Punjab-Haryana High Court
Gurbax Singh vs Shiromani Gurdwara Prabandhak ... on 23 February, 2017
Bench: Mahesh Grover, Shekher Dhawan
F.A.O. No.222 of 1975 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
F.A.O. No.222 of 1975 (O&M)
DATE OF DECISION : 23.2.2017
Gurbax Singh APPELLANT
VERSUS
Shiromani Gurudwara Prabandhak Committee & others RESPONDENTS
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
HON'BLE MR.JUSTICE SHEKHER DHAWAN
Present:- Shri Sudhir Mittal, Advocate with Shri Sapan Dhir and Shri
Arun Jindal, Advocate for the appellant.
Shri Ashwani Kumar Chopra, Senior Advocate with
Shri Harminder Singh, Advocate for the S.G.P.C.
Shri Tushar Sharma, Advocate for respondent-2.
MAHESH GROVER, J.
We have been called upon to determine the controversy raised in F.A.O. No.222 of 1975 which even though would revolve around a singular issue of the character of the institution being a Dera of Nirmala Sadhus or a Sikh Gurdwara, but is wrapped in a maze of facts, the relevant of which we may extricate.
56 Sikh worshippers made an application dated 4.7.1956 under Section 7(1) of the Sikh Gurdwara Act, 1925 (hereinafter referred to as the Act) to the Punjab Government seeking a declaration that the institution in question i.e. Dera Baba Gandha Singh, Barnala be declared a Sikh Gurdwara. The petition was objected to under Section 7(3) of the Act and two separate Objection Petitions For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
1 of 58 ::: Downloaded on - 12-07-2017 05:17:58 ::: F.A.O. No.222 of 1975 -2- came to be filed under Section 8 of the Act disputing the institution to be a Sikh Gurdwara and claiming it to be a Dera of Nirmala Sadhus. These petitions were separately numbered as Petition No.290 of 1963 filed by Mahant Bhan Singh claiming to be the hereditary office-holder and Petition No.291 of 1963 filed by 25 worshippers and both these petitions were clubbed together and referred to the Sikh Gurdwara Tribunal (hereinafter referred to as the Tribunal).
During the pendency of these proceedings, Mahant Bhan Singh, the initiator of Petition No.290 of 1963 expired and was succeeded by Mahant Gurbachan Singh who was impleaded in his place as hereditary office holder. It is pertinent to mention here that he was also a party to Petition No.291 of 1963 initiated by the worshippers.
On 5.7.1975, Mahant Gurbachan Singh entered into a compromise with the respondent/S.G.P.C. resultant to which a part of the institution including the land and the building in about 800 kanals 8 marlas situated at Bir Khudi Kalan was to be attached to the Dera of Nirmala Sadhus and called Dera Baba Gandha Singh, Barnala qua which Mahant Gurbachan Singh would have an absolute right and authority to appoint his successor, but would have no right to alienate the property. The Samadh was to be maintained by the S.G.P.C. A Senior Secondary School at Barnala was set up for which Gurbachan Singh donated Rs.2 lacs. Some part of the land and a building was given to the S.G.P.C. On the basis of the compromise placed before the Tribunal in the aforesaid application, the Tribunal disposed of the proceedings.
Thus, and a part of the institution and the building situated at Barnala was described as Sikh Gurdwara i.e. Gurdwara Baba Gandha Singh, Barnala under Section 16(2)(iii) of the Act along with all immovable properties which were notified under Section 7 of the Act dated 4.1.1960. The other part of the institution and with remaining building continued to be a non-Sikh institution to be For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
2 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -3- described as Dera Baba Gandha Singh, Barnala.
Disposing of these Petitions Nos.290 and 291 of 1963 on the basis of the compromise, a separate order under Order 10 was passed by the Tribunal regarding the property of the institution.
Aggrieved by the said outcome, some worshippers filed the present F.A.O. No.222 of 1975 against the judgment of the Tribunal on 11.7.1995 which was dismissed by this Court on 27.9.1979 against which an S.L.P. No.8624 of 1979 was preferred wherein the Hon'ble Supreme Court initially sought a report from the Tribunal on the issue as to whether on evidence to be recorded by the Tribunal and on an opportunity given to all concerned, the institution in question could be treated a Sikh Gurdwara or not. The Tribunal was directed to acquire evidence, oral as well as documentary to opine with regard to the nature and character of the institution. The report was submitted to say that it is a Sikh Gurdwara within the meaning of Section 16(2)(iii) of the Act.
The parties then filed their respective objections and the Hon'ble Supreme Court while allowing the appeal, set aside the order passed by the High Court, but remitted it back along with the report of the Tribunal and the objections thereto with a direction that this Court should deal with the matter in 'entirety' to conclude whether the report wholly or partly is acceptable and to determine the character of the institution.
We may extract the order of the Hon'ble Supreme Court here below :-
"This appeal by special leave is directed against the judgment and order dated 27.9.79 of the High Court of Punjab and Haryana at Chandigarh in F.A.O. No.222/75.
The dispute relates to the legal character of an institution allegedly known as Gurdwara Sahib Baba Gandha For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
3 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -4- Singh. Before the Sikh Gurdwara Tribunal, the dispute was whether the afore-mentioned institution is a Sikh Gurdwara or not. Between the contenders on one side and the other a compromise allegedly took place which became the basis of the decision of the Tribunal. The High Court, in appeal, at the instance of the Head of the institution and some worshippers declined to interfere on that order passed on compromise. It is against the decision of the High Court that special leave was sought from this Court. During consideration of the Special Leave Petition, it was thought by this Court to obtain a report from the Tribunal - the parameters of which were laid down as follows :-
"Having regard to the conspectus of facts we think it proper that a report be called from the trial Tribunal, as to whether on evidence to be recorded after giving an opportunity to both sides and, if need, be, to any other intervenors - this institution, i.e. Gurdwara Sahib Baba Gandha Singh, is a Sikh Gurdwara or not. While full opportunity to every one interest must be extended, a quick trial has also to be undertaken. We direct the Tribunal to collect evidence and if need be consider the evidence recorded on the previous occasions, and record a finding within four months from today. On receipt of the report both sides will be given an opportunity to file their objections within two weeks, thereafter, the Special Leave Petition will be posted for hearing along with the report and the objections"
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
4 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -5- On receipt of the report, leave was granted. Hence this appeal.
The report of the Tribunal solicited by this Court directly runs into 44 pages. It is writ large on it that voluminous evidence has been taken into account and discussed. Besides, certain treatises on Sikh history/legend have also been taken into account. The magnitude of the report perhaps was not conceived by this Court for otherwise, it would have come to this Court filtered through the High Court, which was the final court of fact, in the instant situation. We, therefore, adopt the cautious approach of remitting the matter back to the High Court in its entirety.
For what has been said above, we allow this appeal, set aside the impugned order of the High Court and remit the matter back to it together with the report of the Tribunal obtained and the objections invited. The High Court shall now deal with the matter in its entirety and opine whether the report wholly or partially is acceptable or not and what should be its conclusion on the existence or otherwise of the institution as a Sikh Gurdwara and other matters as well. We order accordingly. Let the file be transmitted to the High Court with the request that since it is an old matter, let the matter be disposed of most expeditiously. Interim order passed by this Court shall remain operative during the pendency of the appeal before the High Court. There shall be no order as to costs."
