judgement:
ppeal No. 39 of 1959.
Appeal by special leave from the judgment and order dated November 26, 1957, of the Bombay High Court at Rajkot in Special Civil Application No. 119 of 1956.
A. V. Viswanatha Sastri, section P. Mehta, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellants.
M. C. Setalvad, Attorney General for India, R. Ganapathy Iyer and D. Gupta, for the respondent.
April 14.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal by special leave against the judgment and order of the High Court of Judicature at Bombay dismissing the appellant 's petition under article 226.
The appellant before us is a private limited company carrying on the business of manufacturing and selling textiles and the respondent is the Income tax Officer of Porbander.
Previous to the year 1949, in Porbander which became a part of the State of Saurashtra, there was no income tax.
In 1949 the Saurashtra Income tax Ordinance (hereinafter termed the Ordinance) was promulgated which was applicable to the State of Saurashtra.
By that Ordinance income tax became leviable and from 1950 onwards when Saurashtra became part of the Union of India the Indian Income tax Act (hereinafter referred to as the Act) became applicable by reason of the Finance Act of 1950 (Act XXV of 1950).
550 The appellant 'Was taxed for the accounting year 1949, i.e., the assessment year 1950 51.
In that year the amount of depreciation allowed under section 10(2)(vi) of the Act was Rs. 3,43,869.
The appellant continued to be assessed to income tax in the assessment years 1952 53 and 1953 54 and the present appeal relates to the assessment of year 1953 54.
According to the assessment order dated June 30, 1965, the amount of depreciation allowed for the assessment year 1953 54 was Rs. 3,48,105.
On August 8, 1955, the appellant made an application for rectification under section 35 of the Act.
In this application he pointed out several mistakes in calculations in regard to the depreciation amount.
By his order of February 27, 1956, the Income tax Officer corrected the Written Down Value of the different properties of the appellant and determined the total allowable depreciation to be Rs. 1,94,074.
The order of the Income tax Officer was as follows: " To arrive at the Written Down Value of the assets it was necessary to maintain depreciation record.
This being not done so far, is done now and working attached.
Depreciation allowance as per rules is worked out at Rs. 1,94,074 as per working sheet attached.
The correct computation of income is as under: Income before allowing depreciation as per original assessment order:Rs.1,00,674 Less charity disallowed wrongly written Rs. 21,889 instead of Rs. 20,124: Rs.1,765 Income Rs.98,909 Less depreciation Rs.1,94,074 Rs.95,165 Less Dividend income as per origi nal assessment order: Rs.11,870 Loss.
Rs.83,295 Loss on account of depreciation to be carried forward.
Declared N. A. " 551 And thus the unabsorbed depreciation amount which under the assessment order of June 30, 1955, was Rs. 2,31,944 was reduced to Rs. 83.,295 and this was set off against the appellant 's income of the assessment year 1954 55.
On February 29, 1956, the Income tax Officer passed two provisional assessment( orders for the years 1954 55 and 1955 56.
In both these orders he calculated the depreciation amounts on the basis of the same Written Down Value as he had determined for the year 1953 54.
The reasons for calculating them on the new basis were set out by the Income tax Officer in his order dated May 18, 1956, and they were: " Less Depreciation.
The depreciation of the Company has not been properly calculated by arriving at, Written Down Value as per the Saurashtra Income Tax Ordinance and also as per Indian Income tax Act.
The assessee Company was being assessed regularly even as per Indian Income tax Act.
So Written Down Value of all assets are arrived at by working out the depreciation as per above Ordinance as well as Income Tax Act.
The depreciation is worked out as per separate statement keeping in view the following: (i) Definition of " assessee " as per Indian Income tax Act.
(ii) The exact meaning of W.D. V. as per Income tax Act.
(iii) The meaning of W. D. V. as per the Saurashtra Income tax Ordinance, 1949 and Rules (Page 20, para.
13 5 A).
(iv) 1.
T. R. Volume 25, 558.
Decision of Calcutta High Court as regards C. I. T., West Bengal,M/s.
Karnani Industrial Bank Ltd. (v) Views expressed by Taxation Enquiry Commissioner, 1953 54, Volume II, page 84, para.
(vi) Taxation Laws (Part 'B ' State) (Removal of Difficulties Order, 1950.
The depreciation thus worked out as per separate statement".
On August 8,1955,the appllant made an application under section 35 for certain corrections in the calculations and the order thereon was passed on February 552 27, 1956, but no written notice of the intended rectifi cation of the Written Down Value and the depreciation amount was given by the Income tax Officer to the appellant under s, 35 read with section 63 of the Act.
On March 9, 1956, the appellant wrote to the Income tax Officer protesting against the order: " You have exercised powers not vested in you under the said Section, and you have gone beyond the purview of the Act by preparing statements and records which are prejudicial to the rights of the Company ".
The appellant requested the Income tax Officer to cancel his previous order and to pass a fresh order correcting onlv those mistakes which had been pointed out by it ' On the same day the appellant sent another letter asking for the cancellation of the provisional assessment order for 1954 55 and requested for a revised assessment order on the basis of the return filed by it.
The reply of the Income tax Officer of the same date was that the order was correct and a similar order was made on the second application in regard to the assessment of 1954 55.
On April 16, 1956, the appellant filed a petition in the High Court of Bombay under articles 226 and 227 in which it alleged that the Income tax Officer had: " exceeded the limits of jurisdiction vested in him and exercised illegally jurisdiction not vested in him by law under Section 35 and passed orders, inter alia, and suo motu and without giving any prior notice and altered the entire procedure and basis of calculating depreciation on the written down value of buildings and machinery of the petitioners The appellant prayed that the order made under section 35 of the Act be quashed and an injunction issued restraining the Income tax Officer from recovering the assessed tax.
The High Court dismissed this petition on the ground that it contained misstatements of fact ; that " The advantage of this jurisdiction is not available to the subject when adequate and efficacious remedy is available to him under the ordinary law " ; that the appellant could, under section 33A of the Act, 553 have gone in revision to the Commissioner.
The High Court also held against the appellant on merits.
The appellant has come to this Court by special leave and three questions were raised (1) that no notice as required under section 35 was given to the appellant; (2) that there was no record on the basis of which the rectifica.
tion in the Written Down Value of the property could be made and (3) that there was no mistake apparent from the record.
