T.S Thakur, C.J:— In this petition filed in Public Interest, the petitioners pray for a Writ of Mandamus restraining the respondent-Shiromani Gurdwara Prabandhak Committee from transferring any property in the name of respondent No. 4-Trust as any such transfer shall, according to the petitioners, be contrary to the provisions of Sikh Gurdwaras Act, 1925. The controversy arises in the following circumstances.
2. The petitioners claim to be interested in the maintenance of Gurdwara Mastgarh Shahabad Markanda, who proposes to create a lease in respect of a certain parcel of land in favour of what is known as Miri Piri Institute of Medical Sciences Research Charitable Trust. The said property was earlier leased out to the Shiromani Gurdwara Prabandhak Committee (hereinafter referred to as the ‘SGPC’ for short) in terms of a document, a copy whereof has been placed on record by the petitioner. The lease was meant to be for a period of 99 years to enable the SGPC to set up a medical college for the Sikhs living in the State of Haryana. Subsequently, the said lease was sought to be cancelled with a view to transferring the land in question in favour of Miri Piri Trust referred to above. Before, however, the cancellation deed and a fresh lease in favour of the trust could be registered by the registering authority in the State of Haryana, the petitioners filed the present writ petition which purports to challenge the proposed transfer on several grounds in public interest. The petitioners allege that the creation of the Miri Piri Trust by the SGPC was contrary to the provisions of the Sikh Gurdwaras Act, 1925 inasmuch as the Act did not empower the SGPC, which is a statutory body to create any such Trust even if the same was meant to achieve and promote an object the pursuit whereof was otherwise permissible under the Act. It is also alleged that once the property was vested in the holy Guru Granth Sahib, the same became inalienable rendering any transfer in favour of anybody else illegal. It is contended that a lease of the property whether by the Gurdwara Mastgarh Sahib or by the SGPC in favour of any entity not otherwise recognized by the Act was illegal and tantamount to transfer of the property by way of sale. It is urged that the SGPC could not permit any property belonging to holy Guru Granth Sahib or Darbar Sahib to be mortgaged for the purpose of raising any loan as was proposed to be done in the instant case, no matter the loan was meant for establishing a medical college for the benefit of the Sikh community at large.
3. In the counter-affidavit filed on behalf of respondent No. 1, it is inter alia stated that the Miri Piri Institute of Medical Sciences and Research Charitable Trust has been constituted for the benefit of public at large without any distinction of religion caste, creed or faith. It is further stated that the creation of such a trust became necessary not only because of the provisions of Medical Council Act but also in view of the judgment of the Supreme Court in Unikrishnan, JP v. State of A.P, 1993 (2) SCT 511 : (1993) 1 SCC 645 whereunder a professional college can be established and/or administered only by a Society registered under the Societies Registration Act, 1860 or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakf Act or legislation of like nature. The affidavit goes on to say that in order to achieve the object of the Trust, construction of a 500 bedded hospital and medical college along with residential building and hostel was started on August 23, 2006. A total staff of 120 members including a Director Principal, Joint Medical Superintendent; Assistant Professors and Senior Residents were also appointed. A regular OPD of all the Departments including Eye, ENT, Medicine, Surgery, Dental, Gynae, Skin, Paediatrics and Orthopaedic was started in the hospital in which around 1.20 lac patients have been given medical and surgical treatment till the date of filing of the counter. The construction of the Hospital Building had however to be stopped at the third level because the lease of the land was in the name of SGPC and not in the name of Miri Piri Trust thereby making it necessary to get the said lease cancelled and a new lease in favour of the Trust Executed in which regard the Executive Committee of the SGPC and Local Gurdwara Committee had passed proper resolutions. It is alleged that both the lease deeds executed pursuant to the said resolutions are in accordance with law and that the requirement of section 138 and other provisions of the Act has been fully satisfied. The affidavit also states that any one feeling aggrieved like the petitioners feeling aggrieved of any action of the respondents have a remedy before the Sikh Judicial Commission established under Section 22 of the Act for redress. The bona fides of the petitioners in filing the present petition have also been questioned. The affidavit denies the allegation that the SGPC was taking a loan from any Bank for setting up the proposed Medical College or that any property owned by the SGPC or Gurdwara was being mortgaged with the lending Bank by way of security. The proposal referred to in letter dated 12.01.2006 for borrowing a loan from the Bank has according to the respondent been dropped. The apprehension expressed by the petitioners that the land leased to the Trust may be sold or mortgaged is according to the respondents without any basis as no such mortgage, sale or exchange can be made by the trust in respect of land leased to it and meant to be used for the proposed establishment of Medical College and Research Institute only.
