Uttam Das
Chela Sunder Das Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar [1996] INSC 746 (20 May 1996)
Punchhi,
M.M.Punchhi, M.M.Paripoornan, K.S.(J) Punchhi J.
CITATION:
1996 SCC (5) 71 JT 1996 (5) 285 1996 SCALE (4)608
ACT:
HEAD NOTE:
Rival
applicant for substitution, Gurdev Dass, claiming to be Chela of Uttam Dass
deceased appellant, is also permitted to be brought on record, supportive of
the appeal, without deciding the rival claims of Gurdev Dass vis-a-vis Kesar Dass,
who is already brought on record claiming himself to be Chela of Uttam Dass,
deceased appellant, vide order dated 25.1.1993.
This
appeal by special leave is directed against the judgment and order of a
Division Bench of the Punjab & Haryana High Court at Chandigarh, dated January 11, 1984 passed in First Appeal from Order hearing No.189 of 1973.
An
institution, as held to be charitable, is located within the revenue estate of
village Kanganpur, Tahsil Malerkotla, District Sangrur, Punjab, which was within the erstwhile Malerkotla State, ruled by muslim Nawabs. The State got merged in the State
of Patiala and East Punjab States Union (PEPSU) on the latter's formation as a
part B State under the Constitution. Later the State of PEPSU was merged with effect from
1.11.1956 in the State of Punjab whereat
beforehand the Sikh Gurdwaras Act, 1925 thereinafter referred to as the Act,
stood enforced. Later, by Punjab Act No. 1 of 1959, the said Act was extended
to the territories, which immediately before the 1st November, 1956, were comprised in the State of Punjab and Patiala and East Punjab States Union. The institution in question
stands located in the extended territories. Dispute arose whether the said
institution is a Sikh Gurdwara or not.
The
scheme of the Act is to give to the Sikhs their religious shrines or places of
worship in accordance with the procedure devised in the Act. Those have been
divided into two categories. Regarding those about which no substantial doubt
existed they found their way out-right in Schedule I and their management
vesting to be carried out as provided in Part III. Regarding the second
category of the doubtful ones, their nature as to whether they were Sikh Gurdwaras
or not, was determinable substantively in accordance with the tests provided in
Section 16, but by adoption of procedure under Sections 7 to 11 of the Act.
Under
sub-section (1) of Section 7 of the Act, any fifty or more Sikh worshippers of
a Gurdwara, each of whom is more than twenty-one years of age and was on the
commencement of this Act, or in the case of the extended territories from the
commencement of the Amending Act, a resident in the police station area in
which the Gurdwara is situated, may forward to the State Government, through
the appropriate Secretary to Govt., a petition praying to have the Gurdwara
declared a Sikh Gurdwara within a period of 180 days from the commencement of
the Amending Act. Under sub- section (3) of Section 7 of the Act, on receiving
a petition duly signed and forwarded under the Provisions of sub- section (1),
the State Government shall, as soon as may be publish it along with the
accompanying list, by notification, and shall cause it and the list to be
published, in such manner as may be prescribed, at the headquarters of the
district and of the tehsil and in the revenue estate in which the Gurdwara is
situated, and at the headquarters of every district and of every tehsil and in
every revenue estate in which any of the immovable properties mentioned in the
list is situated and shall also give such other notice thereof as may be
prescribed.
Under
sub-section (4) of this section, the State Government shall also, as soon as
may be, send by registered post a notice of the claim to any right, title or
interest included in the list to each of the persons named therein as being in
possession of such right, title or interest either on his own behalf or on
behalf of an insane person or minor or on behalf of the Gurdwara.
Sections
8 and 9 of the Act are reproduced hereafter:
S. 8.
When a notification has been published under the provisions of sub-section (3)
of Section 7 in respect of any Gurdwara, any hereditary office-holder or any
twenty or more worshippers of the Gurdwara each of whom is more than twenty-one
years of age and was on the commencement of this Act or, in The case of the
extended territories, on the commencement of the Amending Act, as the case may
be, a resident of a police station area in which the Gurdwara is situated, may
forward to the State Government through the appropriate Secretary to
Government, so as to reach the Secretary within ninety days from the date of
the publication of the notification, a petition signed and verified by the
petitioner, or petitioners, as the case may be claiming that the Gurdwara is
not a Sikh Gurdwara, and may in such petition make a further claim that any
hereditary office-holder or any person who would have succeeded to such
office-holder under the system of management prevailing before the first day of
January, 1920, or, in the case of the extended territories, before the first
day of November, 1956, as the case may be, may be restored to office on the
grounds that such Gurdwara is not a Sikh Gurdwara and that such office-holder
ceased to be an office-holder after that day.