The learned Attorney General contended in the first instance that the remedy available under article 226 is a discretionary one and if the High Court had exercised its discretion no appeal was competent and in support of his contention he relied upon the judgment of this Court in K. section Rashid & Son vs Income tax Investigation Commission, etc.
(1), where Mukherjee, J., (as he then was) said: For purpose of this case it is enough to state that the remedy provided for in article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere ".
It is not necessary to decide in this case whether the order passed under article 226 is of a discretionary nature and therefore in appeal this Court would not interfere with the exercise of discretion, because in our opinion, the case can be decided on other grounds of substance.
The first question is that of notice under section 35 of the Act.
The affidavit of the Income tax Officer shows that the correctness of the figures for determining the depreciation was discussed with the appellant 's Secretary.
The Income tax Officer stated that: " The depreciation which was calculated in the assessment order of 1953 54 was as per the statement given by the petitioner.
On submission of the said application the petitioner (Shri Ganatra, the Secretary of the Mills) was told that the depreciation will be given after rectifying mistakes.
The petitioner had (1) ; , 747.
70 554 agreed to the same.
There being no record of the working out from the first available record in the Assessment order for the Assessment year 1943 44, the petitioner was also supplied with the copy of the working of the depreciation along with the necessary rules and regulation for calculating the same ".
He also stated that the order of rectification was passed "almost at the end of the financial year, after explaining and discussing all the above calculation along with the relevant rules and regulation of the calculated depreciation " ; that the order was not passed without giving a reasonable opportunity to the appellant; that the matter was discussed with its representative more than once; thattheassessment for the year 1954 55 was made final after calculatitig the depreciation; that the point of depreciation was notraised by the applicantat any hearingand that even though no written notice was given, the represen tative of the appellant was given notice of the intended determination of the Written Down Values.
He also stated : " Thus though no written notice is given, applicant is given notice of the intention of calculating depreciation on record basis and is also allowed a reasonable opportunity of being heard inasmuch as he was given the calculation of depreciation on 21 2 1956 ".
The orders placed on the record show that the Income tax Officer made calculation for the purpose of determining the depreciation amount and after giving deductions allowed by the Act and the Rules made thereunder arrived at the corrected figure of Rs. 1,94,074 for the assessment year 1953 54.
Apart from the fact that the petition of the appellant does not set out clearly all the facts which should have been set out, there is the affidavit of the respondent that the matter was discussed with the representative of the appellant although no written notice was given.
In this connection the learned Attorney General has further submitted (1) that the order determining the depreciation amount allowable was not final; (2) that the effect of the order making the rectification 555 was not of enhancing the assessment or reducing the refund; and (3) that the question of depreciation could be raised at the time of assessment in any subsequent year.
The object of the provision as to notice in section 35 is that no order should be passed to the detriment of an assessee without affording him an opportunity but it cannot be said that the Rule is so rigid that if, as a matter of fact, the assessee knows of the proceedings and the matter has been discussed with him then an adverse order would be invalid merely because no notice under section 63 was given.
Of course this postulates that a reasonable opportunity has been given to show cause.
Secondly this provision is applicable only where the assessment is enhanced or refund is reduced.
Neither of those contingencies has arisen in the present case.
The depreciation allowed to the appellant in the year of assessment 1943 44 when the appellant was assessed as a non resident, was Rs. 1,91,224.
In the year 1944 45 there was no asssessable income in British India and so also in 1945 46.
In the year 1946 47 there was a loss.
In the year 1947 48 as in the preceding years the sales were effected at Porbander and there was no collection made in British India.
The total tax due was calculated at Rs. 43 11As.
In 1948 49 the sales were Rs. 38,656 and they were assessed to income tax on a total income of Rs. 9,326.
For the accounting year 1948, i.e., the assessment year 1949 50 when the Ordinance came into force the total depreciation amount allowed was Rs. 3,66,925 which was much more than what was allowable on the Written Down Values determined in accordance with the provisions of the Ordinance which defined Written Down Value: Written Down Value means (a) In the case of assets acquired in the previous year, the actual cost to the assessee; (b) In the case of assets acquired before the previous year the actual cost to the assessee less all depreciation actually allowed to him under this Ordinance or allowed under any Act repealed hereby or 556 which would have been allowed to him if the Indian Income tax Act, 1922, was in force in past ".
On the basis of this Ordinance and the other Statutes and Rules mentioned in his affidavit, which have been set out above, the Income tax Officer made the various calculations and determined the depreciation amounts which have given rise to the controversy before us.
These calculations were based on the Written Down Values for the successive assessment years up to the year of assessment 1953 54.
But it was argued by counsel for the appellant that according to section 10(5)(b) of the Act the Written Down Value in the case of assets acquired before the previous year mean the actual cost to the assessee less all depreciation actually allowed to him under the Act or under any Act repealed thereby and therefore the provisions of the Saurashtra Ordinance which came to an end when the Act became applicable cannot form the basis of determining the Written Down Value for the purposes of assessment of the years 1950 51 onwards.
In reply it was submitted that the Written Down Values were calculated and depreciation deter mined for the year 1943 44 and should in subsequent years have been calculated in accordance with the provisions of the Ordinance and they could not become higher for purposes of section 10(5)(b) of the Act merely because the Ordinance was replaced by the Act.
In this connection reference was made to section 12 of the Finance Act, 1950, section 12 of which empowered the Central Government to make provision for the removal of difficulties in giving effect to the provisions of any of the Acts, Rules or Orders extended by section 3 or section 11 of that Act, i. e., Finance Act, 1950.
Under that section (section 12) the Taxation Laws (Part B States) Removal of Difficulties Order, 1950, was promulgated on December 2, 1950, and by cl. 2 of this Order provision was made for computation of aggregate depreciation allowance and Written Down Values.
To this Order the following explanation was added on March 9, 1953: (Notification No. section R. 0.
477): " For the purposes of this paragraph, the expression " all depreciation actually allowed under any 557 laws or rules of a Part B State " means and shall be deemed to have always meant the aggregate allowance for depreciation taken into account in computing the Written Down Value under any laws or rules of a Part B State or carried forward under the said laws or rules.
But the appellant 's counsel contended that this explanation is ultra vires because it was promulgated under section 60 A of the Act and that section was inapplicable to the Order made under section 12 of the Finance Act, 1950.
He relied on two cases decided by the Hyderabad High Court in section V. Naik vs Commissioner of Income tax (1) and Commissioner of Income tax vs D. B. R. Mills Ltd. (2) but we are informed that one of those judgments is under appeal to this Court and we therefore do not wish to express any opinion upon the cor rectness or otherwise of this contention raised by the appellant.