4. A counter affidavit has been filed on behalf of respondents No. 2 and 3 also in which it is inter-alia stated that a lease deed pertaining to 161 kanal 3 marla is pending for registration before the Joint Sub Registrar/Naib Tehsildar, Shahabad which has been adjourned sine die keeping in view the pendency of the present writ petition. On behalf of respondent No. 4-Trust no separate counter has been filed as the Trust has adopted the counter filed by the SGPC.
5. Appearing for the petitioners Dr. M.S Rahi Advocate, made three distinct submissions for our consideration. Firstly it was contented by him that the creation of a Trust like respondent No. 4 herein was against the letter and spirit of the Sikh Gurdwaras Act, 1925. He urged that the scheme of the Act no doubt authorises the SGPC to Manage and Administer the Trust funds but the same does not authorise the SGPC to create an independent Trust as a separate legal entity or transfer any fund available with it to any such trust. This cannot be done even for achieving or promoting an object on which the SGPC may itself be entitled to spend. Relying upon the decision of the Hon'ble Supreme Court in K.P Sundhakaran v. State Of Kerala, 2006 (3) SCT 60 : (2006) 5 SCC 386 : AIR 2006 SC 2138 and Raghunath Rai Bareja v. Punjab National Bank JT 2007 (1) SC 542, it was contended by Dr. Rahi that Section 127 of the Sikh Gurdwaras Act could not be so interpreted as to rewrite the law by attributing an intention to the Legislature which was not otherwise discernible from the said provision.
6. Secondly Dr. Rahi contended that the SGPC was proposing to borrow loans by mortgaging the property vested in the Gurdwaras, which was legally impermissible as no property vested in any Gurdwara could be sold or mortgaged for any purpose whatsoever. Thirdly, it was contended that the SGPC was mismanaging the property vested in the Gurdwaras and the funds at its disposal. It was submitted that even when the proposed medical college had not been commissioned the SGPC had employed senior teaching faculty for which there was no need whatsoever especially when the trust had no money or income to pay their salaries. Relying upon the decision of the High Court of Lahore in Pratap Singh v. Khazan Singh, AIR 1939 Lahore 202, it was argued that where the investments made by the SGPC were not prudent, the persons responsible for such investments were personally liable for the loss, if any, suffered by the SGPC.
7. On behalf the respondents, it was on the other hand contended by Mr. H.S Mattewal, Senior Advocate that there was no specific or implied bar in the Sikh Gurdwaras Act, 1925 forbidding creation of a Trust by the SGPC for achievement of anyone or more of the objects for which it is otherwise empowered to incur expenses. He referred to us various provisions of the Act to contend that the powers and functions of the SGPC under the said provisions were wide enough to include the power to create a trust for achievement of the object underlying the Act. Relying upon the decision of the Supreme Court in Khargram Panchayat Samiti v. State of West Bengal (1987) 3 SCC 82, it was urged that the powers vested in the SGPC were elaborate enough to permit the funds available with the Committee to be spent on educational purposes and that the power to spend on education carried with it the incidental power to spend either directly or through any other agency under the control and supervision of SGPC. It was also argued by Mr. Matewal, that the need for setting up of a Trust was felt on account of MCI regulations providing that the a medical college could be set up only by a Trust or a society. That position was made clear by the decision of the Supreme Court in Unni Krishnan, J.P etc. v. State of Andhra Pradesh etc. (1993) 1 SCC 645 : AIR 1993 SC 2178. The creation of a Trust with a view to obtaining permission from the MCI for setting up of the proposed medical college was therefore, a perfectly bona fide exercise which did not suffer from any legal infirmity whatsoever.