Provided
that the State Government may in respect of any such Gurdwara declare by
notification that a petition of twenty or more worshippers of such Gurdwara
shall be deemed to be duly forwarded whether the petitioners were or were not
on the commencement of this Act or, in the case of the extended territories, on
the commencement of the Amending Act, as the case may be, residents in the
police station area in which such Gurdwara is situated, and shall thereafter
deal with any petition that may be otherwise duly forwarded in respect of any
such Gurdwara as if the petition had been duly forwarded by petitioners who
were such residents.
S.
9(1) If no petition has been presented in accordance with the provisions of
Section 8 in respect of a Gurdwara to which a notification published under the
provisions of sub-section (3) of Section 7 relates, the State Government shall,
after the expiration of ninety days from the date of such notification, publish
a notification declaring the Gurdwara to be a Sikh Gurdwara. (2) The
publication of a notification under the provisions of sub-section (1) shall be
conclusive proof that the Gurdwara is a Sikh Gurdwara, and the provisions of
Part III shall apply to the Gurdwara with effect from the date of the
publication of the notification.
Section
10 deals with the petitions, of claims to property included in a list published
under sub-section (3) of Section 7.
Section
11 deals with the claim for compensation by a hereditary office-holder of a Gurdwara
notified under Section 7 or his presumptive successor.
Chapter
III of the Act deals with the appointment and proceedings before a Tribunal,
which Tribunal is constituted under Section 12. The Tribunal, known as the Sikh
Gurdwara Tribunal 7 is to dispose of all petitions made under Sections 5, 6, 8,
10 and 11 of the Act. The other relevant section of the Act for our purposes is
Section 16, which is as follows :
ISSUE
AS TO WHETHER A GURDWARA IS A SIKH GURDWARA TO BE DECIDED FIRST AND HOW ISSUE
IS TO BE DECIDED –
(1)
Notwithstanding anything contained in any other law in force if in any
proceeding before a tribunal it is disputed that a gurdwara should or should
not be declared to be a Sikh Gurdwara, the tribunal shall, before enquiring
into any other matter in dispute relating to the said gurdwara, decide whether
it should or should not be declared a Sikh Gurudwara in accordance with the
Provisions of sub- section (2) If the tribunal finds that the gurdwara (i) was
established by, or in memory of any of the Ten Sikh Gurus, or in commemoration
of any incident in the life of any of the Ten Sikh Gurus and was used for
public worship by Sikh, before and at the time of the presentation of the
petition under sub-section (1) of Section 7 ; or (ii) owing to some tradition
connected with one of the Ten Sikh Gurus, was used for public worship predominantly
by Sikhs, before and at the time of the presentation of the petition under
sub-section (1) of section 7]; or (iii) was established for use by Sikhs for
the purpose of public worship and was used for such worship by Sikhs, before
and at the time of the presentation of the petition under sub-section (1) of
section 7 ; or (iv) was established in memory of a Sikh martyr, saint or
historical person and was used for public worship by Sikhs, before and at the
time of the presentation of the petition under sub-section (1) of section 7; or
(v) owing to some incident connected with the Sikh religion was used for public
worship predominantly by Sikhs, before and at the time of the presentation of
the petition under sub-section (1) of section 7, the tribunal shall decide that
it should be declared to be a Sikh Gurdwara, and record an order accordingly.
(3)
Where the tribunal finds that a gurdwara should not be declared to be a Sikh Gurdwara
it shall record its finding in an order, send subject before the first day of
November, 1956, the tribunal shall, notwithstanding such finding continue to
have jurisdiction in all matters relating to such claim; and if the tribunal
finds it proved that such office-holder ceased to be an office-holder on or
after the first day of January, 1920 ors in the case of the extended
territories, after the first day of November, 1956, it may by order direct that
such office-holder or person who would have so succeeded be restored to office.
