HARBHAJAN SINGH v. STATE OF HARYANA & ORS.

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A Schedule are subject to parliamentary legislation under Articles 3 and 4. The State cannot claim to have legislative powers over such waters which are the subject of an inter-State agreement which is continued by a parliamentary enactment, namely, the States Organisation Act, enacted under Articles 3 and 4 of the Constitution. The effect of Section 108 is that the agreement between the predecessor States relating to irrigation and power generation, etc. would continue. There is a statutory recognition of the contractual rights and liabilities of the new States which cannot be affected unilaterally by any of the party States either by legislation or executive action. The power of Parliament to make law under Articles 3 and 4 is plenary and traverses over all legislative subjects as are necessary for effectuating a proper reorganisation of the States. We are unable to accept the contention as to the invalidity of Section 108 of the Act.”

42Copy pinpoint42. The said judgment is in respect of irrigation or water projects wherein the issues were to be decided between the two states by agreement, which is not an issue in the present proceedings. Section 108 of the 1956 Act itself contemplated that if disputes are not settled, the Central Government would decide. Thus, the issue raised and decided is quite distinct from the issue arising in the present case.

43Copy pinpoint43. The High Court of Punjab and Haryana in Kashmir Singh-I was dealing with the appointment of the member of Sikh Gurdwara Judicial Commission vide notification dated 4.7.1989. The Central Government had issued a notification dated 19.10.1978 nominating the State of Punjab in consultation with the State of Haryana for the purposes of exercising its powers under the 1966 Act. The five-Judges Bench of the High Court dealing with the legality of the notification also dealt with the scope of Section 72 of the 1966 Act. The majority of the Bench held that the Board is an inter-State body corporate and the Central Government can give directions with regard to its functioning and operation. Since the successor State neither adopted nor repealed nor made any provisions with regard to the 1925 Act, the Central Government would be competent to give directions and the Board shall operate accordingly in the successor States. It was held as under: “57...................A reading of sub-sections (1), (2) and (3) of Section 72 of the Act of 1966 would leave no one in doubt that the H Board is an inter-State body corporate and the Central Government

HARBHAJAN SINGH v. STATE OF HARYANA & ORS. 1157 [HEMANT GUPTA, J.]

can give directions with regard to its functioning and operation. A Inasmuch as the successor States have neither adopted nor repealed nor made any provisions with regard to the Act of 1925 or for the Board, in particular, the Central Government, till such time provisions are so made, would be competent to issue directions and the Board shall operate in successor B States................ xx xx xx

66. ….............It is significant to note that till such time other provisions were made, that may cater for needs of the successor States, by and large, Central Government was to issue directions. C The territories of the successor States having been defined, if provisions vesting power with the Central Government were not to be made, it would have resulted into chaos as no successor State could have issued directions in the territories not specified in the said State. These were certainly supplemental, incidental and consequential provisions so that there was smooth functioning D of all the bodies and laws in the respective successor States till such time proper arrangements were made for each successor State to issue directions within their own territory. Provisions of Section 72 also appear to be supplemental, incidental and consequential, covered under Part VII of the Act itself. This E inter-State body Corporation under the directions of the Central Government was to function and operate in the areas in respect of which it was functioning and operating immediately before the appointed day untill other provision was made by law, as has been specifically provided in sub-section (1) of Section 72 itself. Sub- sections (2) and (3) of Section 72 are nothing but elaboration or clarification if the doubts, might still persist with regard to directions that can be issued under sub-section (1) of Section 72. ............... … xx xx xx

69. It appears that significant words ‘until other provision is made by law in respect of the body corporate’ escaped notice of the Hon’ble Full Bench. Section 72, dealing with general provisions as to statutory corporations, like the Board under the Act, of 1925, is not intended to be a measure for all times to come, as the words, quoted above, do suggest to the contrary in unequivocal terms.The object of Act of 1966 also H

