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Mahant Swaran Dass v. Shiromani Gurudwara Parbandhak Committee, Amritsar .
Structured Summary of the Opinion
Factual and Procedural Background
The central procedural circumstance in this opinion is an appeal preferred under S. 34 of the Sikh Gurudwaras Act, 1925 that was heard by a Division Bench in accordance with S. 34(3). The two Judges of that Division Bench wrote separate, exhaustive judgments and jointly recorded an order stating: “In view of our difference of opinion, and keeping in view the provisions of Cl. 26 of the Letters Patent, the case is sent to the Hon'ble Chief Justice for referring the same to a third Judge.”
For the limited purpose of deciding the legal question raised at the threshold, the court states that it is unnecessary to advert to the underlying facts of the dispute; the procedural posture described above is sufficient to present the issue the court addresses.
Legal Issues Presented
- Whether an appeal preferred under S. 34 of the Sikh Gurudwaras Act, 1925, when the Judges constituting the Division Bench are divided in opinion, can be referred to and decided by a third (single) Judge under Clause 26 of the Letters Patent, or whether the matter must instead be heard and decided by a Full Bench of at least three Judges or more.
Arguments of the Parties
Appellant's Arguments
- Mr. T.S. Mangat, counsel for the appellant, submitted that because S. 34 of the Sikh Gurudwaras Act requires that appeals thereunder be heard by a Division Bench, a difference of opinion between the two Judges should lead to the matter being heard by a Full Bench of at least three Judges and cannot be lawfully disposed of by a single Judge.
- The appellant's counsel relied on Clause 37 of the Letters Patent (which preserves the legislative powers to amend letters patent) to contend that S.34 read with Clause 37 would override Clause 26 of the Letters Patent, thereby requiring a larger Bench rather than recourse to a single third Judge.
- The appellant relied on several Full Bench decisions (Mahant Lachhman Dass v. SGPC; Hari Kishan Chela Daya Singh v. SGPC; Mahant Budh Dass & Mahant Purna Nand v. SGPC) as supporting authority for the proposition that matters in which differences arise between members of a Division Bench should be placed before a larger Bench.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mahant Lachhman Dass v. Shiromani Gurdwara Parbandhak Committee, Amritsar, ILR (1976) 1 Punj & Har 594 (FB) | Relied upon by appellant to support the proposition that a Full Bench may be appropriate when issues are important and differences arise between Division Bench Judges; implied support for referring to a larger Bench rather than a single Judge. | The court found this authority distinguishable: it did not decide that a single Judge was incompetent to hear a reference under Clause 26. The Full Bench hearing in that case arose because of multiple objections and the importance of the matter, not because the law prohibited a single Judge from deciding the reference. |
| Hari Kishan Chela Daya Singh v. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1976 Punj & Har 130 (FB) | Relied upon by appellant to argue that a Full Bench should decide questions arising on a reference after a Division Bench split. | The court noted the Full Bench heard the case in that matter for reasons of safety and to decide surviving questions; the Full Bench did not consider or decide the specific question whether a reference under Clause 26 could be heard by a single Judge. |
| Mahant Budh Dass and Mahant Purna Nand v. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1978 Punj & Har 39 (FB) | Relied upon as authority where, on a difference between Judges of a Division Bench, the matter proceeded to a Full Bench. | The court observed that in that case the Judges composing the Division Bench expressly recommended referral to a larger Bench; the decision to go to a Full Bench was made for reasons of the case, not as a declaration that a single Judge could never decide such a referral. |
Court's Reasoning and Analysis
The court's analysis proceeds in a stepwise, statutory and textual manner:
- The court begins with the command of S. 34(3) of the Sikh Gurudwaras Act: "An appeal preferred under the provisions of this section shall be heard by a Division Court of the High Court." The opinion records that this procedural command was complied with because the appeal was duly placed before and heard by a Division Bench that produced separate judgments.
