PETITIONER: S.G.P. COMMITTEE Vs. RESPONDENT: M.P. DASS CHELA (DEAD) BY LRS. DATE OF JUDGMENT: 30/04/1998 BENCH: G.N. RAY, M. SRINIVASAN ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
SRINIVASAN, J.
Leave granted.
2. This proceeding has its origin in an application by 60
persons claiming to be worshippers of Gurudwara Dera Lang
Shri Guru Granth Sahib situate within the revenue estate of
village Sardararh, Tehsil and District Bahatinda under
Section 7(1) of the Sikh Gurudwara Act 1925 (hereinafter to
be referred to as the `Act’). Under the provisions of sub-
section (8) of Section 7 of the Act, the Governor of Punjab
issued a Notification No. 1301- GP dated 7th August 1984
published in the Government gazette alongwith a list or
rights, titles and interests in properties said to belong to
the said Gurudwara. One Mahant Puran Dass filed petition
under Section 8 of the Act with the State Government which
was forwarded under Section 14 (1) of the Act to the Sikh
Gurudwaras Tribunal, Punjab at Chandigarh. Mahant Puran Dass
claimed that the institution was not a Sikh Gurudwara but it
was a Dera of Udasi Sadhus. The Tribunal impleaded the
appellant herein as party respondent in the said petition.
Evidence as adduced by both the parties. The Tribunal have
that Mahant Puran Dass was not a hereditary office holder
and had no locus standi to maintain a petition under Section
8. The Tribunal also held that he institution in question is
a Sikh Gurudwara within the ambit of Section 16 (2)(iii) of
the Act.
3. Aggrieved thereby, Mahant Puran Dass filed an appeal
under Section 34 of the Act before the High Court or Punjab
& Haryana. As per the requirement of the said Section the
appeal was heard by two learned Judge of the Court. One of
them, namely Justice K.S. Tiwana agreed with the Tribunal
and held against the appellant. The other learned Judge,
namely, Justice Yadav took a contrary view and held that the
appellant in the High Court was a hereditary office holder
and that the Institution in question was not a sikh
gurudwara. In view of the difference of opinion, the case
was referred to a third Judge. Justice J.V. Gupta concurred
with the opinion expressed by Justice Yadav and held that
the appeal should be allowed. Consequently the appeal was
allowed and the order of the Tribunal was set aside. It
should be mentioned here that during the pendency of the
said appeal, Mahant Puran Dass died and in his place Mahant
Bhagwant Dass who was his chela came on record as legal
representative.
4. The appellant has preferred this appeal challenging the
correctness of the judgment of Justice Gupta concurring with
that of Justice Yadav. During the pendency of this
proceeding the respondent Mahant Bhagwant Dass died and in
his place Mahant Pritam Dass has been substituted.
5. Learned counsel for the appellant has advanced three
main contentions:
(a) The matter should not have been referred to a third
Judge in the High Court and such reference is violative of
Section 98 (2) of the Code of Civil Procedure. According to
him there was no point of law which arose for consideration
and in any event no point of law was framed or stated by the
learned Judges who expressed different opinions. In as much
as the matter was referred to a third Judge without
following the procedure in Section 98 (2) C.P.C. the
reference to the third Judge was a nullity and the appeal
before the High Court ought to have been dismissed as there
was no majority taking a view different from that of the
Tribunal
(b) Secondly, it is argued that Mahant Puran Dass was a
hereditary office holder and had no locus standi to maintain
the petition under Section 8 of the Act.
(c) The third contention is that the Institution is a Sikh
Gurudwara and there is overwhelming evidence on record to
prove the same.
6. At the outset, learned counsel for the appellant
submitted that even without considering any of the above
three contentions, the judgment of the third Judge, namely,
Justice Gupta deserves to be set aside in limine as he h as
not considered the materials on record independently and he
has only expressed his concurrence with the judgment of
Justice Yadav without giving any reason therefor. No doubt
the judgement of judgment of Justice Gupta is not a detailed
one and it does not refer to the evidence alaborately but
the learned Judge has referred to the crux of the matter and
expressed his opinion concurring with Justice Yadav. While
dealing with the first question with regard to the locus
standi of Mahant Pruan Dass the learned Judge has referred
to the principle laid down by a Full Bench of the Punjab &
Haryana High Court in Mahant Dharam Dass Chela Karam Prakash
Versus Shiromani Gurdwaran Prabandhak Committee AIR 1987
Punjab & Haryana 64 and pointed out that succession to
Mahantship was from guru to chela and therefore Puran Dass
was a hereditary office holder. Similarly on the second
question, the learned Judge has made particular reference to
Ex. R-14 which is the crucial document being the title deed
of the Institution and on the basis of the entries therein
held the Institution is not a Sikh Gurudwaras. Hence, the
criticism made by the learned counsel for the appellant is
not acceptable.