It was next argued by the learned Attorney General that the Written Down Values determined under section 35 are not final and can be redetermined in the following assessment years and in support he referred to Karnani Industrial Bank vs Commissioner of Income tax (3) where the original cost of the machinery purchased ]Rs. 3,40,000 was accepted in the successive assessment years till it was doubted in the assessment order 1946 47 and was determined at Rs. 2,80,000 and it was contended that the Income tax Officer had to take the Written Down Value of the previous year as correct.
Thus the question there raised was whether the Income tax Officer was entitled in law to go behind the original cost accepted by his predecessor ever since the assessment year 1939 40.
It was held that neither the principle of res judicata nor estoppel nor the terms of section 10 (2) (vi) of the Act prevented the Income tax Officer from determining.
for himself ' what the actual cost of the machinery had been and that depreciation had to be calculated for every year and it was open to the Income tax Officer not merely to perform " a mathematical operation on (1) (2) , (3) 558 the basis of the Written Down Value of the previous year, but one of determining the Written Down Value himself ".
The limit to which the Income tax Officer can go back does not stop at the Written Down Value of the previous year but extends up to the figure of the original cost, and the method enjoined by section 10(5)(b) is not that the Income tax Officer should merely scale down the Written Down Value of the previous year, but that he should take into consideration the actual cost, determining it for himself, if necessary, take also into consideration the allowances granted in the past and then make his own computation as to the Written Down Value for the assessment year with which be is concerned.
Thus it cannot be said that merely because under section 35 some Written Down Value and the depreciation amount have been determined they are a final determination binding for all times to come nor does the determination operate as estoppel or resjudicata for the following years.
Therefore it cannot be said that there is no other efficacious and adequate remedy open to the appellant to challenge the depreciation amount determined under section 35.
Counsel for the appellant contended that the provision under which the Income tax Officer acted, i. e., 35 was not meant for the purpose of making corrections in Written Down Values; and that for the purpose the appropriate and correct provision was section 34 which specifically refers to excessive depreciation.
There are two sections under which an Income tax Officer can act, i. e., sections 34 and 35 and the question for decision that arises is whether section 35 was open to him.
Section 35 provides: " The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner, in revision under section 33A and the Income tax Officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee ".
The question therefore is was it a mistake apparent from the record which the Income tax Officer has rectified.
It was submitted that recalculation is not rectifying a mistake which is apparent from the record.
The words used in the section are " apparent from the record " and the record does not mean only the order of assessment but it comprises all proceedings on which the assessment order is based and the Income tax Officer is entitled for the purpose of exercising his jurisdiction under section 35 to look into the whole evidence and the law applicable to ascertain whether there was an error.
If he doubts the Written Down Value of the previous year it is open to him to check up the previous calculations and if he finds any mistake it is open to him to make fresh calculations in accordance with the law applicable including the rules made thereunder.
The Privy Council in Commissioner of Income tax vs Khem Chand Ramdas(1) held section 35 to be applicable where the facts were that the assessee did not produce books of account and an assessment was made by the Income tax Officer to the best of his judgment.
An application for the registration of the firm was however allowed and it was registered on January 17, 1927.
On the same day assessment was made under section 23(4).
As it was a registered firm no super tax was assessed.
The Commissioner called for the record under section 33 and cancelled the registration on January 28, and ordered the Income tax Officer to take necessary con sequential action.
The result of that was that the assessee became liable to super tax.
Consequently an order for super tax was made on May 4, 1929, and three days later notice of demand was issued.
The Privy Council held that as the fresh action taken by the Income tax Officer was hopelessly out of time the demand for super tax was illegal because after the final assessment the Income tax Officer could not go on making fresh computations and issuing fresh notices of demand to the end of all time but it was held that (1) (1938) L. R. 65 I.A. 236. 560 the provisions of sections 34 and 35 prescribed the only circumstances in which fresh assessment could be made and fresh notice of demand could be issued.
At p. 426 Lord Romer observed: " In the present case it is a debatable question r whether the circumstances were such as to bring it within the provisions of Section 34.
It is not necessary to determine that question inasmuch, as, in.
their lordship 's opinion, the case clearly would have fallen within the provisions of section 35 had the Income tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents.
For, looking at the record of the assessments made upon them as it stood after the cancellation of the respondent 's registration and the order affecting the cancellation would have formed part of that record it would be apparent that a mistake had been made in stating that no super tax was leviable ".
Thus the order effecting the cancellation of the regis tration of the assessee 's firm was considered to have formed part of the record of the case.
In Sidhramappa Andannappa Manvi vs Commis.
sioner of Income tax (1) the facts were that a debt belonging to a joint family fell on partition to the share of the assessee.
This debt was held not to be recoverable by a judgment of the Bombay High Court dated September 29, 1941.
Holding it to be within the accounting year the Appellate Tribunal allowed this sum to be taken into consideration for the purpose of the accounting year.
It subsequently corrected the error.
It was held that under section 35 the Tribunal was entitled to rectify the mistake and was competent to pass a consequential order dismissing the appeal instead of allowing it.
The power under section 35 is no doubt limited to rectification of mistakes which are apparent from the record.
A mistake contemplated by this section is not one which is to be discovered as a result of an argument but it is open to the Income tax Officer to examine the record including the evidence and if he discovers any (I) (2) S.C.R. SUPREME COURT REPORTS 561 mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.
The scope and effect of the expression "mistake apparent from the record " and the extent of the powers of the Income tax Officer under section 35 of the Act were discussed by this Court in M. K. Venkatachalam vs Bombay Dyeing and Manufacturing Co. Ltd. (1) where the facts were these: A sum of Rs. 50,063 being interest on tax paid in advance was given credit for under section 18A(5) of the Act.
Subsequently there was an amendment of the Act by which the interest became allowable only on the difference between the amount of tax paid and what was actually determined.
As a consequence of this the Income tax Officer purporting to act under section 35 of the Act rectified the mistake and reduced the amount of interest credited to Rs. 21,157 and issued a demand for the difference.
The assessee obtained a writ of prohibition against the Income tax Officer on the ground that the mistake contemplated under that provision had to be apparent on the face of the Order and it was not contemplated to cover a mistake resulting from an amendment of the law even though it was retrospective in its effect.
The Revenue appealed to this Court.
