legislature has not been affected in any manner, therefore, the
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State would have power to legislate both under Entry 28 of List
III or Entry 32 of List II for the reason that the 1925 Act is not an
inter-State body corporate in respect of which the Parliament
incorporated such Board. [Para 54][1164-D-F]
4. Whether any fundamental rights of the petitioners under
Articles 25 and 26 of the Constitution of India are violated, so as
to entitle the petitioners to invoke the jurisdiction of this Court
under Article 32 of the Constitution?
4.1 The Haryana Act of 2014 is similar to the 1925 Act
having similar provisions of constituting a committee to manage
the affairs under the Act. The Haryana Committee is the
Committee constituted under Section 3 of the Haryana Act for
the management and control of the Gurdwaras and Gurdwara
properties within the State of Haryana. The Gurdwara property
in terms of Section 2(f) of the Haryana Act means all movable and
immovable properties of a Gurdwara or any institution which,
immediately before the appointed day, vested or was kept in
deposit in the name of any Board, Trust, Committee, Gurdwara
Management or was being regulated under the provisions of the
1925 Act. The members of the Committee have to be elected
from the eligible voters who is Amritdhari Sikh, a Sikh, and who
is eighteen years of age, but not a Patit Sikh and is not an
insolvent, mentally retarded or an insane person. The co-option
is from the members of the community alone. Therefore, the
affairs of the religious minority in the State i.e., Sikhs is left in the
hands of the Sikhs alone in the same manner as was under the
1925 Act. The Haryana Act also provides for Haryana Sikh
Gurdwara Judicial Commission in the same manner as is provided
under the 1925 Act. The affairs of the Gurdwara are again required
to be managed by local Gurdwara Committee. Since the affairs of
the Sikh minority in the State are to be managed by the Sikhs
alone, therefore, it cannot be said to be violative of any of the
fundamental rights conferred under Articles 25 and 26 of the
Constitution. [Para 55][1164-H; 1165-A-D]
4.2 The writ petition is maintainable on the ground that the
said writ petitions have been pending before this Court for almost
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8 years wherein an interim order has been in operation
throughout. Additionally, the questions, being purely legal, have
been examined to give finality to the issues arising in the two
matters [Para 56][1165-E]
5. In Civil appeal no.6614 of 2022, the appellant was
appointed for five years as Additional Commissioner Gurdwara
Elections on 29.8.2014. The post of Additional Commissioner
Gurdwara Elections was under the Haryana Sikh Gurdwaras
(Management) Act, 2014. The vires of the aforesaid Act stands
upheld by this Court. The appellant has not discharged any
functions in view of the stay by this Court. Therefore, the
appointment was rescinded. The appellant was appointed for a
period of five years, even the term for which the appellant was
appointed has come to an end by afflux of time. Therefore, the
appellant has no subsisting cause in the present appeal. [Paras
59, 60 and 61][1165-H; 1166-A-B]
Sehajdari Sikh Federation Vs. Union of India & Ors.
2011 SCC Online P&H 17374; Dayanand Anglo-Vedic
College Managing Committee v. The State of Punjab &
Ors. 1971 SCC OnLine P&H 257; Kashmir Singh v.
Union of India & Ors. 2002 SCC OnLine P&H 766 -
Approved .
Union of India v. Rajendra N. Shah & Anr. 2021 SCC
OnLine SC 474 - held inapplicable.
Mullaperiyar Environmental Protection Forum v. Union
of India & Ors. (2006) 3 SCC 643 : [2006] 2 SCR 740
- Distinguished.
Himachal Pradesh University, Shimla v. Punjab
University, Chandigarh & Ors. (1996) 11 SCC 411;
Kashmir Singh v. Union of India & Ors. (2008) 7 SCC
259 : [2008] 8 SCR 464; D.A.V. College, Etc. Etc. v.
State of Punjab & Ors. (1971) 2 SCC 269: [1971]
Suppl. SCR 677 - relied on.
Smt. Swaran Lata v. Union of India & Ors. (1979) 3
SCC 165 : [1979] 2 SCR 953; Jagtar Singh v. State of
Punjab (1972) 1 SCC 171; Maa Vaishno Devi Mahila
HARBHAJAN SINGH v. STATE OF HARYANA & ORS.
