SARDAR BAHGINDER SINGH S/O GURUCHARAN SINGH versus  SARDAR MANJIEETH SINGH JAGAN SINGH AND ORS.
[2020] 14 S.C.R. 349, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
[2020] 14 S.C.R. 349
349
 SARDAR BAHGINDER SINGH S/O GURUCHARAN SINGH
 v.
SARDAR MANJIEETH SINGH JAGAN SINGH AND ORS.
(Civil Appeal No. 2964 of 2020)
AUGUST 20, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
K. M. JOSEPH, JJ.]
Nanded Sikh Gurudwara 
Sachkhand Shri 
Hazur
Apchalnagar Sahib Act, 1956 __ ss.6(1)(viii); 2(a),(c),(e), 5,
6(2)&(3) – Nomination to Board u/s.6(1)(viii) – Conflicting claims
– State Government through notification nominated four members
(appellants) to the Board u/s.6(1)(viii) – Challenged by respondents
– Notification set aside by High Court – On appeal, held: Two distinct
entities are dramatis personae in the present case – First is the public
trust registered under the provisions of 1950 Act – Second body is
a statutory body – Exclusive statutory authority for making the
nomination of four members u/s.6(1)(viii) is vested in the Sachkhand
Hazuri Khalsa Diwan, Nanded – Statute does not expressly define
the expression “Diwan” – Diwan was constituted as a society initially
in 1350 Fasli and was registered as a public trust under the MPT
Act in 1982 – s.6(1)(viii) clearly indicates that it is the Diwan alone
which has the power to make a nomination of four members – State
Government cannot assume that power to itself – Notification issued
by State Government was contrary to s.6(1)(viii) – Maharashtra
Public Trusts Act, 1950 – Nanded Sikh Gurudwara Rules, 1958 –
r.6.
Disposing of the appeals, the Court
HELD: 1.1 There is a maze of conflicting claims between
the
two factions, including the issue of the alleged removal of the
first respondent as a trustee of the Diwan. The High Court has
appropriately not embarked upon an enquiry to adjudicate upon
these claims. Justifiably so, since two inquiry applications which
have been filed under Section 22 of the MPT are pending before
the Assistant Charity Commissioner. The change reports, as they
are called, being the subject matter of a pending enquiry by the
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Assistant Charity Commissioner, it is neither appropriate nor
proper for this court to enter into the thicket of factual disputes
between the contesting factions. Essentially, the issue which the
Court has to decide turns upon the interpretation of the
provisions of Section 6(1)(viii) of the Nanded Sikh Gurudwara
Sachkhand Shri Hazur Apchalnagar Sahib Act, 1956. It is on this
that the validity of the notification of the State government
appointing four persons under Section 6(1)(viii) would rest. Two
distinct entities are dramatis personae in the present case. The
first is the public trust which is registered under the provisions
of the MPT Act. Its origins lay in the Sachkhand Hazuri Khalsa
Diwan Association Society which was initially registered under
the Hyderabad Societies’ Registration Act of 1350 Fasli. This
body was initially registered as a society with the Registrar of
Company Law and Co-operative Societies of the then Government
of Hyderabad under registration no. 22 of 1951. The
Memorandum of Association of the Diwan indicates that it was
formed to protect and guide the followers of the Sikh religion,
protect the interests of the Gurudwara and to work in the interest
of the Sikhs of the then State of Hyderabad. The name of the
society or association was formulated as Sachkhand Hazuri
Khalsa Diwan. The General Committee of the Diwan consists of
all the members of the Diwan who meet bi-annually. The members
of the General Committee of the Khalsa Diwan are alone entitled
to vote. For the management of the affairs, there is a Working
Committee consisting of 28 members The Working Committee
was to be formed by the President or Pradhan at the first meeting.
Elections to the Working Committee are required to be held every
two years. The President is entrusted with supervision over the
affairs and working of the General Committee. Several decades
after the reorganisation of States, a registration certificate was
issued under the MPT Act to the society as a public trust on 11
January 1982 by the Assistant Charity Commissioner Nanded in
Inquiry Application No 950/1981. This created a round of disputes
between the contesting factions and it was eventually on 22
January 2014 that this Court concluded the issue by recording
that the registration of the Diwan as a Trust under the MPT Act
have attained finality. Disputes in regard to membership were a
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separate matter which could be adjudicated upon in terms of the
remedies available under the MPT Act. As a public trust, the
Diwan is governed by the provisions of the MPT Act. [Paras 21,
22][365-C-H; 366-A-D]
Sardar Jeewansingh (d) Th. Lrs. v. Shersingh & Ors.
Decision of Supreme Court dtd. 22.01.2014 in SLP
(C) Nos.10139-10149 of 2011 – referred to.
1.2 The second body with which the present group of
appeals is concerned is a statutory body. This was created when
the Hyderabad Legislative Assembly enacted the Nanded Sikh
Gurudwara Sachkhand Shri Hazuri Apchalnagar Sahib Act 1956.