7. As regards the applicability of Section 98 (2) C.P.C. ,
it is rightly pointed out by learned counsel for the
respondent that the contention was not raised at any stage
before the arguments in this appeal. It has not been raised
even in the Special Leave Petition. There is also no merit
whatever in the said contention. The provisions of Section
98 (3) have obviously been overlooked by learned counsel for
the appellant. As per that sub-section, nothing in Section
98 shall be deemed to after or otherwise affect any
provision of the Letter Patent of any High Court. Admittedly
the High Court or Punjab has Letters Patent. Clause 26 of he
Letters Paten provides that in the event of difference of
opinion between two Judge as to the decision to be given on
any point it shall be head upon that point by one or more
of the other Judges and the case must be decided on the
basis of the majority opinion. Our attention has been drawn
to the judgment of the High Court of Punjab & Haryana in
Mahant Swarn Dass Versus Shiromani Gurdwara Prabandhak
Committee AIR 1981 Punjab & Haryana 110 and the following
rulings of various High Courts taking the view that the
provisions of Section 98, C.P.C. are not applicable to High
Courts which are governed by Letters Patent and a matter can
be referred to a third Judge on a difference of opinion
between two Judges even on a point of fact:
(i) (Immidisetti) Dhanaraja and another versus Motilal
Daga and another AIR 1929 Madras 641:
(ii) M.D. Puri & Sons Versus Lyons Cinema Ltd. AIR 1933
Lahore 648:
(iii) Pritam Dass Versus Mst. Akbari and other AIR 1973
Madhya Pradesh 224:
(iv) Sushila Kesarbahi and others Versus Bai Lilava
and others AIR 1975 Gujarat 39:
(v) Rulia Devi and others versus Raghunath Prasad AIR
1979 Patna 115 : and
(vi) Smt. Jayanti Devi Versus Sri Chand Mal Agrawal and
others AIR 1984 Patna 296. We agree with those ruling and
hold that the reference to Justice Gupta in this case on a
difference of opinion between Justice Tiwana and Justice
Yadav is not in any way vitiated an does not suffer from any
infirmity. There is no merit whatsoever in the first
contention of the learned counsel for the appellant which is
hereby rejected.
8. The second question to be considered is whether Mahant
Puran Dass was a hereditary office holder. Section 2 (4)(iv)
of the Act defines hereditary office to mean an office the
succession to which before the first day of January 1920 or
in the case of extended territories before the first day of
November 1956, as the case may be devolved according to
hereditary rights or by nomination by the office-holder for
the time being and hereditary office holder means the holder
of the hereditary office. There is ample evidence on record
in this case to the effect that office of Mahant devolves
for guru to chela. It a Mahant has several chelas and does
not nominate one of them to be the next office-holder the
Bhek congregates and nominates one of t he chelas to be the
next Mahant. This Custom or usage as it may be called has
been in vogue with reference to this Institution for quite a
long time. Ex. R-14 itself contains the following Pedigree
table :
By Caste : Sadh Udasi :
——–
Khem Dass
Amar Dass
Jodha Ram
Harsewak Ram
Gain Dass
Jawahar Dass
After Jawahar Dass his chela Puran Dass succeeded. When he
passed away, his chela Bhagwant Dass was nominated and on
his death his chela Pritam Dass became the Mahant. Thus the
office of Mahant was devolving from guru to chela in
accordance with an established usage and custom.
9. The necessary averments have been clearly made in
Paragraphs 3 and 4 of the petition filed by Puran Dass under
Section 8 of the Act. In support of the said pleading, nine
witnesses have been examined including Puran Dass. That
evidence has been accepted by Justice Yadav and Justice
Gupta. We do not find any error in their doing so. Nothing
has been elicited in the cross-examination so as to
discredit their evidence. The only argument advanced on
behalf of the appellant is that the requirement of Section
2(4)(iv) are not satisfied in the present case. According to
learned counsel under the said Section there should be a
devolution by hereditary succession or nomination by the
office holder for the time being. According to learned
counsel, the nomination of a chela by the bhek after the
death of office holder will not fall within the scope of the
succession; not can it be said to be hereditary succession.