This is how we have been called upon to determine the controversy. Before we commence, it would be imperative to have a look on the For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
5 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -6- report of the Tribunal rendered after the directions of the Hon'ble Supreme Court as this would form the basis of attack by the appellant and defence by the respondent/S.G.P.C. who questions this report, not to be an order of the Tribunal under the Act so as to enable the maintainability of a statutory appeal against it. We notice from the report that the Tribunal in its opening remarks has observed as follows :-
"Arguments were addressed on 20th, 21st and 28th of October, 1980.
Voluminous evidence has been led, some of which was hardly relevant and some even appears to be inadmissible. However, in order to avoid any objections in the Supreme Court for any evidence having been shut out, the parties were allowed to produce whatever they thought fit to lead and which on the fact of it did not appear altogether irrelevant. However we propose to consider only the matters which appear to be relevant, for the main question as to whether the institution in dispute, is a Sikh Gurdwara within the meaning of the Act."
In fact, the first question we will have to determine is as to whether this report can be construed to be an order of the Tribunal so as to enable the maintainability of the statutory appeal under the Act, for the simple reason that this is largely the only defence taken up by the learned counsel for the S.G.P.C. According to him, this report would not have the statutory impact of an order under the Act and no appeal could be preferred or entertained by this Court unless the Tribunal passes a formal order in this regard to lend it a colour of an order under the statute and the only course available is to remand the matter to the Tribunal for the purpose.
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
6 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -7- We do not have to retrace the facts. Suffice it to say that the instant F.A.O.. was preferred against the order of the Tribunal disposing of the petitions under Section 8 of the Act on the strength of a compromise and this appeal was disposed of by this Court, and resultant order taken up to the Hon'ble Supreme Court by way of a S.L.P. where a report was sought from the Tribunal with a clear mandate that all the parties to the dispute would be given an opportunity of hearing; to adduce evidence about the character of the institution and a conclusion to be recorded by the Tribunal. It is not disputed by either of the parties that adequate opportunity of hearing and to adduce evidence was given by the Tribunal.
Learned counsel for the respondents has all through contended that the F.A.O. itself is not maintainable against the report and the Hon'ble Supreme Court never mandated this Court to treat the report as an order under the Act, rather the only course available is either to remit the matter back to the Tribunal for passing an order under the Act or to evaluate the report and remit the matter back to the Hon'ble Supreme Court for proper orders in this regard.
We have already extracted the order of the Hon'ble Supreme Court in the foregoing paras, but at the cost of repetition and to emphasise the import of the observations, we would record the implications of directions given by the Hon'ble Supreme Court.
It was noticed that report of the Tribunal runs into 44 pages and based on voluminous evidence which was taken into account and discussed, but the report would be of such magnitude was not conceived by the Hon'ble Supreme Court at the time of ordering so and if had it been a report subjected to appellate procedure it would have come before it (Hon'ble Supreme Court) after filteration through the High Court. It was then observed that while adopting a cautious approach, the matter be remitted back to the High Court 'in its entirety' for For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
7 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -8- decision of the issue.
In conclusion, the Hon'ble Supreme Court said, "We allow this appeal, set aside the impugned order of the High Court and remit the matter back to it together with the report of the Tribunal obtained and the objections invited. The High Court shall now deal with the matter in its entirety and opine whether the report wholly or partly is acceptable or not and what should be its conclusion on the existence or otherwise of the institution as a Sikh Gurdwara and other matters as well".
It is thus, clear from the aforesaid that the matter had been remitted back in its entirety for decision by this Court to determine the character of the institution and whether the report is to be accepted wholly or in part, to lend a finality to the controversy.
It would not be out of place to mention here that the F.A.O. itself had originated from the order of the Tribunal disposing of the petitions under Sections 8 of the Act on the strength of a compromise which was questioned by the worshippers in this Court and the observations of the Hon'ble Supreme Court were clearly in continuation thereof and thus, the present exercise to determine the issue of the character of the institution on the directions of the Hon'ble Supreme Court would necessarily have to be treated as a continuation of the earlier orders passed by the Tribunal and present proceedings as an appeal against the proceedings under Section 8 which for the reason stated above, continues to be alive.
Further, the Tribunal while submitting the report, has permitted all the parties to the dispute to bring evidence on record which ordinarily they would have done if the proceedings had been determined by the Tribunal on merits rather than on a compromise.
Thus essentially except for the semantics the argument of the respondent S.G.P.C. is devoid of any merit and has to be rejected. Ordered so. For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
8 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -9- We have now to determine the matter in its entirety by scrutinizing the report and its acceptance or rejection as per the mandate of the Hon'ble Supreme Court and a conclusion so delivered by us would be a decision in the first appeal. There can be no other course.
We cannot help but conclude that this enquiry report is now literally cloaked as an order of the Tribunal permissible under the statute itself.
Having said so, we would now have to examine as to whether the findings recorded by the Tribunal in the report qua the character of the institution are correct or not.
The Tribunal went into various aspects on the basis of the evidence before it to conclude that the institution is a Sikh Gurdwara. In sum and substance, it refers to the history of the institution and other supporting documents to conclude as such. The Tribunal has noticed that Dharamshala at Barnala (institution in question) was established by Baba Nikka Singh for the purpose of providing Sangat to Bibi Pardhan Kaur as Nikka Singh was well conversant with Guru Shabads. Bibi Pardhan Kaur used to reside at Barnala and thus, residence of Nikka Singh was also arranged there and Dharamshala was constructed which was visited by Bibi Pardhan Kaur and since both used to visit Patiala as well, another Dharamshala was constructed there. Bibi Pardhan Kaur was introduced to the teachings of Nikka Singh and was also imparted education by the said Baba to result in her transformation into a learned person conversant in Punjabi and Sanskrit. She wrote Vasisht Puran in her language which was then translated into Punjabi. Reading its extract showed that the institution was primarily established by Baba Nikka Singh to serve free food whose expenses were to be met from the income of the land attached thereto. It was also to be used as a library and a school. But the Tribunal went on to hold that Parkash of Guru Granth Sahib has been established for the last more than 100 years and thus it was a Gurdwara. For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
9 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -10- Learned counsel for the appellant has contended that the origin of the institution would relate back to the donation of the land on Patta and the purpose described therein. He has referred to the documents Exs.P54 and P55 to contend that these two documents which are the origin of the donation, do not mention that it is for public worship by the Sikhs, rather it is only used for meeting the expenses of Sadhus and Faquirs. This document relates to the establishment of the institution in the year 1849 BK and 1809 BK (there being two Patas). The Tribunal has gone wrong in noticing that Muafi was granted by Bibi Pardhan Kaur to conclude it to be a religious institution for Sikhs, whereas Exs.R51 and R.52 by Muafi was granted by Bibi Pardhan Kaur merely refer to it a 'Punarth' and income being utilized to meet the food expenses of the visitors. Exs.R72 and 73 relied by the Tribunal to hold the institution to be a Sikh Gurdwara is a result of complete misreading of these two documents as none of them refer to the institution being a place of public worship for the Sikhs. They only mention about Langar for the Faquirs. The other evidence such as the statement of the Lambardar have also been referred to in support of all these pleas that the land was only given for the purpose of running a Langar and Punarth and driving income to sustain itself and the purpose for which the land was donated. It has also been urged that when the possession was taken over by the S.G.P.C., the articles retrieved by them from the institution did not show it to be a Sikh institution. A reference has also been particularly made to a Gharial (big bell), a Shankh and a brass Thall. These articles are not found in a Gurdwara.