The statute has defined the expression ‘Gurudwara’ under Section
2(c) to mean the institution known as Nanded Sikh Gurudwara
Sachkhand Shri Hazuri Apchalnagar Sahib and to include the
premises of the Gurudwara together with all its buildings and the
shrines which are specified in the Schedule. A statutory board is
constituted under Section 5 to administer the affairs of the
Gurudwara in accordance with the enactment. The Board consists
of seventeen members. Some of them are nominated by the
government (see clauses (i), (ii) and (iii) of sub-section (1) of
Section 6). Some members are nominated by specific bodies:
under clause (iv), one member is nominated by Shiromani
Gurudwara Prabandhak Committee from among the Sikhs of State
of Madhya Pradesh; under clause (v) three members are
nominated by the Shiromani Gurudwara Prabandhak Committee;
under Clause (vii) one member is
nominated by the Chief Khalsa
Diwan of Amritsar and under clause (viii) four members are
nominated by Suchkhand Hazuri Khalsa Diwan, Nanded. As
regards the elected members, clause (vi) stipulates that two
members shall be elected by and from among Sikh members of
Parliament. Sub- Section (2) of Section 6 stipulates that the
nomination and election of members under the sprovision “shall
be made in such a manner and within such period as may be
prescribed”. The expression ‘prescribed’ is defined by Section
2(e) to mean prescribed by rules made by the government under
the Act and to include the bye- laws made by the Board under the
statute. The expression ‘Board’ is defined in Section 2(a) to mean
SARDAR BAHGINDER SINGH  v. SARDAR MANJIEETH SINGH
JAGAN SINGH
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the Board which is constituted under the provisions of Chapter
II. Thus, the modalities for nomination and election can be
prescribed by the rules made by the government under the Act
and in the bye-laws framed by the Board. Sub-Section (3) of Section
6 provides that if the members mentioned in clauses (iv) and
(vii) are not nominated or elected within the prescribed period,
the government may specify the period within which the exercise
has to be completed. If the process is not completed within the
period so stipulated, the Government is empowered to nominate
a person or persons to fill the vacancy. Significantly, the provisions
of sub-section (3) of Section 6 do not apply to the nomination to
be made under clause (viii) of sub-Section (1) of Section 6. In
other words, the exclusive statutory authority for making the
nomination of four members under Section 6(1)(viii) is vested in
the Sachkhand Hazuri Khalsa Diwan, Nanded. Section 6(1)(viii)
clearly indicates that it is the Diwan alone which has the power to
make a nomination of four members. The State Government
cannot assume that power to itself. That the authority of the Diwan
is exclusive is evident from the provisions of sub-section (3) of
Section 6. The Nanded Sikh Gurudwara Rules 1958 contain a
provision for the nomination of members under clauses (iv), (v),
(vii) and (viii) of Section 6 (1). [Paras 23-25][366-D-H; 367-A-E]
1.3 The provisions contained in
Rule 6 indicate that for the
purpose of fulfilling the statutory requirement of a nomination,
the State Government is to make a request in writing, inter alia,
to the Diwan under Clause (viii). The power to make a nomination
under Section 6(1)(viii) is vested in the Sachkhand Hazuri Khalsa
Diwan, Nanded. The statute does not expressly define the
expression “Diwan”. The Diwan was constituted as a society
initially in 1350 Fasli. It was registered as a public trust under
the MPT Act in 1982. The expression ‘Diwan’ needs elaboration.
The Memorandum of Association refers to the Khalsa Diwan
General Committee which comprises “of all members of the
Diwan”. They alone are entitled to vote. The Working Committee
is a smaller body consisting of 28 members which is elected for a
duration of two years on each occasion. The authority to nominate
four representatives under Section 6(1)(viii) of the Nanded Act
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1956 is entrusted to the Diwan. The Diwan consists of the
collective body of all members who together are entitled to vote
under the Memorandum of Association. Together they constitute
the Diwan. Neither the President individually nor any office bearer
can be equated with the Diwan. The authority to nominate four
members to the Board under Section 6(1)(viii) is not entrusted
to an office bearer of the Working Committee or for that matter
to the Working Committee. Evidently, conflicts between the rival
factions have spilled over into the process of making nominations.
The State Government was confronted with conflicting claims. It
wrote to the Charity Commissioner seeking some light on the
issue and after receiving a communication that Gurucharan Singh
was the President, proceeded to issue a notification drawing four
members from out of the rival claims that were made by the
conflicting factions. The High Court was justified in disapproving
of the process that was followed by the State Government but for
the simple reason that the nominations were not made by the
Diwan. Multiple claims were made in the letters submitted to
the State Government. The High Court was correct in its
interpretation of the statute when it observed that it was not open
to the State Government to arrogate the power of nomination to
itself or to usurp the powers of the Diwan. The statute has
entrusted the authority to make a nomination under Section
6(1)(viii) to the Diwan. The
Diwan comprises of the collective
body of all members together to whom the power to make a
nomination is entrusted. The provisions of sub-section (2) of
Section 6 read with the definition of the expression “prescribed”
in sub-Section 2(e) lead to the conclusion that the nomination
and election of members under Section 6 has to be made in the
manner prescribed by the rules made by the Government under
the Act, including the bye-laws made by the statutory board
constituted under the provisions of Chapter II. [Paras 26-28][368-
A-E, F-H; 369-A-C]
1.4 In authorising the Sachkhand Hazuri Khalsa Diwan,
Nanded to nominate four members, Section 6(1)(viii) entrusts
that authority to the collective body of members of the Diwan
which is entitled to select the four individuals to be nominated to
the statutory Board. This process must be initiated forthwith and
SARDAR BAHGINDER SINGH  v. SARDAR MANJIEETH SINGH
JAGAN SINGH
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concluded within a period of three months from the date of this
judgment. The change reports - Inquiry Applications Nos. 44 of
2019 and 114 of 2019 - must be enquired into by the Assistant
Charity Commissioner expeditiously and the inquiry shall be
concluded within a period of three months from the date of this
judgment. The notification dated 21 June 2019 is held to be invalid
and the conclusion of the High Court is upheld. Hence, the
submission to permit the members who were notified on 21 June
2019 to continue to function as an interim arrangement cannot
be accepted. The conclusion of the High Court that the
notification issued by the State Government on 21 June 2019
was contrary to the provisions of Section 6 (1) (viii) of the Nanded
Act 1956 is affirmed. Directions issued. [Paras 29-32][369-C-E;
370-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2964
of 2020
From the Judgment and Order dated 30.04.2020 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Writ Petition No.
9537 of 2019.
