Judgment:
S.S. Grewal, J.
1. I have the advantage of going through the judgment of my learned brother G.R. Majithia, J. However, I am unable to record my concurrence concerning the said judgment for the reasons hereinafter recorded.
2. As per Full Bench decision of this Court in Lachhman Dass Ishar Dass v. State of Punjab, I.L.R. (1968)1 Punjab. 499, the word 'Gurdwara' used in some of the provisions of the Act has reference to the 'institution' comprising the 'purpose' or 'ideal' which owns all the property of the Gurdwara and not in the mundane sense implying the mass of earth, and the brick and mortar thereon, which is the physical place of worship in which Guru Granth Sahib may be installed.
3. By a majority view in Full Bench decision of this Court in Gurdwara Sahib Padshahi Daswin Tittarsar v. Mahant Kesar Singh Chela Tirath Singh of Gurdwara Sahib Tittarsar, A.I.R. 1979 Punjab 166 it was observed that notified Sikh Gurdwara as an institution is different from the building of the Gurdwara which is in the form of brick and mortar. A particular claimant may claim the building of the Gurdwara itself as his property or as property of some other institution in the claim petition under Section 5 or 10 of the Act.
It was further observed that :-
'After an institution is declared as notified Sikh Gurdwara, provisions of the Act contained in Part III of the Act applied to the Gurdwara with effect from the date of the publication of the notification. This its so clear from the provisions of Section 3 Sub-section (4), 9(2) and Sub-section (2) of Section 38 of the Act. After the institution in question is declared to be a notified Sikh Gurdwara it may happen that in a given case that whole, of the property attached to the said institution may pass hands to the management to be constituted under the provisions of part III of the Act. In another situation no part of the property attached to the institution may pass hands and the person in possession of the property may continue to be in possession claiming interest in the property or even if their claims have been negatived by the Tribunal still they continue to be in possession as trespassers. In third exigency part of the property may be available immediately when the institution is declared as notified Sikh Gurdwara to be managed in accordance with the provisions of Part III and part of the property may still remain with the other claimants or trespassers. As is clear from the provisions of Section 85 of the Act, the Board itself has been declared to be the Commiittee of management for the Gurdawara mentioned in the said section. For every notified Sikh Gurdwara other than a Gurdwara specified in Section 85 of the Act a Committee shall be constituted after it has been declared to b e a Sikh Gurdwara under the provisions of this Act or after the provisions of Part III have been made applicable to it under the provisions of Section 36 of the Act. It is at that stage that the provisions of Section 87 of the Act would come into play.'
4. In the aforecited authority of the Full Bench of this court in Gurdwara Sahib Padshahi Daswin (Supra), it was further observed as follows:-
'For interpreting the provisions of Section 87(a) and (b) of the Act the crucial words which require interpretation are 'the Committee of the Gurdwarra or Gurdwaras whose gross annual income does not exceed three thousand rupees', and the words 'Committee of Gurdwara or Gurdwaras, whose annual monetary income exceeds three thousand rupees. 'Word 'Gurdwara' as I have already elaborated would mean comprising 'Purpose' or 'ideals' which owns all the property of the Gurdwara and not in the mundance sense implying the mass of earth and the brick mortar thereon, which is the physical place of worship in which Guru Granth Sahib may be installed. As regards the words 'gross income' or 'annual monetary income' the same would mean 'coming in arrival etc. as given in Oxford Dictionary, anything which has not yet come in or arrives cannot be termed as income. It may be termed as speculated income or estimated income. Income may also be defined as something derived form profit, labour, skill, ingenuity or sound judgment or from two or more of them in combination. A contingent right to receive money cannot be described as 'income'. The income would also mean money coming in from property and is not to be measured by an Expert's opinion regarding an amount which property ought to bring as a rent. It would thus be seen that the moment the provisions of Part III of the Act are made applicable to Sikh Gurdwara the stage is arrived for the constitution of the committee keeping in view the provisions of Sections 86 and 87(1)(a) and (b) of the Act. It is at that stage that the Board has to see whether a committee should be nominated or elected one. For coming to that conclusion the Board has to take into consideration the gross annual income of the Gurdwara or Gurdwaras. The income which actually is to fall in the hands of the committee who has to administer the Gurdwara in accordance with the provisions of Part III can be the only basis for seeing whether the income of the Gurdwara exceed three thousand rupees annually or not. The income from the property which has not passed hands alongwith the institution and regarding which the suit for possession or other litigation has yet to be fought cannot be taken into consideration for the purpose of Section 87(1)(a) and (b) of the Act for the simple reason that in that case the income which has not actually accrued will only be an estimated income which can be expected to have accrued or may accrue in future. Such an estimate is bound to be different in different situations.'
