MOHAN SINGH Vs. STATE OF J AND K

JUDGEMENT

(1.) J&K Sikh Gurdwaras and Religious Endowment Act, 1973 (hereafter referred to as Act) has been enacted to provide for better administration of the Sikh Gurdwaras in State and their properties wherever situate. The Act provides for constitution of State Sikh Gurdwara Prabhandakh Board (in short the Board) and Gurdwara Prabhandakh Committees (in short the Committees) to carry out the object of the Act. Section 3 of the Act deals with composition and the constitution of the Board. The Board is to be a body corporate comprising of 15 members elected by Committees in terms of Section 9 of the Act. The Board is saddled with the duty to ensure that every committee deals with property and income of the Gurdwara or Gurdwaras managu. by it, in accordance with the provisions of the Act and Rules made thereunder. Section 10 of the Act provides for constitution of the Committee. In terms of Section 10 the Committee consisting of 1.1 members including the office bearers of the Committee, is vested with power/duty of administration and management of Sikh Gurdwara or more than one Gurdwaras subject to the control of the Board. The Committee in terms of Section 14 has full power and control over the properties and incomes of whatever description belonging to the Gurdwara or Gurdwaras under its management. Section 19 of the Act empowers the Government to make rules to carry out the purpose of the Act. The government in terms of aforesaid provision has power to make rules prescribing the manner in which the members of the Board or the Committees are to be elected and also prescribe in which form the accounts of the Gurdwara or Gurdwaras' property are to be kept and audited. The government in exercise of powers under Section 19 of the Act has framed Rules known as "J&K Sikh Gurdwaras and Religious Endowment Rules 1975" to carry out the purpose of the Act. Rule 63B added by SRO 771 of 1978 empowers the Board to suspend /remove the Committee, by a resolution and replace the suspended /removed Committee by an ad hoc Committee or Manager/Managers rill regular Committee is elected. Rule 63B having regard to the controversy in the present writ petition, needs to be noticed. It reads as under:

(2.) The Petitioners are Sikhs by faith and believe in Sikh Gurus and Granth Sahib and have kept Keshas. The Petitioners claim to be registered voters in terms of Rule 5 of Rules of 1975 and to have participated in the last election for Committees. The Petitioners are aggrieved of Rule 63B of Rules of 1975 and through the medium of instant petition throw challenge to the said Rule on the grounds set out in the petition. The Petitioners on the strength of averments made in the petition seek following reliefs:

(3.) The petition is primarily edificed on the ground that as the Committees are elected by the electorate in accordance with the Act and the rules framed thereunder, the Board cannot be clothed with the power to suspend and remove duly elected Committees for the reason that the Board is a creation of Committees and not elected by general Sikh electorate. It is pleaded that in terms of Section 3 of the Act the Committees elect the members of the Board and the Board in turn elects its office bearers. The Board, it is pleaded, owes its creation to the Committees and cannot be given the power to remove the very source that brings it into being. The other ground set out in the petition is that Rule 63B is beyond the ambit and scope of Section 19 of the Act inasmuch as, Section 19 does not empower the government or the rule making authority to frame a Rule like one impugned in the petition. The rule making authority, it is insisted, has travelled beyond its jurisdiction in framing Rule 63B and thus the Rule is ultra vires the Act. The Rule 63B of the Rules of 1975 is also said to be ultra vires the Constitution in as much as it confers wide, unguided and arbitrary powers on the Board. The Board, it is pointed out, has been given the power to suspend or remove a duly constituted Committee on its whim and caprice without there being any guiding principles laid down in the Rule itself. It is pleaded that Section 19(1) of the Act empowers the rule making authority to make Rules (to carry out the purposes of this Act" and as Rule 63B of the Rules of 1975 is not a Rule to carry out the purposes of the Act, the Rule is in conflict with Section 19 of the Act. The Respondents despite repeated adjournments and opportunities have not come up with their response/counter affidavit to the petition. The Respondents' right to file counter affidavit was closed as back as on 31.8.2006 i.e. a little less than three years after the petition was admitted for hearing.