Having
noticed the legal provisions on the subject, let us proceed further on the
factual aspect. It transpires that fifty four worshippers of the institution in
question moved a petition under Section 7 (1) of the Act to the State
Government of Punjab praying that the institution described as "Gurdwara
Sahib Dera Kanganpur" be declared as a Sikh Gurdwara. A list of property
claimed to be belonging to the institution, as part thereof, was publicized as
required under Section 7 (3) of the Act. Notice of this petition was given to Mahant
Uttam Das (now dead). His interest as well as the interest of the institution
is now being represented by two rival claimant parties herein, as substituted.
Mahant
Uttam Das filed a petition under Section 8 to the State Government, which was
forwarded to the Sikh Gurdwaras Tribunal for decision. Uttam Das stated in his
petition that the institution in question was not a Sikh Gurdwara, but a Dera
of Udasis. He claimed that the Dera was originally founded by Baba Bakhat Mal,
who was succeeded by his Chela Mahant Tehal Dass, Mahant Tehal Dass was
succeeded by his Chela Mahant Seva Dass, who in turn was succeeded by his Chela
Mahant Gurmukh Dass, who in turn was succeeded by his Chela Mahant Mathura Dass,
who in turn was succeeded by his Chela Mahant Kahan Dass, who in turn was
succeeded by his chela Mahant Sunder Dass and to whom had the petitioner
succeeded being Chela of Sunder Dass. Mahant Uttam Das in this manner claimed
that he was the hereditary office holder of the Dera and was competent to file
the petition. His further claim in the petition was that the institution was
never used for the Sikh mode of worship and hence not a Gurdwara. Besides, it
was claimed that the Dera was of the Udasis sect where the idol of Baba Sri Chand
was the principal object of worship. In addition thereto, he claimed that there
were Smadhs (sign-spots) of the previous mahants and where the Geeta and Ramayan
were recited.
Now,
who are Udasis? It has been judicially settled and understood at all times that
the Udasis are a sect distinct from the Sikhs. They have a monastic order of
origin. They are the followers of Baba Sir Chand. Unlike the Sikhs, they
sometime worship idols and Smadhs of their monastic ancestors. They worship
other objects too, such as the ball of ashes etc. They are considered to be
Hindus and at times called Sikhs in the wider sense of the term. They bear
reverence to the Guru Granth Sahib and read it without renouncing Hinduism. An
institution of this kind where a Udasi recites Guru Granth Sahib in the
presence of a Sikh congregation by itself is not enough to declare the
institution to be a Sikh Gurdwara, unless it stands proved that the institution
was established for use by Sikhs for the purpose of public worship and was used
for such worship by Since as per requirement of Section 16 (2) (III) of the
Act.
Notice
was issued to the Sikh Gurdwara Parbandhak Committee, the respondent herein by
the Tribunal. The Committee in its written statement challenged the status of Mahant
Uttam Das as the hereditary office holder, The locus standi of Uttam Das to
file the petition was also challenged on the ground that no mode of succession
to the office of the hereditary office holder was disclosed in the petition, It
was countered that the Rule of Succession was not from Guru to Chela and that
the institution was a Sikh Gurdwara.
The
Tribunal framed the following two issues :
1.
Whether the petitioner is a hereditary office holder?
2.
Whether the institution notified as Gurdwara Sahib Dera Kanganpur is a Sikh Gurdwara?
The priority of deciding which issue first is given in the marginal note to
Section 16 itself quoted and emphasized above, making it clear that the issue
as to whether the Institution is a Sikh Gurdwara is to be decided first. The
tribunal rather treated issue No.1 as preliminary, presumably on the basis that
judicial dicta of that court required such issue as to the locus standi of the
hereditary office holder approaching under Section 8, to be determined first.