With
C.A. Nos. 2966, 2965 of 2020
Ms. Meenakshi Arora, Ms. Vibha Dutta Makhija, Sr. Advs.,
Shashibhushan P. Adgaonkar, Pradnya S. Adgaonkar, Ms. Surabhi Guleria,
Shivaji M. Jadhav, Vishal Jogdand, S. Jasbeer Singh, Ganesh Gadhe,
Prashant Dahat, Prakash Ranjan Nayak, Rahul Chitnis, Sachin Patil,
Smarhar Singh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD,
J.
1. Leave granted.
2. Prior to the re-organisation of states, the Hyderabad Legislative
Assembly enacted a law called the Nanded Sikh Gurudwara Sachkhand
Shri Hazur Apchalnagar Sahib Act 19561. On receiving the assent of the
President on 16 September 1956, the Nanded Act 1956 was published in
the Hyderabad Government Gazette on 20 September 1956. Section
2(c) defines the expression ‘Gurudwara’ thus:
1 “the Nanded Act 1956”
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“‘Gurudwara’ means the institution known as the Nanded Sikh
Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib and includes
the premises called the Gurudwara with all buildings contained
therein, together with all additions thereto or alterations thereof
which may hereafter be made from time to time and shrines
specified in the schedule.”
3. Chapter II is titled “Control of the Gurudwara”. Section 3
provides for the constitution of a Board for the administration of the
Gurudwara and a Committee of Management. Section 4 provides for
the administration of the affairs of the Gurudwara by the Board in
accordance with the provisions of the Nanded Act 1956. The Board is
constituted by the provisions of Section 5 to be a body corporate. The
controversy in this case turns on the interpretation of Section 6 which
provides for the composition and constitution of the Board. The provision
is extracted below:
“Section 6(1) The Board shall consist of:
i)
Two members nominated by the Government;
ii)
Three members nominated by the Government from the Sikhs
of the State:
Provided that after the expiration of the first term of the
Board these three members shall be elected from among
the Sikhs of the State in such manner as may be prescribed;
iii)
One member nominated by the Government from among
the Sikhs of the cities of Hyderabad and Secunderabad;
iv)
One member nominated by the Shiromani Gurudwara
Prabandhak Committee from among the Sikhs of the State
of Madhya Pradesh;
v)
Three members nominated by the Shiromani Gurudwara
Prabandhak Committee;
vi)
Two members elected by and from among the Sikh members
of the Parliament;
vii)
One member nominated by the Chief Khalsa Diwan of
Amritsar;
viii)
Four members nominated by the Suchkhand Hazur Khalsa
Diwan, Nanded.
2)
The nomination and election of members under this section
shall be made in such manner and within such period as may
be prescribed.
SARDAR BAHGINDER SINGH  v. SARDAR MANJIEETH SINGH
JAGAN SINGH [DR. DHANANJAYA Y CHANDRACHUD, J.]
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3)
i) If the members mentioned in clauses (iv) to (vii) (both
inclusive) of sub-section (1) are not nominated or elected, as
the case may be within the prescribed period, the Government
shall specify such further period as it may deem fit within
which such members shall be nominated or elected. If such
members are not nominated or elected within the further
period so specified the Government shall nominate a person
or persons to fill the vacancy or vacancies, as the case may
be and the person or persons so nominated shall be deemed
to be a member or members duly nominated or elected by
the respective body.
ii)
The term of office of the members nominated under clause
(i) shall expire at the time at which it would have expired if
he had been nominated or elected, as the case may be, within
the period prescribed under sub-section (2).
4)
After the members have been nominated or elected, as the
case may be, in accordance with the foregoing provisions
the 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.”
Section 10 provides that where a vacancy occurs in the Board
owing to death, resignation or for any other reason, the new member is
to be nominated or elected in the manner in which the member whose
seat is to be filled was nominated or elected. Section 11 provides for the
election of a President. Section 22 (1) provides for the constitution of a
Committee of Management consisting of (i) the Collector of Nanded or
an officer appointed by the government; (ii) the Superintendent of the
Gurudwara as an ex officio member; and (iii) three members nominated
by the Board at its first meeting in the prescribed manner from among
the Sikhs of Nanded. Under Section 36(i), the management, control and
superintendence of the administration of the Gurudwara is to vest in the
Board. The Board is entrusted with the duty of ensuring that the
Gurudwara and its endowments are properly maintained, controlled and
administered and that its income is duly applied to the objects and purposes
for which they were intended. The Committee carries on day to day
administration of the Gurudwara under Section 37(I) in accordance with
the directions of the Board. The objects on which the funds of the
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Gurudwara may be spent are specified in Section 392.The Government
is empowered to supersede the Board under Section 53 in the event,
inter alia, of a default in the performance of duty or where it has acted
in excess or abuse of its powers. Section 61(1) entrusts a rule making
power to the Government. The rule making power extends among other
things to providing the manner in which and the period within which the
members of the Board shall be nominated or elected under Sub-section
1 of Section 6.
4. On 28 December 1951, a society by the name of The Sachkhand
Hazuri Khalsa Diwan Association Society (“Diwan”) was registered
2 Section 39:
1) Subject to any rules that may be made by the Government in this behalf, all properties
and income of the Gurudwara shall be under the control of the Board and shall be
applied to:-
a) the maintenance or improvement of the Gurudwara.
b) the maintenance of religious worship and the performance and conduct of religious
and charitable duties ceremonies and observances connected with the Gurudwara.
c) the payment of allowances or salaries of officers and servants of the Gurudwara.
d) the fulfilment of the objects of the endowments thereof.
e) the maintenance of the langar.
f) the payment of the cost of audit of the funds and accounts of the Gurudwara.
g) the payment of the salary and allowances of the Secretary and Staff of the Board and
the Committee and the Superintendent of the Gurudwara.
h) the payment of allowances to
the President and members of the Board and the
Committee and members of the Committee.
i) the payment of all expenses incurred by the Board in the performance of the duties
imposed, and the exercise of the powers conferred by or under this Act.