5. To the similar effect is the view taken by the Division Bench of this Court in R.F.A. No. 374 of 1965 Jalaur Singh and Anr. v. Shiromani Gurdwara Parbandhak Committee, Amritsar, R.F.A. 374 of 1965, decided on October 28, 1975.
6. The main question which arises for determination is as to whether gross annual income of the notified Sikh Gurdwara, in the instant case, does or does not exceed Rs. 3,000/-. In case such income does not exceed Rs. 3,000/- in view of the proviso to Section 87(1)(a) of the Act the Board ( or the Shiromani Gurdwara Parbandhak Committee) may instead of nominating the members manage the affairs of such Gurdwara itself in accordance with the provisions of the Act.
7. Hazura Singh PW. 2 simply stated in his examination in-Chief that the whole of the Nehri and Barani land in dispute of the Gurdwara is cultivated by tenant Pala Singh of his village. He, however, was not aware whether Pala Singh used to pay to the defendant Batai or rent in case. Gulzar Singh PW. 3, categorically stated that Pala Singh used to pay Rs. 500/- or Rs. 700/- per annum of the said land to Jyoti Sarup defendant. In his cross-examination, he further admitted that the land was given on lease by auction by the defendant because of the pendency of litigation between the defendant and the S.G.P.C. and that he too used to be present at the time of the auction during the last 4/5 years. Pala Singh while appearing as DW.1 deposed that he was cultivating this land as tenant under the defendant. Sarwan Singh DW.2 also stated that Jyoti Sarup defendant is in possession of the land in dispute which was under the cultivation of Pala Singh as a tenant. Jyoti Sarup defendant while appearing as his own witness as DW. 3 stated that Pala Singh had been cultivating this land as a tenant. From the evidence referred to above it is quite patent that the land in dispute never remained in possession of the notified Sikh Gurdwara. Rather the same was got cultivated by the defendant through his own tenants. Since the possession of the land in dispute had not yet passed into hands of the notified Sikh Gurdwars, the income therefrom cannot be taken into consideration to determine the gross income of the Sikh Gurdwara, as contemplated under Section 87(1)(a) and (b) of the Act in view of the Full Bench decision of this Court in Gurdwara Sahib Padshahi Daswin's case (Supra). Rather from the evidence on the record produced by the defendant, it is quite evident that Mahant himself had been getting the income from the land in dispute belonging to the notified Sikh Gurdwara. None of the parties led any evidence concerning any other income accruing to the notified Sikh Gurdwara. Thus it has been abundantly proved on the record that the gross annual income of the notified Sikh Gurdwara did not exceed Rs. 3000/-. As such in view of proviso to Section 8(1)(a) of the Act, there would be no legal bar for the S.G.P.C. to manage the affairs of the notified Sikh Gurdwara in accordance with the provisions of the Act. The S.G.P.C. or the Board was thus fully competent to file application under Section 25-A of the Act for getting possession of the land in dispute. The present suit filed on behalf of the S.G.P.C. through its General attorney Bedi Gurcharan Singh is thus legally maintainable. Finding of the learned Tribunal on issue Nos. 1 and 2 is correct and the same is hereby affirmed.
8. For the foregoing reasons, there is no merit in this appeal and upholding the judgment and decree passed by the Tribunal, this appeal is hereby dismissed with no order as to costs.
G.R. Majithia, J.
9. The defendant has come up in appeal against the judgment and decree of the Sikh Gurdwaras Tribunal, Punjab Chandigarh (the Tribunal, for short) decreeing the suit of the plaintiff-respondent for possession of the disputed property.