In Hari
Kishan Chela Daya Singh v. The Shiromani Gurdwara Parbandhak Committee, Amritsar a Ors. [AIR 1976 P&H 130], the
High Court of Punjab & Haryana has ruled that the Tribunal is not to decide
whether the Institution in question is a Sikh Gurdwara or not, before
adjudicating upon the locus standi of the person who claims himself to be the
"hereditary office-holder". For coming to that view, certain
decisions of the Lahore High Court have been taken taken into consideration. In
particular, backing has been taken from the decision of the Lahore High Court
in Sunder Singh v. Narain Das [AIR 1934 Lah. 920], suggesting that when the
locus standi of a petition under Section 8 is challenged, that question would
have to be decided before the trial could proceed, which position is not
affected by Section 16(1) of the Act, as the said provision could only apply to
a petition properly brought before the Tribunal. The same was accepted to be
the legal position in Mahant Budh Das etc. v. The S.G.P.C. [AIR 1978 P&H
130], as well as in Balbir Dass v. The S.G.P.C. [AIR 1980 43 (FB)]. The view of
the High Court seems to have crystalized that the locus standi of the applicant
under Section 8 of the Act is a preliminary issue and if the applicant fails on
that score, the question whether the Institution claimed to be a Sikh Gurdwara
or not, need not be decided by the Tribunal. In that event, the legal
consequence, as envisaged in Section 9, must follow, mandating the State
Government to declare the Institution in question as a Sikh Gurdwara, without
its actually being one, on the assumption that the petition preferred under
Section 8 when failing on the basis of the locus standi, would tantamount to
filing no petition at all.
We
have strong reservations to such unpurposive view of the High Court for more
than one reason. The marginal note/caption to Section 16 is the foremost
pointer that the issue whether the Institution in question is a Sikh Gurdwara
or not, has to be decided first and other questions later.
The
marginal notes or captions are, undoubtedly, part and parcel of legislative exercise
and the language employed therein provides the key to the legislative intent.
The words so employed are not mere surplusage. Secondly, for the purposes of
Section 8, the averments made therein by the hereditary office-holder need be
taken as sufficient on their face value, bestowing jurisdiction on the Tribunal
relating to the Institution in question. The fact that a petition under Section
8 was received, per se ousts applicability of Section 9 because that can
operate only when no claim under Section 8 is preferred at all. Thirdly, when
the issue of locus standi, at the very threshold, is a triable issue, that per
se obligates the tribunal to priorly decide the question of the Institution
being a Sikh Gurdwara or not as the first issue, for occasion may arise for not
deciding the issue of locus standi at all in the given eventuality. Since the
tribunal has proceeded to decide issue No.1 as a preliminary one, we would not
like to stretch this matter any further except to express our doubt, to be
resolved later in an appropriate case, because of the consequences which have
been made to follow. In none of the cases in which priority of locus standi has
been established or followed has the High Court taken into account the marginal
note/caption of Section 16 and its importance.
It is
noteworthy that when the tribunal finds that the Institution/Gurdwara can not
be declared as a Sikh Gurdwara, it ceases to have jurisdiction in all matters
concerning such Gurdwara. Only a limited jurisdiction is kept conferred on the
tribunal under sub-section (3) to be deciding restoration to office of a
hereditary office holder or of a person, Who would have succeeded such office
holder, under the system of management prevailing, before a certain date.
The
tribunal shall in that event notwithstanding such finding of the institution
being not a Sikh Gurdwara, continue to have jurisdiction in all matters
relating to such claim on grounds tenable under Section 8.
Instantly
wide Orders dated February
8, 1973, The tribunal
had all the same held that Uttam Das was a hereditary office holder of the
institution in question. No appeal was filed by the respondent Committee
against the aforementioned orders of the tribunal. In a sense the order dated February 8, 1973 was a final order deciding the
contentions of the parties as to whether Uttam Das was a hereditary office
holder or not. leading to consequences. An appeal against the final order of
the tribunal undoubtedly lay under Section 34 of the Act before a Division
Bench of the High Court. As said earlier, no such step was taken. The second
battle began.
On the
basis of the evidence led by the parties, the tribunal then got engaged to
decide issue no.2. Vide Order dated May 5, 1972 it concluded against the Committee-
respondent by holding as follows :
"The
fact that emerges from all this evidence is, that the Dera is meant for the
looking after and maintenance of blind persons who are entrusted to its charges
and for running the Langar to provide food for them and also to the Faqirs and
other needy persons.