8. In so far as the proposal to borrow loans from the Bank for setting up of the College was concerned, Mr. Matewal, argued that although there was initially a proposal to do so yet the same had been dropped by the Committee. It was also submitted that the setting up of the college did not involve the sale of any land owned by any Gurdwara or the SGPC as alleged. It was contended that allegations of mismanagement of the property vested in the Gurdwaras and SGPC were also without any basis whatsoever. It was submitted that the present petition was not bona fide and, therefore, deserved to be dismissed. The construction work for 500 beded hospital along-with the medical college and residential building including the hostel was according to the respondents started on 23rd August, 2006. The Director of the Institute and the Principal of the Medical College were appointed and joined the service on Ist July, 2005. Selections for numerous appointments for the Institute and hospital were also made by the authorities resulting in the start of regular OPD of all departments including Eye, ENT, Medicine, Surgery, Gynae, Dental, Skin, Pediatrics, Orthopedic and X-rays facilities. It was contended that till now around 1,20,000 patients had benefitted from medical and surgical treatment by the hospital and around 3500 major and minor surgical procedures have already been performed. The daily average OPD strength varies between 250-300 per day. An Ambulance service is available around the clock, a local chemist shop and Canteen services have also been established by the Institute. It was urged that appointment of the staff needed to attend such a large number of patients was perfectly justified and could not be dubbed as mismanagement of the property or funds of the SGPC.
9. We have given our careful consideration to the submissions made at the Bar and perused the record.
10. The Sikh Gurdwaras Act, 1925 was enacted primarily for the better administration of certain Sikh Gurdwaras, for inquiries into matters and settlement of disputes connected therewith. The Act comprises 12 different Chapters. While Chapter I deals with preliminary matters, Chapter II deals with petitions to State Government relating to Gurdwaras inter alia providing for list of property of scheduled Gurdwara to be forwarded to the State Government, effect of publication of declaration and consolidated list of Gurdwaras, claim for possession by Hereditary office holders of a notified Gurdwara or his presumptive successor and matters incidental thereto. Chapter III of the Act deals with appointment and proceedings before a Tribunal to be constituted under Section 12 of the Act for hearing and disposal of petitions under Sections 5, 6, 8, 10 and 11. Chapter IV applies the provisions of Chapter III to Gurdwaras found to be Sikh Gurdwaras by Courts other than a Tribunal under the Act. Chapter V deals with control of Sikh Gurdwaras and envisages Constitution of a Board and a Committee of management for every notified Gurdwara. It also provides for Constitution of a judicial commission in the manner provided under the Act. Section 41 appearing in Chapter V vests the management to every notified Sikh Gurdwara in the Committee constituted for the same, the Board and the Commission in accordance with the provisions of the Act. Chapter VI deals with the establishment of a Board, constituencies for election of members of the Board, their qualifications for election and nominations etc. Chapter VII deals with the establishment of a judicial commission, comprising 3 members who shall be Sikhs appointed from time to time by the Government of the State of Punjab. It also deals with the jurisdiction and procedure of the Commission and the method of filling up of the vacancies in the Commission as also removal of the members of the commission. Chapter VII deals with Committees of the Gurdwaras while Chapter IX deals with finances. Chapter X deals with powers and duties of the Board and Chapter XI with powers and duties of the Committees. Chapter XII deals with miscellaneous matters.
11. We are not in the present proceedings concerned much with the provisions of the Act other than those that deal with the powers of the Board to deal with the finances at its disposal for one of the contentions that was urged on behalf of the petitioners was that the funds at the disposal of the Board can not be said to be properly utilized, if such utilization is not directly by the SGPC and is through an agent or instrumentality specially created by it. Section 106 of the Act inter alia provides for the objects on which the funds of a Gurdwara may be spent. It stipulates that subject to the provisions of the Act the properties and income of a notified Sikh Gurdwara shall be used in the first place for the maintenance and improvement of the Gurdwara, for the maintenance of religious, worship, the performance and conduct of religious and charitable duties, ceremonies and observances connected therewith and for maintenance, payment of allowances and salaries of dependents, officers and servants thereof, apart from fulfillment of the objects of the endowment, maintenance, langar and all such religious, charitable or educational purposes as the Committee may consider necessary in connection therewith or for any obligation legally incurred. Section 106 to the extent the same is relevant for our purpose may at this stage be extracted:
“106. Object on which the funds of a gurdwara may be spent.—(1) Subject to the provisions of this Act, all properties and income of a Notified Sikh Gurdwara shall be used, in the first place, for the maintenance or improvement of the gurdwara; for the maintenance of religious worship and the performance and conduct of religious and charitable duties, ceremonies and observances connected therewith; for the payment of allowances or salaries of dependents, officers and servants thereof; for the fulfillment of the objects of the endowments thereof; for the maintenance of the langar; for such religious, charitable or educational purposes as the committee may consider necessary in connection therewith or for the discharge of any obligations legally incurred.