Learned counsel for the appellant also refers to the reliance placed by the Tribunal on a Book titled "Patiala Shahi Gharane diyan Shurvir Devian". Although the Tribunal has relied upon the observations in the Book to conclude in favour of the institution being a Gurdwara, yet the learned counsel for the appellant refers to the fact that it records Bibi Pardhan Kaur learning Sanskrit For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
10 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -11- and Punjabi to write 'Vasisht Puran' which would be totally alien and irreconcilable to the teachings of the Sikhs. This Book also records that the institution was primarily established by Baba Nikka Singh as a Lounge for Sadhus and Faquirs, where food would be served and expenses met from the income of the land. It is further contended that the Tribunal even though noticed that the institution was established by Baba Nikka Singh who was a Nirmala Sadhu, yet this fact has been conveniently ignored while recording the conclusion of it being a Gurdwara. It is further contended that none of the characters of the Sikh institution, such as Nishan Sahib etc. have been existing on the institution in question, whereas existence of Samadhs have been duly established, but the crucial aspect of the institution being established and run by Nirmala Sadhus has been ignored as has also been the fact that Nirmala Sadhus are not Sikhs, but those who respect Vedas and observe Hindu religious festivals and are even engaged in study of Hindu religious books. They participate in Kumbh and Ardh-Kumbh Melas at Hindu Tiraths and by no stretch of imagination, they can be construed to be Sikhs.
Before we commence with the discussion on merits, it would be apposite to extract Sections 7,8 and 10 of the Act as below :-
7. Petitions to have a gurdwara declared a Sikh Gurdwara.- (1) Any fifty or more Sikh worshippers of a gurdwara, each of whom is more than twenty-one years of age and was on the commencement of this Act, (or in the case of the extended territories from the commencement of the Amending Act) resident in the police station area in which the gurdwara is situated, may forward to the (appropriate Secretary to Government) so as to reach the Secretary within one year from the commencement of this Act or within such further period as the (State) Government may by notification For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
11 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -12- fix for this purpose, a petition praying to have the gurdwara declared to be a Sikh Gurdwara :
Provided that the (State) Government may in respect of any such gurdwara declare by notification that a petition 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 the 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:
Provided further that no such petition shall be entertained in respect of any institution specified in Schedule I or Schedule II unless the institution is deemed to be excluded from specification in Schedule I under the provisions of section 4.
(2) List of property claimed for the gurdwara and of persons in possession thereof to accompany a petition under sub-section (1).- A petition forwarded under the provisions of sub-section (1) shall state the name of the gurdwara to which it relates and of the district, tahsil and revenue estate in which it is situated, and shall be accompanied by a list, verified and signed by the petitioners, of all rights, titles or interest in immovable properties situated For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
12 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -13- in Punjab inclusive of the gurdwara and in all monetary endowments yielding recurring income or profit received in Punjab, which the petitioners claim to belong within their knowledge to the gurdwara the name of the person in possession of any such right, title or interest, and if any such person is insane or a minor, the name of his legal or natural guardian, or if there is no such guardian, the name of the persons with whom the insane person or minor resides or is residing, or if there is no such person, the name of the person actually or constructively in possession of such right, title or interest on behalf of the insane person or minor, and if any such right, title or interest is alleged to be in possession of the gurdwara through any person the name of such person shall be stated in the list ; and the petition and list shall be in such form and shall contain such further particulars as may be prescribed.
(3) Publication of petition and list received under sub- sections (1) and (2).- On receiving a petition duly signed and forwarded under the provisions of sub-section (1) the (State) Government shall as soon as may be, publish it along with the accompanying list, by notification, and shall cause it and the list to be published, in such manner as may be prescribed, at the headquarters of the district and of the tahsil and in the revenue estate in which the gurdwara is situated, and at the headquarters of every district and of every tahsil and in every revenue estate in which any of the immovable properties mentioned in the list is situated and shall also give such other For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
13 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -14- notice thereof as may be prescribed :
Provided that such petition may be withdrawn by notice to be forwarded by the Board so as to reach the (appropriate Secretary to Government), at any time before the publication, and on such withdrawal it shall be deemed as if no petition had been forwarded under the provisions of sub-section (1).
(4) Notice of claims to property to be sent to persons shown in the list as in possession.- The (State) Government shall also, as soon as may be, send by registered post a notice of the claim to any right, title or interest included in the list to each of the persons named therein as being in possession of such right, title or interest either on his own behalf or on behalf of an insane person or minor or on behalf of the gurdwara :
Provided that no such notice need be sent if the person named as being in possession is a person who joined in forwarding the list.
(5) Effect of publication of petition and list under sub-
section(3).- The publication of a notification under the provisions of sub-section (3) shall be conclusive proof that the provisions of sub-sections (1),(2),(3) and (4) have been duly complied with.
8. Petition to have it declared that a place asserted to be a Sikh Gurdwara is not such a gurdwara.- When a notification has been published under the provisions of sub- section (3) of section 7 in respect of any gurdwara, and For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
14 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -15- hereditary office-holder or any twenty or more worshippers of the gurdwara, each of whom is more than twenty-one years 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 which the 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 Ist Day of November, 1956, as the case may be), may be restored to office on the grounds that such gurdwara is not a 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 worshippers 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 the extended territories, on the commencement of the For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
15 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -16- Amending Act, as the case may be), resident 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.
9. xxx xxx xxx xxx
10. Petition of claim to property including in a list published under sub-section (3) of Section 7.- (1) Any person 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 a notification under the provisions of sub-section (3) of Section 7, a petition claiming a right, title or interest in any property included in the list so published.
(2) Signing and verification of petitions under sub- section (1).- A petition forwarded under the provisions of sub-section (1) shall be signed and verified by the person forwarding it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908), for the signing and verification of plaints,l and shall specify the nature of the right, title or interest claimed and the grounds of the claim.
(3) Notification of property not claimed under sub- section (1) and effect of such notification.- The (State) Government shall, as soon as may be, after the expiry of the period for making a claim under the provisions of sub-section (1) publish notification, specifying the rights, titles or interests in For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
16 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -17- any properties in respect of which no such claim has been made, and the notification shall be conclusive proof of the fact that no such claim was made in respect of any right, title or interest specified in the notification." It would be necessary to extract Section 16 of the Act also which assumes relevance since it provides the guiding principles to be considered while declaring a Dera or a Gurdwara to be a Sikh Gurdwara a Sikh institution and of particular importance would be Sections 16(2)(iii) and (iv) and thus, the reason for its emphasis. Section 16 is extracted here below :-
"16. 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 proceedings before a tribunal it is disputed that a gurdwara should or should not be declared to be Sikh Gurdwara, the tribunal shall, before enquiry 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 by, 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 the presentation of the petition under sub-section (1) of Section 7); or
(ii) owing to some tradition connected with one of the Ten For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
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F.A.O. No.222 of 1975 -18-
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);
(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 such worship by Sikhs, (before and at the time of the presentation of the petition under sub-section (1) of Section 7; or
(v) owing to some incident connected with the Sikh religion (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);
the Tribunal shall decide that it should be declared to be a Sikh Gurdwara, and record an 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 or person who would have succeeded such office-holder under the system of management prevailing before the first day of For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
18 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -19- January, 1920 (or, in the case of the 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 by restored to office." Evidently, the issue which becomes foundational to the controversy raised by the respondents, would revolve around the parameters of Section 16(2
(iii) and 16(2)(iv) and to simplify, we would encapsulate them as below :-
(1) To be a Sikh Gurdwara, it has to be established that it was used for Sikhs for the purpose of public worship.
