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Judgment
Gh. Hasnain Massodi, J.—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 u/s 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:
A Gurdwara Prabhandakh Committee may be liable to be suspended/removed by the Board by a resolution and replaced by an ad hoc
Committee or Manager/Managers till the time a regular Committee is elected if the Board-is satisfied that the Committee has failed to carry out its
functions and responsibilities in accordance with the provisions of the Act and the rules made thereunder and in particular when a Committee fails
to carry out the following functions and responsibilities, namely:
i. non-compliance with rules laid down with respect to the passing and submission of annual budget by 15th of March;
ii. non-compliance with the requirements laid down in connection with the contribution to be made to the Board;
iii. gross/serious irregularities committed in the maintenance of the Gurdwara accounts, involving embezzlements, misappropriation of Gurdwara
funds and property as reported by Audit Party;
iv. mismanagement of the Gurdwara properties and corrupt practices with regard to the renting out of Gurdwara buildings, shops, grounds, lands,
etc.; )
v. non-compliance with the instruction and directives etc. issued from time to time by the Provincial Board with respect to the maintenance and
publishing etc. of accounts and general administration of Gurdwara affairs.
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:
i. Writ-of certiorari striking down Rule 63B of Jammu and Kashmir Sikh Gurdwaras and Religious Endowment Rules, 1975 as amended till date,
as ultra vires to the constitution.
ii. Writ of mandamus, commanding the Respondents not to act upon Rule 63-B of Rules of 1975 or pass any order by invoking the powers under
Rule 63B of the said Rules.
iii. Any other writ, order or direction as may be deemed fit and proper under the facts and circumstances of the case.
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.
Heard and considered.
The Act as pointed out at the threshold has been enacted for better administration of Sikh Gurdwaras in the state of J&K and their properties
wherever situate. The legislature in order to achieve the intended object provides for multi-layered framework of management and administration of
Gurdwaras and their properties. An endeavour is made to have the mechanism of checks and balances so that administrative set up at every level
works within the ambit of duties delineated in the Act and the Rules framed under the Act. The advantage of a multi-layered mechanism, it needs
no emphasis, is that every limb of the management/administration works within its own sphere alive to the fact that there is a body above it to keep
a watch on its affairs and that if it goes astray there is a framework under the Act to bring it back on track and if it refuses or ignores to adhere to
the objects of the Act and the Rules it may very well be removed and replaced though temporarily by another body of person(s) to carry out its
affairs till the electorate make their choice. The Board in terms of Section 3(2) is a body corporate, has a perpetual succession, a common seal and
is competent to sue and liable to be sued. The Board as laid down u/s 5 has a fixed term of five years from the date of its constitution. The Board
u/s 9 of the Act is under a statutory obligation to ensure that every committee deals with the property and income of the Gurdwara or Gurdwaras
in accordance with the provisions of the Act and/or the rules made under the Act. Section 9 confers power of general
administration/superintendence of all Committees elected under the Act on the Board. A Committee on the other hand u/s 14 of the Act has
control over all the properties and income of whatever description belonging to the Gurdwara or Gurdwaras under its management. The
Committee has also to enforce the proper observance of ceremonies and religious observances in the Gurdwara or Gurdwaras under its control
The Committee is empowered to take all such measures as may be necessary to ensure proper management of Gurdwara /Gurdwaras and the
effcient administration of the property, income and endowments thereof.
From conjoint reading of the chapter 2 and 3 of the Act it emerges that a Committee is responsible for overall and efficient administration of the
properties, income and endowments of Gurdwara/Gurdwaras under its control. The Board is vested with the powers of general administration,
superintendence over all the Committees under the provisions of the Act. It is thus for the Board to ensure that the Committees under its overal'
superintendence/control discharge their duties and carry out their affairs in accordance with the law and spirit of the Act. So viewed, the ground
urged in the petition that the Committees are more powerful than the Board and the power to remove and suspend the Committees can neither be
vested nor exercised by the Board is not valid. There is neither any constitution nor any statutory impropriety in v. ting the Board with the power to
suspend or remove a Committee in the circumstances spelt out in Rule 63-B of Rules of 1975. The mode and manner in which the Committee(s)
and the Board come into being has nothing to do with the powers conferred under the Act and the Rules made thereunder on the Board and the
Committees respectively. There can be no disagreement with the learned Counsel for the Petitioner that whereas the Committees are elected
directly by the electorate comprising of all Sikhs within the meaning of Rule 2 of the Rules of 1975 and thus has in a way popular mandate, the
Board is a body elected indirectly i.e. by the members of the Committee elected by the Sikh electorate. The method of election direct or indirect
cannot be used to dilute the powers of bodies created under the Act. The Board and the Committees have to act within their spheres and the
Board has indisputably higher place in the hierarchy in as much as the Board is vested with the powers of control and superintendence over the
Committees.
The next ground urged in the petition regarding competence of the rule making authority to make use of its rule making power conferred u/s 19
of the Act to make rule like one impugned in the Petitioner, is devoid of any merit . and does not help the Petitioners to succeed in the petition.