- Attention is then turned to Clause 26 of the Letters Patent. Clause 26 contemplates the situation where a Division Court composed of two or more Judges is divided in opinion: if equally divided, the Judges shall state the point upon which they differ and the case shall be heard upon that point by one or more of the other Judges nominated by the Chief Justice. The court emphasizes that Clause 26 is a mechanism that follows the hearing by a Division Bench and provides the mode for resolving differences that arise after such a hearing.
- The court rejects the appellant's contention that S. 34(3), read with Clause 37 (which preserves the legislative powers to amend letters patent), implicitly overrides Clause 26. The court reasons that Clause 26 does not conflict with S. 34(3): the Act requires the appeal to be heard by a Division Bench (which occurred) and only after such hearing can the contingency of a difference arise and then Clause 26 operates to resolve it. Hence, Clause 26 "can only follow and cannot in any situation precede the provisions of S. 34 of the Act." The provisions are capable of harmonious construction rather than being in conflict.
- The court then notes that S. 12(11) of the Sikh Gurdwaras Act makes the provisions of the Civil Procedure Code applicable to matters under the Act. Section 98 of the Civil Procedure Code is therefore relevant. Sub-section (3) of Section 98 expressly provides that nothing in that section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court. The court reads this saving provision as reinforcing that the Letters Patent retain their operation and that Section 98 and Clause 26 are similar in purpose: both provide for the resolution of differences by reference to other Judges.
- The court further examines High Court Rules and Orders (R. 5 of Chap. 4-H, Vol. V) which prescribes that when an appeal heard by a two-Judge Bench results in differing opinions, both Judges shall record their judgments and the appeal shall be laid before the Chief Justice who will direct to which other Judge(s) the appeal shall be referred. The rule explicitly contemplates reference to other Judges nominated by the Chief Justice and reinforces the operation of Clause 26 and Section 98 procedures.
- Bringing these strands together (S. 34(3) compliance, Clause 26 procedure, Section 98 CPC and the High Court Rules), the court concludes that the statutory and procedural framework supports referral to and decision by a third Judge nominated under Clause 26. The court finds that the appellant's argument that a single Judge is barred from resolving the difference is negated by the statutory scheme and the Rules.
- Finally, the court analyzes the Full Bench decisions relied upon by the appellant and finds them distinguishable: in each instance the reference to a larger Bench was driven by considerations of the importance of the issues, multiple objections, or an express recommendation by the Bench members themselves; those decisions did not lay down the proposition that a single Judge is incompetent to hear a reference under Clause 26. Accordingly, those authorities do not support the appellant's legal contention.
Holding and Implications
Holding: The court answers the question formulated at the outset in the negative and holds that the hearing of an appeal by a single Judge on the point of difference between the learned members of the Division Bench is legally permissible. In the court's words, the hearing "by a single Judge on the point of difference ... is perfectly in accordance with law."
Implications:
- The direct effect of the decision is that where a Division Bench constituted under S. 34 of the Sikh Gurudwaras Act is divided in opinion, the matter may lawfully be referred to and decided by a third Judge nominated under Clause 26 of the Letters Patent (and corresponding rules), rather than mandatorily requiring a Full Bench of three or more Judges.
- The opinion explains that prior Full Bench references in the authorities relied upon were prompted by factors of safety, propriety, the importance of the issues, or express recommendation by the Bench — not by any legal bar preventing a single Judge from resolving the reference. Thus those authorities do not establish a rule requiring a Full Bench in every such case.
- The court's decision resolves the procedural question in the present case without purporting to lay down any broader novel principle beyond applying the existing statutory and procedural framework; the ruling is directed to the proper construction and application of S. 34, Clause 26 of the Letters Patent, Section 98 of the Civil Procedure Code (as made applicable), and the relevant High Court Rules in the circumstances described.
Order accordingly.
Whether an appeal preferred under S. 34 of the Sikh Gurudwaras Act, 1925, in the event of a difference of opinion betwixt the learned Judges of the Division Bench hearing the same, cannot be referred to a third Judge under Cl 26 of the Letters Patent — is the point which has been raised at the very threshold in this case.