(2) Was used for such worship for Sikhs before and at the time of presentation of the petition under sub-section (1) of section 7. (3) Was established in memory of a Sikh martyr, saint or a historical person and was used for such worship by Sikhs before and at the time of presentation of the petition.
All these factors would thus, depend on the evidence which would be evaluated but before this, we would like to refer to the judgment of the Hon'ble Supreme Court in Pritam Dass Mahant v. Shiromani Gurdwara Prabandhak Committee (1984) 2 S.C.C. 600, wherein it was held as under :-
"7. One of the most fascinating aspects of Sikhism is the process which began with human Gurus, continued during the period of duality in which there were human Gurus and a collection of sacred writings and ended with the present For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
19 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -20- situation in which full authority is enjoined by the scripture. In every respect the scripture is what the Gurus were.
8. Both the Gurus and the Book deserve respect, which they are accorded because of the Bani which they express, the word of divine truth. Therefore, it was possible for Guru Arjan, the fifth in the human line, to bow before the collection which he had complied and installed in the newly-built Darbar Sahib in 1604 for he was acknowledged the higher authority of the Bani due to the personal importance and significance which he possessed as Guru.
9. The Sikh Gurus have much in common with other preceptors in Indian tradition but their history and contribution is distinctive. They were not Brahmins, they did not see their calling to be that of expounding Vedas, they taught in vernacular not Sanskrit and their message was for everyone. They were ten in number each remaining faithful to the teachings of Guru Nanak, the first Guru and when their line was ended by a conscious decision of Guru Gobind Singh, the last Guru, succession was invested in a collection of teachings which was given the title of Guru Granth Sahib. This is now the Guru of the Sikhs.
10. An important characteristic of the teachings of the Sikh Gurus is their emphasis upon the message, the Bani. It is this stress which made possible the transfer of Guruship to the scripture. The human Gurus were the instruments through whom the voice of God became audible.
11. The holiest book of the Sikhs is Guru Granth Sahib For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
20 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -21- complied by the Fifth Master, Guru Arjan. It is the Bible of Sikhs. After giving his followers a central place of worship, Hari-Mandir, he wanted to give them a holy book. So he collected the hymns of the first four Gurus and to these he added his own. Now this Sri Guru Granth Sahib is a living Guru of the Sikhs. Guru means the guide. Guru Granth Sahib gives light and shows the path to the suffering humanity. Wherever a believer in Sikhism is in trouble or is depressed he reads hymns from the Granth.
12. When Guru Gobind Singh felt that his worldly sojourn was near, he made the fact known to his disciples. The disciples asked him as to who would be their Guru in future. The Guru immediately placed five pies and a coconut before the Holy Granth, bowed his head before it and said :
The Eternal Father Willed, and I raised the Panth. All my Sikhs are ordained to believe the Granth as their preceptor.
Have faith in the Holy Granth as your Master and consider it The visible manifestation of the Gurus. He who hath a pure heart will seek guidance from its holy words.
The Guru repeated these words and told the disciples not to grieve at his departure. It was true that they would not see his body in its physical manifestation but he would be ever present among the Khalsas. Whenever the Sikhs needed guidance or counsel, they should assemble before the Granth in all sincerity and decide their future line of action in the For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
21 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -22- light of teachings of the Master, as embodied in the Granth.
The noble ideas embodied in the Granth would live for ever and show people the path to bliss and happiness.
13. Temples are found almost in every religion but there are some differences between Sikh temples and those of other religions. The Sikh gurdwaras have the following distinctive features :
(1) Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a gurdwara The central object of worship in a gurdwara is Sri Guru Granth Sahib, the holy book. The pattern of worship consists of two main items : reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular granthi and then singing of some passages from the Holy Granth. The former is called Katha and the second is called Kirtan. A sikh thus worships the Holy Words that are written in the Granth Sahib, the Words or Shabda about the Eternal Truth or God. No idol or painting of any Guru can be worshipped.
(2) Sikh worship in the gurdwara is a
congregational worship, whereas Hindu
temples are meant for individual worship. A sikh does the individual worship at home when he recites Gurbani daily. Some For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
22 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -23- scriptures meant for this purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is the collective body of Sikhs who meet every day in the gurdwara.
(3) Gurdwara is a place where a copy of Guru Granth Sahib is installed. The unique and distinguishing feature would always be the Nishan Sahib, a flagstaff with a yellow flag of Sikhism flying from it. This serves as a symbol of the Sikh presence. It enables the travellers, whether they be Sikhs or not, to know where hospitality is available. There may be complexity of rooms in a gurdwara for the building may also serve as a school or where children are taught the rudiments of Sikhism as well as a rest centre for travellers. Often there will be a kitchen where food can be prepared though langar itself might take place in the yawning. Sometimes the gurdwara will also be used as a clinic. But its pivotal point is the place of worship and the main room will be that in which the Guru Granth Sahib is installed where the community gathers for diwan. The focal point in this room will be the book itself.
14. From the foregoing discussion it is evident that the sine qua non for an institution being a Sikh gurdwara is that there should be established Guru Granth Sahib and the worship of For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
23 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -24- the same by the congregation, and a Nishan Sahib as indicated in the earlier part of the judgment. There may be other rooms of the institution meant for other purposes but the crucial test is the existence of Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib. It is not necessary that there must be a granthi in a gurdwara. Any learned person can read Guru Granth Sahib and explain to the congregation.
xxx xxx xxx
16. Shri Naunit Lal, counsel for the appellants contended that the High Court has misread the evidence and that has vitiated its finding. He referred to the material portions of the judgment and the evidence of the parties to support his contention. On perusal of the judgment and the relevant evidence we do not find any misreading of evidence by the High Court. This contention, therefore, has no force. We, however, find that the High Court proceeded on the assumption that admittedly Bhai Bhagtu was a Sikh saint and that the disputed institution was established in his memory. This would be evident from the following observation made by the High Court.
"On an overall consideration of this aspect we are inclined to accept the contention of Mr.Shant that admittedly Bhai Bhagtu was a Sikh saint and this institution was established in his memory and as such the case of the respondent would also come within the ambit of Section 16 (2)(iv) of the Sikh Gurdwara Act."
But this observation is not warranted from the For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
24 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -25- pleadings or the evidence of the parties, Pritam Dass, the appellant, as PW-8, in his deposition has categorically stated :
"Bhai Bhagtu was an Udasi Fakir." In the pleadings also the appellant set up that Bhai Bhagtu was an Udasi saint and the institution was a Dera of the Udasi sect, while the respondent, on the other hand, in its reply stated that Bhai Bhagtu was a Sikh Saint and the institution was established in the memory of that Sikh Saint. In this state of pleadings and the evidence adduced by the parties it will not be correct to say that admittedly Bhai Bhagtu was a Sikh Saint and that this institution was established in his memory. Rather this was the only disputed question to be decided by the Court. Thus while holding that there is no misreading of evidence we find that there is misreading of the pleadings of the parties.