Thus the question for decision in that case was whether ail order proper and valid when made could be said to disclose a mistake apparent from the record merely because it became erroneous as a result of a subsequent amendment of the law which was retrospective in its operation.
In delivering the judgment of the Court Gajendragadkar, J., said: " At the time when the Income tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952.
If that be the true position then the order which he made, giving credit to the (1) ; 7I 562 respondent for Rs. 50,603 15 0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record.
If a mistake of fact apparent from the record of the assessment order can be rectified under section 35 we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified ".
The decision of the Privy Council in Commissioner of Income tax vs Khem Chand Ram Chand (1) was referred,to.
Counsel for the appellant sought to distinguish both these cases; Venkatachalam 's case (2) and Khem Chand 's case(1) on the ground that the record there considered was the assessment record of that year and the Income tax Officer did not have to go to the records of the previous year.
That is a distinction without a difference.
If, for instance, the Income.
tax Officer had found that in the assessment year 1952 53 there was an apparent arithmetical mistake in the account of the Written Down Value of the pro.
parties which resulted in a corresponding mistake in the assessment of the year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record.
A fortiori if lie discovered that the very basis of the different assessments was erroneous because of an initial mistake in determining the Written Down Value could it be said that this would not be a mistake apparent from the record.
And if in order to determine the correct Written Down Value the Income tax Officer makes correct calculations, can it be said that is not rectifying a mistake apparent from the record but is dehors it.
In our opinion this appeal is without force and we would therefore dismiss it with costs.
Appeal dismissed.
(1) (1938) L.R. 65.1.A. 236.

summary/full:
Sub section (1) Of section 35 of the Indian Income tax Act, 1922, provided: the Income tax officer may on his own motion rectify any mistake apparent from the record and shall rectify any such mistake which has been brought to his notice by an assesses : Provided that no such rectification shall be made, having the effect of enhancing or reducing a 548 refund unless. the Income tax Officer. has given notice to the assessee of his.
intention so to do and has allowed him a reasonable opportunity of being heard.
" The appellant, a private limited company, was assessed to income tax for the assessment year 1953 54 under the provisions of the Indian Income tax Act, 1922, and as per the assessment order dated June 30, 1955, the amount of depreciation allowed under section 10(2)(vi) of the Act was Rs. 3,48,1O5.
On August 8, 1955, the appellant made an application before the Income tax Officer for rectification of the order under section 35 of the Act, pointing out certain mistakes in calculation in regard to the depreciation amount.
By his order of February 27, 1956, the Income tax Officer corrected the written down value of the different properties of the appellant and determined the total allowable depreciation to be Rs. 1,94,074.
The appellant challenged the order dated February 27, 1956, on the grounds, inter alia, (1) that he was not given a written notice of the intended rectification of the written down value, (2) that the provisions under which the Income tax Officer acted, i.e., section 35 of the Act, was not meant for the purpose of making corrections in written down values, the correct provision being section 34 which specifically refers to excessive depreciation, and (3) that, in any case, he had exceeded his jurisdiction under section 35 of the Act in calculating the depreciation on the written down value of the buildings and machinery of the appellant acting suo motu, and that he could correct only those mistakes which had been pointed out by it.
It was found that notice was given to the appellant of the intended determination of the written down value, though it was not a written notice, and that the matter was discussed with its representative.
Held : (i) that the object of the provision as to notice under section 35 Of the Indian Income tax Act, 1922, is that no order should be passed to the detriment of an assessee without affording him an opportunity for being heard and that if, as a matter of fact,the assessee knew of the proceedings and the matter had been discussed with him, an adverse order would not be invalid merely because no written notice was given.
(2) that the word " record " used in the phrase " mistake apparent from the record" in section 35(I) of the Act refers not only to the order of assessment but comprises all proceedings on which the assessment order is based and the Income tax Officer is entitled for the purpose of exercising his jurisdiction under section 35 to look into the whole evidence and the law applicable to ascertain whether there was an error.
If he doubts the written down value of the previous year it is open to him to check up the previous calculations and, if he finds any mistake, to make fresh calculations in accordance with the law applicable including the rules made thereunder.
A mistake contemplated by this section is not one which is 549 to be discovered as a result of an argument but it is open to the Income tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund, then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.
Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd., ; , Commissioner of Income tax vs Khemchand Ramdas, [1938] L.R. 65 I.A. 236 and Sidhramappa Andannappa Manviv.
Commissioner of Income tax, , relied on.


judgement:
13 of 1959.
Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights.
Harnam Singh and Sadhu Singh, for the petitioners.
section M. Sikri, Advocate Gencral for the State of Punjab, Gopal Singh and D. Gupta, for respondent No. 1.
1959, April 1.
The judgment of the Court was delivered by section K. DAS, J.
This is a petition under article 32 of the Constitution in which the petitioners challenge the constitutional validity of section 148 B of the Sikh Gurdwaras Act, 1925 (Punjab VIII of 1925), hereinafter called the principal Act, the said section having been added to the principal Act by the Sikh Gurdwaras (Amendment) Act, 1959, hereinafter called the amending Act of 1959.
The petitioners profess and practice the Sikh faith and they allege that they are interested in the maintenance and management of Sikh Gurdwaras, scheduled and notified under the principal Act.
Their main contention is that section 148 B violates the fundamental right granted under article 26(b) of the Constitution to every religious denomination or any section thereof including the Sikh denomination, " to 502 manage its own affairs in matters of religion ".
The respondents to the petition are, firstly, the State of Punjab and, secondly,, President and twelve members of the Interim Gurdwara Board, Patiala, who under cl.
(a) of sub section
(1) of section 148 B shall be deemed to be members of the Board constituted under section 43 of the principal Act.
That Board is now known by the name of the Sikh Gurdwara Prabandhak Committee.
The application has been contested before us by respondent No. 1 only, namely, the State of Punjab, on the ground that section 148 B does not, in any way, violate the fundamental right granted to the petitioners or other members of the Sikh denomination under article 26(b) of the Constitution.
Therefore, the only question for consideration before us is if section 148 B of the principal Act does or does not contravene the fundamental right granted to the Sikhs under article 26(b) of the Constitution.
We shall presently set out the provisions of section 148 B and also of some other relevant sections of the principal Act.
But before we do that, it is necessary to state a few facts with regard to the passing of the amending Act of 1959.
