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B.S. Dhillon, J.—A notification under the provisions of Section 7(1) of the Sikh Gurdwaras Act, 1925, (as amended by Act No. 1 of 1959, hereinafter referred to as the Act) was issued on 11th August 1961, concerning Gurdwara Sahib Dharamsala Baba Gursaran Dass, situate in the revenue estate of Nabha, Tehsil Nabha, District Patiala Mahant Amar Dass appellant submitted a petition which petition was termed by the State Government as composite petition under Sections 8 and 10 of the Act. It was averred in the petition that the property attached to the institution which was notified u/s 7 of the Act, was the personal property of the objector. He sought to substantiate his claim to this effect by placing reliance on the decision of a Civil Court dated 19th June, 1961, order dated 22nd December, 1955 of the Advocate General, Pepsu, refusing permission u/s 92 of the CPC and a decision of the Pepsu High Court dated 5th December, 1952, reported in Amar Dass v. Government of Patiala and East Punjab States Union, AIR 1953 Pep 58. He further claimed that the institution in question was not a Sikh Gurdwara but was a private property of the objector who belongs to Udasi sect which sect has nothing to do with the Sikhs. This petition was forwarded by the State Government, to the Sikh Gurdwaras Tribunal, Punjab, Chandigarh, (hereinafter referred to as the Tribunal) in pursuance of the provisions of Section 14(1) of the Act for disposal. Shiromani Gurdwara Parbadhak Committee (hereinafter referred to as the Committee) was impleaded as a respondent in view of the provisions of Section 15 of the Act. The Committee in the written statement denied the averments made in the petition and also raised a preliminary objection that the petition was incompetent as the petitioner was not a hereditary office--holder. On 17th December, 1963, the petitioner moved an application for permission to amend the petition so as to add the verification as required by law. This amendment was allowed and the first amended petition was filed on 11th March, 1964. Except adding the verification clause in the amended petition, all other averments as were contained in the original petition, were repeated in the amended petition. On the pleadings of the parties, the following of the parties, the following issue was framed on 6th April, 1964:--
"1. Whether the petition is maintainable? OPP."
On the adjourned date of hearing, which was fixed for evidence and arguments on the above mentioned issue, petitioner''s counsel put in a second application for permission to amend the petition. On 28th July, 1964, this petition was dismissed as neither the petitioneer nor his counsel appeared on that date and the petition was adjourned to 7th September, 1964. On that date, the counsel for the petitioner submitted third application for amendment. This application was allowed on the payment of Rs. 50/-as cost. Consequently the amended petition was filed on 14th September, 1964. The Committee filed fresh written statement and on the pleading of the parties, the following issues were framed on 29th September, 1964:--
"1. Whether the petitioner has a locus standi to bring the petition as a hereditarv office holder? O. P. P.
Whether the institution in dispute is a Sikh Gurdwara? O. P. R."
The parties led evidence and when the case was being argued on 8th February, 1965, the Tribunal keeping in view the pleadings, reframed issue No. 1, in the following language:--
"1. Whether the petitioner has a locus standi to bring the petition?"
This issue, according to the Tribunal, was supposed to cover both the questions, i.e., about the maintainability of the petition and the status of the petitioner as a hereditary office holder. The case was adjourned to 23rd February, 1965, for allowing the parties to adduce evidence, if any, and for arguments on the amended issue. On that date, 4th application for amendment of the petition, with a prayer for the deletion of certain clauses in the petition was made on behalf of the petitioner. This application was allowed by the Tribunal on the payment of Rs. 50/-as costs and the amended petition was filed before the Tribunal on 7th April, 1965. The Committee filed written statement to the amended petition and on the basis of the amended petition, following issues were framed on 27th April, 1965:--
"1. Whether the petition is maintainable? OPP."
Whether the petitioner is hereditary office holder? OPP."
Whether the institution in dispute is a Sikh Gurdwara? OPP."
The parties were permitted to adduce further evidence on the issues re--framed.
Shri Dev Raj Saini, one of the Members of the Tribunal, decided issues Nos. 1 and 2 in favour of the petitioner and issue No. 3 against the Committee. He thus accepted the petition made by Mahant Amar Dass u/s 8 of the Act.
Shri Joginder Singh Rekhi, another Member of the Tribunal decided issues Nos. 1 and 2 against the petitioner and issue No. 3 in favour of the respondent. He thus dismissed the petition filed by Mahant Amar Das u/s 8 of the Act and declared the institution in question as a Sikh Gurdwara. Gurdev Singh J.(as he then was), Chairman of the Tribunal, agreed with the findings of Shri Rekhi on issues Nos. 1 and 2 and came to the conclusion that the petitioner had failed to allege and prove the uniform rule of succession to the hereditary office which the petitioner claimed. He, therefore, came to the conclusion that the petitioner could not be held to be the hereditary office holder and thus he had no locus standi to file the petition u/s 8 of the Act. In view of the majority decision on issues Nos. 1 and 2 the petition filed by Mahant Amar Dass was dismissed by the Tribunal vide order dated 6th April, 1972. This order is now sought to be impugned in this appeal.