17. It was next contended for the appellant that the appellant of Udasi sect being in charge of the institution in question, the succession to the institution being from Guru to Chela, the institution being recorded as Dera of Udasi sect in some of the revenue records, the existence and worship of various idols and smadhs within the precincts of the institution and the absence of a granthi in the institution are all incompatible with the institution being a Sikh Gurdwara.
xxx xxx xxx
19. The Court has been called upon to decide whether the For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
25 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -26- institution in question is a Sikh Gurdwara. While considering this question the Court has to take into consideration all the circumstances which favour or militate against the institution being a Sikh Gurdwara. In the very nature of things and in view of the requirements of sub-section (2) of Section 16 it becomes necessary to consider whether the institution being in charge of an Udasi saint, the existence of Smadhs of Udasi saints and worship thereof, or the existence of the idols and absence of a granthi and succession to the institution from guru to chela are all relevant considerations and the Court has to consider them if there is evidence on the record. In the instant case evidence has been adduced on behalf of the appellant about the existence of smadhs and the various idols, the absence of a granthi and succession to the institution from guru to chela. We see no reason why the appellant be prevented from urging the aforesaid circumstances.
20. On the question whether the existence of smadhs and of the idols and the absence of a granthi or succession to the institution from guru to chela militates against the institution being a Sikh Gurdwara the counsel for the parties have adduced evidence in support of their respective contentions. The counsel for the parties have also cited cases in support of their respective contentions.
21. The counsel for the appellant relied on Hem Singh v. Basand Dass, 63 Ind App 188. In that case the question for consideration was whether Udasis are Sikhs. The Court held that Udasis are not Sikhs for the purpose of Sikh Gurdwara For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
26 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -27- Act. Although Guru Nanak founded Sikhism as a new religion by sweeping away idolatry and polytheism, Shri Chand, the son of Guru Nanak the founder of the Udasis, was himself not a Sikh but a Hindu. No reconciliation between the Sikhs and Udasis ever took place. The Udasis are in consequence not Sikhs, but schismatics who separated in the earliest days of Sikhism and never merged with the followers of the Gurus.
22. Reliance was next placed upon Ishar Dass v. Dr.Mohan Singh, AIR 1939 Lahore 239. The Court held :
" ... it has been established that the Mahants have all along been Udasis, that the institution was an Udasi monastery, that the Guru Granth Sahib was read there by the Udasi Mahant and that Sikhs may have attended these readings but that all other ceremonies, observed by Udasis and Hindus, were performed at the institution. It cannot be held from the mere fact that the Udasis also read the Guru Granth Sahib, a book which they do venerate, that the Sikhs should be associated in the management of this genuine Udasi institution. It was held by a Division Bench of this Court in ILR 15 Lahore 247 that the Udasi order constitutes a separate sect, distinct from the orthodox Sikhs and that though they have retained many Hindu beliefs and practices, yet in the wider sense of the term they may also be Sikhs. They occupy an intermediate position between strictly orthodox Sikhs and Hindus. The Udasis are in For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
27 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -28- fact a monastic order in their origin and are followers of Bawa Siri Chand, son of the first Guru. Though they worship smadhs etc., they do reverence the Grantha Sahib without completely renouncing Hinduism. They are often in charge of the village Dharamshala or Gurdwara, which is a Sikh institution, but in other cases the Sadh and his chelas constitute a monastery or college. Owing to their intermediate position, it is possible for Udasis to be in charge of a Sikh Gurdwara, properly so called out but it does not follow that that institution is a Sikh Gurdwara and not a true Udasi institution merely because the Granth Sahib is read."
23. In Harnam Singh v. Gurdial Singh, (1967) 2 SCR 739 on an analysis of various decision this Court held :
"These decisions clearly indicate the principle that though the Sikh Guru Granth Sahib is read in the shrines managed by the members of the Udasi sect, that was not enough to hold that those shrines were Sikh Gurdwaras. In the case before us, the mere fact that at some stage there was a Guru Granth Sahab in this Dera cannot thus lead to any conclusion that this institution was meant for, or belonged to the followers of the Sikh religion. Clearly the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhs who cannot be regarded as Sikhs and, consequently, in their mere capacity of followers of Sikh religion residing in For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
28 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -29- Village Jhandawala, the plaintiffs/respondents could not be held to have such an interest as could entitle them to institute the suit under Section 92 of the Civil Procedure Code."
The Hon'ble Supreme Court has also held that the question that is to be determined in such like controversies is the character of the institution with the issue of locus relegated to a consideration thereafter.
In Uttam Dass Chela Sunder Das v. Shiromani Gurdwara Prabandhak committee, Amritsar 1996(2) R.R.R. 513, the Hon'ble Supreme Court observed as under :-
"19. It is noteworthy that when the tribunal finds that the Institution/Gurdwara cannot be declared as a Sikh Gurdwara, it ceases to have jurisdiction in all matters concerning such Gurdwara. Only a limited jurisdiction is kept conferred on the tribunal under sub-section (3) to be deciding restoration to office of a hereditary office-holder or of a person, who would have succeeded such office-holder, under the system of management prevailing, before a certain date. The tribunal shall in that event, notwithstanding such finding of the institution being not a Sikh Gurdwara, continue to have jurisdiction in all matters relating to such claim on grounds tenable under Section 8. "
We may now refer to some pieces of evidence which we have been taken through to determine the origin, the establishment and character of the institution. Exs.P54 and P55 are one of the foundational documents when the land For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
29 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -30- for the institution was donated and purpose defined. We may extract the same here below :-
"Annexure A-1.
Translation of Ex.P-54.
PETITION PAPER, PEPSU GOVERNMENT.
SEAL NAM JAPE SOE PARSARDHO "EK ONKAR WAHEGURU JI"
Written by Bibi Pardhan that the land of Vanala which belonged to me, I donate the same to Sadhs for the construction of Dharamshala Baba Nikka Singh. My donation should not be misused. Whatsoever, will render services to the Sadhs will be blessed. The letter is written on Assu Sudi 10, Year 1847 (In words Eight hundred forth seven). TRUE COPY SD.
ADVOCATE."
ANNEXURE A-2.
Translation of Ex.P-55.
PETITION PAPER, PEPSU GOVERNMENT.
---
NAM JAPE SOE PARSARDHO EK ONKAR WAHEGURU JI Written by Bibi Pradhan that the land at Dakala onwards the For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
30 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -31- side of Behbalpur has been donated to the Dharamshala Baba Nikka Singh. There should be no misuse in incurring expenses on Sadhs. My donation is for the well being of those who will render services and will be harmful for those whosoever will do wrong.
The letter is written on Maghar Baddi 5, Year 1809. TRUE COPY Sd.
ADVOCATE."