10. The facts:-
On the publication of a notification under Section 7(3) of the Sikh Gurdwaras Act, 1925 (hereinafter called the Act) relating to Gurdwara Sahib Siri Guru Granth Sahib No. 2, situated in the revenue estate of Sherpur, Tehsil Malerkotla, District Sangrur, petitions under Sections 8 and 10 of the Act were presented by the defendant-appellant and others, which were forwarded to the Tribunal for disposal. The Tribunal vide its order dated November 23, 1965, dismissed the petition under Section 8 of the Act and held that the institution in dispute was a Sikh Gurdwara. The claim under Section 10 of the Act was registered as Petition No. 477 of 1965 and the same was dismissed by the Tribunal vide its order dated September 14, 1976 and it was declared that the said Gurdwara was the owner of the properties in dispute. Shiromani Gurdwara Parbandhak Committee. Amritsar (hereinafter to be called the plaintiff-Committee) filed a suit under Section 25-A of the Act claiming possession of rights, title or interest in the immovable property belonging to the Gurdwara. It was pleaded that the cause of action accrued to the plaintiff-Committee on constitution of a committee for the management of the disputed institution and as such the plaintiff-committee is competent to maintain the suit. The defendant-appellant challenged the validity of the plaintiff-Committee to file the suit. It was alleged that committee of management of a Sikh Gurdwara could institute the suit. The plaintiff-Committee can nominate itself as a Committee of the disputed institution if the gross annual income is less than Rs. 3,000/- . The income of the institution was more than Rs. 3,000/-. Consequently, the plaintiff-Committee could not nominate itself as the Committee of the institution.
11. From the plealings of the parties, the following two issues were framed: -
1) Whether the gross annual income of the Gurdwara in question is less than Rs. 3000/-; if so, what is its effect OPP (Onus objected to)
2) If issue No. 1 is decided in favour of the plaintiff- Committee, whether the plaintiff-Committee has no right to file this suit OPD 3) Relief.
12. The Tribunal was of the opinion that in view of Full Bench decision of this Court in R.F.A. No. 165 of 1966 (Gurdwara Sahib Padshahi Daswin Tittarsar v. Mahant Kesar Singh) R.F.A. 165 of 1986 decided on January 19, 1979, the Board could nominate itself as a committee of management under the proviso to Section 87(1)(a) of the Act. Issue No. 1 was accordingly decided in favour of the plaintiff-Committee and in view of that, issue No. 2 was decided against the defendant-appellant and in favour of the plaintiff-Committee.
13. Before I deal with the evidence brought on record by the parties, it is necessary to give a brief resume of the relevant provisions of the Act. Section 25-A was introduced to provide a cheap and speedy remedy for giving effect to the decision of the Tribunal. In the present case, the institution in dispute has been declared to be a notified Sikh Gurdwara as a result of the decision of the Tribunal on a petition filed by the defendant-appellant under Section 8 of the Act. The claim of the defendant-appellant to the disputed properties was negatived by the Tribunal while dismissing the petition filed by him under Section 10 of the Act. Section 25-A of the Act says that after the decision with regard to the right, title or interest in the immovable properties belonging to a notified Sikh Gurdwara, the committee of the Gurdwara or the person in whose favour a' declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the committee, whichever is later, institute a suit before the Tribunal claiming to be awarded possession of the right, title or interest in the immovable properties in dispute against the parties to the previous petition. The Tribunal found that the disputed properties belonged to the notified Sikh Gurdwara. The Committee of the Gurdwara is competent to institute the suit. The suit was filed for the relief envisaged by Section 25-A. The more important question arising for determination in the present case is whether the suit has been filed be a valid Committee recognised in law ?
14. Part III, Chapter V, of the Act referes to the control of Sikh Gurdwaras, Section 40 says that for the purpose of the Act, there shall be constituted a Board and for other notified Sikh Gurdwaras a committee of management. Section 41 provides that the management of every notified Sikh Gurdwara shall be administered by a committee constituted in accordance with the provisions of the Act. The Board shall be constituted in accordance with the provisions contained in Chapter VI. Section 42 envisages that the Board shall be known by such name as may have been decided upon at the first general meeting of the Board constituted under the provisions of the Act. In accordance with this provision, the Board was named a Shiromani Gurdwara Parbandhak Committee. Section 85 says that the Board shall be the committee of management for the Gurdwara mentioned in Clauses (i) to (xii). Section 86 says that for every notified Sikh Gurdwara other than a Gurdwara specified in Section 85, a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of the Act. Section 88 provides that no committee shall be constituted for any Gurdwara under the provisions of this Act before it has been declared to be a Sikh Gurdwara under the provisions of the Act, meaning thereby that a Commttee of management for a gurdwara will be constituted only after it has been declared to be a Sikh Gurdwara under the provisions of this Act.