Issues Nos. 1 and 2 may be conveniently dealt with together. With a view to appreciate the various contentions raised by the learned counsel for the parties, it appears necessary to reproduce the application filed by the appellant on 12-9-1961, before the State Government which was forwarded to the Tribunal for disposal under the provisions of Section 14 of the Act. The said application is as follows:--
"Sir,
In response to your notice dated 1-9-1961. I beg to submit as under:--
That the notice is issued on the basis of Jamabandi entries for the year 1956-57. These Jamabandi entries being not the latest should not be taken as the basis for the issue of the notice as subsequently on the basis of a writ petition decided on 5-12-1962 reported in AIR 1953 Pep 58 it has been decided that the property belongs to Amar Das personally and is not a Dera Property.
That in view of this decision which is supported by the original Patta and as also other revenue record entries it is illegal to make any effort to declare it as a Sikh Gurdwara.
That an effort was made by the Interim Gurdwara Board of Pepsu to obtain sanction under S. 92 C. P. C. and the Advocate General Pepsu vide his judgment dated 22-12-55 decided that as far as agricultural lands measuring 562 Bighas 8 Biswas were concerned there was no question of grant of sanction. He only gave sanction regarding property described as Dharamshala.
That after this sanction a suit was instituted in the Court of District Judge Patiala wherein vide his order dated 4-5-57 regarding Agricultural Lands the issues framed be ordered to be deleted because the Advocate General has sanctioned only with regard to Dharamshala or Dera and not with regard to Agricultural land.
That after the abolition of Gurdwara Interim Board the S. G. P. C. in the said Civil suit No. 269 of 19-11-58 made an application for substitution of its name as a plaintiff in view of provision of Section 148--F of the Act and the suit filed by the Interim Gurdwara Board as continued by the S. G. P. C. was dismissed by the Court of Sub Judge 1st Class Nabha on 19-6-61 and no appeal has been filed. It may be mentioned that the court held that the property at Nabha is not a Dera property but belongs to the objector.
That in view of the decisions it is respectfully prayed that the objections be accepted and no effort or attempt be made to declare it as a Sikh Gurdwara. The entire history would show that it was never a Sikh Gurdwara but the private property of the objector who belongs to Udasi Sect, a Sect which has nothing to do with Sikh.
Submitted by:
D/-12-9-61 Mahant Amar Dass, Chela, Mahant Jai Ram Das of Nabha. Dera Baba Gursaran Dass, Nabha, Mohalla Atashbazan, Sd/- Amar Dass."
The Committee took preliminary objection in the written statement that the petition was incompetent and was liable to be dismissed as the same was not filed by a hereditary office--holder and that it is not verified. The averments as regards merits were also disputed. On 17-12-1963, an application was filed by the appellant with a prayer that he be allowed to amend the petition so as to add verification as required by law. This application was accepted by the Tribunal vide order dated 11-2-1964. On 26-4-1964, the second application dated 14-4-1964, for the amendment of the petition was filed. It was mentioned in the application that the petitioner Amar Dass is a hereditary office--holder of Dharamshala Baba Gursaran Dass, Nabha being the owner of it as he has succeeded to it as an heir being the Chela of Mahant Jai Ram Dass, the last office-holder. It was still asserted in the application that the Dharamshala in question is the personal property of the Mahants and neither the Sikh Gurdwara nor a charitable religious institution. It was prayed that the above mentioned assertion be allowed to be pleaded in the amended petition. The application was dismissed by the Tribunal on 28-7-1964 and the following order was passed:--
"Present : Nemo for the petitioner. Mr. Charan Singh counsel for the S. G. P. C.
Neither the petitioner nor his counsel is present today to press the petition for amendment which, therefore, is dismissed. Let notice issue to the petitioner in regard to the main petition for 7-9-1964.
28-7-1964:
Sd/- Gurdit Singh Aulakh, Member.
Sd/ Gurcharan Singh, Member.
Sd/- Shamsher Bahadur, President.
On 26-5-1964, another application under Order 6, Rule 17 of the CPC was filed in which similar averments were made as were made in the application dated 14-4-1964. On this application the Tribunal passed the following order on 14-9-1964:--
"Present: Mr. Lakhpat Rai Advocate with the petitioner. M/s. Harcharan Singh and Charan Singh, Advocates for the S. G. P. C.
The reply to the application for amendment has been filed. After hearing the learned counsel for the parties, we allow the petitioner to amend his petition on payment of Rs. 60/-as costs. The amended petition has been put in today. A copy of it has been handed over to the counsel for the S. G. P. C. The written statement should be filed on 29-9-1964. Costs have been paid.
14-9-1964.
d/- Gurdit Singh Sd/- Shamsher
Aulakh Bahadur,
Member. President.
Sd/- Gurcharan Singh,
Member.".
On 7-9-1964, another application under Order 6, Rules 17 of the Code of Civil Procedure, was filed which is as follows:--
"Sir,
Amar Dass petitioner submits as under:--
(1) That Shri Amar Dass petitioner in his Petition No. 171 of 1963 under S. 8 of the Sikh Gurdwaras Act has inadvertently failed to mention in clear terms "that the petitioner Amar Dass is an hereditary office--holder of Dharam Shalla Baba Gursharan Dass Nabha, being the owner of it as he has succeeded to it as an heir being the Chela of Mohant Jai Ram Dass, the last office--holder. Mohant Jai Ram Dass also succeeded to his Guru as an heir being the Chela of that Mohant. The Dharam Shalla in question is the personal property of the Mohants and it is neither a Sikh Gurdwara, nor a Charitable and religious institution.