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Mahavidyalaya v. State of Uttar Pradesh & Ors. (2013)
2 SCC 617 : [2012] 13 SCR 810; Nazir Ahmad v. The
King-Emperor AIR 1936 PC 253 (2); State of Kerala &
Ors. v. Kerala Rare Earth and Minerals Limited & Ors.
(2016) 6 SCC 323:[2016] 5 SCR 515 - referred to.
Case Law Reference
[2016] 5 SCR 515
referred to
Para 17
[2012] 13 SCR 810
referred to
Para 22
(1996) 11 SCC 411
relied on
Para 24
[2008] 8 SCR 464
relied on
Para 25
[1979] 2 SCR 953
referred to
Para 34
(1972) 1 SCC 171
referred to
Para 34
[1971] Suppl. SCR 677
relied on
Para 36
[2006] 2 SCR 740
distinguished
Para 41
CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition
(Civil) No. 735 of 2014.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
With
Writ Petition (Civil) No. 1116 of 2019 and civil appeal no. 6614 of
2022.
K. M. Nataraj, ASG, Anil Grover, Gaurav Liberhan, Ajay Bansal,
AAGs, V. Giri, Rakesh Dwivedi, Ms. V. Mohana, Ranjit Kumar, Shyam
Divan, Sr. Advs., Sanchar Anand, Ms. Suveni Bhagat, Ms. Astha Prasad,
Shrirang B. Varma, Ritesh Khatri, Gagan Gupta, Ms. Shirin Khajuria,
Ms. Tanisha Samanta, Chetan Joshi, Ms. Sansriti Pathak, Anirudh Bakhru,
Rajat Nair, Anuj Srinivas Udupa, Nakul Chengappa K.K., A. K. Sharma,
Chitransh Sharma, Vinayak Sharma, Siddharth Batra, Ms. Archna Yadav,
Ms. Shivani Chawla, Chinmay Dubey, Hemant Gupta, Deepak Thukral,
Sanjay Kumar Visen, Rahul Khurana, Suresh Kumar Bhan, Adith
Deshmukh, Ms. Payal Gupta, Sandeep Joshi, Alok Sharma, Udayaditya
Banerjee, Ajay Pal, R. K. Rathore, Ms. Ranjeeta Rohatgi, Sharad Kumar
Singhania, Vatsal Joshi, Bhuvan Kapoor, Varun Chugh, Arun Kumar,
Ms. Visaka Murty, G. S. Makkar, Sanchar Anand, Brij Kant Mishra,
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Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Kaveri Upadhyaya, Ms.
Niharika Dwivedi, S. K. Rajora, Dr. Vipin Gupta, Abhinav Mukerji, Ms.
Bihu Sharma, Akshay C. Shrivastava, Ms. Pratishtha Vij, Gaurav Yadava,
Ms. Veena Bansal, Jasbir Singh Malik, Ms. Usha Nandini V., Vishwa
Pal Singh, Mrs. Kamaldeep Gulati, Arvind Kumar Sharma, Ms. Uttara
Babbar, Tushar Bakshi, Gurmeet Singh Makker, Deepak Goel, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
WRIT PETITION (CIVIL) NO. 735 OF 2014 AND WRIT
PETITION (CIVIL) NO. 1116 OF 2019
1. The above writ petitions are preferred challenging the Haryana
Sikh Gurdwara (Management) Act, 20141, creating a separate juristic
entity for the management of historical Gurdwaras in the State of Haryana
mentioned in Schedule I; Gurdwaras having income of more than Rs.20
lakhs in Schedule II and the Gurdwaras having income of less than Rs.20
lakhs in Schedule III.
