Judgment:
ORDER
Adarsh Kumar Goel, J.
1. This appeal has been placed for hearing before this Bench on account of difference of opinion among the Hon'ble Judges constituting the Division Bench. The two Hon'ble Judges have rendered their respective opinions dated 27.4.1992.
Briefly stated, the facts are that Ranjit Singh and others moved a petition under Section 7(1) of The Sikh Gurdwara Act, 1925 (for short 'the Act') seeking a declaration that the institution known as 'Gurudwara Dera Bhai Ka' at Dhamot, Distt. Ludhiana be declared Sikh Gurdwara. This petition was published under Section 7(3) of the Act vide notification dated 19.9.1974.
The appellant filed a petition under Section 8 of the Act, claiming that the institution in question was not a Sikh Gurdwara. The said petition was dismissed on the ground of locus standi by the Sikh Gurdwara Tribunal constituted under the provisions of the Act. Hence this appeal.
2. Learned Counsel for the appellant points out that the Tribunal has erred in not first deciding the question whether the institution in question was a Sikh Gurdwara as mandated under the provisions of Section 16 of the Act which are as under:
ISSUE AS TO WHETHER A GURDWARA IS A SIKH GURDWARA TO BE DECIDED FIRST AND HOW ISSUE IS TO BE DECIDED.
(1) Notwithstanding anything contained in any other law in force if in any proceeding before a tribunal it is disputed that a gurdwara should or should to be declared to be Sikh Gurdwara, the Tribunal shall, before enquiring into any other matter in dispute relating to the said gurdwara, decide whether it should or should not be declared a Sikh Gurdwara in accordance with the provisions of Sub-section (2).
(2) if the tribunal finds that the gurdwara
(i) was established or in memory of any of the Ten Sikh Gurus or in commemoration of any incident in the life of any of the Ten Sikh Gurus and was used for public worship by Sikhs, before and at the time of presentation of the petition under Sub-section (1) of the Section 7; or
(ii) owing to some tradition connected with one of the Ten Sikh Gurus, was used for public worship predominantly by Sikhs, before and at the time of the presentation of the petition under Sub-section (1) of Section 7; or
(iii) was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs, before and at the time of the presentation of the petition under Sub-section (1) of Section 7;or
(iv) was established in memory of a Sikh martyr, saint or historical person and was used for public worship by Sikhs, before and at the time of the presentation of the petition under Sub-section (1) of Section 7; or
(v) owning to some incident connected with the Sikh religion was used for public worship predominantly by Sikhs, before and at the time of presentation of the petition under Sub-section (1) of Section 7, the tribunal shall decide that it should be declared to be a Sikh Gurdwara, and record and order accordingly.
(3) Where the tribunal finds that a gurdwara should not be declared to be a Sikh Gurdwara, it shall record its finding in an order, and, subject to the finding of the High Court on appeal, it shall cease to have jurisdiction in all matters concerning such gurdwara, provided that, if a claim has been made in accordance with the provisions of Section 8 praying for the restoration to office of a hereditary office-holder under the system of management prevailing before the first day of January, 1920 [or, in the case of extended territories, before the first day of November, 1956] the tribunal shall, notwithstanding such finding continue to have jurisdiction in all matters relating to such claim; and if the tribunal finds it proved that such office-holder ceased to be an office-holder on or after the first day of January, 1920 [or in the case of the extended territories, after the first day of November, 1956], it may by order direct that such office-holder or person who would have so succeeded be restored to office.
The Tribunal merely examined the question whether the petitioner was a hereditary office-holder of the Gurdwara and on account of finding recorded that the petitioner was not so, dismissed the petition. Provisions of Section 8 are as under:
Section 8. When a notification has been published under the provisions of Sub-section (3) of the Section 7 in respect of Gurdwara, any hereditary office-holder or any twenty or more worshipers of the Gurdwara each of whom is more than twenty-one of age and was on the commencement of this Act or, in the case of the extended territories, on the commencement of the Amending Act, as the case may be, a resident of a police station area in a which Gurdwara is situated, may forward to the State Government through the appropriate Secretary to Government, so as to reach the Secretary within ninety days from the date of the publication of the notification, a petition signed and verified by the petitioner, or petitioners, as the case may be, claiming that the Gurdwara is not a Sikh Gurdwara, and may in such petition make a further claim that any hereditary office-holder or any person who would have succeeded to such office-holder under the system of management prevailing before the first day of January, 1920, or in the case of the extended territories, before the first day of November, 1956, as the case may be, may be restored to office on the grounds that such Gurdwara is not Sikh Gurdwara and that such office-holder ceased to be. an office holder after that day:Provided that the State Government may in respect of any such Gurdwara declare by notification that a petition of twenty or more worshipers of such Gurdwara shall be deemed to be duly forwarded whether the petitioners were or were not on the commencement of this Act, or in the case of extended territories, on the commencement of the Amending Act, as the case may be, residents in the police station area in which such Gurdwara is situated, and shall thereafter deal with any petition that may be otherwise duly forwarded in respect of any such Gurdwara as if the petition had been duly forwarded by petitioners who were such residents.
