1. 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 adverty to the facts. It suffices to mention that this case first came up for hearing before a Division Bench in accordant with S. 34 of the Sikh Gurudwaras Act, 1925(hereinafter referred to as the Act). The learned Judges constituting the Divisions 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 Clause 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 hat 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 judges or more and cannot be legally disposed of by me singly. The core of the learned counsels 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 provision of these out 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 singly Letters Patent. Mr. Mangat submitted that Section 34 of the Act read with Clause 37 of the Letters Patent would override Clause 26 thereof with the effect that in the event of a difference betwixt the learned Judges of the Divisions Bench, the matter must be placed before a Bench of at lest 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 Guruwara 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 hypertechnical, 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 subsection when read with Clause 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 case 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 it 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 judgment. Now what calls for notice is that Clause 26 of the Letters Patnent 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 At 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 Clause 26 of the Letter Patent is exhaustive and there is no conflict with any similar or parallel provision either of the Sikh Gurdwara Act or any other clause of the Letters Patent. Therefore, the ghost of any conflict betwixt S. 34 of the Act and Clause 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 provision 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 provision of Section 98 of the Code and Clause 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 Clause 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 singly judge is barred from resolving the difference of opinion arising from the conflicting opinions of the learned Judges composing the Divisions 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 Clause 26 of the Letters Patent. It was nowhere decided that a singly judge was not competent to hear the matter but apparently in view of the three objection raised and the importance of the matter the learned Chief Justice hearing the same though 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 singly 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 he 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 Judges 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 appear 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 singly judge on the point of difference betwixt the learned members of the Division Bench composing the same is perfectly in accordance with law.
11. Order accordingly.