(2) That as the Shiromani Gurdwara Parbandhak Committee has raised this objection and for the interest of justice, it is necessary that the above mentioned amended be allowed to be made in his petition under S. 8 of the Act. The amended para will be para 2 (a) of the Petition."
The following order was passed by the Tribunal on this application on 29-3-1965:--
Present : Mr. Tahal Singh Mangat, Advocate,
for the petitioner.
M/s. Charan Singh and Harcharan
Singh, Advocates, for the S. G. P. C.
After being the arguments of the learned counsel we are of the opinion that the amendment should be allowed. The assertion made in Para 2 of the petition that the property belongs to the petitioner personally and not to the dera property is not supported by any evidence which has been adduced and appears to be an isolated statement for which no proof has been sought. In the circumstances we allow the amendment though it is made at a late stage. The amended petition should be put in by 7-4-1965 on payment of Rs. 50/-as costs.
29-3-1965.
d/- Gurdit Singh Sd/- Shamsher
Aulakh Bahadur,
Member President.
Sd/- Gurcharan Singh,
Member."
It may be pointed out that on the next date of hearing, i.e. 7-4-1965, costs were paid to the counsel for the Committee by the appellant and the amended petition was filed. It may be observed that arguments in the case were proceeding when the amendment application was filed on 23-2-1965 and evidence of the parties had already concluded.
It has been contended by Shri Narinder Singh, the learned counsel for the respondent Committee, that the Tribunal out--stepped its jurisdiction in allowing the amendments from stage to stage and thus converted an incompetent or in other words a non--existent petition to a petition u/s 8 of the Act. The learned counsel contends that the orders of the Tribunal allowing amendments are wholly without jurisdiction and illegal and, therefore, are liable to be set aside. The contention further proceeds that if the orders allowing amendments are set aside, in that case, the bare reading of the petition, as originally filed, would show that this was not a petition under S. 8, but in fact was a petition under S. 10 of the Act, by which the appellant, Mohant Amar Dass, claimed the property as his personal property.
Shri T. S. Mangat, the learned counsel for the appellant, on the other hand, contends that the orders of the Tribunal allowing the amendments have become final. It is contended that in view of the provisions of Section 34 of the Act, the Committee, if it felt so aggrieved from the orders of the Tribunal, could file the appeal against the orders. As the said orders were final and the Committee having not filed an appeal and having allowed the orders to become final, it is not entitled to challenge the said orders in the appeal filed by the petitioner--appellant. Shri Narinder Singh, the learned counsel for the Committee, contends that the orders allowing amendments are not final orders and are thus not appealable under S. 34 of the Act. He further contends that the Committee with a view to uphold the judgment of the Tribunal could legitimately assail the orders of the Tribunal allowing amendments.
The contention raised by Shri T. S. Mangat, the learned counsel for the appellant, is not res integra. Similar contention was raised in F. A. O. No. 191 of 1974, Bhagwan Singh v. S. G. P. C. Amritsar, decided by a Full Bench of this Court on 3-10-1977 in similar circumstances. A Division Bench of this Court referred the following question of law to the Full Bench:--
"Whether it is open to the respondent to challenge the correctness of the orders of the Tribunal dated September 14, 1964, and October 14 (should be 28) 1964, allowing the amendment of the petition in the present appeal against the final order of the Tribunal dismissing the petition under S. 8 of the Act, when the aforesaid orders were not challenged by the respondent u/s 34 of the Act."
The Full Bench after considering the respective contentions and making reference to the case law cited on behalf of the counsel for the parties, found as follows:--
"The above discussion leads to the irresistible conclusion that none of the orders passed by the Tribunal allowing the amendment of the appellant''s petition was a final order within the meaning of S. 34 (1) of the Act. I am further of the opinion that the appellant cannot, in the circumstances of this case, cross even the second hurdle provided by section 34 (1) of the Act, namely, that the order against which an appeal lies must be one whereby any matter has been determined ''under the provisions of this Act''. Learned counsel for the appellant was not able to place his fingers on any provision of the Act under which the decision relating to amendment would determine any right. The decision to permit amendment or not to do so it one under the CPC as applied to the proceedings under the Act. It is a mere procedural matter and does not by itself decide the real matter in controversy between the parties. For the foregoing reasons, I hold that no appeal lay u/s 34(1) of the Act against the orders allowing the amendment and, therefore, the question of considering any supposed bar created by sub--section (2) of S. 34 does not arise so far as the second questions referred to us is concerned".
The same Full Bench decided the following question of law as well:--
"3. Whether it is open to the respondent to challenge the finding of the Tribunal on issue No. 1, regarding custom as embodied in its order dated November 23, 1964, in favour of the petitioner appellant as no appeal was filed against the said order u/s 34 of the Act."