3. From above provisions, it is clear that question first to be decided by the Tribunal is whether the institution in question is a Sikh Gurdwara. This priority is statutorily laid down in Section 16 itself. However, this Court had taken a view inter-alia in judgments reported in Hari Kishan Chela Daya Singh v. The Shiromani Gurdwara Prabandhak Committee, Amritsar and Ors. A.I.R. 1976 Punjab & Haryana 130, Mahant Budh Dass and Mahant Puma Nand through his guardian Smt. Vidya Want, Legal Representative of Mahant Jiwan Mukta Nand v. The Shiromani Gurdwara Prabandhak Committee, Amritsar A.I.R. 1978 Punjab & Haryana 39 and MahantDharam Dass Chela Karam Parkash v. Shiromani Gurdwara Prabandhak Committee, Amritsar (Full Bench) that in a petition under Section 8 of the Act, there should be specific pleading about custom and issue of locus of objection is first to be decided. The said issue was examined by Hon'ble the Supreme Court in Uttam Das v. Shiromani Gurdwara Prabandhak Committee : AIR1996SC2133 and doubting the correctness of view taken by this Court in above judgments it was observed:
16. We have strong reservations to such unpurposive view of the High Court for more than one reason. The marginal note/caption to Section 16 is the foremost pointer that the issue whether the Institution in question is a Sikh Gurdwara or not; has to be decided first and other questions later. The marginal notes or captions are undoubtedly, part and parcel of legislative exercise and the language employed therein provides the key to the legislative intent. The words so employed are not mere surplus-age. Secondly, for the purposes of Section 8, the averments made therein by the hereditary office-holder need be taken as sufficient on their face value, bestowing jurisdiction on the Tribunal relating to the Institution in question. The fact that a petition under Section 8 was received, per se ousts applicability of Section 9 because that can operate only when no claim under Section 8 is preferred at all. Thirdly, when the issue of locus standi, at the very threshold, is a triable issue, that per se obligates the tribunal to priorly decide the question of the Institution being a Sikh Gurdwara or not as the first issue, for occasion may arise for not deciding the issue of locus standi at all in the given eventuality. Since the tribunal has proceeded to decide issue No. 1 as a preliminary one, we would not like to stretch this matter any further except to express our doubt, to be resolved later in an appropriate case because of the consequences which have been made to follow. In none of the cases in which priority of locus standi has been established or followed has the High Court taken into account the marginal note/caption of Section 16 and its importance.
4. The difference of opinion in the two Hon'ble Judges in the present case is on the question whether the finding that the petitioner was not hereditary office-holder was correct or not. By the time the two opinions were rendered, judgment of the Hon'ble Supreme Court in Uttam Das (supra) had not been rendered. In view of the judgment of the Hon'ble Supreme Court in Uttam Das (supra), legal position is clear that as per the mandate of Section 16, the first question to be decided is whether the institution in question is a Sikh Gurdwara.
In view of the above, the view taken by the Tribunal is liable to be set aside on this short ground. The Tribunal has to first decide the question whether the institution in question is a Sikh Gurdwara or not. Since the judgment of the Tribunal has been set aside on this ground itself and locus standi of the petition is not to be tried as a preliminary issue, I do not express any opinion about the correctness or otherwise of the finding as to whether the petitioner was hereditary office-holder. This question will be decided by the Tribunal afresh, if need be.
I, thus, agree with the concluding part of the opinion rendered by G.R. Majithia, J. (as he then was) that the matter be remanded to the Tribunal for adjudication of the question whether the institution in question is a Sikh Gurdwara, in accordance with law.
The appeal is disposed of, accordingly.