KASHMIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) INDIA , which is Union of States, territories whereof are the territories of the States and Union Territories or such other territories as may be acquired, as specified in the First Schedule, can, by virtue of Article 3 of the Constitution of India, have new States by separation of territory from any State or by uniting two or more States, by law to be made by Parliament. State of Punjab diminished in its area first by virtue of partition of the country in the year 1947, i.e., prior to November 26, 1949 when people of India adopted and gave to themselves the Constitution. The area of State of Punjab then increased by virtue of States Reorganisation Act, 1956 when Pepsu was merged in Punjab. However, it once again got reduced in area when Government of India decided, in principle, on March 21, 1966 to reorganise the existing State of Punjab on linguistic basis. The existing State of Punjab, State of Haryana, Union Territory, Chandigarh and the transferred territories to the Union Territory of Himachal Pradesh, all four parts being then known as consequential States. Necessary, supplementary, incidental and consequential provisions, in relation to such reorganisation were made by an Act known as Punjab Reorganisation Act (here-in-after referred to as the 'Act of 1966'). Every endeavour, it appears, was made to provide and cater for all situations that may necessitate smooth reorganisation by virtue of Act of 1966 but, as is inherent, some complex difficulties in this mammoth task were bound to arise. One such difficulty in the field of operation of existing laws pertains to an Act know as The Sikh Gurdwaras Act, 1925 (here-in-after referred to as the 'Act of 1925'). Considering such difficulties not only to be intricate in nature but also of great importance, a Full Bench of three Judges was constituted in 1970 (Shiromani Gurdwaras Parbandhak Committee, Amritsar & Ors. v. Lachhman Singh Gill & Ors., AIR 1970 Punjab & Haryana (Full Bench) 40). The Division Bench, seized of the matter in hand, considering it to be of great importance, which may also need reconsideration of the Full Bench even if not on all points considered by the earlier Full Bench of three Judges, has referred it to the Hon'ble Chief Justice to constitute a Bench larger than three Judges, although not specifically mentioning therein that the earlier Full Bench of three Judges may need reconsideration and that is how this matter is before us, a Bench of five Judges constituted by the Hon'ble Chief Justice.

(2.) BEFORE we may deal with the issues raised in this case, that have been framed by the Division Bench while referring this case to a larger Bench, it will be appropriate to give facts of this case, even though in brevity as also, as to how precisely the matter has come up before a Full Bench of five Judges. Before we may take that exercise in hand, we would like to mention here that the main pleadings and the primary contentions of learned counsel for the parties, have since been noted in the reference order itself but we are taking this exercise in hand as otherwise the reference order might have to be read as a part of this order.

(3.) THE cause of petitioner has been seriously opposed by the State of Punjab as also Union of India. It is pleaded in the written statement filed on behalf of the State of Punjab that even though there may not be specific tenure fixed for the members of the Commission, but, at the same time, it has no where been laid down that the Commission shall be of perpetual nature. The Commission consists of three members, appointed from time to time, as may be necessary. The Board has to submit a panel of seven names of the qualified persons for the purpose of appointment as members of the Commission to the Government of State of Punjab within 90 days of the date of constitution of the new Board and according to Section 70(3), two members of the Commission shall be selected by the Government of State of Punjab out of the list of qualified persons prepared and maintained, as described above and the third member has to be appointed by the Punjab Government out of the persons fulfilling the qualifications as laid down in Section 70(2) of the Act of 1925. The Board was duly constituted vide Central Government notification dated November 21, 1996 and a panel of seven names was forwarded by the Board on February 19,1977, i.e., within 90 days limit prescribed under the Act. The tenure of the Board is five years or till new Board is constituted, whichever is later. The Commission is to be constituted as per provisions laid down in the Act of 1925. The Board had been approaching the Government of Punjab for issuance of notification at the earliest as would be clear from the communications dated July 17, 1997, September 4, 1997 and October 17, 1997. The new Board had been constituted in 1996 after a lapse of more than 16 years and the State Government of Punjab, after giving fresh look, considered it necessary to reconstitute the Commission and consequently appointed two members out of the panel sent by the Board and one member at its own level in accordance with the provisions of Section 70 of the Act of 1925. It is then stated that notification dated January 6, 1999 was issued inadvertently and has since been rescinded by another notification dated January 12, 1999. On the question posed by the petitioner with regard to power of the Government, it is pleaded that the Government of Punjab has been vested with the powers to appoint members of the Commission by virtue of the directions issued by the Central Government in pursuance of Section 72 of the Act of 1966 substituting the words "State Government" by the words "the Government of State of Punjab" in Sections 70, 71, 74, 78, 79 and 80 of the Act of 1925 vide Central Government, Ministry of Home Affairs Notification dated October 19, 1978, Annexure R-2. It is then pleaded that by virtue of provisions of Section 72 of the Act of 1966, in regard to the functioning and operation of the Board, the Central Government can give directions, which may include modification of the provisions of the Act of 1925, in their application to it, and, therefore, it is not correct that only Parliament can legislate in such matters. By virtue of provisions contained in sub-section (1) read with sub-sections (2) and (3) of Section 72 of the Act of 1966 the Central Government can amend various provisions of the Act of 1925 and by virtue of notification, Annexure R-2 the Punjab Government is fully competent to appoint the members of the Commission since October, 1978. The plea with regard to delegation by the Central Government to Punjab Government, being illegal, has also been controverted.