Nahar Singh and Others vs Shiromani Gurdwara Prabandhak Committee

Harmohinder Kaur Sandhu, J.—The applicant-appellants have moved this application (R. A. No 80-C.IT of 1991) under Order 47, Rule 1, Civil Procedure Code, for review of our judgment dated September 13, 1991, rendered in F. A. O. No. 109 of 1979.

The principal grounds for review set down in the review application are : -

(i) that Sections 3 and 4 of the Places of Worship (Special Provisions) Act, 1991 (for short, the 1991 Act) were not adverted to while deciding the appeal ; and

(ii) that important documentary evidence produced by the applicant-appellants was not taken note of while deciding the issue arising for determination.

A perusal of the penultimate paragraph of the judgment reveals that we found no embargo for converting a Dharamsala existing as on August 15, 1947 into a Sikh Gurdwara and in coming to this conclusion, reliance was placed on a decision of this Court in F. A. O. No. 63 of 1964, Gurbachan Singh and Ors. v. Shiromani Gurdwara Prabandhak Committee and Ors. F. A. O. 63 of 1964, decided on April 8, (970. In arriving at this conclusion, we did not take note of the provisions of Sections 3 and 4 of the 1991 Act. Section 3 of the 1991 Act says that no person shall convert any place of worship of any religious denomi-nation of any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. Section 4(1) of the 1991 Act says that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day. Proviso to sub section (2) of Section 4 of the Act lays down that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, in pending on the commencement of the Act, such suit, appeal or other proceeding shall not so abate and every such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1). These provisions have an important bearing on the decision of the question involved and these were not adverted to while deciding the appeal. Moreover, the comulative effect of the documentary evidence in the form of revenue record, i. e., Exhibits P-1, P 2, P-3, P-4, P-5, P-6, P-7, P-8, P-9. P-11, produced by the applicant-appellants, was not drawn while deciding the principal question involved. In AIR 1949 106 (Federal Court) , at page 111, their Lordships observed thus :-

"When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to a error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 rule 1, Civil Procedure Code".

In the light of this authoritative pronouncement, we find that it is a fit case for reviewing our judgment. Accordingly R. A. No. 80-CII of 1991 is allowed.

We have heard the counsel for the parties at length and we proceed to dispose of the appeal de novo. u/s 7 (1) of the Sikh Gurdwaras Act, 1925 (for short, the Act) more than 59 worshippers forwarded to the Local Government a petition praying to have the institution known as Gurdwara Sahib situated within the revenue estate of Kalyan, District Patiala, declared to be a Sikh Gurdwara. This was duly notified by the State Government under the provisions of Section 7 (3) of the Act. Thereupon, Nahar Singh and 19 other persons of villages, Kalyan, Dhudhera and Assa Majra, Tehsil and District Patiala filed an application u/s 8 of the Act claiming that the institution in dispute was not a Sikh Gurdwara as alleged in the petition u/s 7(1) of the Act and that the Gurdwara was established about 30 years ago and it was used by all the sects residing in the village. This application was forwarded to the Sikh Gurdwaras Tribunal, Punjab (the Tribunal, for brevity) for trial. Shiromani Gurdwara Prabandhak Committee, Amritsar (for short, the Committee) was arrayed as a respondent to the petition. The Committee was allowed to file written statement It pleaded that the institution in dispute was established for worship by Sikhs and it was being so used till the presentation of the petition. The only object of worship in the Gurdwara was Guru Granth Sahib.

On the pleadings of the parties, the following issue was framed ;-

Whether the institution in dispute is a Sikh Gurdwara ? OPR.

On the basis of a compromise, the institution was declared to be a Sikh Gurdwara and Nahar Singh, appellant was to remain as Mahant of the Gurdwara for life and during his lifetime he was entitled to nominate a Committee of Management of his choice and after his death the Committee was to nominate a Committee of Management in accordance with the provisions of the Act The petition u/s 8 of the Act was dismissed by the Tribunal by order dated March 16, 1965. This order was assailed by Nahar Singh, appellant and one Amar Singh by filing Civil Misc No. 356 of 1977, which was accepted by the Tribunal by order dated October 4, 1977 and the order dated March 16, 1965 was declared a nullity. The Committee unsuccessfully sought review of the order dated October 4, 1977. Thereafter, the Tribunal decided the petition on merits and the petition u/s 8 of the Act was dismissed and the institution was declared 10 be a Sikh Gurdwara. This led to the filing of the present appeal by Nahar Singh and others.

The Committee claimed that the institution was a Sikh Gurdwara u/s 16(2) (iii) of the Act. In order to succeed in proving that the institution is a Sikh Gurdwara, the Committee has to prove that the Gurdwara was established for use by Sikhs for the purposes of public worship and was used for such worship by Sikhs before and at the time of presentation of petition u/s 7 (1) of the Act. Both the conditions must co-exist and if any of these conditions is not fulfilled, the institution could not be declared a Sikh Gurdwara. Indisputably, the institution was situated in the revenue estate of Kalyan, Tehsil and District Patiala. The Act was amended by Punjab Act No. 1 of 1959 By virtue of the amendment, it extended to territories which immediately before November 1, 1956 were comprised in the States of Punjab and Patiala and East Punjab States Union. The consequential amendments were made to the other provisions of the Act. In the wake of these amendments, the petition u/s 7 (1) of the Act was moved.

Now the stage is set to examine if the Committee has been able to prove that the disputed institution was established for use by Sikhs for public worship, it can prove this by any class of evidence permitted under the Evidence Act. The Committee stated that one Chhotu Singh established the institution as a Sikh Gurdwara for public worship by Sikhs as contemplated u/s 16 (2) (iii) of the Act. Chhotu did not dedicate any property either by gift or otherwise for the establishment of the institution from which an inference could be drawn that the institution was established by the Sikhs for public worship. Similarly, there is no evidence of long user for such a purpose from which an inference could be drawn that the institution was established by the Sikhs for Public worship The petition u/s 7 (1) of the Act led to the publication of notification dated August 10, 1962, Exhibit K-1. A plan was annexed with the petition and a note was given thereto that the Gurdwara Sahib was situated in Khasra No 265. Jamabandi for the year 1956-57 is a part of the notification. In Khasra No. 265 it is recorded Gair Mumkin Gurdwara Sahib under the ownership of Shri Gurdwara Sahib. The Committee did not substantiate the claim, made in the petition u/s 7(1) of the Act that the institution in dispute is situated in Khasra No. 265 and it was so established as enjoined u/s 16 (2) (iii) of the Act. The documentary evidence produced by the Committee does not advance its case. To the contrary, the appellants brought on record authentic documentary evidence negativing the claim of the Committee. One Chhotu gifted the land in favour of Dharamshala and Chah Khooi (Well) Be-iehtmam Dari son of Shaha-jada Brahmin. Mutation No. 94, Exhibit P 10 was sanctioned in the year 1974 Bk. (1917 A. D.) The mutation entry was reflected in the Jamabandi for the years 1981-82 Bk (1924-25 A. D), Exhibit P-1. The entry in Exhibit P-1 was followed by an entry in the Jamabandi for the year 1985-86 Bk. (1928-29 A. D ), Exhibit P-2. In this document, in the column of ownership, " Dharamshala Wa Chah Khooi (Well) Be-iehtmam Chtota Dass son of Nikka Jat," was recorded. Exhibit P-3 is Jamabandi for the year 1997-98 Bk. ( 930-31 A. D.) and in the column of ownership, it is recorded, "Dharamshala Wa Chah Ba-iehtmam Niranjan Singh son of Gurdit Singh". Mutation No. 437, dated Baisakh 11. 1984 Bk., Exhibit P-4. was sanctioned. The Mohtmim rights were mutated in favour of Chhotu son of Nikka The institution continued to be recorded as "Dharamshala Wa Chaha Khooi (Well). Exhibit P-5 is the Jamabandi for the year 2001 02 Bk. 1944 45 A. D.) and in the ownership column, regarding the entire land it is recorded "Dharamshala Wa Chaha Ba-iehtmam Mahant Niranjan Singh". Against Khasra No. 850/1 measuring O-10 Biswas "Ghair Mumkin Gurdwara Sahib" is recorded From the reading of the ownership column, it flows that the Gurdwara was owned by the institution, i e. Dharamshala. Exhibit P-6 is the mutation sanctioned in the year 1953 in favour of Gurdwara Sahib Ba-iehtmam Nahar Singh. On the death of Mahant Niranjan Singh, the mutation in favour of Nahar Singh was sanctioned as is evidenced by Exhibit P-7 sanctioned on February 27, 1953 A. D. Exhibit P-11 is Jamabandi for the year 1963-64 and in the ownership column, ''Nagar Panchayat Deh is recorded and against Khasra No. 100 land measuring 10 Kanals 5, Marias is shown as Ghair Mumkin Gurdwara Sahib and in the column of cultivation, it is recorded, "Mufade-am" (for the welfare of all). To the same effect is the entry in the Jamabandi for the year 1975-76 A D., Exhibit P-8. Exhibit P-9 is Khasra Girdawari for the year 1976-77 and 1977-78 where in the ownership column Khasra No. 39 is recorded ''Gurdwara Sahib Be-iehtmam Bhai Nahar Singh" and immediate below the said entry, Khasra No. 100 (10 Kanals 5 Marias) "Ghair Mumkin Gurdwara Sahib under the ownership of Nagar Panchayat Mufade-am" is recorded. Exhibit P-12 is the Jamabandi for the year 1963-64. Gurdawara Sahib is recorded to be the owner of the entire land Be-iehtmam Bhai Nahar Singh, In Jamabandi for the year 1975-76 Exhibit P-15, rectangle No. 39/24 is recorded in the ownership of Gurdwara Sahib and in the column of cultivation it is recorded as "Khud Kasfat" (selt-cultivation)

A perusal of these entries will reveal that right upto 2001-02 Bk ( = 1944-45 A. D.) the institution in dispute is described as "Dharamshala Wa Cnah Khooi" and in the post-consolidation revenue record, Gurdwara Sahib is recorded in Khasra No. 100 measuring 10 Kanals 5 Maria but in the ownerahip column it is recorded, "Nagar Panchayat" and in the cultivation column, it is recotded "Mufade-am" (for the benefit of all). A close scrutiny of these entries in the revenue record points out that at no point of time, the institution was established for use by Sikhs for the purposes of public worship The institution was never referred to as Sikh Gurdwara in Government papers, nor Sikhs were ever found to be predominant worshippers. Mere reading of Guru Granth Sahib and grant from Sikhs under the circumstances would not convert an institution which was purely religious and charitable from its inception into a Sikh Gurdwara. The institution cannot be a Sikh institution within the meaning of Section 16 (2} (iii) of the Act. Reference can usefully be made to Arjan Singh and Anr. v. Harbhajan Das A. I. R. 1937 Lah. 280, and Shiromani Gurdwara Parbandhak Committee, Amritsar A. I. R. 1937 Lah. 324.

The ocular evidence read in the light of the entries in the revenue record does not advance the case of the Committee. The Committee sot out that the Gurdwara Sahib is situated in Khasra No. 265. It is to substantiate that the disputed institution is situated in that Khasra Number and that the principal conditions of Section 16 (2) (iii) of the Act are fulfilled. The plea of the Committee remains unsubstantiated. The other revenue record does not connect that the institution which is alleged to be a Sikh Gurdwara is located in the field number which was carved out in consolidation proceedings in lieu of Khasra No. 265. If in a Dharamshala Guru Granth Sahib is recited, it will not change the character of the institution ; it will remain a Dharamshala. The Tribunal did not comprehend the scope and ambit of Section 16 (2) (iii) of the Act as explained above and hastened to hold that the disputed institution is a Sikh Gurdwara on wholly illegal view of the evidence and misconstruction of the documentary evidence Even otherwise, the institution has been recorded as "Dharamshala Wa Chah Kbooi" in the revenue record right upto the year 2001-02 Bk. (= 1944-45 A. D ). It appears that the consolidation took place thereafter. There will be presumption of continuity unless proved to the contrary Right upto August 15, 1947, the disputed institution was a Dharmshala and conversion thereof to any other religious denomination is prohibited by Section 3 of the 1991 Act, which is a mandatory provision.

For the reasons stated above, the appeal succeeds, the judgment and decree of the Tribunal are set aside and the petition u/s 8 of the Act filed by the appellants is allowed, but with no order as to costs.