Civil Writ Petition No.4914 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: May 15, 2009 Miri Piri College Bachao Sangharsh Samiti, Shahabad Markanda (Kurukshetra) and others. …Petitioners Versus Shiromani Gurdwara Prabandhak Committee and others. …Respondents --- CORAM:HON’BLE MR. JUSTICE T.S. THAKUR, CHIEF JUSTICE HON’BLE MR. JUSTICE HEMANT GUPTA --- 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present:- Dr. M.S. Rahi, Advocate for the petitioners Shri H.S. Mattewal, Senior Advocate, with Shri H.S. Sidhu, Advocate for respondent Nos.1 and 4. Shri Rameshwar Malik, Addl. A.G. Haryana T.S.Thakur,CJ. In this petition filed in Public Interest, the petitioners pray for a Writ of Mandamus restraining the respondent- Shiromani Gurdwara Prabandhak Committee from transferring any property in the name of respondent No.4-Trust as any such transfer shall, according to the petitioners, be contrary to the provisions of Sikh Gurdwaras Act, 1925. The controversy arises Civil Writ Petition No.4914 of 2008 2 in the following circumstances:- The petitioners claim to be interested in the maintenance of Gurdwara Mastgarh Shahabad Markanda, who proposes to create a lease in respect of a certain parcel of land in favour of what is known as Miri Piri Institute of Medical Sciences Research Charitable Trust. The said property was earlier leased out to the Shiromani Gurdwara Prabandhak Committee (hereinafter referred to as the ‘SGPC’ for short) in terms of a document , a copy whereof has been placed on record by the petitioner. The lease ,was meant to be for a period of 99 years to enable the SGPC to set up a medical college for the Sikhs living in the State of Haryana. Subsequently, the said lease was sought to be cancelled with a view to transferring the land in question in favour of Miri Piri Trust referred to above. Before, however, the cancellation deed and a fresh lease in favour of the trust could be registered by the registering authority in the State of Haryana, the petitioners filed the present writ petition which purports to challenge the proposed transfer on several grounds in public interest. The petitioners allege that the creation of the Miri Piri Trust by the SGPC was contrary to the provisions of the Sikh Gurdwaras Act, 1925 inasmuch as the Act did not empower the SGPC, which is a statutory body to create any such Trust even if the same was meant to achieve and promote an object the pursuit whereof was otherwise permissible under the Act. It is also alleged that once the property was vested in the holy Guru Granth Sahib, the same became inalienable rendering any transfer in favour of anybody else Civil Writ Petition No.4914 of 2008 3 illegal. It is contended that a lease of the property whether by the Gurdwara Mastgarh Sahib or by the SGPC in favour of any entity not otherwise recognized by the Act was illegal and tantamount to transfer of the property by way of sale. It is urged that the SGPC could not permit any property belonging to holy Guru Granth Sahib or Darbar Sahib to be mortgaged for the purpose of raising any loan as was proposed to be done in the instant case, no matter the loan was meant for establishing a medical college for the benefit of the Sikh community at large. In the counter-affidavit filed on behalf of respondent No.1, it is inter alia stated that the Miri Piri Institute of Medical Sciences and Research Charitable Trust has been constituted for the benefit of public at large without any distinction of religion caste, creed or faith. It is further stated that the creation of such a trust became necessary not only because of the provisions of Medical Council Act but also in view of the judgement of the Supreme Court in Unikrishnan, JP vs. State of A.P., (1993) 1 SCC 645 whereunder a professional college can be established and/or administered only by a Society registered under the Societies Registration Act, 1860 or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakf Act or legislation of like nature. The affidavit goes on to say that in order to achieve the object of the Trust, construction of a 500 bedded hospital and medical college along with residential building and hostel was started on August 23,2006. A total staff of 120 members including a Director Principal, Joint Medical Superintendent; Assistant Professors and Senior Residents were Civil Writ Petition No.4914 of 2008 4 also appointed. A regular OPD of all the Departments including Eye, ENT, Medicine, Surgery, Dental, Gynae, Skin, Paediatrics and Orthopaedic was started in the hospital in which around 1.20 lac patients have been given medical and surgical treatment till the date of filing of the counter. The construction of the Hospital Building had however to be stopped at the third level because the lease of the land was in the name of SGPC and not in the name of Miri Piri Trust thereby making it necessary to get the said lease cancelled and a new lease in favour of the Trust Executed in which regard the Executive Committee of the SGPC and Local Gurdwara Committee had passed proper resolutions. It is alleged that both the lease deeds executed pursuant to the said resolutions are in accordance with law and that the requirement of section 138 and other provisions of the Act has been fully satisfied. The affidavit also states that any one feeling aggrieved like the petitioners feeling aggrieved of any action of the respondents have a remedy before the Sikh Judicial Commission established under Section 22 of the Act for redress. The bonafides of the petitioners in filing the present petition have also been questioned. The affidavit denies the allegation that the SGPC was taking a loan from any Bank for setting up the proposed Medical College or that any property owned by the SGPC or Gurdwara was being mortgaged with the lending Bank by way of security. The