2. The Statement of Objects and Reasons of the Haryana Sikh
Gurdwara Management Bill, 2014 (Bill No. 28-III A of 2014) provides
that the Bill is an earnest effort to provide a legal procedure by which
the Gurdwaras, owing to their origin and habitual use, regarded by the
Haryana Sikhs as essentially pious places of worship, may be brought
effectively and permanently under the exclusive control of the Sikhs of
Haryana for their proper use, administration, control and financial
management reforms to make it consistent with the religious views of
the said community. It was pointed out that the Sikh Gurdwaras in the
State are being governed by the provisions of the Sikh Gurdwaras Act,
19252 and the rules and regulations made thereunder, but in view of the
demands of the Sikhs in the State of Haryana which were examined by
two committees, it was decided to introduce the Bill in terms of powers
conferred under Article 246 read with Schedule VII, List II, Entry 32 of
the Constitution of India, as also in pursuance of Section 72 of the Punjab
Reorganisation Act, 19663. It is thereafter, the Haryana Act was enacted
which came into force on 14.7.2014.
1 For short, the 'Haryana Act'
2 For short, the '1925 Act'
3 For short, the '1966 Act'
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3. The first writ petition has been filed by a resident of Haryana
and an elected representative of Shiromani Gurdwara Prabandhak
Committee4 from Kurukshetra. The ground of challenge is that the
Haryana Act is against the constitutional provisions, the statutory
provisions of the 1966 Act and is also divisive in its intention to create
dissentions amongst the followers of the Sikh religion. The writ petition
was subsequently amended to challenge the Haryana Act on the ground
of infringement of fundamental rights conferred on the petitioner under
Part III of the Constitution. The second writ petition has been preferred
by the SGPC challenging the Haryana Act on almost similar grounds.
4. The State of Haryana and Haryana Sikh Gurdwara Managing
Committee5 filed a counter affidavit controverting the stand of the
petitioner whereas respondent No. 3 - SGPC in the first writ petition
supported the petitioner and, in fact, filed an independent writ petition to
challenge the Haryana Act. The Union of India in its reply asserted that
while excluding the jurisdiction of the 1925 Act by the Haryana Act, it
amounts to winding up of the Board constituted under the 1925 Act
whose functions necessarily fall under Entry 44 of List I. Therefore, the
contention that the State of Haryana had the jurisdiction to pass the
impugned Haryana Act in terms of Entry 32 of List II of Schedule VII
appears to be misplaced. It is the stand of the Union that only Parliament
has the exclusive power to enact law on the said subject. There is no
justification for the Haryana State Legislature to have passed a law on
the same subject matter, taking away the jurisdiction of the Board
constituted under the 1925 Act.
5. It is submitted that the 1925 Act was enacted to provide for
better administration of certain Sikh Gurdwaras and for enquiries into
matters and settlement of disputes connected therewith. The 1925 Act
received the assent of the Governor General on 28.7.1925 and was
published in the Punjab Gazette on 7.8.1925 and thereafter it came into
force on 1.11.1925. The 1925 Act extends to the territories which
immediately before 1.11.1956 were comprised in the State of Punjab
and Patiala and East Punjab States Union (PEPSU). It is pointed out
that the management of every notified Sikh Gurdwara is required to be
administered by the Committee constituted thereof, the Board and the
Commission in accordance with the provisions of the Act. SGPC is the
4 For short, the 'SGPC'
5 For short, the 'Haryana Committee'
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Board so constituted under Section 43. The Board consists of 170 elected
members; the Head Ministers of the Darbar Sahib, Amritsar; Sri Akal
Takhat Sahib, Amritsar; Sri Takhat Keshgarh Sahib, Anandpur; Sri Takhat
Patna Sahib, Patna; Sri Hazur Sahib, Nanded; and Sri Takhat Damdama
Sahib, Talwandi Sabo, Bathinda, Punjab and 15 members who are
residents in India, of whom not more than 5 shall be residents of Punjab,
co-opted by the other members of the Board. The jurisdictional area of
the Act has been divided into 120 constituencies as there are 50 plural
constituencies, each returning 2 members for the election of 170
members. Furthermore, the 1925 Act envisages a scheme for the
administration and management of the property, endowments, funds and
income of the Gurdwaras as described in Section 85(1). For every such
notified Sikh Gurdwara other than a Gurdwara specified in Section 85, a
Committee shall be constituted after it has been declared to be a Sikh
Gurdwara consisting of 5 members as provided under Section 87. The
Gurdwaras covered by the 1925 Act are spread over the present States
of Punjab, Haryana, Himachal Pradesh and Union Territory of Chandigarh
and are being administered by the SGPC.
