S. Malkinder Singh And Another vs Delhi Sikh Gurdwara Management ...
2009 Latest Caselaw 1572 Del

                                                     REPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                CS(OS) No.613/2008 & I.A. No.4077/2008


                               Date of Decision: April 22, 2009



       S. MALKINDER SINGH AND ANOTHER            ..... Plaintiffs
                     Through Mr. Harish Malhotra, Sr. Advocate
                     with Mr. Tanuj Khurana, Advocate

                     versus


       DELHI SIKH GURDWARA MANAGEMENT COMMITTEE & ORS
                                                ..... Defendants
                     Through Mr. KTS Tulsi, Senior Advocate
                     with Mr. Raj Kamal, Advocate for D1 & D2.


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be reported in the 'Digest'? Yes

REKHA SHARMA, J.

The management of the Sikh Gurudwaras was placed into the

hands of the Sikh community after a long drawn struggle and after

great many sacrifices. The Sikh Gurdwara Act of 1925 was hailed as a

great victory. The Delhi Sikh Gurdwara Act which followed the Act of

1925 equally appeared to be a salutary achievement since it placed

the management of the Delhi Gurdwaras into the hands of local Sikh

electorate. However, a strong segment of Sikh intelligentsia feels that

"what appeared to be an achievement has turned out to be a real

curse for the community" [See - "Towards Corporate Maturity of

Sikh" - Jaswant Singh Neki, in The Sikh Review March, 2009].

It has become almost a regular feature in Delhi Sikh Gurdwaras

that the faction in power makes every effort to hold on to the office

making a mockery of the provisions of the Delhi Sikh Gurdwaras Act.

The present litigation is the outcome of the struggle of one faction to

remain in office and of the other to dislodge.

The plaintiffs and the defendants represent the said two factions

of the Delhi Sikh Gurdwara Management Committee (hereinafter called

the Committee). The Committee is a body that comprises of 55

members of which 46 are elected in terms of Section 4 of the Delhi

Sikh Gurdwara Act, 1971 (hereinafter referred to as the Act). The

plaintiffs and the defendants came to be elected to the Committee

pursuant to elections held on January 14, 2007 and thereafter as

provided in Section 16 of the Act, in its first meeting held on

February 9, 2007 defendants No.2 to 6 were elected as its President,

Senior Vice President, Junior Vice President, General Secretary and

Joint Secretary respectively. In the same meeting, 10 members from

amongst the members of the Committee were elected as members of

the Executive Board of the Committee. They are defendants No.8 to

16. The term of office of a member of the Committee as laid down in

Section 5 of the Act is four years and that of a member of the

Executive Board as per Section 16(5) of the Act is one year.

The powers and functions of the Committee are laid down in

Section 24 of the Act and those include all control, direction and

general superintendence over all the Gurdwaras and the Gurdwara

property which as defined in Section 2(g) of the Act includes all

offerings in cash and kind made in various Gurdwaras controlled by the

Committee, all grants, donations or contributions made by any person

or authority to the Gurdwaras. Section 21 of the Act empowers the

Executive Board to exercise on behalf of the Committee all the powers

conferred upon it.

A tug of war has been going on between the two groups not from

now but since long to wrest from the other the control and

management of the Gurdwaras. It is this desire for power which is the

bone of contention between the two factions and it is this that has

given rise to the present suit. At present, the management and control

of the Gurdwaras is with the Sarna group represented by the

defendants. The plaintiffs seek to unseat them.

The plaintiffs allege that the defendants who were elected to the

Executive Board on February 09, 2007 for a period of one year only

were under an obligation to call for an „Annual General Meeting‟ of the

Committee for holding elections for a new Executive Board before the

expiry of their term but they have not only not held the Annual General

Meeting but are making all possible excuses to stone-wall the holding

of elections with the sole object of perpetuating their hold over the

management of the Gurdwaras and the Gurdwara property in total

disregard of the fact that their one year term had expired on

February 08, 2007. Aggrieved by the alleged deliberate and

intentional inaction of the defendants in not holding the Annual

General Meeting of the Committee and consequently not announcing

the elections, the plaintiffs have filed the present suit for mandatory

injunction with the following prayers:

a) pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants from continuing as office bearers and members of the Executive Board of the Committee as they have deemed to have vacated their office and have become functus officio upon expiry of their term on 8.2.2008.

b) pass a decree of mandatory injunction in favour of the plaintiffs and against the defendants thereby directing the defendant No.1 Delhi Sikh Gurdwara Management Committee to hold the election for electing new office bearers and members of the Executive Board of the Committee under the supervision of the Court observer to be appointed by this Court so as to ensure fresh and fair election.