proposal referred to in letter dated 12.01.2006 for borrowing a loan from the Bank has according to the respondent been dropped. The apprehension expressed by the petitioners that the land leased to the Trust may be sold or Civil Writ Petition No.4914 of 2008 5 mortgaged is according to the respondents without any basis as no such mortgage, sale or exchange can be made by the trust in respect of land leased to it and meant to be used for the proposed establishment of Medical College and Research Institute only. A counter affidavit has been filed on behalf of respondents No. 2 and 3 also in which it is inter-alia stated that a lease deed pertaining to 161 kanal 3 marla is pending for registration before the Joint Sub Registrar/Naib Tehsildar, Shahabad which has been adjourned sine die keeping in view the pendency of the present writ petition. On behalf of respondent No. 4-Trust no separate counter has been filed as the Trust has adopted the counter filed by the SGPC. Appearing for the petitioners Dr. M.S.Rahi Advocate, made three distinct submissions for our consideration. Firstly it was contented by him that the creation of a Trust like respondent No.4 herein was against the letter and spirit of the Sikh Gurdwaras Act, 1925. He urged that the scheme of the Act no doubt authorises the SGPC to Manage and Administer the Trust funds but the same does not authorise the SGPC to create an independent Trust as a separate legal entity or transfer any fund available with it to any such trust. This cannot be done even for achieving or promoting an object on which the SGPC may itself be entitled to spend. Relying upon the decision of the Hon'ble Supreme Court in AIR 2006 Supreme Court 2138 and Raghunath Rai Bareja and another Vs. Punjab National Bank and others JT 2007 (1) SC 542, it was contended by Dr. Rahi Civil Writ Petition No.4914 of 2008 6 that Section 127 of the Sikh Gurdwaras Act could not be so interpreted as to rewrite the law by attributing an intention to the Legislature which was not otherwise discernible from the said provision. Secondly Dr. Rahi contended that the SGPC was proposing to borrow loans by mortgaging the property vested in the Gurdwaras, which was legally impermissible as no property vested in any Gurdwara could be sold or mortgaged for any purpose whatsoever. Thirdly, it was contended that the SGPC was mismanaging the property vested in the Gurdwaras and the funds at its disposal. It was submitted that even when the proposed medical college had not been commissioned the SGPC had employed senior teaching faculty for which there was no need whatsoever especially when the trust had no money or income to pay their salaries. Relying upon the decision of the High Court of Lahore in Pratap Singh and others Vs. Khazan Singh AIR 1939 Lahore 202, it was argued that where the investments made by the SGPC were not prudent, the persons responsible for such investments were personally liable for the loss, if any, suffered by the SGPC. On behalf the respondents, it was on the other hand contended by Mr. H.S.Mattewal, Senior Advocate that there was no specific or implied bar in the Sikh Gurdwaras Act, 1925 forbidding creation of a Trust by the SGPC for achievement of anyone or more of the objects for which it is otherwise empowered to incur expenses. He referred to us various provisions of the Act to contend that the powers and functions of Civil Writ Petition No.4914 of 2008 7 the SGPC under the said provisions were wide enough to include the power to create a trust for achievement of the object underlying the Act. Relying upon the decision of the Supreme Court in Khargram Panchayat Samiti and another Vs. State of West Bengal and others (1987) 3 SCC 82, it was urged that the powers vested in the SGPC were elaborate enough to permit the funds available with the Committee to be spent on educational purposes and that the power to spend on education carried with it the incidental power to spend either directly or through any other agency under the control and supervision of SGPC. It was also argued by Mr. Matewal, that the need for setting up of a Trust was felt on account of MCI regulations providing that the a medical college could be set up only by a Trust or a society. That position was made clear by the decision of the Supreme Court in Unni Krishnan, J.P. And others etc. etc. Vs. State of Andhra Pradesh and others etc. etc. AIR 1993 SC 2178. The creation of a Trust with a view to obtaining permission from the MCI for setting up of the proposed medical college was therefore, a perfectly bona fide exercise which did not suffer from any legal infirmity whatsoever. In so far as the proposal to borrow loans from the Bank for setting up of the College was concerned, Mr. Matewal, argued that although there was initially a proposal to do so yet the same had been dropped by the Committee. It was also submitted that the setting up of the college did not involve the sale of any land owned by any Gurdwara or the SGPC as Civil Writ Petition No.4914 of 2008 8 alleged. It was contended that allegations of mismanagement of the property vested in the Gurdwaras and SGPC were also without any basis whatsoever. It was submitted that the present petition was not bona fide and, therefore, deserved to be dismissed. The construction work for 500 beded hospital alongwith the medical college and residential building including the hostel was according to the respondents started on 23rd August, 2006. The Director of the Institute and the Principal of the Medical College were appointed and joined the service on 1st July, 2005. Selections for numerous appointments for the Institute and hospital were also made by the authorities resulting in the start of regular OPD of all departments including Eye, ENT, Medicine, Surgery, Gynae, Dental, Skin, Pediatrics, Orthopedic