Evidently, the land was donated to the Sadhs for construction of a Dharamshala. Another document which needs to be noticed is a petition (Arazdasht) preferred in a dispute which arose between the Mahants managing the Dharamshala. This Arazasht was presented by Foreign & Financial Secretary in Ijlas Khas and notices the history of the institution and it will be extremely useful to notice the facts which were set out therein. This document is a lengthy document and needs to be noticed only due to the fact that it reflects the establishment and running of the Dera by the Sadhs and its management being passed on from Gurus to Chelas. Therefore, only the relevant portion which reflects this aspects, is being extracted, as it would be necessary to go into the essence of the dispute raised in the document which is a petition :-
"ANNEXURE A-3 Translation of Exh.P-56, a copy of Arazdasht. (Petition) forthcoming on File No.651F/A relating to Dera Baba Gandha Singh of Barnala.
Arazdasht presented by Foreign and Financial Secretary in Ijlas Khas.
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
31 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -32- Sri Hazoor Atal Partap Ji, (1) The brief facts of this case are as under :-
This Dera was established in 1847 Sammat. Bibi Pardhan kaur daughter of Sri Maharaja Baba Alla Singh Bekunth Maratib (deceased) had laid foundation of this Dera for Dharam Arth (religious purposes) and charitable purposes. The Govt. had granted Muafi in respect of agricultural land and residential houses in order to upkeep this Dera. The annual revenue of the same as per the report of the revenue officer is about Rs.6000/-. Out of the income of the said property, a langer (free kitchen) is going on for the poors. Sadhus and Brahmins enhance their knowledge in the Dera. This area falls under the territory of the Govt. Muafi has been granted in respect of the land situated at Barnala, Khudi, Burjwala, Ghannauri Tehsil Dhuri, Jalwana Tehsil Dhuri, Sikh Tehsil Barnala and Kalhori Tehsil Patiala. The property belonging to this Dera is also situated at Mauza Chak and Harike Kalan, District Ferozepur. A branch of this Dera is also established there. The Muafi was granted in favour of Pandit Nikka Singh ji and this Dera was also established by him. Baba Gandha Singh was amongst the chelas of Pandit Nikka Singh. During famine, he helped the public a lot by running langar and earned a great name and fame. Now, this Dera stands in his name.
2. Pedigree table of the Mahants of Dera and their successors is as under :-
Pandit Nikka Singh For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
32 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -33- Darbar Singh Lakha Singh Baba Gandha Singh Mahant Bir Singh Mahant Atma Singh Mahant Nihal Singh I I I I Nand Singh Narain Singh Kirpal Singh
3. The successor of Mahant Nihal Singh namely Narain Singh chela had been working as Naib Mohtamim of Dera Barnala, but in 1953 Sammat after his death, Mahant Nihal Singh entrusted the charge of Dera to his other Chela namely Kirpal Singh in place of Narain Singh, deceased and got awarded turban and shawl to him from the Government. In (illegible) 1968, the mutation respect of the property of Dera was got sanctioned in favour of Mahant Kirpal Singh as per procedure.
4. In the month of Poh 1971, Mahant Kirpal Singh had died, but Mahant Nihal Singh was alive at that time who had got appointed Kirpal Singh as Mahant and who was the Guru of deceased Mahant. Therefore, he (Mahant Nihal Singh) became the Mahant of dera as no other successor was appointed in his place. Being the Mahant of the Dera, he proposed that the next competent Mahant would be appointed For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
33 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -34- within one year from amongst the chelas. But, in the meantime, one Chanan Singh claimed that he might be appointed as Mahant. This event would be discussed later on. In this way, a dispute arose regarding the appointment of successors. The cases regarding mutation have been going on since that time. Now, there is no proper arrangement in respect of the property of Dera and as such the Dera has suffered a great loss.
5. In the presence of Mahant Nihal Singh, Chanan Singh claimed himself to be the successor of Mahant Kirpal Singh being his chela. Since the property of Dera is situated at Tehsil Barnala, Dhuri and Patiala, therefore separate files were filed in the Tehsil at Barnala and Dhuri. The mutation in respect of the property situated at Barnala was sanctioned in favour of Mahant Nihal Singh, but the mutation in the tehsil at Dhuri was sanctioned in favour of Chanan Singh. While sanctioning the mutation in favour of Chanan Singh, the proceeding were not intimated as per the procedure. Immediately after verification of the mutation, possession was got delivered to Chanan Singh in an illegal manner. It is pertinent to mention here that Sardar Basant Singh who was a relative of Chanan Singh and General Bakhsish Singh, was posted as Tehsildar at Dhuri when the said mutation was sanctioned. In this way, the mutation was sanctioned in favour of Chanan Singh in a blased manner. Facts in this regard would be discussed later on."
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
34 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -35- A perusal of the above shows that the institution was being managed by the Sadhs and the chelas, governed by rule of succession. This fact is further fortified by the Faradh Intkhab(Annexure A-5) pertaining to the year 1960-61 which we may extract here below :-
1 2&3 4 5 to10 11
---------------------------------------------------------------------------------------------- - -
Name of document XX Name of the owner XX Remarks regarding enquiry and with description, copy of with description of reference of the register.
which is required. father's name, caste,
residence etc. and share.
File regarding settlement XX Dera Baba Gandha Singh XX Succession of Muafi vide orders
for the year 1960-61 under the management of dated 8th April, 1905 passed by the
relating to Village Barnala. Mahant Nihal Singh Chela Aalia Commissinery Bandabost in
of Atma Singh Faqir File No.75-76 regarding review of
Nirmala, resident of the Muafi, the entire Khata measuring
village. 721-17 bigha Kham except the
following Nos.3195/20-0,
3196/9-2,
3201/14-10,
3202/17-5,
3204/82-13
stands Muaf as before in favour of
Dera Baba Gandha Singh Nirmala
under the management of the then
Mahant subject to the proper `
existence of dera, expenditure and
income for charitable purposes in
respect of the Dera vide file No.
123/638-5, Vide File No.13/83-12.
(Entries in this column are in red
ink)."
Likewise, an extract of the register of mutations pertaining to the various years would also show the institution passing from Gurus to Chelas Ex.P-19 (Annexure A-5A) Sr.No. XX Name of owner with XX Name of the owner with XX description. description.
16. XX Mahant Kirpal Singh Chela of XX Chanan Singh Chela of Kirpal Mahant Nihal Singh Sadh Singh, Sadh Nirmala by caste Nirmla by caste, resident of resident of Barnala State of Barnala. Patiala.
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
35 of 58
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F.A.O. No.222 of 1975 -36-
... ... ...
Ex.P-4 (Annexure A-6)
1037 XX Dera Baba Gandha Singh, under XX Dera Baba Gandha Singh, under
the management of Mahant the management of Mahant Nihal
Kirpal Singh Chela of Mahant Singh Chela of Mahant Atma Singh,
Nihal Singh, Fazir Nirmla by Faqir Nirmla by caste, resident of
caste, resident of the village. the village.
... ... ... ...
Ex.P5 (Annexure A-7)
1 2&3 4 5 to 10 11
Name of document with XX Name of the owner with XX Remarks regarding enquiry and
description, copy of which father's name, caste, reference of the register.
is required. residence etc. and share.