10. We are unable to accept the said contention. It has
been held in several cases that if succession to the office
of Mahant is in accordance with a particular scheme or a
definite usage or custom, it will be case of hereditary
succession.
11. In Amar Dass Cchela Jai Ram Dass of Nabha Versus The
Shiromanigurdwara Prabandhak Committee AIR 1978 Punjab &
Haryana 273, a Division Bench of the High Court to which
Justice Tiwana was a party observed that appointment by Bhek
could be one of the methods of hereditary succession.
In Mahant Dharam Dass Chela Karam Prakash Versus
Shiromani Gurdwara Prabandhak Committee: AIR 1987 Punjab &
Haryana 64 (F.B.) a Full Bench of the Punjab & Haryana High
Court held that the ahantship had devolved from guru to
chela in that case and it was hereditary succession and the
office holder was hereditary office holder.
12. The matter could be viewed in a different manner also.
When the Mahant dies the right to the office devolves
admittedly on his chelas. It is not in dispute in this case
that it is only a chela of the previous mahant who can
succeed him as a mahant. The right of succession devolves on
all the chelas and one among them who is nominated to be the
next mahant by the Bekh is none the less a person on whom
the right to succession has devolved. Thus he is also a
hereditary office holder. It is in evidence that normally
the seniormost chela will be nominated unless he is found to
be unfit.
13. Learned counsel for the appellant has drawn our
attention to the judgment of the Full Bench or Five Judge of
the Punjab & Haryana High Court in Mahant Tehal Dass Versus
Shiromani Gurdwara Prabandhak Committee I.L.R. 1979 (2)
Punjab & Haryana 131. It has been held in that case that in
a petition under Section 8, the Tribunal has to decide in
the first instance the locus standi of the petitioner and
hold whether the petition is maintainable or not. The said
decision does not help the appellant in his contention that
Puran Dass was not a hereditary office holder. In the fact
and circumstances of the case we hold that Puran Dass was a
hereditary office holder and the view taken by Justice Yadav
and Justice Gupta is correct.
14. The next question to be considered is whether the
Institution is a Sikh Gurudwara. The Tribunal has held that
the Institution satisfies the requirements of S.16 (2)(III)
of the Act. Under that sub-section two conditions must be
satisfied :(1) The Institution was established for use by
Sikhs for purpose of public worship; (2) The Institution was
used for such public worship by Sikhs both before and at the
time of the presentation of the petition under Section 7 (1)
of the Act. Unless both conditions are fulfilled, the
Tribunal cannot declare it to be Sikh Gurudwara.
15. In Lachhman Das and others versus Atma Singh and others
AIR 1935 Lahore 666 it was held that both matters should be
proved separately and when user of the Institution only has
been established, it is not a necessary inference that it
was established for the purpose of public worship by the
Sikhs.
16. It is quite evident from the language of Section 16 (2)
that the burden of proving an institution to be a Sikh
Gurudwara is on the person who asserts the same.
Significantly in this case, none of the sixty persons who
presented t he petition under Section 7 (1) has chosen to
enter the witness box and give evidence in support
therefore. There is no explanation for the same. The oral
evidence adduced on behalf of the appellant has not inspired
even the Tribunal. All that is relied on by the appellant is
the entry in Jamabandi Register and mutation register. The
entries in those registers are to the effect that Dera Guru
Granth Sahib is the owner. Those entries can hardly prove
either the purpose of establishment of the institution or
the use thereof before and at the time of the petition under
Section 7(1) of the Act. Tiwana, J. has himself pointed out
that the appellant herein who was the respondent before him
was not in a position to furnish any direct evidence that it
is a Sikh Gurudwara.