and X-rays facilities. It was contended that till now around 1,20,000 patients had benefitted from medical and surgical treatment by the hospital and around 3500 major and minor surgical procedures have already been performed. The daily average OPD strength varies between 250-300 per day. An Ambulance service is available around the clock, a local chemist shop and Canteen services have also been established by the Institute. It was urged that appointment of the staff needed to attend such a large number of patients was perfectly justified and could not be dubbed as mismanagement of the property or funds of the SGPC. We have given our careful consideration to the submissions made at the Bar and perused the record. The Sikh Gurdwaras Act, 1925 was enacted primarily for Civil Writ Petition No.4914 of 2008 9 the better administration of certain Sikh Gurdwaras, for inquiries into matters and settlement of disputes connected therewith. The Act comprises 12 different Chapters. While Chapter I deals with preliminary matters, Chapter II deals with petitions to State Government relating to Gurdwaras inter alia providing for list of property of scheduled Gurdwara to be forwarded to the State Government, effect of publication of declaration and consolidated list of Gurdwaras, claim for possession by Hereditary office holders of a notified Gurdwara or his presumptive successor and matters incidental thereto. Chapter III of the Act deals with appointment and proceedings before a Tribunal to be constituted under Section 12 of the Act for hearing and disposal of petitions under Sections 5, 6, 8, 10 and 11. Chapter IV applies the provisions of Chapter III to Gurdwaras found to be Sikh Gurdwaras by Courts other than a Tribunal under the Act. Chapter V deals with control of Sikh Gurdwaras and envisages Constitution of a Board and a Committee of management for every notified Gurdwara. It also provides for Constitution of a judicial commission in the manner provided under the Act. Section 41 appearing in Chapter V vests the management to every notified Sikh Gurdwara in the Committee constituted for the same, the Board and the Commission in accordance with the provisions of the Act. Chapter VI deals with the establishment of a Board, constituencies for election of members of the Board, their qualifications for election and nominations etc. Chapter VII deals with the establishment of a judicial commission, comprising 3 members who shall be Sikhs appointed from time to time by the Civil Writ Petition No.4914 of 2008 10 Government of the State of Punjab. It also deals with the jurisdiction and procedure of the Commission and the method of filling up of the vacancies in the Commission as also removal of the members of the commission. Chapter VII deals with Committees of the Gurdwaras while Chapter IX deals with finances. Chapter X deals with powers and duties of the Board and Chapter XI with powers and duties of the Committees. Chapter XII deals with miscellaneous matters. We are not in the present proceedings concerned much with the provisions of the Act other than those that deal with the powers of the Board to deal with the finances at its disposal for one of the contentions that was urged on behalf of the petitioners was that the funds at the disposal of the Board can not be said to be properly utilized, if such utilization is not directly by the SGPC and is through an agent or instrumentality specially created by it. Section 106 of the Act inter alia provides for the objects on which the funds of a Gurdwara may be spent. It stipulates that subject to the provisions of the Act the properties and income of a notified Sikh Gurdwara shall be used in the first place for the maintenance and improvement of the Gurdwara, for the maintenance of religious, worship, the performance and conduct of religious and charitable duties, ceremonies and observances connected therewith and for maintenance, payment of allowances and salaries of dependents, officers and servants thereof, apart from fulfillment of the objects of the endowment, maintenance, langar and all such religious, charitable or educational purposes as the Committee may consider necessary Civil Writ Petition No.4914 of 2008 11 in connection therewith or for any obligation legally incurred. Section 106 to the extent the same is relevant for our purpose may at this stage be extracted : “106. Object on which the funds of a gurdwara may be spent. - (1) Subject to the provisions of this Act, all properties and income of a Notified Sikh Gurdwara shall be used, in the first place, for the maintenance or improvement of the gurdwara; for the maintenance of religious worship and the performance and conduct of religious and charitable duties, ceremonies and observances connected therewith; for the payment of allowances or salaries of dependents, officers and servants thereof; for the fulfillment of the objects of the endowments thereof; for the maintenance of the langar; for such religious, charitable or educational purposes as the committee may consider necessary in connection therewith or for the discharge of any obligations legally incurred. (2) When after providing for the purposes specified in sub-section (1) there remains or appears likely to remain any surplus sum or any income not required for any such purposes, the committee may, by resolution passed by not less than two-third of its members propose to allocate a part of the whole of such surplus sum or income to a particular religious, educational or charitable purpose [or any purpose which promotes social welfare] and may, if the Board in writing sanctions Civil Writ Petition No.4914 of 2008 12 such proposals, act in accordance therewith, provided that any proposal so sanctioned to devote to such purpose income accruing during a period of more than three years at