Jamabandi for the year XX Dera Baba Gandha Singh XX Vide orders dated 8th April, 1905
1971-72 relating to under the management of passed by the Alia Commissionary
Barnala. Mahant Nihal Singh Chela Bandobast in file No.75-76
of Mahant Atma Singh, regarding review of Muafi, the
Faqir Nirmla by caste, entire Khata measuring 721-17
resident of the village. kham except the following
Nos.3195/20-0,
3196/9-2,
3201/19-10,
3202/17-5,
3204/12-13
stands Muaf as before in favour of
Dera Baba Gandha Singh Nirmal
under the management of their
Mahant Kirpal Singh subject to the
proper existence of Dera,
expenditure and income for
charitable purposes in respect of
the Dera.
(Entries in this column are in red
ink).
Ex.P6 (Annexure A-8)
1 2&3 4 5 to 14 15
Sr.No. XX Name of owner with XX Report and orders.
description.
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
36 of 58
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F.A.O. No.222 of 1975 -37-
1414 XX Chanan Singh s/o Sanna, XX Sir,
Jat Sidhu by caste, Raghbir Singh, Sadh Nirmala Dera Baba Gandha
2495 resident of the village has submitted an application that Mahant Nihal
(in red mortgagor, Mahant Nihal Singh has died on 14 Maghar 1973 and that the
ink) Singh Chela of Atma Singh mutation may be sanctioned in his name in place of
Sadh Nirmla by caste, the deceased.
mortgagee for Rs.100/-. Chanan Singh Chela of Kirpal Singh has also stated
Bishna and Sunder Sons of that the mutation in respect of the estate of
Lal Singh, Jat Sidhu by deceased may be sanctioned in his (Chana Singh)
caste, residents of the name. Report Roznamcha No.124 dated 19 Poh,
village in equal shares 1973 has been entered. Since the matter is disputed
mortgagors Nihal Singh therefore after making entry of this event regarding
Chela of Atma Singh, succession in the register of khata is submitted for
Sadh Nirmala, resident of necessary orders dated 19 Poh 1973. Copy of the the village, mortgagee for application be annexed. Entries are correct. Rs.9 and 8 Anna. Dera Bana Dated 8 Magh,1973.
Baba Gandha Singh under the management of Mahant Nihal Sd/- Girdawar Kanungo Halqa. Singh Chela of Atma Singh, Sadh Nirmla, resident of the village.
Nihal Singh Chela, Sadh Nirmla by caste, resident of the village. Dera Baba Gandha Singh under the management of Nihal Singh, Sadh Nirmla by caste, resident of the village.
Inder etc. mortgagors, Mahant Nihal Singh Chela Atma Singh, Sadh Nirmla by caste, resident of the village mortgagee.
Ishar Singh etc. mortgagors, Mahant Nihal Singh Chela Atma Singh, Sadh Nirmla, resident of the village, mortgage.
Ex.P8 records that Mahant Nihal Singh declared Raghbir Singh as his successor vide writing dated 11th Jeth, 1972. The same is extracted here below:-
"Ex.P8 (Annexure A-9) Whereas Mahant Nihal Singh has declared Raghbir Singh a his successor vide his writing dated 11th Jeth 1972 and the latter being a person of good character is entitled to succeed, Raghbir Singh Chela Mahant Nihal Singh is hereby appointed and accepted as a successor of the Dera Baba Gandha Singh. Mutation regarding total Muafi and the ownership of the Dera is hereby sanctioned in his favour. The possession of the entire property and Muafi of the Dera be got For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
37 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -38- delivered to Mahant Raghbir Singh forthwith. The whole account and the possession of the property of the Dera be got delivered to Mahant Raghbir Singh from the receivers as per procedure and the receivers be got relieved of the village.
Sd/- Daya Krishan Kaul :Financial & Joint Secretary. Sd/- K.M.Mistri : Home Secretary.
Sd/- Nihal Singh : Judicial Secretary.
Sd/- Dalip Singh : Revenue Secretary.
Sd/- Sarup Singh : Chief of gl. staff.
Administrative Committee 9.8.1918 Issue orders to S.S. D.M. accordingly and inform Judicial and Revenue Secretaries for the guidance of the Nazim.
Sd/- D.K. 1.9.1918."
Ex.P7 is another document showing entry in favour of Mahant Raghbir Singh Chela and describing his predecessor Mahant Kirpal Sigh as Nirmla by caste. The same is also extracted here below :-
1 2&3 4 5 to 10 11 Name of document with XX Name of the XX Remarks regarding enquiry and reference of description, copy of which owner with is required. description of father's name, caste, residence etc. and share.
Jamabandi for the year XX Dera Baba XX Vide orders dated 8th April, 1905 passed by year 1975-76 relating to Gandha Singh Alia Commissionary Bandobast in File Bikram Sammat. under the No.75-76 regarding review of Muafi, the management of entire Khata measuring 721-17 kham Mahant Raghbir except the following Singh Chela of Nos.3195/20-0, Mahant Kirpal 3196/9-2, For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
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Singh, Faqir 3201/19-10,
Nirmla by caste, 3202/17-5,
resident of the 3204/12-13
village. stands Muaf as before in favour of Dera Baba
Baba Gandha Singh Nirmal under the
management of the then Mahant Kirpal Singh
subject to the proper existence of the Dera, expenditure and income for charitable purposes in respect of the Dera. Vide File No.153 vide file No.13 638-5, 83-12.
Mutation No.1392 regarding Muafi, 1393 regarding Adhkari stand sanctioned in favour of Mahant Raghbir Singh instead of Mahant Kirpal Singh vide order dated 1918 of the Ijlas Khas.(Entries are in red ink).
The subsequent entries in other documents Rxs.P10, P12, P14, P15 all relentlessly record these mutations where Abaton has passed on from Guru to Chela indicating that it was a well entrenched tradition. Similarly, Ex.P45 records the mutation and Muafi and the management being under the Chela with the Guru being described as Sadh Nirmla. The relevant portion of Ex.P45 is extracted here below :-
"xxx xxx xxx
Name of Muafidar with description
Entries Dera Baba Gandha Singh under management of
required to Mahant Ganga Singh Chela Bahadur Singh be corrected. Sadhu Nirmla.
Present Dera Baa Gandha Singh under the management entries of Bhan Singh Chela Chanan Singh Faqir Nirmla.
Substance of order :
Vide order dated 16.2.63 passed by the Collector, Sangrur, mutation regarding transfer of Muafi to the extent of Rs.216.44 per annum in favour of Shri Bhan Singh Chela Mahant Chanan Singh Mohantmim (Manager), Dera Baba For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
39 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -40- Gandha Singh at Barnala in place of Mahant Gandha Singh has been sanctioned."
These are the pieces of evidence which were there before the Tribunal when it recorded its report, but were largely ignored in recording conclusions.
The Tribunal in its report refers to a Book written mostly by well respected Nirmal Sadh Mahant Dayal Singh who wrote "Nirmal Panth Darshan"
and in relation to its contents, notices that in the first Volume, a narration of history of the origin of Nirmla Panth and establishment of Akhara Nirmala is traced out to spell it as an Akhara with overall control of the Nirmala saints. In Volumes 2 and 3 details have been given about the origin of various Sampradays of Nirmalas. These Sampradays take origin from Baba Dharam Singh who was one of the Panj Piaras, (even though the Tribunal notices this to be a belief) who took Amrit from Guru Gobind Singh. Baba Karam Singh was a Shishya (pupil)of Baba Dharam Singh and a contemporary of Guru Gobind Singh and had served at Ponta Sahib and other places. He was one of the persons sent by Guru Gobind Singh to Kashi (Varanasi) for obtaining education in Sanskrit and for this purpose, all these were sent in 'Bhagwa' (safron) clothes as saints. Baba Karam Singh on return had been administered Amrit by Baba Dharam Singh who then started giving education to other persons and did Dharam Prachar and administration of Amrit. One of the persons who took Amrit from him was Baba Kesar Singh who also lived at the feet of Guru Gobind Singh and Baba Langar Singh was his Sewak. The aforesaid Baba Langar Singh, after living for a long time at Anandpur Sahib in the service of Guru Gobind Singh ji, ultimately settled at Harike Kalan and there continued the Parchar of the mission of Guru Nanak Dev.