6. It has also been mentioned that the States Reorganisation Act,
19566 increased the area of Punjab by inclusion of State of PEPSU.
However, the existing State of Punjab was thereafter reorganized on
linguistic basis in 1966 when the 1966 Act was enacted. The relevant
provisions of the 1966 Act read thus:
"72(1) Save as otherwise expressly provided by the foregoing
provisions of this Part, where any body corporate constituted under
a Central Act, State Act or Provincial Act for the existing State of
Punjab or any part thereof serves the needs of the successor
States or has, by virtue of the provisions of Part II, become an
inter-State body corporate, then, the body corporate shall, on and
from the appointed day continue to function and operate in those
areas in respect of which it was functioning and operating
immediately before that day, subject to such directions as may
from time to time be issued by the Central Government, until other
provision is made by law in respect of the said body corporate.
(2) Any direction issued by the Central Government under subsection (1) in respect of any such body corporate may include a
direction that any law by which the said body corporate is governed
6 For short, the '1956 Act'
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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.
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88. The provisions of Part II shall not be deemed to have effected
any change in the territories to which any law in force immediately
before the appointed day extends or applies, and territorial
references in any such law to the State of Punjab shall until
otherwise provided by a competent Legislature or other competent
authority be construed as meaning the territories within that State
immediately before the appointed day.
89. For the purpose of facilitating the application in relation to the
State of Punjab or Haryana or to the Union Territory of Himachal
Pradesh or Chandigarh of any law made before the appointed
day, the appropriate Government may, before the expiration of
two years from that day, by order, make such adaptations and
modifications of the law, whether by way of repeal or amendment,
as may be necessary or expedient, and thereupon every such law
shall have effect subject to the adaptations and modifications so
made until altered, repealed or amended by a competent
Legislature or other competent authority.
Explanation- In this section, the expression "appropriate
Government" means-
(a)
as respects any law relating to a matter enumerated in the
Union List, the Central Government; and
(b)
as respects any other lawi)
in its application to a State, the State Government,
and
ii)
in its application to a Union Territory, the Central
Government.
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90. (1) Notwithstanding that no provision or insufficient provision
has been made under section 89 for the adaptation of a law made
before the appointed day, any court, tribunal or authority, required
or empowered to enforce such law may, for the purpose of
facilitating its application in relation to the State of Punjab or
Haryana, or to the Union Territory of Himachal Pradesh or
Chandigarh construe the law in such manner, without affecting
the substance, as may be necessary or proper in regard to the
matter before the court, tribunal or authority.
(2) Any reference to the High Court of Punjab in any law shall
unless the context otherwise requires be construed, on and from
the appointed day, as a reference to the High Court of Punjab and
Haryana."
7. It is stated that in terms of the provisions of Section 109 of the
1956 Act, the Inter-State Corporation Act, 19577 was enacted. The stand
of the Union is that as per Section 3 of the 1957 Act, the State
Governments were enabled to frame the scheme in respect of any interState Corporation functioning within the State, but the scheme had to be
forwarded to the Central Government. The Central Government after
consulting the State Government concerned may either approve the
scheme with or without modifications and give effect to the scheme so
approved under Section 4 of the 1957 Act. The Central Government had
the power to include any body corporate constituted for a State for
functioning in two or more States of the Schedule. The 1925 Act came
to be incorporated in the Schedule in the 1957 Act vide notification dated
26.7.1972. Thus, it is the stand of the Union that only Central Government
could give directions with regard to functioning and operation of an interstate body corporate i.e., SGPC.
8. Section 109 of the 1956 Act reads thus:
"109. General provision as to statutory corporations-(1) Save as
otherwise expressly provided by the foregoing provisions of this
Part, where any body corporate has been constituted under a
Central Act, State Act or Provincial Act for an existing State or to
a new State, then, notwithstanding such transfer, the body corporate
shall, as from the appointed day, continue to function and operate
in those areas in respect of which it was functioning and operating
7 For short, the '1957 Act'
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immediately before that day, subject to such direction as may from
time to time be issued by the Central Government, until other
provisions is made by law in respect of the said body corporate.
(2) Any directions issued by the Central Government under subsection (1) in respect of any such body corporate shall include a
direction that any law by which the said body corporate is governed
shall in its application to that body corporate have effect subject
to such exceptions and modifications as may be specified in the
direction."