any time not sooner than three years after the proposal was sanctioned be rescinded or varied by a subsequent resolution of the committee passed in like manner. (3) Notwithstanding anything contained in sub-section (2) when it appears to be Board that after providing for the purposes specified in sub-section (1) there remains or is likely to remain any surplus sum or income not required for any such purposes, and the committee is not willing to devote such surplus sum or income to other purposes, the Board may apply to the Commission for an order allowing the Board 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. (4) When application has been made in accordance with the provision of sub-section (3) the Commission may, after hearing the objection, if any, of the committee or of any person having interest in the gurdwara concerned if it is satisfied that the application is reasonable, determine what portion if any of such surplus sum or income shall be retained as a reserve fund for the gurdwara concerned and direct the remainder of the surplus sum or income to be devoted to any such Civil Writ Petition No.4914 of 2008 13 religious, educational and charitable purpose as it may deem proper, and the Commission may, from time to time, on the application of the Board or of the committee or of a person having interest in the gurdwara concerned, rescind or vary any order passed under the provisions of this sub-section.” A careful reading of the above would make it manifest that the properties and income of a notified Sikh Gurdwara have to be used for the purposes indicated in the provisions extracted above, including religious, charitable or educational purposes considered necessary by the Committee. Section 107 envisages an annual contribution to be made by every Committee to the Board for meeting lawful expenses of the Board. The proportion which such contribution shall bear to the annual income of the Gurdwara has to be fixed for each Gurdwara by the Board provided that such proportion shall not exceed 1/10th of such income. Section 108 deals with formation and maintenance of a General Board Fund which shall be applied solely to the payment of expenses lawfully incurred by the Board in exercise of its powers under the provisions of the Act and towards the maintenance, protection and support such historical Gurdwaras as in the opinion of the Board cannot be maintained, protected or provided for otherwise. Any excess amount remaining surplus may then be spent by the Board on any religious or charitable purposes or any other purpose which promotes social welfare. Section 108 A, B & C provide for establishment for research fund and religious fund of the Board and resources from which the Civil Writ Petition No.4914 of 2008 14 said fund shall receive contributions. Section 110 declares that every sum made over to the Board under the provisions of the Act by a Committee of a notified Sikh Gurdwara or otherwise received by the Board for a specified religious, charitable, industrial or educational purpose shall be held by the Board as a trust and shall be devoted for the purpose specified. The Act also envisages establishment of a General Trust Fund. Section 111 provides that every sum other than a sum specified in Sections 107, 109 or 110 or sub-Section (2) of Section 114 or sub-Section (8) of Section 137 shall be placed to the credit of a fund to be called the General Trust Fund out of which the Board in general meeting may from time to time make allotments for the discharge of any obligations legally incurred in connection therewith or for such religious, charitable, industrial or educational purpose as the Board may consider proper. Section 112 enjoins upon the Board to establish and maintain a separate fund in respect of each trust held in accordance with the provisions of clause (iii) of Section 109 or of Section 110 and may discharge out of each fund any obligations legally incurred in connection therewith. Section 113 provides for deposit of the trust funds in the Banks and maintenance of accounts of all trust funds as also the General Board Fund. We may also refer to Section 125 appearing in Chapter X which stipulates the powers and duties of the Board generally. It inter alia provides that the Board shall ensure that every Committee deals with the property and income of the Gurdwara or Gurdwaras managed by it, in accordance with the provisions Civil Writ Petition No.4914 of 2008 15 of this Act, and for the fulfillment of its duty. The control direction and general superintendence over all committees appointed under the provisions of the Act shall vest in the Board. Section 127 deals with power of the Board to hold and administer trust funds for purposes of a religious, charitable, educational or industrial nature, whether such funds are derived from allotments duly made by a committee out of the surplus funds or income of a gurdwara under its management or from donations, or contributions or endowments made direct to the Board for such purposes. Section 130 empowers the Committee and the Board to settle a scheme for the proper administration of the property, endowments, funds and income of a notified Sikh Gurdwara, which scheme once framed has the force of law in terms of Section 130(5) of the Act. Section 131, however, excludes the provisions of Section 130 from applicant to Committee constituted under the provisions of Section 85 of the Act. A conspectus of the above provisions makes it manifest that the funds available with the Management Committee constituted under Section 86 of the Act or the Board which is in terms of Section 85 of the Act the management Committee for the Gurdwaras enumerated under the said provision have the power to spend the funds available with them on purposes that are religious, charitable, or educational. That