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A clearly suggests that the provisions contained therein are to make necessary supplemental, incidental and consequential provisions in relation to reorganisation of the State of Punjab. All measures taken thereunder, unless specifically said otherwise, like the Board for Bhakra Nangal and Beas Projects, are temporary in nature. The words ‘until otherwise provided by competent legislature or other competent authority’ which find mention in Section 88 also escaped notice of the Hon’ble Full Bench. The provisions of Part II which deal with reorganisation and creation of successor States, do not effect any change in the territories to which any law in force immediately before the appointed day extends or applies. It clearly means and is accepted position at all ends that the existing laws by virtue of provisions contained in Section 88 would automatically apply. The position in relation to Act, of 1925 is no different. But this provision is once again not an all time measure inasmuch as a competent legislature, which necessarily means legislature of successor State as well, would be well within its power and competent enough to provide otherwise then the existing laws. If that be so and in a given case, the successor State may, in its wisdom, say otherwise, i.e., the Act of 1925 would not apply to the said State, as mentioned above, the Board would no more be an inter-state body corporate. The power to legislate in that case would not be with the Central Government under Entry 44 List-I (Union List) 7th Schedule. The provisions contained in Section 89, vesting power and jurisdiction with the appropriate Government, would necessarily include successor States to repeal or amend any law made before the appointed day, once again, it appears, escaped notice of the Hon’ble Full Bench in arriving at the conclusion, referred to above. We have already held while determining question No. IV that in construing the provisions of a Statute the courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective. G There is no need to elaborate as we have already discussed in sufficient details that the courts have necessarily to give meaning to all parts of the provisions of the Act and to make whole of it effective and operative. xx xx xx H

HARBHAJAN SINGH v. STATE OF HARYANA & ORS. 1159 [HEMANT GUPTA, J.]

70. ...............…We may also mention here that the finding by the A Full Bench that continuation of directions to be given by the Central Government by virtue of Entry 44 in the Union List, the Board being an inter-State body corporate by virtue of Section 72 of the Act of 1966, also can not sustain as, in our view, if the States might adapt, modify or repeal the Act of 1925, the B Board, which is an inter-State body corporate, shall no more remain an inter-State body corporate and its position shall revert to that what it was under the Act of 1925, namely, body corporate.” (Emphasis Supplied) C

44Copy pinpoint44. The aforesaid majority opinion was upheld by this Court in a judgment reported as Kashmir Singh-II wherein, it was held as under: “72. We, therefore, are of the opinion that in view of the situational change, a meaning which could be attributed in the year 1925 D cannot be given the same meaning today. For the aforementioned purpose, Sections 40 and 70 of the Act must be read together. Therefore, a holistic reading of the entire Act would be necessary. So read, the opinion of the majority appeals to us. By reason of such an interpretation, the apprehension that the State would be endowed with the arbitrary power is wiped off.” E

45Copy pinpoint45. A perusal of the judgments in Kashmir Singh-I and Kashmir Singh-II would show that the successor States might adopt, modify or repeal the 1925 Act. The Board, an inter-State body corporate, shall then no longer remain an inter-State body corporate and the position was to revert to what it was under the 1925 Act i.e., body corporate F simplicitor. It was held that Section 72(1) is not intended to be a measure for all times to come and that successor States are competent to make other provisions by law in respect of such body corporates. The object of the 1966 Act was to make necessary, supplemental, incidental and consequential provisions in relation to reorganisation of the State of G Punjab. It was also held that the competent legislature, which necessarily means legislature of the successor State would be well within its power and competence to provide otherwise than the existing laws. Therefore, the successor State may, in its wisdom, could say that the 1925 Act would not apply to the said State. H

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46Copy pinpoint46. The consistent view of the three Full Benches of the High Court and of this Court is that the power of the Centre to issue directions under Section 72 of the 1966 Act is a transitional provision. Therefore, we have no hesitation to hold that the power of the Centre to issue directions under Section 72 of the 1966 Act is indeed a transitional provision to ensure smooth and continuous functioning of a body corporate so that B it is not paralyzed on becoming an inter-State body corporate due to reorganisation of the erstwhile State of Punjab. The directions contemplated by Section 72 relates to functioning and operation of such body corporate. A competent State legislature is not deprived of its power to legislate on the subjects falling within its jurisdiction in terms of List II C of the Seventh Schedule. The 1966 Act does not bar the State Legislature to legislate on the fields of its legislative competence falling under List II of the Seventh Schedule or even in List III of the Seventh Schedule, subject to the limitations as are prescribed in the Constitution. Question No. (iii) - Whether the impugned enactment (Haryana D Act) falls within the legislative competence of the Haryana State Legislature or it falls in Entry 44 of List I of the Seventh Schedule of the Constitution?