It has been stated before us that in or about the year 1919 there was considerable unrest amongst the Sikhs in the Punjab in respect of the management of their gurdwaras and shrines, and in 1922 an Act called the Sikh Gurdwaras and Shrines Act was passed; this did not satisfy the Sikhs and in 1925 the principal Act was passed, as its preamble states, " for the better administration of certain Sikh gurdwaras and for enquiries into matters and settlement of disputes connected therewith ".
The principal Act was amended from time to time.
On November 1, 1956, there was merger of the erstwhile State of Patiala and the East Punjab States Union (hereafter called Pepsu in brief) with the State of Punjab.
Sometime in February 1957 the Government of the State of Punjab appointed an advisory committee to report as to whether the principal Act should be extended to the area which was formerly within Pepsu.
In September 1957 the committee recommended in favour of such extension.
On April 8, 1958, a bill called the Sikh 503 Gurdwaras (Amendment) Bill, 1958, was introduced in the Punjab Vidhan Sabha and the Bill was sent to the regional committees constituted by an order of the President called the Punjab Regional Committees Order, 1957, made under el.
(1) of article 371 of the Constitution.
The regional committees dealt with the Bill and made certain recommendations.
For the purposes of the application before us, it is unnecessary to go into details of the proceedings before the regional committees.
Sometime in November 1958 there was a meeting of the Sikh Gurdwara Prabandbak Com mittee for the purpose of the annual election.
Learned counsel for the petitioners has stated before us that at this meeting there was a majority by a very small margin (three votes only) in favour of a particular group of Sikhs and against another group known as the " Shiromoni Akali Dal".
Within one week, however, a notice was given for calling a meeting to consider the provisions of the amending Bill; this meeting could not, however, be held as an order of stay was obtained from the Judicial Commission constituted under the principal Act.
In December 1958 a special session of the Vidhan Sabha was summoned to consider the amending Bill.
It has been stated that originally the amending Bill did not contain provisions like those later embodied in section 148 B.
The Bill was accordingly sent back to the regional committees and on December 27, 1958, the regional committees submitted a final report and recommended the addition of provisions which subsequently became the provisions of section 148 B of the principal Act.
It may be here stated that even in the regional committees there was some opposition to the provisions in question.
On December 31, 1958, the Bill was passed by the Vidhan Sabha, and on January 3, 1959, it was passed by the Legislative Council.
On January 8, 1959, it received the assent of the Governor and became Punjab Act No. 1 of 1959, which is the Amending Act of 1959.
It came into force at once and some rules under the Act were made a few days after.
On February 2, 1959, the present petition was filed and on February 14, 1959, the election of 35 Sikhs contemplated under el.
(b) of sub section
(1) of section 148 B was completed.
504 It is necessary at this stage to refer to some of the old provisions of the principal Act as also the new provisions added by the amending Act of 1959.
The Board which is known as the Sikh Gurdwara Prabandhak Committee acts as the committee of management in respect of some of the principal Sikh gurdwaras; in addition, it also has the duty of ensuring that every committee of management deals with the property and income of the gurdwara or gurdwaras managed by it in accordance with the provisions of the Act and for the fulfilment of this duty it exercises control, direction and general superintendence over all committees appointed under the provisions of the principal Act (see section 125).
The Board is constituted under section 43 of the principal Act.
Previous to the passing of Punjab Act No. 44 of 1953, section 43 said that the Board shall consist of (i) 84 elected members, (ii) the bead ministers of certain well known Sikh gurdwaras, (iii) 12 members nominated by the Rajpramukh of Pepsu and (iv) 17 members resident in India of whom not more than four shall be residents in Punjab, co opted by the members of the Board as described in (i), (ii) and (iii) above.
In 1953 was passed Punjab Act No. 44 of 1953 and section 43 of the principal Act was amended.
The amended section was in these terms: " section 43.
(1) The Board shall consist of (i) one hundred and thirty two elected members; (ii) the head ministers of the Darbar Sahib, Amritsar, and the following four Takhts, namely,the Sri Akali Takht Sahib, Amritsar, the Sri Takht Kesgarh Sahib, Anandpur, the Sri Takht Patna Sahib, Patna, and the Sri Takht Nazur Sahib, Hyderabad Deccan ; and (iii)twenty five members resident in India of whom at least twelve shall be residents of Pepsu, at least nine of other parts of India than Punjab and Pepsu and not more than four of Punjab, co opted by the members of the Board as described in clauses (1) and (ii).
(2). . . " It would thus appear that after the passing of Punjab 505 Act No. 44 of 1953 the Board consisted of only three categories of members, namely, (1) elected members, (2) certain designated members and (3) 25 co opted members.
Now, we come to section 148 B which was added by the amending Act of 1959.
That section in so far as it is material for our purpose is in these terms : " section 148 B. (1) As from the commencement of the Amending Act, in addition to the members of the Board constituted under section 43 and till the next election of the new Board under section 43 A (a)every person in the extended territories who, immediately before the commencement of the Amending Act, is a member of the Interim Gurdwara Board, Patiala, constituted by Punjab Government, Home Department, Notification No. 18 Gurdwaras, dated the 10th January, 1958, shall be deemed to be a member of the Board, constituted under section 43; and (b)thirty five Sikhs including six Sikhs belonging to the Scheduled Castes residents in the extended territories, to be divided among different districts thereof in proportion to the Sikh population of each district in the prescribed manner, who shall, within forty days of the commencement of the Amending Act, be elected by the persons specified in subsection (2) in accordance with the rules made in this behalf by the State Government, shall become the members of the Board from the date specified in subsection (3).
(2) The thirty five persons referred to in clause (b) of sub section (1) shall be elected by (i) the persons who are deemed to be the members of the Board under clause (a) of sub section (1) ; (ii) the twelve members of the Board being residents of Pepsu as are referred to in clause (iii) of sub section (1) of section 43; (iii) the sitting Sikh members of Parliament and the two Houses of State Legislature returned from any constituency or part thereof from the extended territories; (iv) the Sikh members of Municipal Committees in the extended territories; 64 506 (v)the Presidents or Chairmen of such Singh Sabhas and the Managers or Secretaries of such Sikh educational institutions or Sikh religious organisations as are registered on or before the 1st December, 1958, in the extended territories; and (vi) the Sikh Sarpanches and Sikh Nayay Pardhans of Nagar Panchayats and Panchayati Adalats, respectively: Provided that the electors under clauses (iii), (iv), (v) and (vi) are not disqualified under the proviso to section 49 of the Act.