There
is an admission of Kahan Dass, one of the petitioner's ancestor that he recited
and displayed Guru Granth Sahib. The question that arises is, whether these
facts are enough to prove that this institution was established for use by
Sikhs for the purpose of public worship, which is an essential ingredient of
Section 16(2)(iii) of the Act, under which the respondent- committee claims it
to be a Sikh Gurudwara. Though, we are clear in our mind that Guru Granth Sahib
had been the only object of worship in this institution during the time of Mahant
Kahan Dass and no other mode of worship was carried on in it at any time, we
are constrained to hold that this fact by itself does not suffice to prove that
it is a Sikh Gurdwara. It is, however, established beyond doubt that the
petitioner's claim that it is an Udasi institution has no basis. All that we
can say is that it is a charitable institution meant for the upkeep and
maintenance of the blind and for running the Langar to provide food to the travellers
and other needy persons who visit this Dera.
As a
result of the above discussion, we allow the petition and find that the
institution in dispute mentioned in Notification No.1415-GP., dated 25th September, 1964, is not a Sikh Gurdwara.
The
First Appeal filed by the respondent-Committee before the High Court, was
specifically against order dated 5.5.1973 of the tribunal, as is evident from
the opening sheet of the appeal. A lone ground no.13 was inserted in the body
thereof posing that the tribunal had gone wrong in holding that the incumbent
of the institution i.e. Mahant Uttam Das was a hereditary office holder. Other
grounds pertained to the question whether or not the institution answered the
description given in Section 16(2)(iii) of the Sikh Gurdwara Act.
The
Division Bench of the High Court surprisingly gave its total attention to the
first issue decided under the earlier order of the tribunal dated February 8,
1973. The High Court held that since the petition of Mahant Uttam Das under
Section 8 did not contain any abstract averment about any usage or custom Of
succession or nomination, he had failed to bring himself within the definition
of the expression 'hereditary office holder', as defined in Section 2 (4)(iv)
of the Act, as interpreted by various Full Benches and Division Benches that
Court and hence lacked locus standi. On that basis the judgment of the tribunal
on issue no.1 was set aside. It ordered dismissal of Section 8 petition of Uttam
Dass as incompetent, lacking in pleadings.
On the
second issue, the High Court treated itself disabled to proceed further in
order to determine the nature of the institution because of judicial authority
on the subject barring such exercise. It held that it would not interfere with
the observations of the tribunal regarding the nature of institution. Thus
reversing finding on issue no.1 alone, it held that petition under Section 8 of
the Act was incompetent. The said order is the subject-matter of appeal before
us.
Clause
(iv) of sub-section (4) of Section 2 of the Act defines "hereditary office"
:
"to
mean an office to which before the first day of January 1920, or in the case of
the extended territories, before the first day of November, 1956, as the case
may be, devolved, according to hereditary right or by nomination by the office
holder for the time being, and hereditary office-holder means the holder of a
hereditary office.' Thus, the hereditary office holder, who is competent to
move a petition under Section 8 must plead and prove that he acquired the said
status by devolution according to hereditary right or by nomination as per
custom of the institution. Here, the controversy between the parties is as to
the accuracy and sufficiency of pleadings in this regard, on which learned
counsel for the parties were at variance loaded as they were with case law on
that aspect as developed in the High Court.
The
High Court primarily based its decision on a Full Bench decision of that Court
in Hari Kishan Chela Daya Singh Ors. AIR 1976 Punjab & Haryana 130. The
view taken therein was that the person claiming himself to be a hereditary
office holder must allege and prove the complete and consistent Rule of Descent
covering all eventualities by which he or his predecessor had and could have
come to hold the office on the prescribed date. Any omission therein of
whatever magnitude, big or small, was viewed as fatal to his locus standi.
Strictness was ordered to rule the roost.
The
rule of strictness in pleadings was not adhered to in a subsequent Full Bench
decision in Mahant Budh Dass's case [supra] and gave way to the principle of
'substantial compliance'. The view taken was that if the appellant had made his
claim in the petition in such a manner from which inference could be clearly
and substantially drawn that the appellant had claimed to be a hereditary
office-holder, there would be substantial compliance With the provision of
Section 8. It was not necessary to use the expression in the petition that he
is a hereditary office holder. Noticeably, the Hon. Judge who authored Hari Kishan's
case was a party to Mahant Budh Dass's case [supra].