15. In the present case, the institution was declared to be a Sikh Gurdwara when a notification under Section 9(1) of the Act was issued by the State Government after the dismissal of the petition under Section 8 of the Act filed by the defendant-appellant. Section 87 of the Act provides for the constitution of the committees. Section 87(1)(a) postulates that the Board shall nominate the members of the Committee of the gurdwara or gurdwaras with their written consent, whose gross annual income does not exceed Rs. 3000/-. The members to be nominated should be residents of the district in which the gurdwara or one of the gurdwaras to be managed by the committee is constituted. Proviso to this clause says that instead of nominating the members the Board may decide to manage the affairs of any such gurdwara itself in accordance with the provisions of the Act. The effect of the proviso is that if the gross annual income of a gurdwara declared to be a Sikh Gurdwara under the provisions of the Act is less than Rs. 3,000/-, the Board instead of nominating the committee of management as enjoined by Section 88, may administer its affairs. The plaintiff-Committee decided to manage the affairs of the institution in dispute under the proviso to Section 87(1)(a) of the Act. The proviso was construed by a Division Bench of this Court in R.F.A. No. 374 of 1965 (Jalaur Singh and Anr. v. Shiromani Gurdwara Parbandhak Committee, Amritsar), decided on October 28, 1975 and it was held thus:-
'.....It is thus evident that in the particular case the income of the Gurdwara being virtually non-existent, the respondent-Committee was perfectly entitled to constitute itself as the Managing Committee thereof under Section 87(1) of the Act.'
The Bench in coming to this conclusion observed that Section 87(1)(a) visualises an income accruing to or coming into the hands of the institution as such, meaning thereby that if the gross annual income of the institution exceeds Rs. 3,000/-, the Board has to nominate a committee for managing the affairs of the institution, and if the gross annual income of that institution is less than that amount, the Board could manage the affairs of the institution declared as a Sikh Gurdwara.
16. The view expressed by the Bench in Jalaur Singh's case (supra) was affirmed by a Full Bench of this Court on a reference made to it in R.F.A. No. 165 of 1966 (Gurdwara Sahib Padshahi Daswin v. Mahant Kesar Singh,) R.F.A. 165 of 1966 decided on January 19, 1979. The Full Bench by majority held thus:-
' From what has been discussed above, in my considered view, the view taken in Jallaur Singh's case wherein it was observed that Section 87(1)(a) of the Act visualises an income accruing or coming into the hands of the institution as such, has to be taken into consideration while interpreting the provisions of Section 87(1)(a) and (b) of the Act is correct.'
After the question of law was settled by the Full Bench, the appeal was enlisted for disposal before the Division Bench on merits and it was disposed of on April 8, 1980 with the following observations:-
'In view of the authoritative pronouncement of a Full Bench decision of this Court, referred to above, the finding of the learned trial Judge on issue No. 5 is to be set aside. The evidence led by both sides was regarding the prospective income from the land, regarding which the suit for possession was filed by the plaintiff. It is clear from the plaint and also from the statements recorded during the course of trial that the plaintiff Gurdwara is not in possession of any property and that being so, there could not be any question of Gurdwara having actually receiving income more than Rs. 3,000/- annually. That being the position, we set aside the finding of the learned trial Judge on issue No. 5 and consequently the appeal is allowed. The suit of the plaintiff is decreed with costs.'
These observations indicate that the Gurdwara declared to be a notified Sikh Gurdwara was not in possession of its property or properties and the question of having gross annual income did not arise. These observations are pointer to the conclusion that the institution in dispute in that case did not receive any income from the properties since it was not in possession thereof.