(2) When after providing for the purposes specified in sub-section (1) there remains or appears likely to remain any surplus sum or any income not required for any such purposes, the committee may, by resolution passed by not less than two-third of its members propose to allocate a part of the whole of such surplus sum or income to a particular religious, educational or charitable purpose [or any purpose which promotes social welfare] and may, if the Board in writing sanctions such proposals, act in accordance therewith, provided that any proposal so sanctioned to devote to such purpose income accruing during a period of more than three years at any time not sooner than three years after the proposal was sanctioned be rescinded or varied by a subsequent resolution of the committee passed in like manner.
(3) Notwithstanding anything contained in subsection (2) when it appears to be Board that after providing for the purposes specified in sub-section (1) there remains or is likely to remain any surplus sum or income not required for any such purposes, and the committee is not willing to devote such surplus sum or income to other purposes, the Board may apply to the Commission for an order allowing the Board to devote the whole or part of such surplus sum or income to a particular and specified religious, educational or other charitable purpose or any purpose which promotes social welfare.
(4) When application has been made in accordance with the provision of sub-section (3) the Commission may, after hearing the objection, if any, of the committee or of any person having interest in the gurdwara concerned if it is satisfied that the application is reasonable, determine what portion if any of such surplus sum or income shall be retained as a reserve fund for the gurdwara concerned and direct the remainder of the surplus sum or income to be devoted to any such religious, educational and charitable purpose as it may deem proper, and the Commission may, from time to time, on the application of the Board or of the committee or of a person having interest in the gurdwara concerned, rescind or vary any order passed under the provisions of this sub-section.”
12. A careful reading of the above would make it manifest that the properties and income of a notified Sikh Gurdwara have to be used for the purposes indicated in the provisions extracted above, including religious, charitable or educational purposes considered necessary by the Committee. Section 107 envisages an annual contribution to be made by every Committee to the Board for meeting lawful expenses of the Board. The proportion which such contribution shall bear to the annual income of the Gurdwara has to be fixed for each Gurdwara by the Board provided that such proportion shall not exceed 1/10th of such income. Section 108 deals with formation and maintenance of a General Board Fund which shall be applied solely to the payment of expenses lawfully incurred by the Board in exercise of its powers under the provisions of the Act and towards the maintenance, protection and support such historical Gurdwaras as in the opinion of the Board cannot be maintained, protected or provided for otherwise. Any excess amount remaining surplus may then be spent by the Board on any religious or charitable purposes or any other purpose which promotes social welfare. Section 108 A, B & C provide for establishment for research fund and religious fund of the Board and resources from which the said fund shall receive contributions. Section 110 declares that every sum made over to the Board under the provisions of the Act by a Committee of a notified Sikh Gurdwara or otherwise received by the Board for a specified religious, charitable, industrial or educational purpose shall be held by the Board as a trust and shall be devoted for the purpose specified.
13. The Act also envisages establishment of a General Trust Fund. Section 111 provides that every sum other than a sum specified in Sections 107, 109 or 110 or sub-section (2) of Section 114 or sub-section (8) of Section 137 shall be placed to the credit of a fund to be called the General Trust Fund out of which the Board in general meeting may from time to time make allotments for the discharge of any obligations legally incurred in connection therewith or for such religious, charitable, industrial or educational purpose as the Board may consider proper. Section 112 enjoins upon the Board to establish and maintain a separate fund in respect of each trust held in accordance with the provisions of clause (iii) of Section 109 or of Section 110 and may discharge out of each fund any obligations legally incurred in connection therewith. Section 113 provides for deposit of the trust funds in the Banks and maintenance of accounts of all trust funds as also the General Board Fund.