This question was answered by the Full Bench as follows:--
"For the reasons assigned above. I would answer question NO. 3 also in favour of the respondent and hold that it is open to the respondent to challenge the findings of the Tribunal on preliminary issue No. 1 contained in the Tribunal''s order dated November 23, 1964, under the first part of sub--rule (1) of R. 22 of Order XLI of the Code and that nothing contained in S. 34 of the Act militates against the same."
It would thus be seen that the Full Bench decision of this Court in Bhagwan Singh''s case (supra) (FAO No. 191 of 1974, D/-3-10-1977), has concluded both these questions in favour of the Committee and thus the Committee is entitled to challenge the orders allowing amendment with a view to support the judgment of the Tribunal.
It is now to be seen whether the orders of the Tribunal dated 14-9-1964 and 29-3-1965, have been validly passed or not. In this connection, reference may be made to the provisions of S. 8 of the Act which confers right to challenge a notification issued under sub--section (3) of S. 7 of the Act in respect of any Gurdwara, to a hereditary office holder or to 20 or more worshippers of the Gurdwara each of whom is more than 21 years of age and was, on the commencement of the Act, a resident of the Police Station area in which the Gurdwara is situate. It would thus be seen that the right to challenge a notification under sub--section (3) of S. 7 of the Act has been conferred only on the hereditary office holder or on 20 or more worshippers of the Gurdwara in question. Sub--clause (iv) of sub--section (4) of S. 2 of the Act defines the hereditary office--holder as follows:--
"2. (4) (iv). ''Hereditary office'' means an office the succession to which before the first day of January, 1920 (or in the case of the extended territories, before the 1st 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."
Office has been defined in sub--clause (i) of sub--section (4) of S. 2, which is as follows:--
"2 (4) (i). ''Office'' means any office by virtue of which the holder thereof participates in the management or performance of public worship in a Gurdwara or in the management or performance of any rituals or ceremonies observed therein and office--holder means any person who holds an office."
It may further be observed that the Act has prescribed a limitation of a period of 90 days from the date of publication of the nomination under sub--section (3) of S. 7 of the Act for filing a petition under S. 8 of the Act. The bare reading of the petition filed by the petitioner--appellant before the State Government, the contents of which have been reproduced earlier in extenso, would clearly show that the averments made in the petition cannot lead to the conclusion that this was a petition under S. 8 of the Act. It is well established that in the petition under S. 8 of the Act, two categories of persons referred to above have been given right to claim that the Gurdwara in question is not a Sikh Gurdwara. The existence of an institution has to be admitted which is then claimed to be not a Sikh Gurdwara. From the averments made in the petition, it is clearly discernible that the claim of the petitioner was regarding the property and he claimed the same to be his personal property. Such a claim is maintainable in S. 10 of the Act. He has nowhere averred that there is any institution of which he is the hereditary office--holder. It may be pointed out that in a petition under S. 10 of the Act, any person can claim the ownership of the property which stands notified under sub--section (3) of S. 7 of the Act. The reading of the petition would clearly show that this was in fact a petition under S. 10 of the Act and not a petition under S. 8 of the Act. The Tribunal vide its order dated 14-9-1964 allowed the amendment application dated 26-5-1964 and allowed the petitioner to aver that he was a hereditary office holder, but at the same time, it was asserted in the amended application again that the Dharamshala in question was the personal property of the Mohants. It was in the 4th application for amendment that permission was sought from the Court for deleting the above mentioned averments. As already pointed out, the original petition, which was filed within 90 days, was filed on 12-9-1961, whereas the crucial amendment was allotted on 29-3-1965, i.e., after a lapse of about 3 1/2 years. No reason was put forward by the petitioner while praying for amendment as to why the averments which are sought to be incorporated, were not made in the original petition and as to why the amendment was not prayed for at the earliest opportunity rather than at such a late stage when arguments in the case were proceeding, nor did the Tribunal apply its mind to this aspect of the matter. The Tribunal while allowing the amendment of the petition vide its order dated 14-9-1964, did not assign any reason as to why the amendment was being allowed. The allowing of the amendment was hotly contested as is apparent from the record. Curiously enough, the Tribunal in its order dated 29-3-1965, observed that the assertion made in para 2 of the petition, that the property belongs to the petitioner personally and the same is not the Dera property, is not supported by any evidence which has been adduced and it appeared to the Tribunal to be an isolated statement for which no proof has been sought. It was on this ground that the amendment was allowed. It would thus he seen that the Tribunal thought that since no evidence has been led to support the assertion that the property in question is the personal property of the Mohants therefore, the amendment be allowed. This hardly seems to be a justified ground for allowing the amendment. No other reason has been given by the Tribunal to allow the amendment. The Tribunal failed to keep into account the provisions of S. 8 of the Act which in addition to the other pre--requisites also prescribed a limitation of 90 days for making a claim under S. 8 of the Act. The Sikh Gurdwaras Act is a special statute and was enacted to solve ticklish problems which affected the religious sentiments of the Sikh Community. It would be seen that if a non existent petition or a wholly incompetent petition is allowed to be amended after the expiry of limitation of 90 days as prescribed under S. 8 of the Act, in that case, the mandate of the provisions of S. 8 of the Act shall stand violated. It is no doubt true that a Full Bench of this Court in Budh Dass and Purna Nand Vs. The Shiromani Gurdwara Parbandhak Committee, Amritsar, , came to the conclusion that the provisions of Order 6, Rule 17 of the Code of Civil Procedure, are applicable to the proceedings under the Act but at the same time, the Full Bench held that if there are absolutely no averments in a particular petition in relation to the hereditary office which may be proved by the petitioner in evidence, such a petition will be incompetent in its inception and amendment may not be allowed. It was further held that it foundation is laid in the petition but some lacuna is left inadvertently or due to any reason, the Tribunal will certainly have the jurisdiction to allow the petitioner to make a better statement and to make good the lacuna. It may be observed at this stage, that a Division Bench of this Court in Ram Bhaj v. The S. G. P. C., Amritsar, (F. A. O. No. 27 of 1963, decided on 23rd October, 1969), while considering the question of amendment of an incompetent petition, observed as follows:--