(3) . . . . (4) . . . . (5) . . . . " It is worthy of note here that section 148 B occurs in chapter XII A and the heading of the chapter is " Temporary and Transitional Provisions " which indicates clearly enough that the provisions in sections 148 B to 148 F ate temporary and transitional provisions.
It has been stated at the Bar that in about a year, a fresh election of the Board is due under section 43 A, and the temporary and transitional provisions in chapter XII A are to be in force only for the intervening period.
Section 43 A which was also added by the amending Act of 1959 says "section 43 A. (1) Whenever a new Board within the meaning of section 51 is constituted, it shall consist of (i) one hundred and forty elected members; (ii) the Head Ministers of the Darbar Sahib, Amritsar, and the following four Takhats, namely : the Sri Takhat Sahib, Amritsar, the Sri Takhat Keshgarh Sahib, Anandpur, the Sri Takhat Patna Sahib, Patna, and the Sri Takhat Hazur Sahib, Nanded; and (iii) fifteen members resident in India, of whom not more than five shall be residents of Punjab, coopted by the members of the Board as described in clauses (i) and (ii).
(2) The State Government shall, as soon as may be, call a meeting of the members of the Board described in clauses (i) and (ii) of sub section (1) for the 507 purpose of co opting the members described in clause (iii) of that sub section, and after the members have been co opted, the State Government shall notify the fact of the Board having been duly constituted and the date of the publication of the notification shall be deemed to be the date of the constitution of the Board.
" Thus, the new or permanent Board which will be constituted under section 43 A will consist of (1) one hundred and forty elected members, (2) five designated members, and (3) fifteen co opted members, and there will be no room for any nominated members therein.
The petitioners have raised no objections to the constitution of the Board under section 43 A; all their objections are confined to the constitution of the Board under section 148 B, even though it is a transient provision for the transitional period only.
What then are these objections, in so far as they bear on the alleged violation of the petitioners ' fundamental right under article 26 (b) of the Constitution ? Learned counsel for the petitioners has first commented on what he has characterised as undue haste in passing the amending Act of 1959.
He has submitted that the Pepsu area came within the State of Punjab in November, 1956, and for about two years, the Punjab Government evinced no serious anxiety to extend the principal Act to that area; but from November 16, 1958, when the annual election of the Sikh Gurdwara Prabandhak Committee was held, up to January, 1959, when the amending Act of 1959 was passed, hurried proceedings were taken to enact the amending law in question and so constitute the Board that a particular group of Sikhs might not regain the majority it had lost on November 16, 1958.
In our opinion these submissions (we do not say whether they are right or wrong) have no hearing on the question at issue before us.
The petitioners have not specifically alleged in their petition that the State Government has acted in any mala fide manner; and whatever justification some people may feel in their criticisms of the political wisdom of a particular legislative or executive action, this Court cannot be called 508 upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make.
We do not say that in pronouncing on the rights of the parties before it, this Court must always stand aloof on the chill and distant heights of abstract logic and pay no heed to the great tides and currents which move society and men.
If and when the occasion demands, for example, when there is violation of a fundamental right guaranteed by the Constitution, it will never hesitate to act.
But it is well to remember that a fundamental right, such as freedom of religion, is of an enduring character and must stand beyond the sweep of changing and deflecting forces of current opinion.
Our limited function in this case, therefore, is to examine the constitutionality of section 148 B, and to that task we must now confine our attention.
The main argument of learned counsel for the petitioners is that article 26(b) gives to every religious denomination, or any section thereof, the right " to manage its own affairs in matters of religion " and the right is subject only to public order, morality and health.
In this case, according to him, the right is given to all members of the Sikh denomination and not to any particular members thereof, to manage Sikh gurdwaras ; therefore, the right must be exercised by all Sikhs, and they alone must elect their representatives to manage Sikh gurdwaras; and to the extent that section 148 B departs from the aforesaid principle, it con stitutes an infringement of the right guaranteed to the petitioners under article 26(b) of the Constitution.
We are unable to accept this argument as correct.
Article 26 of the Constitution, so far as it is relevant for our purpose, says " article 26.
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a). . . . . (b) to manage its own affairs in matters of religion 509 (d) to administer such property in accordance with law.
The distinction between cls.
(b) and (d) strikes one at once.
So far as administration of its property is con cerned, the right of a religious denomination is to be exercised in " accordance with law ", but there is no such qualification in el.
In The COmmissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), this distinction was pointed out by this Court and it was there observed: " The administration of its property by a religious denomination has thus been placed OD a different footing from the right to manage its own affairs in matter of religion.
The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose ".
Secondly, the expression used in cl.
(b) is 'in matters of religion '.
In what sense has the word 'religion ' been used ? This was considered in two decisions of this Court: The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shiru Mutt (1) and Sri Venkataramana Devaru vs The State of Mysore (2), and it was hold that freedom of religion in our Constitution is not confined to religious beliefs only, but extends to essential religious practices as well subject to the restrictions which the Constitution has laid down.
In The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1) it was observed at p. 1026 that under article 26(b), a religious denomination or Organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold (we emphasise here the word 'essential ').
The same emphasis was laid in the later decision of Sri Venkataramana Devaru vs The State of Mysore (2), where it was said that matters of religion in article 26(b) include practices which are regarded by the community as part of its religion.
Two questions, therefore, (1) ; ,1023, 1026.
(2) ; 510 arise in connection with the argument of learned counsel for the petitioners: (1) does section 148 B added to the principal Act by the amending Act of 1959 have reference only to administration of property of Sikh gurdwaras and, therefore, must be judged by cl.
(d) of article 26 or (2) does it affect ' matters of religion ' within the meaning of cl.
(b) of the said Article ? The argument on behalf of the petitioners is that the principal Act to which section 148_B has been added relates not merely to administration of properties of Sikh gurdwaras but also to matters of religion and in so far as section 148 B brings in new members into the Board, it affects Sikhs in their religious affairs.
The argument on behalf of the respondent State is that matters of religion in the sense of essential beliefs and practices of the Sikh faith are left untouched by section 148 B, and even other relevant sections of the principal Act do not interfere with Sikh religion.
In this connection, our attention has been drawn to the provisions in Ch.
X which deal with the powers and duties of the Board and to those in Ch.
XI which deal with powers and duties of Committees.