2. For the limited purpose of determining the aforesaid question, it is unnecessary to advert to the facts. It suffices to mention that this case first came up for hearing before a Division Bench in accordance with S. 34 of the Sikh Gurudwaras Act, 1925 (hereinafter referred to as the Act). The learned Judges constituting the Division Bench, after framing exhaustive judgments separately have jointly recorded the following order:—
“In view of our difference of opinion, and keeping in view the provisions of Cl. 26 of the Letters Patent, the case is sent to the Hon'ble Chief Justice for referring the same to a third Judge.”
3. Mr. T.S Mangat, the learned counsel for the appellant, at the very outset has contended that in view of the difference of opinion noticed above, the matter must now be heard by a Full Bench of at least three Juges or more and cannot be legally disposed of by me singly. The core of the learned counsel's argument appears to centre on Cl. 37 of the Letters Patent, which is in the following terms:—
“And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the Legislative powers of the Governor-General in Legislative Council, and also of the Governor-General in Council under, section seventy-one of the Government of India Act, 1915 and also of the Governor-General in cases of emergency under section seventy-two of that Act, and may be in all respects amended and altered thereby.”
Taking a cue from the aforesaid provisions, it was sought to be submitted that the Act and in particular S. 34 thereof prescribes that an appeal thereunder must be heard by a Division Bench and consequently the matter cannot be posted for hearing even after a difference of opinion before a learned single Judge as provided in Cl. 26 of the Letters Patent. Mr. Mangat submitted that Section 34 of the Act read with CL 37 of the Letters Patent would override Cl. 26 thereof with the effect that in the event of a difference betwixt the learned Judges of the Division Bench, the matter must be placed before a Bench of at least three Judges or more to resolve the same. Reliance was sought to be placed on Mahant Lachhman Dass v. Shiromani Gurdwara Parbandhak Committee, Amritsar, ILR (1976) 1 Punj & Har 594 (FB) and Hari Kishan Chela Daya Singh v. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1976 Punj & Har 130 (FB) as also on Mahant Budh Dass and Mahant Purna Nand v. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1978 Punj & Har 39 (FB).
4. It appears to me that the aforesaid contention, apart from being hypertech-nical is also logically fallacious. The material part of S. 34 of the Act is in the following terms:—
34 (1) and (2)………………
(3) An appeal preferred under the provisions of this section shall be heard by a Division Court of the High Court”
Even assuming that the aforesaid sub-section when read with Cl. 37 of the Letters Patent has an overriding effect, I am unable to see how S. 34 (3) of the Act would in any way conflict with or run counter to the provisions of Cl. 26 of the Letters Patent. For ease of reference, this provision may also be first set down:—
“And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915 and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges, be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it.”
Now seeing the matter in the correct perspective and sequence in the light of the aforesaid provisions, it would be apparent that in direct compliance with Section 34 of the Act this appeal was duly placed before the Division Bench. Therefore, the command of sub-sec, (3) of Section 34 of the Act stands fully and amply complied with. The case, therefore, stands patently heard by a Division Bench of this Court who have recorded their separate judgments. Now what calls for notice is that Cl. 26 of the Letters Patent can only follow and cannot in any situation precede the provisions of S. 34 of the Act. It is only after the hearing of the appeal by a Division Bench in accordance with S. 34 of the Act that possibly the question of any difference of opinion betwixt the Judges constituting the same and the mode of resolving the same could possibly arise. In that situation Cl. 26 of the Letters Patent is exhaustive and there is no conflict with any similar or parallel provision either of the Sikh Gurdwaras Act or any other clause of the Letters Patent. Therefore, the ghost of any conflict betwixt S. 34 of the Act and Cl. 26 of the Letters Patent, and the one overriding the other, is purely an imaginary one. Indeed both the provisions here would be complementary and can be harmoniously construed.