"In paragraph 3 of his petition, the only ground on which the appellant sought his right to make the petition was that he was of twentyone years of age and was resident of Police Station Faridkot within the jurisdiction of which the Gurdwara in question is situate, but this did not give him a right under S. 8 to make the petition as he did. So on the date on which the petition was made by the appellant under S. 8, it was a petition not at all competent and not within the scope of S. 8. In the circumstances, the question of amendment of an incompetent petition could hardly arise. Any such attempt at amendment would in substance be nothing more than really a new petition by persons entitled to make such a petition under S. 8 of the Act and it will be taken to have been made on the date of the amendment, which in this case would be some two years after the notification under S. 7 (3) of the Act, when a petition under S. 8 can only be made within ninety days from the date of such notification. If no such petition is made within ninety days of that date, then, under S. 9 (1) of the Act it is the duty of the State Government to proceed to issue a further notification declaring the particular Gurdwara to be a Sikh Gurdwara. Here, the State Government has no option. No doubt it is the decision of the Tribunal which settles this question whether or not the petition was competent under S. 8, but once that is settled, S. 9 (1) of the Act becomes immediately operative, and an amendment which would have invited a new petition under S. 8, though not having been made through the State Government as envisaged by Section 8, would not have been a petition according to S. 8, but quite contrary to it. An amendment in such circumstances would not accord with the states any provision of S. 8 and be in the interest of justice and the appellant cannot claim such an amendment in the circumstances of this case."
Different view was taken by another Division Bench of this Court in S. G. P. C. V. Dharam Dass, (F. A. O. No. 177 of 1963, decided on January 8, 1970). It was because of conflict of opinion that the matter was referred to a Full Bench by me sitting with S. P. Goyal J. in Budh Dass''s case (supra) (AIR 1978 Punj and Har 39). The Full Bench overruled the judgment of the Division Bench in case S. G. P. C. v. Dharam Dass (supra), and approved the judgment of the Division Bench in Ram Bhaj''s case (supra) (F. A. O. No. 27 of 1963, D/-23-10-1969) (Punj). It would thus be seen that as far as this Court is concerned, it is finally settled law that a wholly incompetent petition cannot be allowed to be amended after the expiry of the period of limitation prescribed under S. 8 of the Act, by the Tribunal. In this view of the matter, and keeping in view the fact that no explanation was given as to why the averments as would satisfy the ingredients of S. 8 of the Act were not made in the original petition and keeping in view the further fact that the amendment was piecemeal prayed after the lapse of a number of years and the Tribunal having not kept itself abreast of the legal position, and without giving any reason having allowed the amendments, the said orders of the Tribunal cannot be allowed to stand. The petition originally filed was in fact a petition under S. 10 of the Act and the Tribunal after the lapse of many years had no jurisdiction to convert the said petition by allowing amendment into a valid petition answering the description of the provisions of S. 8 of the Act. That being the case, the amended petitions have to be ignored. The petitioner having not averred his locus standi and having not even averred that there is any institution of which he is the hereditary office--holder, it is to be held that the petition is incompetent.
The matter may be looked from another angle. Even if for argument''s sake, the amendment orders are upheld and the amended petition is taken into consideration, even then the averments made in the petition fall short of the ingredients of S. 8. As far as this Court is concerned, it is finally settled by more than one Full Bench judgment that in a petition under S. 8 of the Act, the petitioner has to aver specific custom of the institution by which the petitioner and his successors came to hold office either by way of hereditary right or by nomination. Even in the amended petition, the petitioner has not alleged the special or general custom concerning the development either according to the hereditary right or by nomination. The only averment made is that Chela succeeded to the Guru. This averment alone is not sufficient. Specific custom has to be pleaded so as to aver as to whether the eldest Chela succeeded or whether the appointment was made by the predecessor in his lifetime, or whether the appointment was made by Bhek, etc., had to be averred. A Full Bench of this Court in Hari Kishan Chela Daya Singh v. The Shiromani Gurdwara Parbandhak Committee, Amritsar AIR 1976 P &H 130, was called upon to consider this question and it was observed as follows:--
"26. The contention of Shri K. N. Tewari, the learned counsel for the appellant, that once he is able to show that the appellant had succeeded as the Mahant of the institution prior to November 1, 1956, and was occupying that office on that day, he must be held to be a ''hereditary office--holder'' capable of moving the petition under S. 8 of the Act, lacks merit. As has been discussed above, in order to satisfy the ingredients of S. 8, the office of the institution has to be distinctly looked into and then the question of the incumbent having occupied the same by hereditary right or by nomination, has also to be seen. If the contention of Shri Tewari is accepted, it would mean that any Chela appointed by a person calling himself a Mahant coming into illegal possession of the institution any time prior to November 1, 1956 in the case of extended territories, will be entitled to be called a ''hereditary office--holder'' entitled to present a petition under S. 8. That clearly does not appear to be the intention of the Legislature. The definitions of the words ''office'' and the ''hereditary office'' as provided by the Legislature clearly do not visualise any such situation. It would be apparent from the bare examination of the provisions of the Act that the ''hereditary office-holder'' of a Gurdwara or an institution, is clothed with very valuable rights with regard thereto. The obvious intention of the Legislature was to give rights to the incumbents of this office which had come to devolve upon the persons by a regular rule of descent or sanctified usage and the rights of such persons were in fact recognised by the statute. No doubt the statute has not provided any mode by which the office may become hereditary and thus it is incumbent upon the petitioner who claims himself to be a ''hereditary office--holder'' and whose locus standi is challenged, to prove that there existed a well established rule of descent or a well--recognised mode of succession to the office in question. The definition prescribes two modes, namely, that such an office must be one which devolves from one incumbent to another according to the hereditary right or by nomination."
The following observations in Hari Kishan''s case AIR 1976 P&H 130 (supra) are also relevant in this context:--
''33. It is thus apparent that both on principle and authority, the contention of Shri Tewari, that merely by showing that on the prescribed date the petitioner held the office and therefore, he was entitled to be declared to be a ''hereditary office--holder'' must fail. It is, therefore, to be held that the person claiming himself to be a ''hereditary office--holder'' must allege and prove the consistent rule of descent by which he or his predecessors had come to hold the office on the prescribed date."
On the facts of that case, as regards the question whether the petitioner in that case was proved to be the hereditary office--holder, it was observed as follows:--
"47. From the averments in the petition, it is clear that the management of the institution was alleged to be from Guru to his Chela who is nominated by the deceased Guru. There is no averment in the petition alleging any rule of descent from Chacha Guru to Bhatija Chela. Similarly, no rule of descent in the absence of a Chela of any incumbent was even remotely suggested nor was any averment made as to what would happen in a case in which there are more than one Chela living at the time of the death of the Guru who manages the institution."
It would thus be seen that it stands firmly established that the petitioner must allege and prove the consistent rule of descent. This judgment of the Full Bench found approval by another Full Bench of this Court in Budh Dass and Purna Nand Vs. The Shiromani Gurdwara Parbandhak Committee, Amritsar, , wherein para 33 of the judgment of this Court in Hari Kishan''s case AIR 1976 P&H 130(supra) was approved in the following terms:--
"In our considered opinion, this is the correct position of law. Unless the petitioner makes the necessary averments in his petition regarding his locus standi and competence to file the petition as envisaged under S. 8, the petition cannot be heard on merits."
A Division Bench of this Court in FAO No. 77 of 1965, Kartar Singh v. S. G. P. C., decided on 25-9-1975, following the Full Bench decision in Hari Kishan''s case AIR 1976 P&H 130, (supra) held as follows:--
"Mr. Mehta, the learned counsel for the appellant, however, contends that from the evidence on the record he has been able to prove that the succession was from Guru to Chela and usage or custom in this respect has been impliedly pleaded in paragraph 3 of the petition. We are unable to agree with this contention of the learned counsel. As stated above, the usage or the custom of succession has to be pleaded in clear and unequivocal terms and no amount of evidence in the absence of such a pleading can be of any help or looked into."
From what has been stated above, it is obvious, that the petitioner having failed to aver the specific custom concerning the institution in question, no amount of evidence can be looked into in the absence of any such averment.
Moreover, there is no documentary evidence regarding the existence of any consistent custom of this institution. The documents relied upon by the petitioner at the most go to show that Chela succeeded the Guru. As to how the Chela came to occupy the position, i.e., whether he was nominated by the predecessor or whether he was elected by the Bhek or as to which of the Chelas, if there were more than one, had the right to succeed, no such clue is available from the documentary evidence. The oral evidence led in this regard is again contradictory and discrepant. Some of the witnesses produced by the petitioner stated that the office of the Mahantship devolved from Guru to Chela, i.e., according to the hereditary right. Other witnesses produced by the petitioner deposed that the Mahant used to nominate his successor and this nomination was confirmed by the Bhek. Shri Brahm Rattan (P. W. 1) deposed that the Bhek sometimes selects the ablest of the Chelas of the last Mahant as a successor. According to Amar Dass (P. W. 6) the Mahant used to nominate his successor and this nomination was confirmed by the Bhek. Mahant Bishan Dass (P. W. 7) stated that if there are more Chelas than one, then the fraternity nominates the ablest one. It would thus be seen that there is no documentary evidence as to the specific custom prevailing, and as to whether the office--holder came to be appointed by succession or nomination. The oral evidence led is also discrepant. In this view of the matter, it is to be found that neither there is any averment made in the petition regarding the particular custom of inheritance or nomination, which necessarily had to be averred, nor there is any satisfactory evidence to throw light on this aspect of the matter.