47Copy pinpoint47. The primary reliance of the writ petitioner is on the judgment of this Court reported as Rajendra N. Shah. The issue before this E Court in the said judgment was whether the Constitution 97th Amendment introducing Part IX-B, which was found to be non est by the Gujarat High Court for want of ratification by half of the States under the proviso to Article 368(2), is sustainable. This Court upheld the view of the High Court and observed as under:

HARBHAJAN SINGH v. STATE OF HARYANA & ORS. 1161 [HEMANT GUPTA, J.]

legislative power would be that of the Union of India which is A contained in Entry 44 List I. Thus, in Daman Singh v. State of Punjab, (1985) 2 SCC 670, this Court laid down:— “7. …. … According to Mr. Ramamurthi the express exclusion of cooperative societies in Entry 43 of List I and the express inclusion of cooperative societies in Entry 32 of List II B separately and apart from but along with corporations other than those specified in List I and universities, clearly indicated that the constitutional scheme was designed to treat cooperative societies as institutions distinct from corporations. On the other hand one would think that the very mention of cooperative societies both in Entry 43 of List I and Entry 32 of List II along with other corporations gave an indication that the Constitution makers were of the view that cooperative societies were of the same genus as other corporations and all were corporations. In fact the very express exclusion of cooperative societies from Entry 43 of List I is indicative of the view that but for such exclusion, cooperative societies would be comprehended within the meaning of expression “corporations”.

26. It may thus be seen that there is no overlap whatsoever so far as the subject ‘co-operative societies’ is concerned. Co-operative societies as a subject matter belongs wholly and exclusively to the State legislatures to legislate upon, whereas multi-State cooperative societies i.e., co-operative societies having objects not confined to one state alone, is exclusively within the ken of Parliament. This being the case, it may safely be concluded, on the facts of this case, that there is no overlap and hence, no need to apply the federal supremacy principle as laid down by the judgments of this court. What we are therefore left with is the exclusive power to make laws, so far as co-operative societies are concerned, with the State Legislatures, which is contained in Article 246(3) read with Entry 32 of List II. In fact, in K. Damodarasamy Naidu & Bros. v. State of T.N., (2000) 1 SCC G 521, this court held: “21. Parliament, when exercising the powers to amend the Constitution under Article 368, cannot and does not amend State Acts. There is no other provision in the Constitution which so permits and there is no judgment of this Court that so H

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A holds. The power to make laws for the States in respect of matters listed in List II in the Seventh Schedule is exclusively that of the State Legislatures. …..” (Emphasis supplied)

81. The judgment of the High Court is upheld except to the extent that it strikes down the entirety of Part IXB of the Constitution of India. As held by us above, it is declared that Part IXB of the Constitution of India is operative only insofar as it concerns multi- State cooperative societies both within the various States and in the Union territories of India. The appeals are accordingly disposed of.”