The plaintiffs have also filed an application under Order 39 Rules

1 & 2 of the Code of Civil Procedure seeking to restrain the defendants

from acting as the office bearers and members of the Executive Board

of Delhi Sikh Gurdwara Management Committee till the decision of the

suit.

It is not disputed by the defendants that the life span of the

Executive Board is one year and that after the expiry of one year, there

has to be an election. It is also not disputed that the present

management came to be elected on February 9, 2007 and its one year

period expired on February 8, 2008. Why then no Annual General

Meeting held, no elections announced and no elections held? The

defendants say that by a notification dated September 15, 2008,

published in the Delhi Gazette, Section 16(5) of the Act has been

amended by The Delhi Sikh Gurdwaras (Amendment) Act, 2008 and

thereby the term of office of the Executive Board has been raised from

one year to two years. Taking refuge under the said amended Act they

contend that they were well within their right in continuing to hold

office till February 07, 2009 and as regards their continuance post

February 07, 2009 they have relied upon the proviso to Section 16 (5)

of the Act as per which an outgoing office bearer or member shall

continue to hold office until election of his successor is held. On being

confronted as to why the Annual General Meeting of the Committee

has not been called and why elections have not been announced even

after February 07, 2009 they have relied upon Regulation 4 of

„Regulations for Functions of Delhi Sikh Gurdwara Management

Committee‟ framed by the Committee in exercise of power conferred

upon it under Section 40 of the Act. The said Regulation lays down

that the Annual General Meeting of the Committee shall be held in the

month of September every year to hold election of office bearers and

members of the Executive Board. It has been argued that in view of

Regulation 4, the „Annual General Meeting‟ is required to be held in

the month of September and it will be so held in the month of

September, 2009. It has also been argued that under Section 16(6) of

the Act, the election of the President and other office-bearers and

members of the Executive Board has to be held in such a manner as

may be prescribed by the rules and that as consequent to the

amendment in Section 16(5) of the Act raising the term of the

Executive Board from one year to two years, no corresponding

amendment has been made to the „Delhi Sikh Gurdwara

Management Committee (Election of Pro-tempore Chairman,

President, other Office-bearers and members of the Executive

Board) Rules, 1974 (hereinafter called the Rules),‟ elections

cannot be held till the Rules are brought in line with the Act. And lastly

it was sought to be contended that the plaintiffs have no moral or legal

right to bring the present suit and to be heard by this court for the

reason that when they were in the Executive Board they commended

themselves no better for they also did not hold the elections after the

expiry of their term of one year and that it is a case of kettle calling the

pot black.

Countering the submission of the defendants the plaintiffs have

contended that amendment to Section 16(5) of the Act is prospective

in operation and the defendants can derive no benefit from the same

because their term had come to an end on February 07, 2008 when

the unamended provisions were in force and the amendment was not

even in contemplation. As regards their reliance upon the proviso to

Section 16 of the Act to continue in office till the elections are held it is

argued that the defendants who are guilty of violating with impunity

the provisions of the Act by not holding elections well in advance

before the expiry of their term or even thereafter can draw no support

from the proviso for if that is allowed to be done it would be putting

premium on their acts of omission and commission.

Before I deal with the submissions raised by the respective

counsels of the parties it may be noticed that on March 24, 2009

learned counsel for the defendants made a statement that he was not

disputing the facts as stated in the plaint and he had no objection if

along with the application under Order 39 Rules 1 & 2 read with

Section 151 of the Code of Civil Procedure, the suit is also disposed of.

Of-course, learned counsel for the plaintiffs had no objection. In view of

this submission, I shall by this order be disposing of both the suit and

the application.