Having come to the conclusion that orders of the Tribunal allowing the amendment do not hold the field and in the alternative even if the amended petition is taken into consideration, the same having been found to be deficient as regards the pleadings of a particular custom and there being no evidence worth the name in that regard, it does not seem to be necessary to burden this judgment by referring to the various documents relied upon by the learned counsel for the parties, nor it seems necessary to make a detailed reference to the oral, evidence adduced by the parties in view of the findings referred to above.
The only other contention which need to be noticed is whether the payment of costs to the counsel for the Committee by the petitioner would disentitle the Committee from raising the question of validity of the amendment orders. Shri T. S. Mangat, the learned counsel for the appellant vehemently contends that the counsel for the Committee having accepted the costs is estopped from challenging the orders of amendment. The learned counsel relies on Budh Dass and Purna Nand Vs. The Shiromani Gurdwara Parbandhak Committee, Amritsar, Ramcharan Mahto and Others Vs. Custodian of Evacuee Property and Another, ; Baliram Narayan v. Bapurao ,Walalaji AIR 1955 Nag 222 ; Mewa Singh and Others Vs. Brahma Nand and Others, ; Prithvi Singh Azad Vs. Ajaib Singh Sindhu and Others, , and Union of India Vs. Sis Ram, . Shri Narinder Singh, the learned counsel for the Committee, on the other hand contends that there is no estoppel against the statute. The Tribunal had no jurisdiction to allow the non--existent or an incompetent petition to be converted into a petition under S. 8 of the Act by allowing amendment after the lapse of many years. It has been contended that merely the acceptance of costs by the counsel for the committee would not west jurisdiction in the Tribunal to bring into existence a non--existent petition. The learned counsel relies on Ferozi Lal Jain Vs. Man Mal and Another, ; Syed Abdul Hadi v. Abdul Latiff, AIR 1940 Nag 161; Niranjan Singh, S. Inder Singh Vs. Murti Shri Bhagwan Ram, and Puttu Singh and Others Vs. Vidya Ram and Others, . It has further been contended by the learned counsel for the Committee that the order allowing amendment could not be challenged in revision as no revision is competent in view of the provisions of S. 34 of the Act, and the only stage for challenging the said orders is at the stage where the said orders are being challenged.
Reverting to the first principles, which may be held to be applicable in determining this controversy, it is to be observed that the acceptance of costs at the most may estop the party concerned from challenging the order in consequence of which the costs were paid and are accepted. In the alternative it can be said that the party who accepted the costs cannot be allowed to approbate and reprobate.
It is well settled that in the case of special Acts, mere acquiscence, consent or estoppel would not entitle the Court to pass an order which is not in keeping with the provisions of the Act. While dealing with the provisions of the Delhi Ajmer Rent Control Act, their Lordships of the Supreme Court in Ferozi Lal Jain Vs. Man Mal and Another, held as follows:--
"The jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13 (1) have been proved. Where the Court had proceeded solely on the basis of the compromise arrived at between the parties, the court was not competent to pass the decree. Hence the decree under execution must be held to be a nullity."
A Division Bench of the Allahabad High Court in Puttu Singh and Others Vs. Vidya Ram and Others, held that in the absence of anything on the record to show that the costs were taken by the plaintiff''s pleader in token of acceptance of the validity of the order, the plaintiff could not be said to have acquiesced in the order for setting aside the ex parte decree.
Chief Justice Bhandari (as he then was) in Niranjan Singh, S. Inder Singh Vs. Murti Shri Bhagwan Ram, held that it may be that a consent decree is based on an agreement to which the tenant himself is a party but it must be remembered that even a party for whose benefit a measure has been enacted is not competent to contact out of the protection of the Act. Neither the conduct of a party nor the existence of a judgment can prevent him from asserting the invalidity of an order which is made in contravention of the Act.
It is clear on record that the Committee opposed the amendment tooth and nail. The objection to the maintainability of the petition was taken at the very first stage. As has been held in Ram Bhaj''s case (F. A. O. No. 27 of 1968 D/-23-10-1969) (Punj) (supra) which was subsequently approved by the Full Bench of this Court in Budh Dass and Purna Nand Vs. The Shiromani Gurdwara Parbandhak Committee, Amritsar, , an incompetent petition cannot be allowed to be made competent by allowing amendment after the expiry of the period of limitation as prescribed under S. 8 of the Act. As we have come to the conclusion that the petition originally made was not in fact the petition u/s 8 of the Act and that the Tribunal had no jurisdiction to convert the non--existent petition into a petition under S. 8 of the Act after the expiry of limitation, no amount of acquiscence on the part of the Committee can vest such a jurisdiction in the Tribunal. The orders of the Tribunal allowing the amendment are clearly illegal and merely the Committee having accepted the costs, would not disentitle the Committee to challenge the validity of the said orders. There is nothing on the record to show that the Committee acquiesced its rights to challenge the said orders, nor there is anything to show that the counsel for the Committee in a conscious manner accepted the costs with a view to forgo the objections. The principle of estoppel and the principle not to allow a party to approbate and reprobate are the rules of evidence. The said principles cannot override the specific provisions of the Special Act.
