Punjab-Haryana High Court
Gurdwara Sahib Gurdwara Shahid Baba ... vs Commissioner on 22 May, 2012
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.8262 of 2010 (O&M)
Date of decision:22.05.2012
Gurdwara Sahib Gurdwara Shahid Baba Karam Singh, through
its Secretary Shri Surinder Singh son of S. Avtar Singh, resident
of Village Baddon, P.S. Mahilpur, Tehsil Garhshankar, District
Hoshiarpur.
...Petitioner
versus
Commissioner, Jalandhar Division, Jalandhar (exercising the
powers of the Appellate Authority under the Punjab Religious
Premises & Land (Eviction and Rent Recovery) Act, 1997), and
others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Vikas Bahl, Advocate, for the petitioner.
None for the respondents.
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1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No.
3. Whether the judgment should be reported in the digest ? No.
----
K.Kannan, J.
1. The writ petitioner, who is a non-notified gurdwara, challenges the order of eviction passed under the Punjab Religious Premises & Land (Eviction and Rent Recovery) Act, 1997 (for short, 'the 1997 Act'). The order had been passed on an application filed by the respondent-Gurdwara Sahib Gurdwara Shahid Baba Karam Singh, through the President of Civil Writ Petition No.8262 of 2010 (O&M) -2- the Managing Committee of the Gurdwara. The contention in defence had been that the property belonged to the Gurdwara Sahib Gurdwara Shahid Baba Karam Singh and in an earlier round of litigation when the SGPC had taken action, it was found by the Sikh Gurdwara Judicial Commission that the said Baba Karam Singh Gurdwara was not within the jurisdiction of SGPC. It is also contended that the property does not belong to the respondent-Gurdwara Sahib, Baddon and the petition itself is barred by the adjudication by the Judicial Commission.
2. It is necessary to bring out the facts as set out in the order of the Collector before whom the petition for eviction had been filed under Sections 4 and 5 of the 1997 Act. It is contended that the property in Khasra No.286/2 of an extent of 5 kanals and 11 marlas situate in the Village Baddon, belonged to the Gurdwara Sahib, Baddon and it had been illegally encroached by Shahid Baba Karam Singh Gurdwara. While eliciting information about the ownership, the Collector had appointed a Commissioner to submit an exact position at the spot and Shri Gurnam Singh, Tehsildar, Garhshankar, had visited the spot and submitted a report on 29.09.2005. In the report, on perusal of the revenue record, it was seen that Misal Haqiat Khasra No.286/2, measuring 5 kanals and 11 marlas of Civil Writ Petition No.8262 of 2010 (O&M) -3- land, was entered in the ownership of Gurdwara Baddon. In column of cultivation, Mr. Naranjan Singh son of Khushal Singh and Narain Singh son of Nanak Singh had been entered as gair maurusai in equal share. The inspection note also revealed that there was a gair mumkin samadh in an area of 1 kanal out of 5 kanals and 11 marlas. The person, who was representing the applicant-Gurdwara, admitted in the cross-examination that Shahid Baba Karam Singh Gurdwara was a separate Gurdwara and the said Gurdwara was the samadh of Shahid Baba Karam Singh. The Collector, therefore, held that the construction over the area of 1 kanal belonging to the samadh of Shahid Baba Karam Singh, could not be said to be illegal, because the samadh had been entered in the revenue records.
3. It was brought out as a matter of record that further constructions had been made at the time when Shri Sheetal Singh was the President of both the gurdwaras. It was sought to be explained by the witness speaking on behalf of the applicant- Gurdwara that when a construction was made by Shri Sheetal Singh, he did it in the capacity of President of Baddon, and not in the capacity of President of Gurdwara Sahib Shahid Baba Karam Singh Gurdwara. The order of ejectment had, therefore, been made only in respect of the property which was in excess Civil Writ Petition No.8262 of 2010 (O&M) -4- over to 1 kanal where the Gurdwara containing the samadh of Shahid Baba Karam Singh, had been situate. The ejectment was for the balance of the extent of 4 kanals and 11 marlas which was claimed by the Shahid Baba Karam Singh Gurdwara on a finding that the said extent could not be said to be the property under the lawful occupation of the Shahid Baba Karam Singh Gurdwara, the order of ejectment was made.
4. There had been also other technical objection that the case had not been instituted by a person, who was duly authorized by it. It was also contended that there was no prior notice under Section 4 before the action for ejectment was taken. The Collector found that there were copies of the resolutions produced that showed that the person, who had filed the petition and given the verification, had the competency to file the case and there cannot be valid action as regards the maintainability. It was also found that the notice to Baba Karam Singh Gurdwara had been issued by munadi and, therefore, the notice was sufficient to sustain the petition. On an appeal filed to the Commissioner, the Commissioner affirmed the same and dismissed the appeal filed by the Baba Karam Singh Gurdwara. A review application filed was also dismissed holding that there was no scope for review. The orders passed by the respective Civil Writ Petition No.8262 of 2010 (O&M) -5- authorities are the subject of challenge by the respondents in the application, who were ordered to be ejected from the property.
