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2017 DIGILAW 18 (JK)

Prabhandak Committee v. State of J&K

2017-01-31

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : RAMALINGAM SUDHAKAR, J. 1. The writ petitioners plead that the Gurdwara Yaadgar Sant Baba Sunder Singh Ji at Nonial, Nowshera was constructed in the year 1961 by Sant Baba Inder Singh Ji Rikhi, a preacher and follower of Sant Baba Sunder Singh Ji (Ali Beg Wale). This Gurdwara was managed by a committee then appointed by the Sangat for many decades. An educational academy has also been set up to commemorate the greatness of Sant Baba Sunder Singh Ji, which is known as Sant Baba Sunder Singh Ji Missionary Academy for Modern Education at Nonial, to cater to the need of poor and needy children of the area. The Gurdwara Academy has a separate premises. The Academy is managed by a committee of eleven members and is running with the permission of committee authority appointed by the Sangat. 2. In the State of Jammu and Kashmir, Jammu and Kashmir Sikh Gurdwaras and Religious Endowment Act, 1973 (for short the Act) has been enacted and rules have been framed thereunder. In terms of the said Act, the District Gurdwara Prabhandak Committee manages affairs of the Gurdwaras. Consequent upon the election of the District Gurdwara Prabhandak Committee under the provisions of the Act and the rules, it appears that discord happened between the newly elected members and the Sangat, as to how to conduct the affairs of the Gurdwara and the Academy. This resulted in number of legal wrangles between the parties and in terms of the Act, the Deputy Commissioner, Rajouri who is the competent authority n terms of section 15-A of the J&K Sikh Gurdwaras and Religious Endowment Act, 1973, has to hear the dispute between the rival parties and pass an order. 3. In the present case what has happened is that the Deputy Commissioner delegated his power to the Tehsildar, respondent No. 8 herein, who passed Order No. OQ/01-05 dated 01.04.2016 and that is challenged by the committee appointed by the members of the Sangat stating that the officer, who is competent under the provisions of the Act, has not passed the impugned order, .therefore, it is non est in law. Besides on factual aspect of the matter, members of the Sangat plead that they alone are entitled to conduct the affairs of the Gurdwara and the Academy. This issue has to be examined by the Deputy Commissioner as it is a dispute of facts. Besides on factual aspect of the matter, members of the Sangat plead that they alone are entitled to conduct the affairs of the Gurdwara and the Academy. This issue has to be examined by the Deputy Commissioner as it is a dispute of facts. He alone is competent to do the exercise under section 15-A of the Act. The language of 15-A of the Act of 1973 empowers the Deputy Commissioner as the competent authority: "15-A. Securing Possession of records etc. (1)Upon the constitution of a Committee by election under this Act, if outgoing members of the previous Committee refuse to hand over the charge of the records and property including the possession of the office of the Committee to the new Committee, the President of the new Committee will apply to the District Magistrate within whose jurisdiction the Committee functions for securing the records, property and the possession of the office of the Committee. (2) On receipt of the application under sub-section (1) the District Magistrate shall issue a notice in writing stating the reasons, calling upon the previous Committee to show cause within a period of seven days why the records, property and the possession of the office of the Committee should not be handed over to the new Committee. (3) The District Magistrate shall cause the notice to be affixed on the outer door or some conspicuous part of the building in which the office of the Committee is located and shall also serve it by post to each member of the outgoing Committee whereupon the notice shall be deemed to have been duly served. (3) The District Magistrate shall cause the notice to be affixed on the outer door or some conspicuous part of the building in which the office of the Committee is located and shall also serve it by post to each member of the outgoing Committee whereupon the notice shall be deemed to have been duly served. (4) If the Committee to whom notice has been given refuses or fails to show cause within seven days of serving of the notice or if after hearing the Committee, the District Magistrate is satisfied that the records, property and the possession of office of the Committee should be handed over to the new Committee, he may authorize any Police Officer not below the rank of Deputy Superintendent of Police or an Executive Magistrate of the 1st Class to enter and search any place where the records and the property are kept or believed to be kept and to seize such records and property and the office of the Committee; and the records and property as also the possession of the office of the Committee so seized shall be handed over to the new Committee. Explanation: For purposes of this section the expressions "Previous Committee" and the "new Committee" shall mean "outgoing members of the Committee" and "newly elected members of the Committee" respectively." 4. The plain reading of the provision as above makes it clear that if there is an issue of relating to handing over the records and property including the possession of the office to the new committee, the District Magistrate within whose jurisdiction the committee functions will have the power to give a ruling on the issue raised by the parties. A detail procedure has been provided in section 15-A of the Act. In the said provision there is nothing to indicate that the powers vested with the District Magistrate could be delegated to the Tehsildar as has been done in the present case. There is a clear violation and breach of section 15-A of the Act. 5. Therefore, the Court has no hesitation to set aside the order passed by the Tehsildar, respondent No. 8, in exercise of delegated power. 6. Learned Advocate General assisted the Court on the legal issue and supported by with Mr. There is a clear violation and breach of section 15-A of the Act. 5. Therefore, the Court has no hesitation to set aside the order passed by the Tehsildar, respondent No. 8, in exercise of delegated power. 6. Learned Advocate General assisted the Court on the legal issue and supported by with Mr. Surinder Singh, Advocate appearing for respondent No. 11, who submits that a fresh inquiry should be conducted by the District Magistrate/Deputy Commissioner, the competent authority in terms of section 15-A of the Act, as the case may be. This plea is accepted. 7. Mr. K.S. Johal, learned Senior Advocate appearing for the petitioners while conceding to this legal position states that in the inquiry petitioners be permitted to raise all relevant issues, both on fact and law, as averred in the writ petition. There can be no impediment to this plea for either party. 8. In view of the above stated legal position, while setting aside the order of 8th respondent, Tehsildar, which is respondent, District Magistrate/Deputy Commissioner, Rajouri, the competent authority, in terms of section 15-A, is directed to proceed on an enquiry based on the complaint dated 03.02.2016 after giving opportunity to party, who may be interested, relevant and decide the issue as per law. The procedure contemplated in section 15-A be strictly adhered to. This exercise to be completed at the earliest, preferably within a period of eight to twelve weeks. 9. The impugned order is quashed and the writ petition is disposed of as above.