14. We may also refer to Section 125 appearing in Chapter X which stipulates the powers and duties of the Board generally. It inter alia provides that the Board shall ensure that every Committee deals with the property and income of the Gurdwara or Gurdwaras managed by it, in accordance with the provisions of this Act, and for the fulfillment of its duty. The control direction and general superintendence over all committees appointed under the provisions of the Act shall vest in the Board. Section 127 deals with power of the Board to hold and administer trust funds for purposes of a religious, charitable, educational or industrial nature, whether such funds are derived from allotments duly made by a committee out of the surplus funds or income of a gurdwara under its management or from donations, or contributions or endowments made direct to the Board for such purposes. Section 130 empowers the Committee and the Board to settle a scheme for the proper administration of the property, endowments, funds and income of a notified Sikh Gurdwara, which scheme once framed has the force of law in terms of Section 130(5) of the Act. Section 131, however, excludes the provisions of Section 130 from applicant to Committee constituted under the provisions of Section 85 of the Act.
15. A conspectus of the above provisions makes it manifest that the funds available with the Management Committee constituted under Section 86 of the Act or the Board which is in terms of Section 85 of the Act the management Committee for the Gurdwaras enumerated under the said provision have the power to spend the funds available with them on purposes that are religious, charitable, or educational. That setting up of a medical college and hospital would constitute one of the legitimate activities of the Committees and the Board on which the funds available with either one of them could be spent without any legal infirmity in such expenditure was not disputed even by Mr. Rahi, counsel appearing for the petitioners. Indeed the argument of Mr. Rahi was that the SGPC can and ought to itself establish the proposed hospital or the proposed medical college. What according to the learned counsel made any such enterprise illegal and impermissible was the fact that instead of establishing and running the college, the SGPC had created an independent legal entity in the nature of a trust to perform that function and to undertake that activity. This was according to learned counsel not permissible having regard to the scheme and the provisions contained in the Act. We, however, regret our inability to accept that line of reasoning. As noticed earlier, the establishment of a hospital and a medical college is a charitable and educational purpose. Any expense incurred by the Board on such projects would, therefore, be a legitimate expenditure. What is important is that so long as the expenditure is incurred for a purpose which is legitimately permissible under the Act, it makes little difference, whether the actual incurring of the expenditure is by the Committee or an agent employed or instrumentality set up by it. We could understand if the instrument or the agency created by the Board/Committee was tantamount to an abdication of its function or if the arrangement could be said to be a device intended to siphon out the funds of the Board/Committee by placing the same in the hands of a agency over which the Board/Committee had no control. But that is not the position in the instant case. The Trust deed, a copy whereof, has been placed on record is comprehensive and makes the entire exercise look perfectly transparent and genuine. It recalls that on the initiative and appeal of the President of the Shiromani Akali Dal, the Executive Committee of the Shiromani Gurdwara Parbandhak Committee has decided to set up a trust with legal process as a part of the programme and project commemorating the 400th anniversary of compliation of Ist Parkash of Sri Guru Granth Sahib and that the Committee has decided to create a public charitable trust to meet the objects mentioned in the deed for the benefit of the public at large without any distinction of religion, caste, creed or faith particularly for establishment, maintenance, running, development, improvement and extension of an institution or institutions for research on science and technology including medical and educational institutions. The deed accordingly establishes a trust called Miri Piri Institute of Medical Sciences and Research Charitable Trust, Shahbad, Kurukshetra, with its head office in the premises of Shiromani Gurdwara Prabandhak Committee at Amritsar. The objects of the trust include the following:
1. Arrangement of medical services of all kinds to all persons of any status and provide free and subsidized medical facilities and medicines etc. to the deserving patients regardless of their religion, caste or creed to which they may belong.
2. Establishment of a hospital or a nursing home with all kinds of medical and surgical facilities.
3. To establish, maintain, run, develop, improve etc. of hospitals, clinics, dispensaries, sanatoria, maternity homes etc.
4. To impart medical education and to make research in any branch of medicine and surgery.
5. To establish, maintain, run, develop dental and nursing institutions, schools, colleges, Universities, Industrial Technological and other Art Crafts and Science Institutions etc.