48Copy pinpoint48. The said judgment is not applicable to the facts of the present case though it deals with Entry 44 of List I and Entry 32 of List II. The Court was dealing with the legality of the Constitutional Amendment and found that it is entirely for the States to legislate in respect of cooperative societies falling in Entry 32 of List II. It is only multi-State cooperative societies which fall within the power of the Parliament to legislate in terms of Entry 44. The amendment made by Parliament in respect of co-operative societies was not with the approval of half of the States. The said judgment has no applicability to the facts of the present case as the Haryana Act does not have any extra-territorial jurisdiction that it is not applicable to more than one State. The SGPC was a Board which was intra-State body corporate prior to reorganisation of the State in the year 1966. The reorganisation has rendered the SGPC as an inter-State body corporate but the legislative power to legislate on the subject of incorporation of the Corporations would be within the jurisdiction of the Haryana State Legislature. Entry 32 deals with unincorporated trading, literary, scientific, religious and other societies and associations. In respect of such unincorporated trading, literary, scientific, religious and other societies and associations, the competent legislature is the State. In terms of Entry 44 of List I, the Parliament will have jurisdiction only if the SGPC under the 1925 Act continues to be an inter-State entity. The jurisdiction of the successor States either to repeal, modify or enact a new law has not been restricted by the 1966 Act, though it is a special law within the meaning of Articles 2, 3 and 4 of the Constitution. The SGPC became inter-State body corporate not because of Entry 44 List I but because of reorganisation of the territories of the erstwhile State of Punjab. Therefore, Entry 44 would have no applicability

HARBHAJAN SINGH v. STATE OF HARYANA & ORS. 1163 [HEMANT GUPTA, J.]

in respect of legislative competence of the State of Haryana to enact the Haryana Act.

49Copy pinpoint49. The argument of Mr. Shyam Divan and Mr. Ranjit Kumar, learned senior counsels for the State of Haryana and Haryana Committee respectively, is that the source of power of enactment of the Haryana Act is Entry 32, List II of the Seventh Schedule. In exercise of such power, a statutory body is sought to be created; whereas, Entry 28 of List III deals with charities and charitable institutions, charitable and religious endowments and religious institutions. Therefore, any law dealing with charities, charitable institutions and endowments falls within List III. Such law contemplated by List III is a regulatory law to regulate the functioning of charitable institutions or charitable and religious endowments and religious institutions. Whereas, incorporation of a statutory body falls in Entry 32 of List II, as also unincorporated religious and other societies. Therefore, the Haryana Act falls within the legislative competence of the State.

50Copy pinpoint50. The argument of Mr. Nataraj is that under Section 3 of the D 1957 Act, which deals with inter-State bodies, the State Government is required to frame a scheme as SGPC under the 1925 Act is sought to be reconstituted and reorganized being inter-State corporation. Such scheme is required to be forwarded to the Central Government. It is thus the Central Government who is competent to modify the scheme so framed. E Therefore, it is contended that the SGPC under the 1925 Act being an inter-State corporation can be dealt with only in the manner provided in the 1957 Act.

51Copy pinpoint51. The 1966 Act as well as the 1957 Act confer power on the Central Government for smooth transition of new States coming into F existence as a consequence of the reorganization. There is no provision in the 1966 Act which confers legislative power upon the Parliament in respect of the subjects over which the State has legislative competence in terms of List II. Therefore, the transitional provisions i.e., the 1966 Act or the 1957 Act do not impinge upon the legislative competence of the State legislature to enact a law on the subjects mentioned in the List G II. Question No. (iv)- Whether, the impugned Act falls in List-III (Concurrent List) Schedule VII, which required the assent of the President of India as per Article 254(2) of the Constitution of India, and in the absence of such assent, void? H

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52Copy pinpoint52. The said question does not arise for consideration as the impugned Haryana Act does not fall in Entry 28 of List III of the Seventh Schedule. Such Entry reads thus: “28. Charities and charitable institutions, charitable and religious endowments and religious institutions.”

53Copy pinpoint53. In view of such Entry being in the concurrent list, the State can legislate in respect of charities, charitable institutions, charitable and religious endowments and religious institutions. The assent of the President would be necessary if there is an existing statute and the State law is contrary to some of the provisions of the Central law. The Haryana C Committee is the incorporation of a juristic entity which more appropriately falls within the domain of Entry 32 of List II. Though the Haryana Committee is in respect of religious purpose, but the prime intention is of an incorporation of a juristic entity to manage the affairs of the Sikhs in the State. Thus, Entry 32 is wide enough to include incorporation of such statutory entity. D