Section 125, to which we have already referred, states that the duty of the Board is to ensure that every Committee deals with the property and income of the gurdwara or gurdwaras it manages in accordance with the provisions of the Act and in fulfilment of that duty, the Board has vested in it control, direction and general superintendence over all committees appointed under the provisions of the Act.
Section 129 states " section 129.
The Board in any meeting may consider and discuss any matter with which it has power under this Act to deal and any matter directly connected with the Sikh religion, but shall not consider or discuss, or pass any resolution or order upon, any other matter.
" If section 129 is read subject to section 125 as the learned Advocate General for the State contends it should be read, then the powers and duties of the Board, in substance and effect, relate to administration of gurdwara properties and matters ancillary thereto.
They have 511 hardly any reference to ' matters of religion '.
Section 133 states generally the powers of Committees, and one of the powers is I enforcing the proper observance of all ceremonies and religious observances in connexion with such gurdwara or gurdwaras and of taking all such measures as may be necessary to ensure the proper management of the gurdwara or gurdwaras and the efficient administration of the property, income and endowments thereof. ' Learned counsel for the petitioners has emphasised that part of the section which relates to I proper observance of all ceremonies and religious observances ' and has contended that as the Board is the committee in respect of some of the principal gurdwaras, it has a duty to ensure proper observance of all essential religious ceremonies of the Sikh faith, which according to him is a I matter of religion '.
Under section 134, the Committee has power inter alia to dismiss an office holder or minister, if he fails in the performance of 'any rituals and ceremonies in accordance with the teachings Of Sri Guru Granth Sahib ' or has ceased to be a Sikh ; it is contended that this power also relates to a 'matter of religion ' within the meaning of article 26(b).
Without a fuller and more detailed examination of the provisions of the principal Act we hesitate to pronounce finally on the larger question if any of the other provisions of the principal Act affect matters of religion ; nor do we think it necessary to decide that larger question in the present case.
We are of the view that the present petition can be decided on a shorter ground, even if we proceed on the assumption that some of the provisions of the principal Act relate to matters of religion and the Board, either acting in exercise of its power of control, direction and superintendence over other committees or in its capacity as the committee for certain gurdwaras, can pass orders about matters of religion.
We may point out, however, that the preamble of the principal Act indicates that it is mainly a law to provide for the better administration of certain Sikh gurdwaras and it is admitted that in so far as the powers of the Board relate to mere administration of gurdwara properties in either 512 of its two capacities, such administration must be in accordance with law, and the appropriate legislature can lay down what the law should be.
The question which is decisive of the present petition is does section 148 B interfere in matters of religion ? Sections 133 and 134 of the principal Act are not impugned before us; what is impugned is section 148 B.
That section has not in any way affected whatever powers the Board or Committee has under sections 133 and 134 of the principal Act.
The gravamen of the objections urged on behalf of the petitioners is that section 148 B introduces even though as a temporary measure, some more designated Sikh Members into the Board by cl.
(a) of sub.s.
(1) thereof and further introduces the election of thirty five Sikhs (from the Pepsu area) into the Board by means of an indirect method, that is, by a limited Sikh electorate, the members of which electorate are in their turn elected by Sikhs as well as non Sikhs.
In order to establish their case, the petitioners must prove not merely that some provisions Of the principal Act refer to matters of religion, but that the introduction of new members into the Board in respect of the extended territories of the Pepsu area, in the manner envisaged by section 148 B, violates by itself the right of the Sikhs in a matter of religion.
Learned counsel for the petitioners is thus forced to take up the stand that a direct election of the members of the Board by the entire Sikh community is itself a matter of the Sikh religion and, therefore, part of the content of the right Guaranteed under article 26(b).
We do not think that such a stand is correct or justified by article 26 of the Constitution: nor has any authoritative text been placed before us to show that a direct election by the entire Sikh community in the management of gurdwaras is part of the Sikh religion.
The principal Act, as it stood before the amending, Act of 1959, does not support any such contention.
However great our respect may be for the democratic principle of direct elections we do not think that having regard to the provisions of ' the principal Act and the circumstances in which section 148 B came to be added thereto, the principle of direct 513 election on universal denominational suffrage can be raised to the pedestal of religion within the meaning of article 26(b) of the Constitution.
If it were so raised, then the co option of some members which has not been challenged by the petitioners would also be violative of their fundamental right; so also any restrictions which the principal Act or the rules made thereunder may impose in the matter of election or the exercise of the vote, such as, restrictions with regard to the age of the voter, etc.
Obviously, these are not matters of religion and we say without meaning any offence to anybody that to treat these as matters of religion is tantamount to confusing religion with current politics.
It is to be remembered that the principal Act constituted a Board representative of the Sikhs both inside Punjab and outside it; that is why in the constitution of the Board there was provision for election, nomination, designation of the head ministers of certain principal Sikh gurdwaras, and also co option.
The purpose obviously was to make the Board as representative as possible, and because an Act passed by the Punjab legislature could not contain provisions for the election of members from constituencies outside the Punjab, there arose the necessity for nomination, designation and co option.
The designation of the head ministers of the five principal Sikh shrines may be also attributed to the reason that they were important functionaries who should be on the Board.
In 1953, nomination was done away with and the number of co opted members was increased to twentyfive, of whom at least twelve were to be residents of Pepsu.
This was even before the principal Act was extended to the Pepsu area.
When the amending Act of 1959 extended the principal Act to the Pepsu area, the problem at once arose as to how to give some representation to the Sikhs in the extended areas, for the intervening period before the next election of the Board, and also as a permanent measure: section 148 B gives representation to those areas as an interim measure and section 43 A as a permanent measure.
Considering section 148 B in the light of these circumstances, we 65 514 are unable to hold that it violates the fundamental right of the Sikhs under article 26(b) of the Constitution.
The method of representation for the extended areas during the interim period appears to us to be an arrangement dictated merely by considerations of convenience and expediency, and does not involve any principle of religion.
The question before us is not whether a more satisfactory arrangement could have been made even for the interim period ; perhaps, it could have been.
Learned counsel for the petitioners has pointed out that many Sikhs of influence and standing in the Pepsu area will have no vote for the interim period.
That may be unfortunate, but is not a relevant consideration for determining the question before us, namely, whether there has been interference with freedom of religion.
We now proceed to consider the specific grievances which the petitioners have made in respect of the persons who come into the Board under section 148 B. As to the members of the Interim Board, Patiala, who under cl.