6. To undertake all activities which are of a philanthropic humanitarian or charitable nature.
16. It is noteworthy that the Board of Trustees of the Miri Piri Trust includes the ‘Founder’ of the Trust namely Shiromani Gurdwara Parbandhak Committee through its President and a minimum of 04 others as members and the total no more than 15. The following paragraph in the trust deed gives complete control to the SGPC over the trust:
“The Executive Committee of SGPC has appointed the trustees hereinafter for the first term of four years from the date of registration of the trust. After expiry of first term of four years, the Executive Committee of SGPC shall be competent to appoint trustees for the next term and so on in future. In case of vacancy of post of trustee due to registration, death, incapacity or any other reason the Executive Committee of SGPC shall fill the vacancy as soon as possible.”
(emphasis supplied)
17. It is, from the above, evident that the trust is closely held by the Founder namely Shiromani Gurdwara Parbandhak Committee. With the all important powers of nominating the trustees and filling up the vacancies vested in the latter, it is in that view difficult to say that there has been any abdication on the part of the SGPC in the discharge of its functions under the Act or that an agency which is alien to the scheme of the Act has been brought in, to carry out some of the functions that legitimately fall within the domain of the SGPC's functions under the Act.
18. The respondents have also justified the need for creation of the trust by reference to the legal complications arising from the regulations framed by the Medical Council of India in exercise of its powers under Section 10-A read with Section 33 of the Indian Council Act, 1956. Establishment of Medical College Regulations, 1999, inter alia provide criteria for establishment of a medical college only in terms of a scheme stipulated by the said regulations. The scheme in turn provides for the eligibility criteria in the following words:
“Qualifying Crieteria
The eligible persons shall qualify to apply for permission to establish a medical college if the following conditions are fulfilled:
1. that medical education is one of the objectives of the applicant in case the applicant is an autonomous body, registered society or charitable trust.
2. that a suitable single plot of land measuring not less than 25 acres is owned and possessed by the person or is possessed by Civil Writ Petition No. 4914 of 2008 20 the applicant by way of 99 years for the construction of the college.
3. that Essentiality Certificate in Form 2 regarding No objection of the State Government/Union Territory Administration for the establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the council regulations, have been obtained by the person from the concerned State Government/Union Territory Administration.
4. that Consent of the affiliation in Form-3 for the proposed medical college has been obtained by the applicant from a University.
5. that the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus of the proposed medical college.
6. that the person has not admitted students to the proposed medical college.
7. That the person provides two performance bank guarantees from a Scheduled Commercial Bank valid for a period of five years, in favour of the Medical Council of Civil Writ Petition No. 4914 of 2008 21 India, New Delhi, one for a sum of rupees one hundred lakhs (for 50 admissions), rupees one hundred and fifty lakhs (for 100 admissions) and rupees two hundred lakhs (for 150 annual admissions) for the establishment of the medical college and its infrastructural facilities and the second bank guarantee for a sum of rupees 350 lakhs (for 400 beds), rupees 550 lakhs (for 500 beds) and rupees 750 lakhs (for 750 beds) respectively for the establishment of the teaching hospital and its infrastructural facilities:
Provided that the above conditions shall not apply to the person who are State Governments/union Territories if they give an undertaking to provide funds in their plan budget regularly till the requisite facilities are fully provided as per the time bound programme.
8. Opening of a medical college in hired or rented building shall not be permitted. The Medical college shall be set up only on the plot of land earmarked for that purpose as indicated.”
19. The qualifying criteria, it is significant to note includes the requirement that medical education is one of the objects of the applicant in case the applicant is an autonomous body, registered society or charitable trust. The decision of the Supreme Court in Unni Krishnan, J.P etc. v. State of Andhra Pradesh etc., (1993) 1 SCC 645 : AIR 1993 SC 2178, has put the entire issue regarding eligibility of the person establishing the college beyond any controversy by declaring that professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakf Act, under the relevant legislation. No individual firm, company or other body of individuals by whatever appellation called except those mentioned above, can in the light of the said decision be permitted to establish or administer a professional college. The following passage from the above decision is in this regard apposite:—
“A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any e.g, Tamil Nadu Religious and charitable Endowments Act and A.P Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called - except those mentioned above - will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-aid Code (referred to in State of Maharashtra v. Lok Shihshan Sanstha, 1971 (Suppl.) SCR 879 : ((1971) 2 SCC 410 : AIR 1973 SC 588) which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is of no less significance).