54Copy pinpoint54. Alternatively, even if it is assumed that the Haryana Act is in furtherance of Entry 28 of List III, the same cannot be said to be void for the reason that it has not been kept reserved for the assent of the President. Such an argument is based upon the reason that the 1925 Act is an inter-State legislation, therefore, the assent of the President is E necessary. As stated before, the 1925 Act was originally an intra-State legislation enacted by the State legislature. It subsequently became an inter-State body only by virtue of the 1966 Act. Since the power to legislate conferred on the State legislature has not been affected in any manner, therefore, the State would have power to legislate both under F Entry 28 of List III or Entry 32 of List II for the reason that the 1925 Act is not an inter-State body corporate in respect of which the Parliament incorporated such Board. Therefore, we do not find any merit in the said argument. Question No. (i) - Whether any fundamental rights of the G petitioners under Articles 25 and 26 of the Constitution of India are violated, so as to entitle the petitioners to invoke the jurisdiction of this Court under Article 32 of the Constitution?

55Copy pinpoint55. It is not disputed that the Haryana Act is similar to the 1925 Act having similar provisions of constituting a committee to manage the affairs under the Act. The Haryana Committee is the Committee H

HARBHAJAN SINGH v. STATE OF HARYANA & ORS. 1165 [HEMANT GUPTA, J.]

constituted under Section 3 of the Haryana Act for the management and A control of the Gurdwaras and Gurdwara properties within the State of Haryana. The Gurdwara property in terms of Section 2(f) of the Haryana Act means all movable and immovable properties of a Gurdwara or any institution which, immediately before the appointed day, vested or was kept in deposit in the name of any Board, Trust, Committee, Gurdwara B Management or was being regulated under the provisions of the 1925 Act. The members of the Committee have to be elected from the eligible voters who is Amritdhari Sikh, a Sikh, and who is eighteen years of age, but not a Patit Sikh and is not an insolvent, mentally retarded or an insane person. The co-option is from the members of the community alone. Therefore, the affairs of the religious minority in the State i.e., C Sikhs is left in the hands of the Sikhs alone in the same manner as was under the 1925 Act. The Haryana Act also provides for Haryana Sikh Gurdwara Judicial Commission in the same manner as is provided under the 1925 Act. The affairs of the Gurdwara are again required to be managed by local Gurdwara Committee. Since the affairs of the Sikh D minority in the State are to be managed by the Sikhs alone, therefore, it cannot be said to be violative of any of the fundamental rights conferred under Articles 25 and 26 of the Constitution.

56Copy pinpoint56. The question as to whether the writ petition is maintainable is answered in the affirmative, inter-alia on the ground that the said writ petitions have been pending before this Court for almost 8 years wherein E an interim order has been in operation throughout. Additionally, the questions, being purely legal, have been examined to give finality to the issues arising in the two matters.

57Copy pinpoint57. In view of the above, we do not find any merit in the writ petitions. The same are dismissed. F

CIVIL APPEAL NO. 6614 OF 2022

58Copy pinpoint58. The challenge in the present appeal is to an order dated 8.3.2018 passed by the High Court of Punjab and Haryana. The challenge is to the notification dated 6.3.2018 whereby the notification dated G 29.8.2014 appointing the appellant as Additional Commissioner Gurdwara Elections was rescinded.

59Copy pinpoint59. The appellant was appointed for five years as Additional Commissioner Gurdwara Elections on 29.8.2014. The post of Additional Commissioner Gurdwara Elections was under the Haryana Sikh H

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A Gurdwaras (Management) Act, 2014. The vires of the aforesaid Act stands upheld by this Court.

60Copy pinpoint60. The appellant has not discharged any functions in view of the stay by this Court. Therefore, the appointment was rescinded. The appellant was appointed for a period of five years, even the term for B which the appellant was appointed has come to an end by afflux of time.

61Copy pinpoint61. Therefore, the appellant has no subsisting cause in the present appeal. The appeal is, thus, dismissed.

Devika Gujral Writ petitions and appeal dismissed. C (Assisted by : Preetam Bharti, LCRA)