9. The relevant provisions of the 1957 Act read thus:
"2. Definition - In this Act, "inter-State corporation" means any
body corporate constituted under any of the Acts specified in the
Schedule and functioning in two or more States by virtue of section
109 of the States Reorganisation Act, 1956, [or of any other
enactment relating to reorganisation of States].
3. Power of State Governments to frame schemes. - If it appears
to the Government of a State in any part of which an inter-State
corporation is functioning that the inter-State corporation should
be reconstituted and reorganized as, one or more inter-State
corporations or that it should be dissolved, the State Government
may frame a scheme for such reconstitution and reorganisation
or such dissolution, as the case may be, including proposals
regarding the transfer of the assets, rights and liabilities of the
inter-State corporation to any other corporations or State
Governments and the transfer or re-employment of employees of
the inter-State corporation and forward the scheme to the Central
Government.
4. Reorganisation of certain inter-State corporations.-(1) On receipt
of a scheme forwarded to it under section 3, the Central
Government may, after consulting the State Governments
concerned, approve the scheme with or without modifications and
give effect to the scheme so approved by making such order as it
thinks fit.
(2) An order made under sub-section (1) may provide for all of
any of the following matters, namely:-
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(b) the reconstitution and reorganisation in any manner whatsoever
of the inter-state corporation including the constitution, where
necessary of new corporation;
(c) the area in respect of which the reconstituted corporation or
new corporation shall function and operate;
(d) the transfer, in whole or in part, of the assets, rights and liabilities
of the inter-State corporation (including the rights and liabilities
under any contract made by it) to any other corporations or State
Governments and the terms and conditions of such transfer;
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5. Power of Central Government to add to the Schedule. - The
Central Government may, by notification in the Official Gazette,
specify in the Schedule any Act under which a body corporate
constituted for a State is functioning in two or more States by
virtue of section 109 of the States Reorganisation Act, 1956, or of
any other enactment for the reorganisation of States, and on the
issue of such notification, the Schedule shall be deemed to be
amended by the inclusion of the said Act therein."
10. The State of Himachal Pradesh, respondent No. 6, took a
stand that the 1925 Act is applicable only for those areas which are
included in Himachal Pradesh under the 1966 Act. The single member
constituency of the said areas of Himachal Pradesh has 23987 voters.
Therefore, there had been no issue either about conducting of election
for SGPC or managing of Gurdwaras under the existing legislation i.e.,
the 1925 Act and the Rules made thereunder. Thus, the State of Himachal
Pradesh is not contesting the petition.
11. In the reply filed on behalf of the State of Punjab dated
24.8.2014, it has been averred that the power to make law in respect of
SGPC as an inter-State body corporate has been reserved to the Central
Government only. The relevant extract reads thus:
"The power to make law in respect of the SGPC as an InterState Body Corporate has been reserved to the Central
Government only and there is no provision in law for bifurcation
of the said Inter-State Body Corporate or replacement thereof by
enacting a State legislation.
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Thus in light of the above submissions, it is clear that SGPC is
firmly rooted as an inter-state body corporate and only Parliament
is empowered to legislate regarding inter-state corporations as
per Entry 44 of List-I of Schedule 7 to the Constitution of India.
The enactment of the Haryana Sikh Gurdwara (Management)
Act, 2014 in purported exercise of legislative competence under
Entry 32 of List-II of Schedule 7 is wholly unconstitutional and
trespasses into a field exclusively reserved for Parliamentary
legislation, in view of the Statutory Provisions referred above."
12. A reference has been made to a Full Bench judgment of Punjab
and Haryana High Court in Sehajdhari Sikh Federation v. Union of
India & Ors.8 in the counter affidavit. It was however pointed out that
the aforesaid judgment was the subject matter of challenge in an appeal
before this Court.
13. In the alternative, it was submitted that the legislative
competence was to be traced to Entry 28 of List-III of Schedule VII.
Therefore, in the absence of assent of the President in terms of Article
254, the Haryana Act is directly in conflict with the existing law.