The authorities relied upon by the learned counsel for the appellant, Shri T. S. Mahant, are not of any assistance in view of the provisions of law as applicable to the present case. All those authorities are decisions on the facts of those cases and are the decisions in cases tried by Courts of civil jurisdiction under general law. None of the cases relied upon is a case under the special statute.
Lastly, reference may be made to the observations of the Full Bench in Budh Dass and Purna Nand Vs. The Shiromani Gurdwara Parbandhak Committee, Amritsar, on which strong reliance has been placed by Shri Mangat, the learned counsel for the appellant. It is no doubt true that the Full Bench observed that an application for amendment was allowed on payment of costs which were accepted and, therefore, the respondent was estopped from challenging the order but the said observations were made in the background of the earlier findings recorded in that case. The Full Bench came to the conclusion on the facts of that case that the unamended petition was not incompetent to begin with and the application for amendment was made in order to meet the objection of the respondent that in the original petition averment was not made specifically that the petitioner was a hereditary office--holder. It was held that if essential ingredients of office and hereditary office as defined in the Act are brought out in the various forms in the original petition the same will be substantial compliance, with the same will be substantial compliance, with the provisions of S. 8 of the Act, which averments were made in that case. On this a finding was recorded that the order of the Tribunal in the circumstances of the case allowing the petition for amendment cannot be held to be without jurisdiction. It was in this background that a passing reference was made to the payment of costs to the counsel for the Committee. These observations were made because on the facts and circumstances of the case, which was being decided, the Court was of the opinion that the petition filed initially was a competent one and it was only for the removal of the lacuna that the amendment was sought and that the Tribunal had the jurisdiction to allow such an amendment. As has been observed earlier in the same Full Bench, the principle laid down in Ram Bhaj''s case (F. A. O. No. 27 of 1963 D/-23-10-1969 (Punj) (supra) was approved when it was held that if there are absolutely no averments in a particular petition in relation to the hereditary office, such a petition will be incompetent in its inception and amendment may not be allowed. Thus the passing reference in the decision regarding the payment of costs is of no assistance to the learned counsel for the petitioner in the facts and circumstances of the present case.
For the reasons recorded above, issues Nos. 1 and 2 are decided against the petitioner--appellant.
Issue No. 3.
It may be observed that Shri D. R. Saini, one of the members of the Tribunal decided this issue against the Committee, whereas Shri J. S. Rekhi, another member of the Tribunal, came to the conclusion that the institution in question is a Sikh Gurdwara. Justice Gurdev Singh, Chairman of the Tribunal, did not record any finding on this issue. Reference at this stage may be made to the provisions of S. 13 of the Act, which is as follows:--
"13. (1) No proceedings shall be taken by a tribunal unless at least two members are present, provided that notices and summonses may be issued by the president or a member nominated by the president for this purpose.
(2) In case of a difference of opinion between the members of a tribunal, the opinion of the majority shall prevail; provided that if only two members are present of whom one is the president, and if they are not in agreement, the opinion of the president shall prevail; and if the president be not present, and the two remaining members are not agreed, the question in dispute shall be kept pending until the next meeting of the tribunal at which the next meeting of the tribunal at which the president is present: the opinion of the Majority, or of the president when only two members are present, shall be deemed to be opinion of the tribunal."
The bare reading of the above mentioned provisions shows that in case of a difference of opinion between the members of the Tribunal, the opinion of majority shall prevail, and if only two members are present other than the president, and the two members are not agreed, the question in dispute shall be kept pending until the next meeting of the Tribunal at which the President is present. The opinion of the majority or the President, when only two members are present, shall be deemed to be the opinion of the Tribunal. It is further clear from the provisions of the Act that except the Tribunal no other Court shall have the jurisdiction to decide whether the institution in question is a Sikh Gurdwara or not. In view of the difference of opinion between the two members, it was incumbent upon the learned President to have opined about this issue and thus the majority view was to be deemed to be the judgment of the Tribunal. Had we found issue Nos. 1 and 2 in favour of the petitioner--appellant, in that case we were bound to remand the case to the Tribunal to decide issue No. 3 in accordance with the provisions of the Act. The learned counsel for the parties agree that that was the only proper course to adopt in view of the fact that the Tribunal had failed to decide issue No. 3. We are conscious of the provisions of Order 41, Rule 24 of the Code of Civil Procedure, by virtue of which the appellate Court can also decide the matter but we are of the opinion that the said provisions are not applicable on the facts and circumstances of this case. The said provisions pre--suppose that the trial Court proceeded wholly upon some ground other than that on which the appellate Court proceeds. This has not happened in this case. The very issue and the evidence which was before the Tribunal, is before us and the Tribunal has failed to proceed to decide the issue. In fact the Tribunal, which is the only authority to decide whether the institution in question is a Sikh Gurdwara or not, has not made any decision on the question as has been pointed out above. In view of the fact that we have found issues Nos. 1 and 2 against the petitioner--appellant, it is not necessary for us to remand the case to the Tribunal for the decision on issue No. 3 and we need not express our opinion on this issue.
In view of the findings on issues Nos. 1 and 2, there is no merit in this appeal and the same is hereby dismissed, with no order as to costs.
Appeal dismissed.