20. It is in the light of the legal compulsion flowing from the above, difficult to accept the argument that the SGPC could have itself established a medical college or that the creation of a trust for that purpose was either a device to abdicate its function in favour of another entity or degression that was impermissible under the Act.
21. The compulsion which led to the creation of the trust by the SGPC apart, the contention that the creation of a trust was impermissible under the Act must be repelled on first principle. Two aspects are in this regard relevant and need to be kept in mind, namely, (i) that the Act authorises the Board and the Committees to spend the funds available with them for purpose that are religious, charitable and educational. Even industrial purposes are legitimised for such expenditure and (ii) that there is no specific prohibition contained in the Act against the SGPC or any Committee or Board establishing the trust as a distinct entity for the purpose of carrying out the functions enjoined upon the former. In the absence of any such legal prohibition, the question is whether the power to spend the funds for religious, charitable and educational purposes can be said to carry with it the incidental power to utilise the said funds through an agency or instrumentality created, estblished or nominated by the Board or the Committee. A long line of decisions of the Supreme Court and other Courts in the world apart from jurist like De Smith and Craies have dealt with the doctrine of ultra vires. De Smith in his celebrated work Judicial Review of Administrative Action, 4th Edition at Page 95 has put the law regarding ultra vires in the following words:—
“The House of Lords has laid down the principle that “whatever may fairely be regarded as incidental to, or consequent upon, those things, which the legislature has authorised, ought not (unless expressly prohibited to be held, by judicial construction, to be ultra vires.”
22. That principle referred to above was enunciated in Attorney General v. Great Eastern Railway, (1880) 5 AC 473 in the following words:—
“The doctrine of ultra vires ought to be reasonably, and not unreasonable, understood and applied and whatever may be fairely regarded as incidental to, or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.”
23. Wade in his monumental work Administrative Law, 5th Edition and Craies on Statute Law, 6th Edition 276, have also recognised the above principle. In State of U.P v. Batuk Deo Pad Tripathi, 1978 (2) SCC 102, a Constitution Bench of the Supreme Court declared that the power to do any thing carries with it the power to regulate the manner in which the things may be done. The Court observed:—
“The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. It is an incident of the power itself and indeed, without it, the exercise of the power may in practice be fraught with difficulties which will frustrate, rather than further, the object of the power.”
24. Again in V.T hanzode v. Reserve Bank of India, (1982) 2 SCC 7, the doctrine of ultra vires was examined by their Lordship in relation to the power of a statutory corporation. The Court held that the doctrine of ultra vires in relation to the powers of statutory corporation has to be understood reasonably and so understood “whatever may fairly be recorded as incidental to, or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires.” The Court was in that case examining whether the power to frame service conditions could be taken as incidental to the power to priovide for all matters for which provision is necessary for the purpose of giving effect to the provisions of the Act. The Court held that the said power was wide enough to include the power to provide service conditions of bank staff in order to give effect to the provisions of the Act, even though the RBI Act was passed in order to consitute a bank for achieving economic purposes of highest national importance, regulating the issue of bank notes, with a view to securing monetary stability in India and generally to operate the currency and credit system of the Country yet the power to formulate and prescribe the servicve conditions of the staff, though not specifically conferred was understood as incidental to the obligation to carry out the purpose for which the same was constituted. Relying upon Attorney General v. Great Eastern Railway, (1880) 5 AC 473 (House of Lords), the Court observed:—
“The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonable and so understood, “whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires.” (See Attorney-General v. Great Eastern Rly. Co.) The Central Board has, therefore, the power to make service regulations under Section 58(1) of the Act.”