5. The counsel for the petitioner would want to point out that there is no dispute about the fact that there are two gurdwaras in Baddon. The applicant-Gurdwara which is the respondent here, was attempting to evict Baba Karam Singh Gurdwara on the ground that the entire property belonged to it. The contention is that the respondent-Baddon Gurdwara itself admitted that the property, in dispute, is used by the petitioner- Gurdwara for religious purposes. He would further state that the petition for eviction was permissible only in respect of unauthorized occupation and if the construction had been made during the time when the members of the Managing Committee of both the gurdwaras were the same, the eviction could not be ordered against the property held by the petitioner-gurdwara. An ejectment petition itself was not maintainable and the eviction order was, therefore, incompetent.
6. From the report obtained from the Commissioner appointed by the Collector, it becomes evident that the ownership in relation to the property of 4 kanals and 11 marlas is clearly in the name of the Gurdwara Sahib, Baddon only and to that extent, the findings rendered cannot be said to be wrong. Civil Writ Petition No.8262 of 2010 (O&M) -6- The Collector also held that the order of eviction itself will be issued only with reference to the property where there was a samadh of Shahid Baba Karam Singh and the property which had been used for establishing the samadh in an extent of 1 kanal ought to be, therefore, retained by the petitioner. I confirm these findings.
7. The question still is whether the construction, which had been allowed to be made during a particular time when the Managing Committee of both gurdwaras were the same, could be treated as in unauthorized occupation of the petitioner. Here, a right is claimed by the petitioner-Gurdwara in respect of the constructions that have come upon the property that is shown in the revenue records as the property belonging to Baddon Gurdwara. If that property is asserted as the property belonging to the Baba Karam Singh Gurdwara, but no such evidence is offered for that purpose, the absence of subsisting arrangement with Baddon Gurdwara will render the occupation unlawful. The issue gets to be one of really a right to manage the portion of the property which is beyond an extent of 1 kanal.
8. The petition under the 1997 Act shall be permissible in a case where a person enters upon possession of property otherwise than under any allotment, lease or grant. When a Civil Writ Petition No.8262 of 2010 (O&M) -7- construction was made in an extent excess of 1 kanal where there existed samadh of Shahid Baba Karam Singh, either it could have been taken as a grant for putting up other constructions to the Karam Singh Gurdwara Sahib by the Baddon Gurdwara and on withdrawal of grant, the possession of Shahid Baba Karam Singh Gurdwara would become unlawful or unauthorized. Alternatively, if the further construction had been made by the Managing Committee as the construction for the Baddon Gurdwara itself, the possession of the petitioner- Gurdwara could be treated as unlawful. In either case, the petitioner-Gurdwara cannot hold possession and manage the building which is in its occupation in excess of 1 kanal.
9. The learned counsel was attempting to say that the case was barred by res judicata by the earlier findings rendered that the Shahid Baba Karam Singh Gurdwara was not under the control of SGPC and, therefore, the Baddon Gurdwara which is a notified Gurdwara under the SGPC Act, cannot maintain an action for ejectment. I would reject such a contention. The earlier rendition of the Tribunal would only conclude the issue that the petitioner is a non-notified Gurdwara. The land in dispute is being used by Shahid Baba Karam Singh Gurdwara for religious purposes may not be in dispute at all. The manner Civil Writ Petition No.8262 of 2010 (O&M) -8- of use is irrelevant. The counsel for the petitioner refers me to the evidence of the witness of Baddon Gurdwara that he was not aware that the Gurdwara was having 12 rooms, 2 halls, langar bhawan and different toilets for men and women. The evidence given by the respondent's witness has been extracted in the body of the writ petition. The possession of the petitioner is wholly immaterial, indeed, it is admitted and that is why, the petition has been filed for ejectment.
10. The two proceedings relied on by the petitioner does not conclude any issue in favour of the petitioner. In the suit under Section 142 of the SGPC Act, the result of the adjudication was that Gurdwara Baddon was a notified Gurdwara, while Karam Singh Gurdwara was not notified. The Civil Suit No.151 of 1969 before the Civil Court was with reference to appointment to the Managing Committee and not with reference to the character of possession of Karam Singh Gurdwara. The decision cannot help the cause of the petitioner.
11. The decisions of the authorities below are perfectly tenable and there is no ground for interference. The writ petition is, consequently, dismissed.
(K.KANNAN) JUDGE 22.05.2012 sanjeev