2) If any balance remains after meeting the expenditure referred to sub-section [1] the
Board may use any portion of such balance for –
a) the foundation and maintenance of educational or charitable institutions and orphanages
for the benefit of the Sikhs in particular.
b) the establishment of hospitals and dispensaries for the relief of the pilgrim and
worshippers resorting to the Gurudwara.
c) the construction and maintenance of free feeding house and the rest houses for the
use of all classes of pilgrims.
d) the provision of water supply and sanitary arrangements, and the construction and
maintenance of roads and communications and lighting arrangements for the convenience
of the pilgrims and worshipper.
e) the establishment and maintenance of a veterinary hospital for the animals of the
Gurudwara. Leper asylum and poor houses for the disabled and helpless.
f) the promotion of the study of the Gurumukhi or any other language and the cultivation
of the Indian arts and architecture , and the prachar of the Sikh religion.
g) the grant of aid to any other deserving religious institution.
h) any other purposes which the Board may deem fit.
SARDAR BAHGINDER SINGH  v. SARDAR MANJIEETH SINGH
JAGAN SINGH [DR. DHANANJAYA Y CHANDRACHUD, J.]
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under the Hyderabad Societies’ Registration Act of 1350 Fasli. Its
Memorandum of Association specifies the following objects:
“i).
To guide the followers of the Sikh Religion in the principles
of the Sikh faith and to propagate the tenets of the Sikh
religion among other communities
ii).
To protect their interest and the interest of Gurudwara by all
possible amicably peaceful means
iii).
To be loyal to the Govt. of India
iv).
To work and agitate for economic, political and social rights
of the Sikhs of Hyderabad State by peaceful, amicable and
democratic methods wherever necessary and to adopt such
policies which will improve the standard of Sikhs of
Hyderabad State.”
5. The bye-laws of the Sachkhand Hazuri Khalsa Diwan, Nanded
provide for the constitution of a General Committee consisting of all
members of the Diwan. The General Committee is to meet twice each
year. A Working Committee consisting of 28 members is contemplated
for the management of affairs. The General Committee is to elect a
President at the first meeting. Thereafter, the President will form their
Working Committee. Such elections are to be held in every two years.
The Working Committee is to consist of a President, Vice-President,
Secretary and other office bearers. The President has the power to
exercise full supervision over the affairs and working of the General
Committee.
6. On 4 November 1981, an application was filed for the
registration of a
trust under the provisions of the Maharashtra Public
Trusts Act 19503. The application which was numbered as Inquiry
Application No. 950/1981 was allowed and a certificate of registration
was issued by an order dated 11 January 1982 of the Assistant Charity
Commissioner, Nanded. The issuance of the registration certificate
became a source of internal disputes between rival factions. The dispute
was set at rest by an order dated 22 January 2014 of a two judge Bench
of this Court in Special Leave Petitions4 under Art. 136 of the Constitution.
The order of the court concluded that the issue of the registration of the
3 “the MPT Act”
4 Special Leave Petitions (C) Nos. 10139-10149 of 2011- Sardar Jeewansingh (d)
Th. Lrs. v. Shersingh & Ors.
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Diwan as a trust under the MPT Act has attained finality. However, the
Court noted that the dispute in respect of membership can be adjudicated
upon under the provisions of the MPT Act.
7. The dispute in the present case relates to the nomination of
four members in terms of the provisions of Section 6(1)(viii) of the Nanded
Act 1956. Under this provision, four members of the Board constituted
under Section 5 are nominated by the Sachkhand Hazuri Khalsa Diwan,
Nanded. Sub-Section (2) of Section 6 provides that the nomination and
election of members shall be made in such a manner and within such
period as may be prescribed. Section 2(e) defines the expression
‘prescribed’ thus:
“prescribed’ means prescribed by the rules made by the
Government under this Act and includes the bye-laws made by
the Board under this Act;”
8. On 14 July 1958, the then Government of Bombay notified the
Nanded Sikh Gurudwara Sachkhand Shri Hazuri Apchalnagar Sahib Rules
19585. Rule 6, inter alia, provides for the nomination of members under
clause (viii) of sub-Section (1) of Section 6. Under Rule 6, the State
Government was to make a request in writing as soon as may be after
the appointed day to the Sachkhand Hazuri Khalsa Diwan, Nanded to
nominate within a period of two months of the date of the receipt of the
request, members on the Board as required.
9. From the affidavit which has been filed by the State of
Maharashtra by the Collector, Nanded, it emerges that on 10 July
2000,
the Revenue and Forest Department of the Government of Maharashtra
superseded the Board constituted under Section 5 of the Nanded Act
1956 due to disputes between two factions of the Diwan. As a result,
the Board was under the Control of the Revenue and Forest Department
of the Government of Maharashtra.
10. By a notification dated 15 February 2014, the State Government
constituted an interim Board. On 21 February 2015, the State Government
addressed a communication to the Charity Commissioner enquiring
whether Sardar Gurucharan Singh (the fifth respondent in SLP (C) No.
7219 of 2020) or the first petitioner Sardar Sardul Singh was authorised
to represent the Diwan. The Charity Commissioner informed the
5 “the Nanded Sikh Gurudwara Rules 1958”
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JAGAN SINGH [DR. DHANANJAYA Y CHANDRACHUD, J.]
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Secretary to the State Government that it was the fifth respondent who
was the President of the Diwan. Upon receiving the reply, the State
Government notified four persons nominated by the fifth respondent as
members of the Board.