Committee,
Amritsar - AIR 1980 Punjab & Haryana 43, another Full
Bench of the High Court took a moderate view on the requirement of pleadings
and the theory of strictness and technicality of pleadings were termed to be
medieval. The Full Bench sacked up its views from the following Syal - AIR 1952
SC Page 47 :
"The
Court would be slow to throw out a claim on a mere technicality of pleading
when the substance of the thing is there and no prejudice is caused to the
other side, however clumsily or inartistically the plaint may be worded."
On the same lines, another Full Bench of that court [to which one of us i.e.
M.M. Punchhi,J. was a party when in that court], adopted the same moderate view
in Mahant Dharam Das Chela Karam Parkash v. S.G.P.C. [AIR 1987 P&H 64]. The
view expressed in Balbir Dass's case [supra} was accorded agreement. The Bench
viewed that the argument of the Shiromani Gurdwara Parbandhak Committee based
on Hari Kishan's case was not correct that in all cases, custom regarding the
succession, peculiar to a given Institution, dealing with all eventualities
pertaining to the mode of succession, must be pleaded. The Bench observed that
it would be misreading of the judgment. The factum that the same learned Judge
who had authored Hari Kishan's case was a member of the Bench in Mahant Budh Dass's
case, where the theory of 'strict compliance' was adopted, was employed as a
part of reading down Hari Kishan's case.
Reverting
to the judgment under appeals it is noticeable that the Bench fell into the
trap of misreading of Hari Kishan's case by viewing that the custom or
practice, whatever prevailing in the Institution, had to be pleaded and the
petition must bear the specific custom of the Institution by which the
appellant and his predecessors came to hold the office either by way of
hereditary right or by nomination. The Bench heavily leaned on Hari Kishan's
case, bypassed Mahant Budh Dass's case even though noticed, by trailing to a
number of Division Bench cases based on Hari Kishan's case. On that basis, it
went on to record satisfaction that the averments, as required by Hari Kishan's
case, did not meet its standards. It observed as follows :
Since
the petition does not contain any averment about any usage or custom of
inheritance or nomination for succession the petitioner has failed to bring
himself within the definition of hereditary office-holder as defined in Section
2(4)(iv) of the Act as interpreted by various Full Benches and Division Benches
of this Court.
The
nature of the Institution, it being of a charitable nature, as determined by
the Tribunal, was therefore left uninterfered with. There was no cross-appeal
at the instance of the Present appellant before the High Court as to the
competency of the Tribunal to give such finding after finding that the
Institution was not a Sikh Gurdwara. The appellant, prima facie, submitted to
the finding as to the nature of the Institution.
As is
evident, the High Court fell into an error in construing the pleadings under
Section 8 on the strict standards set out in Hari Kishan's case. When the
appellant had placed the line of succession from Guru to Chela, he
automatically meant that he was basing his claim on custom and usage,
reflective from such long course of conduct and traditions. The Tribunal in its
order dated 19.10.1972 on the basis of the pleadings in the petition under
Section 8 and on the evidence recorded and tendered, inclusive of revenue
records of the State, had come to the firm conclusion that the succession to
the office of the Mahantship in the Institution in question had been by
devolution from Guru to Chela according to hereditary right, even though the Bhekh
had assembled and given Turban to the last Mahant Uttam Das but not as an
appointing authority and rather in the affirmance, according to the wishes of
the predecessor-in-office. The line of descent had been laid with sufficient
clarity giving rise to the conclusion that substantially the custom and usage
relating to succession had been observed to carry on the rule of descent by
conduct. We, thus, are of the view that the High Court fell into a grave- error
in upsetting the well- considered and well-reasoned orders of the Tribunal.
We,
thus, allow this appeal, set aside the impugned order of the High Court dated
11.1.1984, restoring back the orders of the Tribunal dated 19.10.1973 and the
orders of the Tribunal dated 5.5.1973 in affirmance, which has otherwise been
left uninterfered with even by the High Court.
The
appellant shall get his costs.
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