14. However, after the amendment of the first writ petition, an
additional affidavit was filed by the State of Punjab on 22.11.2019. It
was stated that after the affidavits were filed at the initial stage, there
have been subsequent developments when the Parliament enacted Sikh
Gurdwara (Amendment) Act, 2016, amending Sections 49 and 92 of the
1925 Act with retrospective effect from 8.10.2003. It is pointed out that
challenge to the said amendment carried out by the Parliament is the
subject matter of challenge in Writ Petition No. 11978 of 2017 which is
pending consideration before the High Court. It was averred that the
modification by the Central Government in terms of Section 72(1) of the
1966 Act is in relation to functioning and operating of the body corporate
i.e., SGPC. However, such power cannot be extended to amend the
statute or issuance of notifications from time to time. The relevant extract
from the additional affidavit reads thus:
"10. The Central Government has done so in exercise of its powers
of modification under Section 72(1) of the Punjab Re-organisation
Act, 1966. While Section 72(1) of the Punjab Re-organisation
Act, 1966 does indeed empower the Central Government to modify,
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such power is confined to directions by the Central Government
in relation to "the functioning and operating" of such body
corporate i.e. the Respondent No. 3. That such power is limited
to the functioning and operation of the SGPC, cannot extend to
amending the statute or that the issuance of such notifications
from time to time do not change the legislative character of the
Sikh Gurdwara Act, 1925 (from a State legislation) to that of a
Parliamentary Legislation was conclusively held by the Hon'ble
Full Bench of the Punjab and Haryana High Court in the matter
of Sehajdari Sikh Federation Vs. Union of India (CWP 17771 of
2003 decided on 20th December 2011) (2012 (1) ILR (P&H) 347).
As stated earlier the appeal from the above judgment being Civil
appeal 9334/2013 came to be disposed as infructuous in view of
Parliament enacting the Sikh Gurdwara (Amendment) Act, 2016
which in turn now is subject matter of challenge before the Hon'ble
High Court of Punjab and Haryana.
11. The present Respondent reiterates that State Legislation
pertaining to the administration of Gurudwaras within a State (such
as the Sikh Gurudwaras Act, 1925 pertaining to Gurudwaras in
the State of Punjab) is strictly within the dominion of the State,
the power to enact or amend such State Legislation cannot be
usurped by Parliament and the contentions of the Petitioner and/
or the Respondent no. 3 in this regard are denied as misconceived.
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13. There is a distinction between the Central Government's power
to issue directions (for the above limited purpose) and the
competence of Parliament to legislate. The existence of one does
not imply the existence of the other. The Petitioner and /or the
Respondent cannot contend that merely because the Central
Government has the power to pass directions, Parliament has the
sole power to legislate.
14. Furthermore, from a bare reading of the language of Section
72, even such limited power of the Central Government to issue
directions would cease to exist when appropriate legislation is
passed by competent legislature in this regard.
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19. It is reiterated that State has the power to enact necessary
legislation as regards "religious and other societies and
association"- (List 2-Entry 32) and the Petitioner and/or
Respondent no. 3's misplaced reliance on the provisions of Section
72 of the Punjab Reorganization Act 1966, and any perceived
omnibus power of Parliament to legislate /amend such statues,
especially in the light of the Sikh Gurudwara (Amendment) Act
2016, is misplaced.
20. In view of the above, it is most respectfully submitted that this
Hon'ble Court may kindly pass appropriate order upholding the
legislative competence of the State Legislature to enact/amend
legislation in relation to gurdwaras in their respective States."
15. Mr. Rakesh Dwivedi, learned senior counsel for the petitioner
submitted that the Haryana Act is practically similar to the 1925 Act
except some contextual changes. The stand of the writ petitioner
Harbhajan Singh is that Section 72(1) of the 1966 Act provides that
where any body corporate constituted for the existing State of Punjab or
any part thereof by any Act of Centre, State or Province becomes an
Inter-State Corporation by virtue of Part II of the 1956 Act, then it shall
continue to operate in those areas in respect of which it was functioning
and operating immediately before that day, subject to such directions as
may be issued by the Central Government, until other provision is
made by law in respect of it. Section 72(3) clarifies that this Section
shall apply to, inter alia, the Board constituted under Part III of the
1925 Act.