11. The dispute about who was entitled to be nominated under
Section 6(1)(viii) resurfaced in 2019. Multiple and conflicting nominations
were made purportedly with reference to the provisions of Section
6(1)(viii). The affidavit which has been filed by the State refers to the
receipt of several nominations. It would be instructive to reproduce an
extract:
“9. On 4.1.2019…Shershing Hirasingh Fauji addressed a letter to
the Government of Maharashtra in the alleged capacity of
President of Diwan nominating four persons to the Board. This
letter was not supported by any resolution of the Diwan.
10. On 4.1.2019, one Sardar Surinder Singh Ajabsingh, as the
Secretary of the Diwan nominated four persons to the Board.
The letter was supported by a resolution of the Diwan.
11. On 9.1.2019…Sardar Gurucharan Singh Uttam Singh Ghadisaj
addressed a letter to the Government of Maharashtra in the alleged
capacity of President of Diwan nominating four persons to the
Board. This letter was not supported by any resolution of the
Diwan.”
12. A letter was addressed by the State Government to the
Assistant Charity Commissioner in order to seek a solution to the imbroglio
with a query about the authorised office
bearers of the Diwan. The
Assistant Charity Commissioner, by a letter dated 2 February 2019, stated
that Inquiry Applications Nos. 44 of 2019 and 114 of 2019 were pending
in respect of the Diwan. On 15 June 2019, Sardar Gurucharansingh
Uttamsingh Ghadisa gave a fresh letter allegedly in his capacity as the
President of the Diwan nominating a different set of four persons.
Eventually, on 21 June 2019, the State Government nominated four
members to the Board under Section 6(1) viii.
13. The maze of conflicting claims for nomination to the Board
under Section 6(1)(viii) led to the institution of proceedings under Art
226 of the Constitution before the High Court challenging the validity of
the notification dated 21 June 2019. The High Court adverted to the
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conflicting claims for nomination made to the government, The High
Court held:
“22. In four letters forwarded to the Government for nomination
of the members of the Diwan on the Gurudwara Board, there
does not appear to be consistency. The Government on its own
does not have the authority to nominate the members of Diwan
on the Gurudwara Board. The Government on its own cannot
issue notification nominating the members of Diwan on the
Gurudwara Board. It is only the Diwan that can nominate the
members on the Gurudwara Board. Considering the inconsistency
about the names to be nominated from the Diwan as members on
the Gurudwara Board, the Government could not have issued the
notification nominating the members of Diwan on the Gurudwara
Board. Except the name of the respondent No. 4, we do not find
consistency of other names in all the letters.”
The High Court observed that it was not entering upon the issue
of who was the President and the Secretary of the Diwan. It was
considering the dispute only in so far as it pertained to the nomination of
four members of the Diwan on the statutory Board constituted in terms
of the Section 5 of the Nanded Act 1956. The High Court held that
clause (viii) of sub-Section (1) of Section 6 does not authorise the
government to nominate members who will represent the Diwan on the
statutory Board and it was only the Diwan which can do so. Faced with
the conflicting claims that were made to it, the High Court held that:
“30.
The State ought to have considered the authenticity of those
letters. In absence of the proper procedure prescribed in the rules
governing nominating members on the Gurudwara Board, it is not
clear as to whether the general committee and/or executive
committee and/or the President or the Secretary have the powers
to nominate the members on the Gurudwara Board. The bye law
and/or the rules of Diwan are silent in this regard. The member of
the Diwan should take steps to amend the byelaws/ rules to that
extent. The dispute also exists with regard to memberships. As
observed above, we are not entering into the said dispute. It is for
the Assistant Charity Commissioner to decide the dispute about
the membership.
31. The Government cannot arrogate the powers unto itself. The
Government has usurped the powers of the Diwan. In a system
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governed by rule of law, the discretion and the exercise of power
has to be confined within the defined limits. The decision or
notification de hors the power under the statute cannot be sustained.
It is well settled that when a statute requires a particular thing to
be done in a particular manner, it has to be done in that manner
only. The notification recommending respondent Nos. 4 to 7 is
arbitrary. Arbitrariness has no role in the society governed by rule
of law. Arbitrariness is antithesis to the rule of law, justice, equity,
fair play and good conscience. The arbitrary action cannot
withstand the test of law.”
14. The notification of the State Government was accordingly set
aside.
15. The appellants have questioned the locus standi of the first
respondent (petitioner in the writ proceedings before the High Court) to
challenge the appointment of the members made by the State Government
on the ground that he is not a trustee of the Diwan. It has been submitted
that the first respondent was removed from the post of trustee by
Resolution No. 4 of the Working Committee dated 14 April 2015. A copy
of the minutes of the meeting of the Working Committee on 14 April
2015 has been marked as Annexure 7 to Special Leave Petition (Civil)
No. 7217 of 2020.
16. On behalf of the appellants, a persuasive effort was made by
Ms. Meenakshi Arora, learned Senior Counsel and Mr. Shivaji M. Jadhav,
learned Counsel to demonstrate the
steps which were taken by the Diwan
in its capacity as a public trust registered under the MPT Act to ensure
the due constitution of its managing body. It has been submitted that in
1984 Gurucharan Singh was appointed as President of the Diwan and
that the Working Committee which was elected under his presidency
consisted of 28 members. Thereafter, at the lapse of two years, elections
are claimed to have been regularly held to the Working Committee.
According to the appellants, S. Jivansingh Ayyasingh Sahu was elected
as President of the Trust on 11 November 1980 and 13 November 1982
for two years on each occasion. Gurucharan Singh became President
on 26 October 1984 in which capacity he was re-elected on 14 October
1986, 15 November 1988, 20 October 1990, 28 October 1992, 4
November 1994 and 20 October 1998. According to the appellants, after
the registration of the Trust, the Working Committee which was nominated
at the time of the initial registration continued from 1984 till 2001. Inquiry
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Application No. 44 of 2019 regarding the change report filed by the
Trust under Section 22 of the MPT Act is pending. This pertains to the
entry of the Working Committee in Schedule I, including Sardar
Gurucharan Singh as President (elected purportedly at a general meeting
on 9 November 2018). On the other hand, Inquiry Application No 114 of
2019 initiated by Shersingh Hirasingh Fauji showing him as the elected
President of the Diwan Trust is also pending.   Contending that the
elections to the Trust have been held periodically, it has been submitted
that there was a settled practice of Gurcharan Singh nominating the four
representatives of the Board under Section 6(1) viii. Hence Ms.