17. On the other hand, the entires in Ex. R-14, containing
the proceedings of the Settlement commissioner held in 1903
prove beyond doubt that the institution is not a Sikh
Gurudwara. Column 2 thereof shows that the original donor
was Sardar Jodh Singh Saboke and the donee was Khem Dass
Faqir Udasi. Column 9 refers to Guru Granth Sahib (Dera
Lang, under the management of Jawahar Dass, Chela Gain Dass
Udasi of the village. Column 20 contains the report of the
Superintendent. That shows that the muafi was granted by
Sardar Jodh Singh of Sobo for expenses of the building of
Sawara Guru Granth Sahib. The opinion of the Assistant
Settlement Officer is set out in Column 21. The order of the
Settlement Commissioner dated 1.5.1903 in Column 22 reads
thus : “Muafi as detailed continued to the Lang Dera in the
name of the custodian for the time being”. Thus it is clear
that the institution was not established for use by sikhs.
18. Learned counsel for the appellant submits that Ex. R-13
is earlier in point of time to Ex. R-14 and the entries
therein support the appellant’s case. We find that Ex. R-13
does not contain any relevat matter. Ex. R-14 evidences the
proceedings of Settlement Commission which is an Act of
State and in the face of it, the documents relied on by the
appellant do not have any value.
19. In a perusal of the records, we find that the following
facts are proved :
(a) The original grant was to an individual who belong
to udasi sect. (Ex. R-14).
(b) All Mahants of this institution have been Udasi
Sadhus (Para 16 of the Tribunal’s order).
(c) Succession to Mahantship is from Guru to Chela.
(d) Several Samadhis exist on the property which are
objects of worship. (PW-9 and PW-16).
(e) Shradhs are performed and Ram Navami festivals are
celebrated. Gola Sahib and Murti of Baba Siri Chand are
worshipped. (PW-10).
(f) There is no Nishan-Sahib.
(g) No proof of public worship by sikhs.
20. The appellant relies on the evidence that the Guru
Granth Sahib is worshipped. That circumstance alone is not
helpful to the appellant. It is contended by the appellant
that the oral evidence of the witnesses examined by the
respondent were disbelieved on some points by Yadav, J. and
they ought to have been disbelieved completely. There is no
substance in the contention. It is open to any Court to sift
the deposition of any witness and accept a part thereof
while rejecting the other part.
21. In Shiromani Gurudwara Prabandhak Committee and others
versus Harcharan Singh, air 1934 Lahore 1. a Division Bench
held that where a grant was made to an Udasi sadh so that he
might found a village in a desolute place and establish a
langar for feeding sadhus, the land or muafi was not granted
to a Gurudwara.
22. In Bawa Ishar Dass and others versus Dr. Mohan Singh an
d others AIR 1939 Lahore 239, the Court found that mahants
of the institution were all along udasis and ceremonies
observed by udasis and Hindus were performed. On those
facts, the Court held that it was not a sikh gurudwara and
that the mere fact that Guru Granth Sahib was read there did
not make it a Sikh Gurudwara.
23. In Pritam Das Mahant versus Shiromani Gurudwara
Parbandhak Committee (1984) 2 S.C.C. 600 this Court held
that the central object of worship in a gurudwara is Shri
Guru Granth Sahib and sine qua non is that Guru Granth Sahib
should be established there and worshipped by the
congregation and that there should be a `Nishan-Sahib’. The
Court held that the following aspects themselves negatived
the institution being a gurudwara.
(a) there were samadhis on the premises;
(b) there were idols and photos of Hindu deities as
also of Baba Siri Chand;
(c) Bhai Bhagtu was an udasi saint and;
(d) Succession was from guru to chela.
24. In Sikh Gurudwara Parbandhak Committee Amritsar versus
Mahant Kirpa Ram and others : (1984) 2 S.C.C. 614 this Court
held that were an Institution was established by a follower
of udasi sect to commemorate the memory of his guru and
succession of mahantship was guru to chela, the institution
was not a sikh institution. The Bench has elaborately dealt
with the requirements of Section 16(2) (iii) of the Act and
pointed out the distinction between the sikhs and udasis.
The Bench quoted with approval a passage in the judgment of
the Privy Council in Hem Singh versus Basant Das, AIR 1936
P.C. 93 wherein the distinction between udasis and sikhs was
clearly recognized. The Bench pointed out that while the
udasis generate the sikh scriptures they also keep the old
Hindu practices.
25. On analysing the materials on record in this case, we
find that the institution question is not Sikh Gurudwara.
The order of the Tribunal has been rightly set aside by the
High Court. There is no merit in this appeal and it is
hereby dismissed. There will be no order as to costs.