(a) of sub section
(1) of section 148 B are deemed to be members of the Board constituted under section 43, it is argued that they were appointed under a Punjab Government notification dated January 10, 1958, and though they are Sikhs, they do not represent the Sikh community and are mere nominees of Government; furthermore, they are not subject to the disqualifications mentioned in sections 45 and 46 of the Act in respect of elected and co opted members respectively.
We have pointed out earlier that the principal Act contained a provision before 1953 for nomination of 12 members by the Rajpramukh of Pepsu; and after 1953, the co opted members included twelve residents of Pepsu.
By an order of the Maharaja of Patiala, the Interim Gurdwara Board, Patiala, was constituted to look after certain gurdwaras of the Pepsu area, and after merger the appointment was made by the Governor of the Punjab.
Under section 148 A which was also added to the principal Act by the amending Act of 1959, the Interim Gurdwara Board, Patiala, has ceased to function, and under section 148 B(1)(a) the members of the Interim Board, Patiala, have become members 515 of the Board constituted under section 43.
We are unable to hold that the designation of such members, as an interim measure, to represent those gurdwaras in the Pepsu area which they were actually managing is violative of any fundamental right; nor do we think that the non application of the disqualifications stated in sections 45 and 46 of the Act to these members advances the case of the petitioners any further.
The principal Act did not contain any provisions as to disqualification of designated members; it contained provisions for disqualification of elected, nominated or co opted members and after nomination had ceased in 1953, of elected or co opted members only.
It is permissible to presume that the legislature knows that the members it is designating do not suffer from any disqualifications furthermore, the petitioners have not even suggested in their petition that the members of the Interim Board, Patiala, suffer from any Of the disqualifications stated in section 45 or section 46.
With regard to the thirty five Sikhs to be elected under cl.
(b) of sub section
(1) of section 148 B, there is a threefold contention.
It has been submitted that (1) the electorate detailed in sub section
(2) of section 148 B is not representative of all the Sikhs ; (2) some of the members of the electorate like Sikh members of Parliament and Municipal Committees are in their turn elected by joint constituencies of Sikhs and non Sikhs; and (3) some of the members of the electorate like Sikh Sarpanches and Sikh Naya Pradhans are in the service, and under the influence of Government.
We do not agree that these considerations are determinative of the problem before us.
We have already said that the method of representation to the Board for the extended areas as an interim measure is not a matter of religion.
The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non Sikhs is far too remote and indirect to constitute an infringement of freedom of religion.
The members of the electorate itself are all Sikhs and they have to elect thirty five Sikhs.
Unless one proceeds mechanically on mere abstract considerations, there is no real basis for the 516 contention that non Sikhs can in any way influence the Board.
We do not agree that Sikh Sarpanches and Naya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under article 26 (b) of the Constitution.
It may not be quite irrelevant to point out here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty five co opted members of the Board.
For the reasons given above, we hold that the petitioners have failed to make out a case of violation of their fundamental right.
Accordingly, the petition fails and is dismissed with costs.
Petition dismissed.

dataset_name: IN-Abs

summary/full:
In 1925 the Sikh Gurdwaras Act, 1925, was passed, inter alia, for the better administration of certain Sikh Gurdwaras, and after the merger of the erstwhile State of Patiala and the East Punjab States Union, called Pepsu, with the State of Punjab, the Act was amended by the Sikh Gurdwaras (Amendment) Act, 1959, in order to extend the Act to the area which was formerly within Pepsu.
Under section 43 of the Act, before it was amended in 959, a Board had been constituted, called the Sikh (1) Lah.
500 Gurdwara Prabandhak Committee, to act as the committee of management in respect of some of the principal Sikh Gurd waras and in addition to exercise control, direction and general superintendence over all committees appointed under the provisions of the Act ; the Board consisted of three categories of members, namely (1) elected members, (2) certain designated members, and (3) co opted members, which included persons residing in Pepsu and other parts of India.
By the Amending Act of 1959, S 148B was added to the main Act, which provided: " (1) As from the commencement of the Amending Act, in addition to the members of the Board constituted under section 43 (a) every person in the extended territories who immediately before the commencement of the Amending Act, is a member of the Interim Gurdwara Board, Patiala, constituted by Punjab Government shall be deemed to be a member of the Board, constituted under section 43 ; and (b) thirty five Sikhs including six Sikhs belonging to the Scheduled Castes residents in the extended territories who shall be elected by the persons specified in sub section
(2) in accordance with the rules made in this behalf by the State Government, shall become the members of the Board. .".
The petitioners who profess and practice the Sikh faith filed a petition under article 32 Of the Constitution challenging the constitutional validity of section 148B on the ground that the section violated the fundamental right granted under article 26(b) of the Constitution to every religious denomination or any section thereof including the Sikh denomination " to manage its own affairs in matters of religion".
They contended, inter alia, (1) that the amending Act of 1959 was passed with a view that a particular group of Sikhs might not regain the majority it had lost on November 16, 1958, when the annual election of the Sikh Gurdwara Prabandhak Committee was held; (2) that the members of the Interim Board, Patiala, who under section 148B(1)(a) are deemed to be members of the Board constituted under section 43, were appointed under a Punjab Government notification, and being merely nominees of Government did not represent the Sikh Community; that under section 148B thirty five Sikhs from the extended area were introduced into the Board by means of an indirect method, that is, by a limited Sikh electorate, the members of which electorate were in their turn elected by Sikhs as well as non Sikhs ; that the right guaranteed under article 26(b) was given to all members of the Sikh denomination to manage Sikh Gurdwaras, that the right must be exercised by all Sikhs who alone must elect their representatives and that the introduction of new members into the Board in respect of the extended territories in the manner envisaged by section 148B, violated by itself the right of the Sikhs in a matter of religion and constituted an infringement of their fundamental right under article 26(b).
Held : (1) that in considering the question as to whether a 501 provision of law is constitutionally valid, the court cannot be called upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make ; (2) that a direct election by the entire Sikh Community in the management of Gurdwaras is not part of the Sikh religion; and, (3) that the method of representation for the extended areas under section 148B of the Act was an arrangement dictated merely by considerations of convenience and expediency, and did not involve any principle of religion.
Accordingly, section I48B of the Act ( lid not affect " matters of religion " within the meaning of article 26(b) of the Constitution and consequently did not contravene the fundamental right under that Article.
The Commissioner, Hindu, Religious Endowments, Madyas v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; and Sri Venkataramana Devaru vs The State of Mysore; ; , referred to.