Meenakshi Arora and Mr. Shivaji Jadhav urged that there was no
justification for the High Court to interdict the notification of the State
Government accepting the nomination of four members under Section
6(1)(viii).
17. On the other hand, the contesting respondents who had moved
proceedings under Article 226 of the Constitution before the High Court
have submitted that the first respondent had the locus standi to initiate
such proceedings. It has been urged in the written submissions filed by
the first respondent that Resolution No. 4 dated 14 April 2015 purported
to be passed by the Working Committee is fabricated on the ground that
the date of expulsion of first respondent from the Working Committee is
mentioned as 25 October 2015, while the resolution is dated 14 April
2015. It has also been submitted that the change report filed by
Gurucharan Singh dated 9 November 2018 shows the first respondent
as an outgoing member of the Working Committee. Further, it has been
claimed that till date no change report has been filed to remove the
name of the first respondent from the record maintained in Schedule I,
as a de facto member of the Working Committee. It has been stated
that the issue of locus standi of the first respondent was not raised in
the original counter filed by the appellants before the High Court, rather
it was raised through an additional counter as an afterthought in order to
dilute the locus standi of the first respondent. Hence, it has been
submitted that the first respondent is still a trustee under Section 2(18)
of the MTP Act and had the locus standi to move a petition under
Article 226 of the Constitution.
18. The contesting respondents seriously questioned the plea of
the appellants in regard to the management of the public trust. Ms. Vibha
Dutta Makhija, learned Senior Counsel submitted that after the decision
of this Court dated 22 January 2014 which recognized that the registration
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of the Trust had attained finality, Gurucharan Singh filed Miscellaneous
Application 833 of 2011 before the Assistant Charity Commissioner for
taking on record an entry in respect of an election which was held for
2002 - 2004. On 7 March 2015, the Assistant Charity Commissioner
passed an order taking on record the entry pertaining to the election of
the committee. According to the contesting respondents, the last entry
pertaining to the Working Committee which was taken on record by the
Assistant Charity Commissioner was for 2002-4. Out of 28 members,
nine are stated to be dead while seventeen continue to subsist on the
record maintained in Schedule-I in the office of the Assistant Charity
Commissioner. Hence, it has been submitted that for the period 2004-6,
2006-8, 2008-10, 2010-12, 2012-14 and 2014-16, neither was any change
report in respect of the election of the President or Working Committee
reported under Section 22 nor has any change been recorded. However,
it is accepted by the respondents that two Inquiry Applications are pending
before the Assistant Charity Commission: (i) Inquiry No. 44 of 2019
filed by Gurucharan Singh with a claim that he was elected as President
or Pradhan and that a Working Committee of 27 members was elected;
and (ii) Inquiry No. 114 of 2019 by Shersingh Hirasingh Fauji claiming
that he was elected as President in 2018 and that a Working Committee
of 27 members has been elected.
Both these applications where there
are rival claims for election of the President and for members of the
Working Committee are pending at the stage of evidence.
19. In the written submissions which have been filed on behalf of
the First respondent, the conflicting nominations which were made under
Section 6(1)(viii) by Gurucharan Singh, on the one hand, and by Shersingh
Fauji on the other, have been recorded under the caption “who nominated
whom”. For convenience of reference, the extract is reproduced below:
“2. WHO NOMINATED TO WHOM.
I. By letter dated 04/1/2019… Sardar Shersingh Fauzi nominated
to the Sardar Sardulsingh Fauzi and Sardar Jagwirsingh Shahu
(petitioners in SLP No. 7219/2020) and other two persons.
II. On 09/01/2019, by letter dated Sardar Gurucharansingh s/o
Uttamsingh Ghadisaz nominated himself who is the petitioner in
SLP No. 7227/2020 and his son Sardar Bhagendarsingh who is
the petitioner in SLP No. 7217/2020 and nominated other two
persons.
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III. Sardar Gurucharansingh s/o Uttamsingh Ghadisaz by letter
dated 09/01/2019 claimed to be the President of “Diwan” as well
as Sardar Shersingh Fauzi by letter dated 04/01/2019 also claimed
to the President of “Diwan”.”
20. The State Government is stated to have appointed two persons
from the letter dated 9 January 2019 and from the letter dated 4 January
2019. The nominated members are appellants before this Court since
their appointments have been set aside.
21. Our analysis of the submissions must be prefaced by adverting
to the fact that there is a maze of conflicting claims between the two
factions, including the issue of the alleged removal of the first respondent
as a trustee of the Diwan. The High Court has appropriately not embarked
upon an enquiry to adjudicate upon these claims. Justifiably so, since
two inquiry applications which have been filed under Section 22 of the
MPT 1960 are pending before the Assistant Charity Commissioner. The
change reports, as they are called, being the subject matter of a pending
enquiry by the Assistant Charity Commissioner, it is neither appropriate
nor proper for this court to enter into the thicket of factual disputes
between the contesting factions.