I shall first deal with the last submission of the defendants that

the plaintiffs have no right to bring the suit or be heard for when they

were placed in the same situation as the defendants they too did not

hold elections in time. It is true that the plaintiffs too, when in power,

acted no better but then this cannot be made a basis to flout the

express provisions of law which cry, in this case, for respect and

adherence. In fact, as brought out to me orally during arguments, the

record of both the sides on this score has been so dismal that it is

difficult to decide which bridge to cross and which to burn.

The plea of the defendants that non-holding of the election is

justified on account of the term of the Executive Board having been

raised from one to two years pursuant to amendment in the Act and

that in view thereof, they could legitimately continue as members of

the Executive Board till February 07, 2009 and thereafter on the

strength of the proviso to Section 16(5) of the Act is equally devoid of

force.

It is well settled that amendment to an existing Act unless it is

procedural in nature is to be taken as prospective provided it is

specifically made retrospective by the amending Act. The Supreme

Court in a recent judgment titled as State of Punjab & Ors. Vs. Bhajan

Kaur & Ors. reported in AIR 2008 Supreme Court 2276 has held that,

"a statute is presumed to be prospective unless held to be

retrospective, either expressly or by necessary implication." It

has been further held that, "a substantive law is presumed to be

prospective and it is one of the facets of rule of law." This

judgment was rendered in the context of amendment to Section 140 of

the Motor Vehicles Act which was made effective from November

14,1994 and whereby the quantum of amount payable to the victims of

a road accident on account of no-fault liability was raised from

Rs.15,000/- to Rs.50,000/-. Though it was a beneficial piece of

legislation, yet the Supreme Court held the amendment to be

prospective. In the present case also, there is nothing in the amending

Act indicating that the amendment will have retrospective operation.

Rather Section 1 sub-clause (3) of the amending Act says that it shall

come into force with immediate effect meaning thereby from the date

of notification, i.e. September 15, 2008. Therefore, in the absence of

any provision in the amending Act making it retrospective, the

defendants cannot claim that the amendment empowered them to

continue to hold office till February 07, 2009. They were bound to call

Annual General Meeting in September, 2007 for the purpose of holding

elections to the new General Body before the expiry of their term in

February, 2008. They neither held the Annual General Meeting in 2007

nor in 2008. Those members of the Managing Committee who are not

members of the Executive Board had a vested right to contest the

elections to the Executive Board for the succeeding year and therefore

non-holding of the Annual General Meeting for the purpose of holding

elections to the Executive Board by the present incumbents was and

continues to be in violation of the provisions of the Act and it has

deprived the members of the Managing Committee from participating

in the election of the Executive Board for the succeeding year. There

is thus no justification on the part of the Executive Board in not holding

the elections after the expiry of their one year term.

There is also no merit in their submission that the proviso to

Section 16(5) of the Act empowers them to continue in office unless

election of the successor is held. The purpose and object of the proviso

is to prevent any vacuum that may get created by vacation of office by

the outgoing members of the Executive Board and taking over of office

by the new members. The proviso shall apply only where the elections

are held in time as provided in the Act and it cannot enure to the

benefit of those office bearers who decide not to hold elections in

violation of the provisions of the Act. If the interpretation as sought by

the defendant is given to the proviso then it will tantamount to

allowing the office-bearers to cling to their office.

In view of what has been noticed above, I accept the case set up

by the plaintiffs and consequently pass a decree of mandatory

injunction against defendant No.1, i.e, the Delhi Sikh Gurdwara

Management Committee, its office-bearers and the members of the

Executive Board to call for a general body meeting of the Committee

within 15 days and hold elections to the Executive Board of the

Committee within a month thereafter in accordance with the provisions

of the unamended Act. And I pass the decree in the hope that those

who manage the Gurdwaras will heed their Gurus' warning "Thanisht

Jag bharisht hoe doobta iv Jag (SGGS 662)", "When the holy places are

desecrated, the world simply sinks". [See - "Towards Corporate

Maturity of Sikh" - Jaswant Singh Neki, in The Sikh Review

March, 2009].

The suit and the application are disposed of.

REKHA SHARMA, J.

APRIL 22, 2009 G.