5. The matter can also be viewed from another angle. S. 12 (11), of the Sikh Gurdwaras Act itself makes the provisions of the Civil Procedure Code directly applicable to matters governed by the said Act. Once that is so, it may well attract the provisions of S. 98 of the Civil P.C Herein what calls for notice is that sub-section (3) of S. 98 of the Code expressly lays down that nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court. Even otherwise the provisions of Section 98 of the Code and Cl. 26 of the Letters Patent, in this context, appear to be similar if not virtually in pari materia. Viewed from this angle also, in the case of a difference of opinion, S. 98 of the Code itself and in any case sub-sec. (3) thereof saving the Letters Patent from its operation would make it evident that the matter has to be placed before a third Judge for decision in the event of the Judges composing a Bench differ in their opinions.
6. Again reference in this connection may be made to the pertinent rules on the point as well. Herein again R. 5 of Chap. 4-H, Vol,. V of the High Court Rules and Orders is in the following terms:—
“When an appeal is heard by a Bench consisting of two Judges and the Judges composing the Bench differ on point of law and refer the appeal under S. 98 of the Civil P.C, the Judges so differing shall each record his Judgment on the appeal, and the appeal shall thereupon be laid before the Chief Justice, who shall direct to which other Judge or other Judges the appeal shall be referred. Similarly when the Judges composing a Bench being equally divided in opinion as to the decision on a point, state that point for reference to another Judge or Judges under Cl. 26 of the Letters Patent, the case shall be heard on that point by one or more Judges to be nominated by the Chief Justice. The Chief Justice may be such other Judge or one of such other Judges.”
The language is plain and this would again lead to the same result that the matter, in the event of difference, has to be placed before a third Judge for decision.
7. Viewed from any angle, the statutory provisions on the point completely negative the stand of Mr. T.S Mangat that a single Judge is barred from resolving the difference of opinion arising from the conflicting opinions of the learned Judges composing the Division Bench.
8. Equally the judgments relied upon by the learned counsel for the appellant are patently distinguishable and provide no warrant for the proposition that on a difference of opinion in an appeal under S. 34 of the Sikh Gurdwaras Act the same cannot be referred to and decided by a third Judge. In Mahant Lachhman Dass v. Shiromani Gurdwara Parbandhak Committee, Amritsar, ILR (1976) 1 Punj & Har 594 (FB), a similar objection as in the present case along with others was raised before the learned single Judge hearing the matter on a difference of opinion under Cl. 26 of the Letters Patent. It was nowhere decided that a single Judge was not competent to hear the matter but apparently in view of the three objections raised and the importance of the matter the learned Chief Justice hearing the same thought it proper that the appeal be set down for hearing before a Full Bench. Similarly in Hari Kishan Chela Daya Singh v. Shiromani Gurdwara Parbandhak Committee Amritsar, AIR 1976 Punj and Har 130 (FB), on a number of objections being raised before the learned Judge hearing the matter on a difference, he thought it safer that the surviving questions in the appeal as well as the third question as to whether this reference could be heard by single Judge might be decided by a Full Bench of this Court. The Full Bench proceeded to decide the case on merits but did not advert to the question whether the reference could be heard by a single Judge or not. Again in Mahant Budh Dass and Mahant Purna Nand v. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1978 Punj & Har 39 (FB), on a difference betwixt the Judges constituting the Division Bench the matter had to be placed before a Full Bench because of the express recommendation made by the Judges composing the Bench that the case should be referred to a larger Bench.
9. It would be evident from the above that it was merely for reasons of safety, propriety and in view of the importance of the issues involved in the said cases that these were referred by the third Judge for decision by a larger Bench. Obviously there is and cannot be any bar in such a situation for the matter to be considered and decided by a larger Bench — may be of three, five or even seven Judges. The real issue herein is whether the hearing by a third Judge alone on a difference of opinion is not warranted by law. None of the aforesaid three judgments laid down anything even remotely on that point. It appears to me that these authorities are plainly wide of the mark.
10. Both on principle and precedent I would, therefore, return the answer to the question formulated at the outset in the negative and hold that the hearing of this appeal by a single Judge on the point of difference betwixt the learned members of the Division Bench composing the same is perfectly in accordance with law.
Order accordingly.
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