22. Essentially, the issue which the Court has to decide turns upon
the interpretation of the provisions of Section 6(1)(viii). It is on this that
the validity of the notification of the State government appointing four
persons under Section 6(1)(viii) would
rest. Two distinct entities are
dramatis personae in the present case. The first is the public trust
which is registered under the provisions of the MPT Act. Its origins lay
in the Sachkhand Hazuri Khalsa Diwan Association Society which was
initially registered under the Hyderabad Societies’ Registration Act of
1350 Fasli6. This body was initially registered as a society with the
Registrar of Company Law and Co-operative Societies of the then
Government of Hyderabad under registration no. 22 of 1951. The
Memorandum of Association of the Diwan indicates that it was formed
to protect and guide the followers of the Sikh religion, protect the interests
of the Gurudwara and to work in the interest of the Sikhs of the then
State of Hyderabad. The name of the society or association was
formulated as Sachkhand Hazuri Khalsa Diwan. The General Committee
of the Diwan consists of all the members of the Diwan who meet bi-
annually. The members of the General Committee of the Khalsa Diwan
6 “1350 Fasli”
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are alone entitled to vote. For the management of the affairs, there is a
Working Committee consisting of 28 members. The Working Committee
was to be formed by the President or Pradhan at the first meeting.
Elections to the Working Committee are required to be held every two
years. The President is entrusted with supervision over the affairs and
working of the General Committee. Several decades after the
reorganisation of States, a registration certificate was issued under the
MPT Act to the society as a public trust on 11 January 1982 by the
Assistant Charity Commissioner Nanded in Inquiry Application No 950/
1981. This created a round of disputes between the contesting factions
and it was eventually on 22 January 2014 that this Court concluded the
issue by recording that the registration of the Diwan as a Trust under the
MPT Act have attained finality. Disputes in regard to membership were
a separate matter which could be adjudicated upon in terms of the
remedies available under the MPT Act. As a public trust, the Diwan is
governed by the provisions of the MPT Act.
23. The second body with which the present group of appeals is
concerned is a statutory body. This was created when the Hyderabad
Legislative Assembly enacted the Nanded Sikh Gurudwara Sachkhand
Shri Hazuri Apchalnagar Sahib Act 1956. The statute has defined the
expression ‘Gurudwara’ under Section 2(c) to mean the institution known
as Nanded Sikh
Gurudwara Sachkhand Shri Hazuri Apchalnagar Sahib
and to include the premises of the Gurudwara together with all its buildings
and the shrines which are specified in the Schedule. A statutory board is
constituted under Section 5 to administer the affairs of the Gurudwara in
accordance with the enactment. The Board consists of seventeen
members. Some of them are nominated by the government (see clauses
(i), (ii) and (iii) of sub-section (1) of Section 6). Some members are
nominated by specific bodies: under clause (iv), one member is nominated
by Shiromani Gurudwara Prabandhak Committee from among the Sikhs
of State of Madhya Pradesh; under clause (v) three members are
nominated by the Shiromani Gurudwara Prabandhak Committee; under
Clause (vii) one member is nominated by the Chief Khalsa Diwan of
Amritsar and under clause (viii) four members are nominated by
Suchkhand Hazuri Khalsa Diwan, Nanded. As regards the elected
members, clause (vi) stipulates that two members shall be elected by
and from among Sikh members of Parliament. Sub- Section (2) of Section
6 stipulates that the nomination and election of members under the
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provision “shall be made in such a manner and within such period as
may be prescribed”. The expression ‘prescribed’ is defined by Section
2(e) to mean prescribed by rules made by the government under the Act
and to include the bye- laws made by the Board under the statute. The
expression ‘Board’ is defined in Section 2(a) to mean the Board which
is constituted under the provisions of Chapter II. Thus, the modalities for
nomination and election can be prescribed by the rules made by the
government under the Act and in the bye-laws framed by the Board.
24. Sub-Section (3) of Section 6 provides that if the members
mentioned in clauses (iv) and (vii) are not nominated or elected within
the prescribed period, the government may specify the period within
which the exercise has to be completed. If the process is not completed
within the period so stipulated, the Government is empowered to nominate
a person or persons to fill the vacancy. Significantly, the provisions of
sub-section (3) of Section 6 do not apply to the nomination to be made
under clause (viii) of sub-Section (1) of Section 6. In other words, the
exclusive statutory authority for making the nomination of four members
under Section 6(1)(viii) is vested in the Sachkhand Hazuri Khalsa Diwan,
Nanded. Section 6(1)(viii) clearly indicates that it is the Diwan alone
which has the power to make a nomination of four members. The State
Government cannot assume that power to itself. That the authority of
the
Diwan is exclusive is evident from the provisions of sub-section (3)
of Section 6.
25. The Nanded Sikh Gurudwara Rules 1958 contain a provision
for the nomination of members under clauses (iv), (v), (vii) and (viii) of
Section 6 (1). Rule 6 is in the following terms:
“6. Nomination of members under clause iv], v], vii] and viii] of
sub-section 1 of section 6, -
1 As soon as may be after the appointed day, the State Government
shall make a request in writing to-
1] The Shiromani Gurudwara Prabhandhak Committee.
2] The Chief Khalsa Diwan, Amritsar, and
3] The Sachkhand Huzur Khalsa Diwan, Nanded to nominate
within a period of two months from the date of the receipt of the
request members on the Board, as required by clauses iv], v], vii]
and viii] of sub-section 1 of section 6.
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2] The members so nominated shall function as the members on
the Board from the date of the constitution of the Board.”
26. The provisions contained in Rule 6 indicate that for the purpose
of fulfilling the statutory requirement of a nomination, the State
Government is to make a request in writing, inter alia, to the Diwan
under Clause (viii).
27. The power to make a nomination under Section 6(1)(viii) is
vested in the Sachkhand Hazuri Khalsa Diwan, Nanded. The statute
does not expressly define the expression “Diwan”. The Diwan was
constituted as a society initially in 1350 Fasli. It was registered as a
public trust under the MPT Act in 1982. The expression ‘Diwan’ needs
elaboration. The Memorandum of Association refers to the Khalsa Diwan
General Committee which comprises “of all members of the Diwan”.
