S AVTAR SINGH Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner seeks to strike down the Sikh Gurdawara and Religious Endowment Act of 1973 particularly sections 3,9,10,11 and 14 of the Act as unconstitutional and ultra vires of the Legislature and also issuance of a writ of mandamus to the respondent not to appoint Sikh Gurdawara Prabhandak Board or Sikh Gurdawara Prabhandak committees.

(2.) THE petitioner, has averred that he is a Sikh by religion. He claims fundamental right to freedom of conscience right to profess, practice and propagate freely sikh religion. The Sikh denomination has the right to manage its own affairs in matters of religion to own and acquire movable and immovable property and to administer such property in accordance with law. According to him the Sikh Gurdawara and Religious Endowment Act 1973 (herein after called the Act), interferes with the fundamental rights of the petitioner and Sikhs in matter of religion to administer the property of Gurdawaras in accordance with law. Prior to the passing of the Act the Sikh religion denomination in the State has been managing Gurdawaras in matter of religion and properties belonging to and attached to Gurdawara through their own representatives elected for the purpose. Now as a result of passing of the Act the Management and the Supervision in matters of religion and also of Gurdawara property has gone in the hands of the Government for one year. The restriction imposed on the management of the properties of Gurdawara is unreasonable and arbitrary in so far as religious affairs are concerned. It violates Article 25 and 26 of the Constitution. The Act arms the Gurdawara Prabhandak Board and the Gurdawara Prabhandak Committees both constituted under the Act to manage that affairs of the Sikh Gurdawaras with absolute, uncanalised and unguided discretionary powers. Any Gurdawara can be called a Sikh Gurdawara and can be taken under the control and management of the Board or the Committee.

(3.) IN the same way any property of the institution which may be called Gurdawara by the Board or the Committee can be taken for management. Section 3 does not provide any agency for the election of the Board. According to Sec. 3 of the Act the first Board is to be nominated by the Government for one year. This provision contravenes the guarantee given under Articles 25 and 26 of the Constitution of India as the right to administer the religious and secular affairs of the Sikh Community is taken away by the Government for one year and even vested in the hands of persons nominated by the Government. Section 10 of the Act provides for the establishment of the Committees of 11 members for each District of the State for managing the Sikh religious and secular affairs of the State Sikh Gurdawaras situated therein but no agency has been named to elect the members; nor is there any mention of any voters and their qualifications who will be entitled to vote at the election. The Act is also silent about the forum which will decide the disputes about elections and voters. Under Sec. 10 the first Committee is to be nominated by the Government which is unconstitutional as it offends Articles 25 and 26 of the Constitution of India. There is no provision in the Act for conducting the elections for members of the Committee or board after the period of one year or deciding disputes regarding such elections. Section 11 is vague and ambiguous and does not convey any sense. Section 9 authorities the board to exercise general administrative superintendence over all the Committees elected under the provision of Act but no power has been given to the board to exercise control over the nominated committees. This gives arbitrary and unlimited powers to the committees. The Act does not impose any restriction on the nominated members for their being nominated as are provided in Sections 4 and 13 of the Act in elections as members of the Board or the Committees. No provision has been made in the Act for removal of any of the members of the Board or the committee after nomination or election he incurs any disqualification mentioned in the Act. The Act is also silent with regard to filling of the vacancy, if any, and manner of its filling if a member incurs any of the disqualifications or dies or resigns. No machinery has been set up in the Act to decide questions - and objections whether any person is suffering from any of the disqualifications mentioned in the Act. The language of the Act is such that even a non -Sikh an illiterate person, a convict or non -Punjabi knowing man, a blind or a minor can become a member of the committee or the Board which is against the religious tenets, practices and sentiments of Sikhs and is a direct interference in the administration of Sikh Gurdawaras. According to the Act a "PATIT" cannot be a member of the committee or Board but the definition of Patit has not been given which is likely to create confusion. No procedure has been provided in the Act as to how the Board and Committees will manage the properties of Sikh Gurdawaras or their religious affairs. Section 14 is violative as it interferes with religious practices of Sikhs and this offends Articles 25 and 26 of the Act. Again the Act is lacunious, there is no forum to which the disputes of board or committees or of any office employee can be referred to. No provision has been made in the Act for the appointment, terms of office, removal, dismissal, discharge of the employees and servants of the Board or the committees. Absence of these provisions is sure to lead to mismanagement. The voter has not been defined in the Act who is eligible to vote for a Committee; nor have any qualifications of a voter been prescribed in the Act, there is no provision in the Act for deciding disputes involving questions whether the person is a Sikh or not, a voter or not; whether the property is Gurdawara property or not. Also there is no provision for deciding complaints regarding irregularities in the administration of Gurdawara properties, breach of trust, if committee, by the members of the committee or the Board and for deciding any complaint against any office bearer or employee of the Committee or Board. On all these grounds, It is claimed, does the Act offend the constitutional provisions and is thus liable to be struck down.