17. In the present case, the parties led evidence to prove their respective pleas. P.W.2 Hazuara Singh is an owner of land in village Sherpur. He deposed that the institution in dispute owns land measuring about SO Bighas; that more than half of the land is Barani and the remaining land is Nehri; that the Nehri land is cultivated by Pala Singh of his village and he did not know how much rent is paid by said Pala Singh. To a Court question, the witness stated that in the village Barani land can be given on lease on an annual rent of Rs. 100/- or Rs. 200/- per Bigha. P.W. 3 Gulzar Singh stated in examination-in-chief that the disputed institution owns 50 or 60 Bighas of land and it was being cultivated by Pala Singh tenant, who was paying Rs. 500/- or Rs. 700/- per annum to the defendant-appellant. In cross-examination, the witness admitted that Pala Singh did not pay any rent of this land in his presence to the defendant-appellant. He further stated that the land used to be leased out by auction and the auction took place in his presence and in the presence of other villagers. This witness appears to be a liar. This is nobody's case that the land was leased out by auction. After saying that the land was used to be leased out by auction in his presence and in the presence of other villagers, the witness improved upon his statement and said that the auction was conducted by the defendant and not by the village Panchayat. The statement of this witness is in contradiction to the statement of P.W. 2 Hazura Singh. P.W. 2 Hazura Singh, as observed earlier, stated that Pala Singh was the tenant, who was paying annual rent of Rs. 500/- or Rs. 700/- for the entire land. Pala Singh was not produced by the plaintiff-Committee. The onus to prove issue No. 1 was on the plaintiff-Committee.
18. The oral evidence led by the plaintiff-Committee is contradictory and not worthy of reliance. The plaintiff-Committee failed to discharge onus of issue No. 1 and it was for the plaintiff-Committee to prove that the gross annual income of the disputed institution was less than Rs. 3,000/- and it has miserably failed to prove it.
19. The defendant-appellant examined Pala Singh, who according to PW2 and PW3, was cultivating the land of the disputed institution as a tenant. He deposed on oath that the total area of the land in dispute is 54 Bighas, out of which 24 Bighas are Nehri and the remaining 30 Bighas are Barani; that he was paying rent at the rate of Rs. 50/- per Bigha for the Barani land and at the rate of Rs. 100/- per Bigha for the Nehri land. In cross-examination, veracity of the statement of this witness could not be successfully assailed. The plaintiff-Committee put him only one question whether the tenancy was created by some written document and the witness stated that it was an oral tenancy. The fact that he was a tenant could not be assailed by the Plaintiff-Committee. The evidence of this witness clearly establishes that the gross annual income of the disputed institution from the agricultural land alone was approximately Rs. 3900/-and it was obviously more than Rs. 3,000/-. The plaintiff- Committee could manage the affairs of a gurdwara declared to be notified as a Sikh Gurdwara whose gross annual income was less than Rs. 3000/-. The plaintiff-Committee failed to prove that the income of the notified Sikh Gurdwara was less than Rs. 3,000/-. To the contrary, the defendant- appellant's evidence positively established that the income of the notified Sikh Gurdwara was more than Rs. 3,000/- per annum. The proviso to Section 87(1)(a) of the Act could only be attracted if the gross annual income of the notified Sikh Gurdwara was less than Rs. 3,000/- and the Board, istead of nominating the committee for its management, could manage the affairs of that Gurdwara. Thus, the Board could not manage the affairs of the disputed institution and it had to nominate a committee as enjoined by Section 88 and the committee has to be constituted in accordance with the provisions of Section 87(1)(a) of the Act. The Committee nominated under the provisions of Section 87(1)(a) could file the suit under Section 25-A of the Act. Section 25-A of the Act refers to the committee of the Gurdwara which is to manage the affairs of the gurdwara declared to a notified Sikh Gurdwara, and the Committee has to be constituted under the provisions of Section 87(1)(a) of the Act. Since no such committee was constituted, the plaintiff- Committee was not competent to institute the suit under Section 25-A of the Act. The suit has not been instituted by a validly constituted committee. The suit filed by the plaintiff-Committee was, thus, not maintainable.
20. In view of the finding under issue No. 1, issue No. 2 has to be answered against the plaintiff-Committee and in favour of the defendant-appellant.
21. For the reasons stated above, the appeal succeeds, the judgment and decree passed by the Tribunal are set aside and resultantly the suit of the plaintiff-Committee is dismissed but with no order as to costs.
S.S. Grewal, J.
22. In view of difference of opinion reflected in two separate judgments of this Bench and in view of the Full Bench decision of this Court in Som Nath v. S.G.P.C., 4 I.L.R. (1988)1 Punjab and Hary. 103 the record of this appeal be placed before my lord the Chief Justice for directing the appeal to be heard by a third Judge or for constituting a larger Bench or for passing any other appropriate order.
FINAL