SHIROMANI GURDWARA PARBANDHAK COMMITTEE Vs. LT SARDAR RAGHUBIR SINGH

JUDGEMENT

(1.) This is an appeal on leave granted by the High Court of Punjab against its judgment affirming the decree of the Sikh Gurdwara Tribunal dated the 19th December, 1940, dismissing the plaintiff's suit. The plaintiff in the appeal is the Committee of Management of Sikh Gurdwaras within the Municipal limits of Amritsar (except the Gurdwara Sri Akal Takhat Sahib, Amritsar). The plaint was filed under section 25-A of the Sikh Gurdwaras Act, 1925, (Punjab Act VIII of 1925) (hereinafter referred to as the Act) for possession of certain properties situated in Amritsar, marked and bounded as specified in the plaint and purporting to have been declared as a Sikh Gurdwara by the Government of Punjab under Section 17 of the Act by means of the notification No. 9.G dated the 3rd March.1937. The case of the plaintiff-Committee is that these properties were, and were determined to be, a Sikh Gurdwara, by name Gurdwara Bunga Sarkar, by the Sikh Gurdwara Tribunal by its decree dated the 4th November, 1935 and confirmed on appeal therefrom by the High Court of Judicature at Lahore, on the 16th June, 1936 and that accordingly the Committee was entiled to possession of the properties. The facts that have led up to the present appeal are as follows:After the Act was passed and within one year of its commencement the then existing non-statutory Shiromani Gurdwara Parbandhak Committee filed a list under section 3 of the Act claiming the suit properties and certain other items attached thereto as belonging to the Gurdwara Harmandir Sahib. These properties comprised two items called Bunga Sarkar and Bunga Mai Mallan and the shops appurtenant to each of them. Objections were filed to this list by way of two applications under Section 8 of the Act claiming these as private properties. One was by Sardar Balwant Singh dated the 8th March 1928 and the other was by Sardar Raghbir Singh dated the 10th March, 1928. Sardar Raghbir Singh claimed the whole of Bunga Sarkar and its appurtenant shops as well as 1/3rd of the Bunga Mai Mallan and of the appurtenant shops. Sardar Balwant Singh's claim was confined to 1/3rd share in Bunga Mai Mallan and in the appurtenant shops. The other 1/3rd share in Bunga Mai Mallan was apparently treated by these claimants as belonging to some other person who was not a party to these proceedings. These two applications were forwarded under Section 14 of the Act to the Gurdwara Tribunal for its decision. The parties to these proceedings entered into a compromise on the 6th February, 1930. There were two compromises one relating to each of the applications. The net effect of the compromises was that some out of the items claimed were admitted to be the private property of the respective claimants and the rest as 'wakf bungas' for the 'Yatries' to Sri Darbar Sahib, that the non personal properties were to remain in the management of the claimants, their heirs and representatives as such 'wakf' with certain stipulations as to how that management was to be carried on. The Tribunal disposed of the two applications before them in terms of these compromises. It may be mentioned that though the original list under Section 3 of the Act was filed by the then non-statutory Shiromani Gurdwara Parbandhak Committee, the compromises were entered into by the Managing Committee of the Gurdwaras within the limits of the Municipal Committee, Amritsar, which presumably had already by then been formed under Section 85 of the Act. Now, quite independently of these proceedings before the Tribunal, and prior to the filing of the list under Section 3 and of the objections under Section 5 above referred to, there had been filed a petition under Section 7 of the Act, signed by 55 Sikhs, claiming these very properties as being in themselves a Sikh Gurdwara by name Bunga Sarkar (Maharaja Ranjit Singh Saheb) and enclosing a list of properties as belonging thereto under section 7 (2)of the Act. It does not appear that this petition was brought to the notice of the Gurdwara Tribunal when it passed the decree in terms of the compromise with reference to the objections under Section 5 of the Act. The petition under Section 7 was in the usual course followed by a notification issued by the Government on the 18th February, 1930, under Section 7 (3) of the Act. This resulted in (1) an objection under Section 8 by the Grant his objecting that this was not a Sikh Gurdwara, and (2) two other objections by Sardar Raghbir Singh and Sardar Balwant Singh, already previously above referred to, under Section 10 of the Act claiming the properties as their own and objecting to the claim made that they were Sikh Gurdwaras. These objections were filed on the 5th April, 1930. It may be noticed that the notification under Section 7(3) of the Act was within a few days after the compromise decrees in the proceedings under Section 5 of the Act and it does not appear whether the compromises were brought to the notice of the Government or not. These objections under Sections 8 and 10 (and presumably also the petition under section 7) were forwarded to the Tribunal for its decision under section 14 of the Act. The petition under Section 8 filed by the Granthis was contested by the Shiromani Gurdwara Parbandhak Committee (Statutory) and after recording some evidence, the Tribunal came to the conclusion that Bunga Sarkar was a Sikh Gurdwara and declared it as such on the 28th August, 1935. On the objections under Section 10, notices were given to the Committee of Management as well as to the Shiromani Gurdwara Parbandhak Committee but they declined to become parties to it. The contest under section 10 of the Act was only as between the claimants and some of the Sikhs who filed the petition under Section 7. At the hearing before the Tribunal both sides relied upon the previous compromises in support of their respective claims. The Tribunal by its decision dated the 4th November, 1935, decided that the properties which had been declared as the properties of Sardar Raghbir Singh and Sardar Balwant Singh respectively, should be declared to be their personal properties and that the rest of the properties claimed to belong to Bunga Sarkar and Bunga Mai Mallan should be declared to be Sikh Gurdwaras and as properties appurtenant thereto. It was also declared that these two Gurdwaras and the properties held to be appurtenant to them should vest in the management of Sardar Raghbir Singh and Sardar Balwant Singh by virtue of and as per terms of the compromises. As against these decrees two appeals were presented by the Sikh worshippers to the High Court and the only question that ultimately appears to have been raised was that the direction given by the Tribunal to the effect that the properties should remain in the management of the claimants, Sardar Raghbir Singh and Sardar Balwant Singh, was legal. The High Court without giving any decision on the legal question so raised was of the opinion that it was no function of the Sikh Gurdwara Tribunal to pass an order on an application made under section 10 by the claimants that the claimants should manage the properties appurtenant to the Gurdwaras by virtue of the compromises. They thought that the question of right of management should be left open in these proceedings and that the directions in the decree of the Tribunal relating to the management should be deleted therefrom and that the rest of the decrees of the Sikh Gardwara Tribunal is to stand. They expressed their conclusion in the following terms:

(2.) On these facts a number of contentions were raised by both sides before the High Court as well as before us. The judgment of the High Court as well as the arguments before us have covered a wide range. On the merits, the case for the plaintiff is quite simple. The plaintiff says that whatever may be the position with reference to the earlier compromises arrived at between the parties in the proceedings under Section 5 of the Act, the later proceedings with reference to those very properties under Section 10 of the Act resulted in the judgment of the High Court dated the 16th June 1936, which is conclusive and binding. By virtue of the said judgment and the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of S. 25A of the Act. On the side of the defendants various objections have been raised which may be summarised as follows:(1) The proceedings under Section 10 did not result in any specific declaration in favour of the Committee that the properties in dispute in the present suit constituted a Sikh Gurdwara or belong to a Sikh Gurdwara. No such declaration can be gathered from the decision of the Tribunal dated the 4th November, 1935, or from that of the High Court on appeal dated the 16th June, 1936. (2) The Tribunal had no jurisdiction in disposing of an application under Section 10 of the Act, to give a positive declaration that the property in question is a Sikh Gurdwara. Its only function was to decide whether or not the properties claimed were the private properties of the claimants. Hence even if the decision of the Tribunal and of the High Court can be treated as a decision declaring the properties as a Sikh Gurdwara that is not valid and the notification issued thereupon is void. (3) Any such decision would be contrary to Section 37 of the Act and also contrary to the principles of 'res judicata' and would be, therefore, a nullity on that ground. (4). The conduct of the Gurdwara Parbandhak Committee and the concerned Committee of Management in entering into the compromises in the proceedings under Section 5 of the Act without disclosing the pendency of the petition filed by the 55 Sikhs under Section 7 of the Act, followed up by their declining to be made parties in the Section 10 proceedings and in virtually promoting the contest of the proceedings under Sections 8 and 10, was fraudulent. They are accordingly estopped from relying on the decree obtained under Section 10 proceedings and basing their right to relief thereon. (5) The suit under Section 25-A lies only where the decision on an objection under Section 10(1) is reached after the notification that the Gurdwara is a Sikh Gurdwara is published since the section refers to a decision in favour of a "Notified Sikh Gurdwara" implying the pre-existence of such notification. (6) The suit under Section 25-A was barred by limitation. (7) The whole appeal abated in the High Court inasmuch as one of the respondents, Sardar Balwant Singh died during the pendency of the appeal. His legal representatives were not brought on record in time and the High Court declined to excuse the delay and to set aside the abatement, as a result of which the entire appeal abated, the claim against both the respondents being joint and not being maintainable against one only in the absence of the other. In addition to these contentions which have been put forward before us and strenuously argued by both sides the High court also based its decision on the view that Section 7 of the Act assumes the existence of a Gurdwara and that a notification issued under Section 7(3) without there being in fact a Gurdwara in existence would be 'ultra vires'. In the present case, in view of the prior proceedings under Section 5 and the compromises following thereupon, the non-existence of the Gurdwara as claimed in the petition under Section 7(1) must be taken to have been made out and therefore the notification and all the proceedings following thereupon are legal and 'ultra vires'.

(3.) Though we have heard elaborate arguments from both sides on these various contentions, it appeared to us ultimately that the plea of limitation is decisive against the appellants and that it is unnecessary to express any opinion on any of the other contentions raised. The question of limitation arises with reference to the terms of Section 25-A which is as follows: