S.S. Sandhawalia, J. - (1.) WHETHER an appeal preferred under Section 34 of the Sikh Gurdwaras Act, 1925, in the event of difference of opinion between the learned Judges of the Division Bench hearing the same cannot be referred to a third Judge under Clause 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 Section 34 of the Sikh Gurdwaras 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 Clause 26 of the Letters Patent, the case is sent to the Hon'ble Chief Justice for referring the same to a third Judge. 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 Judges or more and cannot be legally disposed of by me singly. The core of the learned Counsel's argument appears to centre on Clause 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, 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 Section 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 learned Single Judge as provided in Clause 26 of the 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 Judge 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, I.L.R. 1976 (1) (P&H) 594, and Hari Kishan Chela Daya Singh v. The Shiromani Gurdwara Parbandhak Committee Amritsar and Ors., A.I.R. 1976 P&H 138, as also on Mahant Budh Dass and Mahant Puma Nand through his guardian Smt. Vidya Wanti Legal Rept. of Majiant Jiwan Mukta Nand v. The Shiromani Gurdwara Parbandhak Committee Amritsar : A.I.R. 1978 P&H 39.
(3.) IT appears to me that the aforesaid contention, apart from being hypertechnical, is also logically fallacious. The material part of Section 34 of the Act is in the following terms: 34. (1) - - - - - 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 Clause 37 of the Letters Patent has an overriding effect, I am unable to see how Section 34(3) of the Act would in any way conflict with or run counter to the provisions of Clause 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 I 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 -section (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 Clause 126, of the Letters Patent can only follow and cannot in any situation precede the provisions of Section 34 of the Act. It is only after the hearing of the appeal by a Division Bench in accordance with Section 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 Clause 26 of the Letters Patent is exhaustive and there is no conflict with any similar on parallel provision either of the Sikh Gurdwaras Act or any other clause of the Letters Patent. Therefore, the ghost of any conflict betwixt Section 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.;