Section 19(1) undoubtedly restricts the rule making power to such rules as are intended to ""carry out the purposes"" of the Act. Section 19(2) is
only illustrative but not exhaustive of the matters that the Rules may provide for. The baseline is that the Rule framed must be necessary to carry out
the purposes of the Act. The purposes of the Act, it may be stated at the cost of repetition, is efficient and transparent management and
administration of the Gurdwaras, their properties and management and last but not the least general affairs thereof. Rule 63B provides for overview
over the affairs of the Committees. The Board that it is otherwise u/s 9 of the Act vested with the power of ""general administration and
superintendence"" over all the Committees is being given a power under Rule 63B to suspend or remove a Committee and replace it by an ad hoc
Committee till a regular Committee is elected in case Board is satisfied that the Committee does not carry out functions and responsibility in
accordance with the provisions of the Act and the Rules made thereof. Rule 63B (f to V) illustrates the circumstances in which the power
conferred may be exercised. The power given to the Board under Rule 63B is thus integral part of the power otherwise vested in the Board u/s 9
of the Act. The Rule 63B, so viewed, falls within the scope of the rule making power of the government with which the government is clothed u/s
19 of the Act. The rule impugned in the writ petition is thus made in proper exercise of the power conferred u/s 19 of the Act.
The ground urged in the petition and emphasized by the learned Counsel for the Petitioner during the course of argument to the effect that Rule
63B must be struck down as it confers wide, unguided and arbitrary powers on the Board does not sound convincing. Rule 63B restricts the
power of suspension/removal conferred on the Board to the eventualities/circumstances spelt out with sufficient precision in the impugned rule. It is
not that the Board may whenever it likes at its whim and caprice suspend or remove Committee. The power is to be exercised only and only if the
Board otherwise having confidence of the Committees, is satisfied that the Committee has failed to carry out its functions and responsibilities in
accordance with the provisions of the Act and the Rules made under the Act. The Board in particular may order suspension/removal of a
Committee when a Committee fails to carry out the functions and responsibilities set out in the Act and the Rules. To illustrate the Board may
suspend or remove a Committee if it does not pass as per initial budget by a particular date, fail to provide for contribution to the Board, commit
gross/serious irregularities in maintenance of Gurdwara accounts, or there is embezzlement and misappropriation of the Gurdwara funds and the
properties reported by the audit party or where the mail-practice and mismanagement is reported in respect of dealing with Gurdwara properties
or the Committee ignores the instructions and directions of the Board. The power conferred under Rule 63 thus cannot be labeled as wide and
having potential of being used at whim and caprice or in an unguided manner. The impugned rule itself lays down the guidelines for exercise of
power conferred under the Rule. The argument advanced by learned Counsel for the Petitioners, while elaborating on one of the averments that
even if the Rule 63B of Rules of 1975 is held to be valid and intra vires, the Board while suspending or removing a Committee and replacing it by
an ad hoc Committee or manager/managers, is required to make a reasoned order merits consideration. Rule 63B, as must be clear by now,
empowers the Board to exercise the powers conferred under the Rule in a particular manner and in a particular set of circumstances. The Rule
requires that the power conferred under it must be exercised by a resolution. It follows that whenever a situation arises which calls for exercise of
the power u/s 63 of the Act and the Rules of 1975 the matter is to be placed before the Board and not an individual office bearer or member of
the Board. The use of expression ""resolution"" implies that the matter is to be discussed/deliberated upon in the meeting of the Board. Once the
matter is so discussed and deliberated upon, the Board may resolve to exercise the powers under the Rule and suspend or remove a Committee
and replace it by an ad hoc Commit tee or a manager/mangers. The mode and manner in which the power is to be exercised leads to the
conclusion that the order suspending or removing a Committee and replace it by an ad hoc Committee or manager/managers it to be objective and
must have support of the members of the Board as laid down under Rule 52 of the Rules. The action of the Board is to exercise the power only
when the circumstance/circumstances spelt out in the Rule warrant exercise of the power. It follows that the Board has to be satisfied before
making use of the power under Rule 63B that on an objective appraisal of the material placed before it, the circumstance/circumstances exist
warrant an exercise of the power under the Rules.
From the above discussion it emerges that suspending/removing a Committee and replacing it by an ad hoc Committee or the manager/managers
till a regular Committee is duly elected, is to be reasoned so that it appears that reasons detailed have to do anything with the matters provided for
under the Act and the Rules made thereunder and further the authority competent to look into the decision/resolution suspending/removing a
Committee may be in a position to assess and evaluate the reasons that prompted action against a duly elected Committee.
For the reasons discussed, while Rule 63-B of the Rules of 1975 is held to be valid and to have been framed in proper exercise of powers
conferred u/s 19 of the Act. The power conferred on the Board is held to be exercised by the Board only through a reasoned resolution/order.
The petition is disposed of accordingly.