They alone are entitled to vote. The Working Committee is a smaller
body consisting of 28 members which is elected for a duration of two
years on each occasion. The authority to nominate four representatives
under Section 6(1)(viii) of the Nanded Act 1956 is entrusted to the Diwan.
The Diwan consists of the collective body of all members who together
are entitled to vote under the Memorandum of Association. Together
they constitute the Diwan. Neither the President individually nor any
office bearer can be equated with the Diwan. The authority to nominate
four members to the Board under Section 6(1)(viii) is not
entrusted to an
office bearer of the Working Committee or for that matter to the Working
Committee. Ms Meenakshi Arora, learned Senior Counsel and Mr Shivaji
Jadhav, learned Counsel sought to emphasise that as a matter of practice
nominations were made by Gurucharan Singh from time to time. The
practice that was followed cannot be contrary to the interpretation of
the provisions of the statute.
28. Evidently, conflicts between the rival factions have spilled over
into the process of making nominations. The State Government was
confronted with conflicting claims. It wrote to the Charity Commissioner
seeking some light on the issue and after receiving a communication that
Gurucharan Singh was the President, proceeded to issue a notification
drawing four members from out of the rival claims that were made by
the conflicting factions. The High Court was justified in disapproving of
the process that was followed by the State Government but for the simple
reason that the nominations were not made by the Diwan. Multiple claims
were made in the letters submitted to the State Government. The High
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Court was correct in its interpretation of the statute when it observed
that it was not open to the State Government to arrogate the power of
nomination to itself or to usurp the powers of the Diwan. The statute has
entrusted the authority to make a nomination under Section 6(1)(viii) to
the Diwan. The Diwan comprises of the collective body of all members
together to whom the power to make a nomination is entrusted. The
provisions of sub-section (2) of Section 6 read with the definition of the
expression “prescribed” in sub-Section 2(e) lead to the conclusion that
the nomination and election of members under Section 6 has to be made
in the manner prescribed by the rules made by the Government under
the Act, including the bye-laws made by the statutory board constituted
under the provisions of Chapter II.
29. We therefore hold that in authorising the Sachkhand Hazuri
Khalsa Diwan, Nanded to nominate four members, Section 6(1)(viii)
entrusts that authority to the collective body of members of the Diwan
which is entitled to select the four individuals to be nominated to the
statutory Board. This process, in our view, must be initiated forthwith
and concluded within a period of three months from the date of this
judgment.
30. The change reports - Inquiry Applications Nos. 44 of 2019
and 114 of 2019 - must be enquired into by the Assistant Charity
Commissioner expeditiously and the inquiry shall be concluded within a
period of three months from the date of
this judgment.
31. Ms. Meenakshi Arora, learned Senior Counsel and Mr. Shivaji
Jadhav, learned Counsel have made an earnest appeal to this court that
pending the finalization of the process of making nominations under
Section 6(1)(viii), the four members who were notified by the State
government on 21 June 2019 may be allowed to continue. It was urged
that during the pendency of these proceedings the judgment of the High
Court was stayed. By an interim order passed on 31 July 2020 a direction
was issued restraining the Board from taking any major financial or
policy decisions. The court however made it clear that this shall not
affect the distribution of langar and the activities of the Gurudwara.
Hence, it was urged that the four members who have been notified by
the State Government may be permitted to continue subject to the
conditions contained in the interim order. This request has been opposed
by Ms. Vibha Dutta Makhija, learned Senior Counsel. Mr Rahul Chitnis,
Standing Counsel for the State of Maharashtra has also submitted that if
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the Court were to hold that the notification issued by the State Government
on 21 June 2019 is not valid, it would not be appropriate to allow the four
members, so nominated, to continue. We have held the notification dated
21 June 2019 to be invalid and have upheld the conclusion of the High
Court. Hence, we cannot accept the submission of Ms. Meenakshi Arora,
learned Senior Counsel and Mr. Shivaji Jadhav, learned Counsel permitting
the members who were notified on 21 June 2019 to continue to function
as an interim arrangement.
32. We accordingly dispose of the appeals by affirming the
conclusion of the High Court that the notification issued by the State
Government on 21 June 2019 was contrary to the provisions of Section
6 (1) (viii) of the Nanded Act 1956. We direct that:
(i)
Inquiry Application No. 44 of 2019 and Inquiry Application
No. 114 of 2019 pending before the Assistant Charity
Commissioner, Nanded shall be concluded and disposed of
in accordance with law within a period of three months from
the date of this judgment;
(ii)
The statutory authority to make a nomination under Section
6(1)(viii) is entrusted to the Sachkhand Hazuri Khalsa Diwan,
Nanded. The Diwan signifies the entire body of members,
as explained in the text of the judgment;
(iii)
The process of making the nomination under the provisions
of Section 6(1)(viii), as explained above, shall be initiated
and completed within a period of three
months from the date
of this judgment. The Assistant Charity Commissioner,
Nanded shall fix a date for the meeting of the Diwan and
shall act as an observer at the meeting convened for finalising
the nominations. The Assistant Charity Commissioner is
entrusted with the authority to determine the members borne
on the role of members of the Diwan who are entitled to
vote at the ensuing meeting in accordance with the above
directions. The Assistant Charity Commissioner is at liberty
to adopt appropriate modalities for holding a meeting, including
by way of a virtual meeting in view of the outbreak of Covid-
19; and
(iv)
If any further directions of a consequential nature are
necessary to implement this judgment, the Assistant Charity

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Commissioner will be at liberty to move the Aurangabad
bench of the Bombay High Court for directions.
33. The appeals are disposed of in the above terms. No order as
to costs.
34. Pending application(s), if any, shall stand disposed of.
Divya Pandey
Appeals disposed of
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