25. To the same effect is the decision of the Supreme Court in Khargram Panchayat Samiti v. State of W.B, (1987) 3 Supreme Court Cases 82. There the question that fell for consideration was whether the power to issue a licence for holding of a hat or fair carried with it the power to supervise, control and manage such hat and fairs. Their Lordships held that the conferment of statutory powers must be construed as impliedly authorising everything which could reasonably and fairly be regarded as incidental or consequential to the power itself. The Court observed:—
“The conferment of statutory powers on local authorities must be construed as impliedly authorising everything which could fairly and reasonable be regarded as incidental or consequential to the power itself. The doctrine of ultra vires is not to be applied narrowly. It should be applied reasonably so that exercise of such incidental or consequential power may not be held to be ultra vires.”
26. It is in the light of the above decisions reasonable to hold that the power to spend for religious, charitable and educational purposes specifically conferred upon the Board and Committees carries with it the incidental power to determine the method by which the expenditure may be incurred and the agency or instrumentality through whom the same may be incurred. Any other interpretation would, in our opinion, defeat the purpose underlying the Act and negate the very object for which the legislature has enacted the law. That is because if the legislature has permitted the Board and Committee to incur expenses for religious, charitable and educational purposes that power will be meaningless and redundant if we do not read into it the incidental power of doing everything legally necessary for achieving that object. So interpreted, we see no illegality in the SGPC establishing a trust with a view to setting up a Medical College and Hospital for the benefit of the people at large or utilising the funds available with the Committee for that laudable object.
27. That brings us to the question whether there was any illegality in the SGPC proposing to borrow a loan by mortgaging the property vested in the Gurudwara. A detailed examination of that aspect in the context of the provisions of the Act is, in our view, unnecessary having regard to a specific statement made by the SGPC in the counter affidavit filed in these proceedings to the effect that neither any decision has been taken nor is there any proposal to take a loan from any bank for the benefit of Miri Piri Institute of Medical Science Research Charitable Trust. The affidavit specifically states that the proposal contained in the letter dated 12.1.2006, reliance on which was placed by the petitioner, for mortgaging the land owned by the Gurudwara for re-payment of the loan from the Bank has been dropped. The following passages from the counter makes the position clear in this regard:
“It is submitted that the SGPC has not taken nor is there any proposal to take a loan from the Bank for the purposes of advancing money to the Miri Piri Institute of Medical Sciences and Research Charitable Trust.
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In respect of the resolution of the Trust Annexure P-7 and letter of member secretary of Trust, Annexure P-8, it was submitted that the land of Gurudwara Sri Mastgarh Sahib being leased to Miri Piri Institute of Medical Sciences and Research Charitable Trust cannot be used as guarantee for taking loan from the Bank as it is only on lease with the Miri Piri Institute of Medical Sciences and Research Charitable Trust and not owned by it. Hence the proposal in the letter dated 12.1.2006 for using the land as guarantee for taking the loan from the Bank was dropped. In view of this, the apprehension that on the failure of the trust to meet the liability it will be responsibility of the SGPC to discharge the liability, which may lead to losing of this property is unfounded.”
28. The above would necessarily mean that there is no real basis for the apprehension expressed by the petitioner that the SGPC would incur a liability to repay the loan which it may raise by mortgaging the property owned or held by the Gurudwara in ownership or on lease.
29. That leaves us with the only other issues raised by Dr. Rai that the SGPC was not justified in employing Senior Teaching faculty till such time the college had been established and that the same tantamounts to mis-utilising the funds available with the Committee. There is no merit in that contention either. We say so because the affidavit sworn by the respondent-SGPC has detailed the nature and extent of work that is already being done by the trust and the medical treatment that has been extended to around 1,20,000/- patients. We have no reason to doubt the veracity of those assertions. If the trust has started an OPD for various medical specialties and has entertained such a large number of patients, who have benefited from such services, we see no reason why those engaged in providing the services to the needy public could not have been employed by the trust or the SGPC as the case may be. Just because the College has not started functioning would not mean that the Principal and Assistant Professors, who are themselves medical specialists in various disciplines or Medical Officers, Technicians and Nurses who assist the doctors could not have been employed to start the process of providing free medical aid to the needy. There is in that view no basis for holding that the respondents or anyone of them misutilised the funds placed at their disposal warranting interference by this Court in exercise of its writ jurisdiction in public interest.
30. In the result, this writ petition fails and is hereby dismissed with costs assessed at Rs. 5,000/-.
Petition dismissed.
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