After having traced the above history, the report refers to Bibi Pardhan Kaur whose role with reference to the institution is predominant and For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
40 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -41- essential for answering the present controversy, as she is the person who donated the land for the institutions per the recorded documents discussed earlier.
Pradhan Kaur, daughter of Maharaja Alia Singh was a devotee who came for the Darshan of Baba Langar Singh ji. One of the three Shish (pupils) was Pandit Nikka Singh, who was sent to Barnala at the instance of Bibi Pardhan Kaur.
Bibi Pardhan Kaur was married in the family of Baba Budha Sahib, who had served the first six Gurus and was so respected that he gave Tilak to all the five Gurus coming after Guru Nanak Dev Ji. She had become widow and she visited Baba Langar Singh ji's Dera and in order to get the benefit of daily Satsang, she requested Baba Langar Singh to send a Mahapurush with her. In deference to her wishes Baba Langar Singh (who because of his learnings was called Sri Pandit Nikka Singh ji) started daily satsang in view of Bibi Pardhan Kaur's inclination towards God.
In the year 1809 B. (corresponding to 1752 A.D.), Bibi Pardhan Kaur gave a Pata of considerable property belonging to her to "Dharamshala Baba Nikka Singh ji for the purpose of meeting the expenses of Sadhs". This was followed by another Patta in which a Bir of Khudi Village was donated to this very Dharamshala to meet the expenses of sadhs, in the year 1847 B.B. (corresponding to 1790 AD). These are documents Exs.P54 and P55 and in fact, form the fountain head from where the nature and character of the institution flows revealing the purpose i.e. donation to feed the Sadhs.
The Tribunal does not dispute this document which more or less conforms to the writing contained in the Book "Nirmal Panth Darshan" on which extensive reliance has been placed and noticed above herein as well. The Tribunal affirmatively recorded the conclusion that 'it is established beyond reasonable doubt from the documentary evidence that Dera at Barnala was established by Nikka Singh who was known as Pandit Nikka Singh'. For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
41 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -42- Exs.P51 and P52 pertain to the record of Muafi granted by Bibi Pardhan Kaur by way of 'Punarth' and income being utilized to meet the food expenses of the visitors to the Dera. It then further goes to record with reference to Exs.R72 and R73 as also the statement of the Patwari that langer continued to be served to Faqirs and the income derived from the land going into langer.
It is at this juncture that the Tribunal notices the statement of the Patwari who says that house of Guru Granth Sahib is also there. Reliance has been placed on Ex.R73, the report of the Nazim who records "Langar main aur ravind ko roti dete hein. Makan Granth Sahib d mojud hai", i.e. Langar is served to the visitors coming and going and house of Guru Granth Sahib is there. Exs.R74 and R92 have also been relied upon in this regard as it is stated that Makan Guru Granth Sahib is in existence.
From here, the Tribunal records the crucial finding declaring the institution as a Sikh Gurdwara, but it would be apposite to bring out its extracts of the report at the cost of repetition as it would form a continuity in the narrative :-
"In the various documents which came into existence after 1930 BK, it has also consistently been mentioned that there is Guru Granth Sahib in this institution which, after Mahant Gandha Singh became incharge, after the demise of Baba Nikka Singh, came to be known as Dera Baba Bhai Gandha Singh instead of Dharamshala Baba Nikka Singh as originally known."
Ex.R42, the statement of Lamberdar is also extracted here below :-
".... Bibi Pradhan had given this land to Baba Nikka Singh by way of charity for running a free kitchen for the Faqirs and travellers who came to this Dera ... Dera is in Barnala town. For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
42 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -43- Langar goes on in the morning and in the evening. Sadhus, the poor and the travellers get the food. Muafidar is of good character and in the Dera two or three "Granths always remain open. "
Ex.R55is a copy of the Farad Bachh of Village Dhanauri Kalan for the years 1962-63 BB (corresponding to 1905-06). In this document in column No.4, the name of the owner is mentioned as Guru Granth Sahab Dera Gandha Singh, the relevant portion of which is extracted here below :-
"Exhibit R-55 is the copy of Farad Bachh of Village Dhannauri Kalan for the year 1962-63 BB (corresponding to 1905-06 AD). In this document, in column No.4, the name of the owner is mentioned as Guru Granth Sahib Birajman Dera Bhai Gandha Singh Baihtmam Bhai Nihal Singh Qaum Sikh Nirmala."
The statement of one Sampuran Singh chela of Narain Singh has been referred to, since he uses interchangeably, the word "Seva Gurdwara" from where the Tribunal concluded that the Dera was also known as Gurdwara, even though in one of the records, these two names have been synonymously used.
The statement of Lambardar of Khud Kalan Exs.P55 and P58 have been relied upon to say that they contain entries regarding the owner being Guru Granth Sahab Virajman Dera Gandha Singh. Ex.P49 is the statement of Mahant Raghbir Singh recorded in the year 1978 BK corresponding to 1921 AD wherein he confirmed that langar was being run, out of the income from the Muafi. To another question put to him "How many Bhogs of Guru Granth Sahab are done and on what occasions ?", he replied, "On every Sankrant (Ist day of Bikrami For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
43 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -44- month) Bhog of Guru Granth Sahab is done and according to an old custom Dasmi Shrad is celebrated. On the occasion of Kartik Sudi Purnmasi (birthday of Guru Nanak Dev) and Poh Sudi Satmi (birthday of Guru Gobind Singh Ji) Bhogs of Guru Granth Sahab were also performed".
The next question put to him was whether any Granthi had been kept for reading Guru Granth Sahab Path or some other arrangement had been made. To this he replied that originally for some time Gurbux Singh son of Attar Singh was kept as the Granth at Rs.10/- a month but at that time there was no Granthi and the Sangat itself recited the Path.
Ex.P71 is the statement of Mahant Bahadur Singh given on 24th of Phalgun, 1966 BB, corresponding to the year 1939 AD in which while giving the details of the expenses the pay of the Granthi is shown as Rs.120/-.
Two Gift Deeds Exs.R-67 and R-68 have been referred describing the beneficiary of the gift Ram Singh (petitioner before the Tribunal) and one Sarwan Singh. The consideration for the gift in favour of Ram Singh is that Ram Singh was performing the Sewa of "Guru Ghar". In the second gift deed in respect of Sarwan Singh, it was clearly mentioned that he was a Granthi and was reciting the Path of Guru Granth Sahab, while staying with the Mahant. Sarwan Singh is also described in it as the Granth of Harike Kalan. Two volumes of Guru Granth Sahab are said to be there in the institution.
In its report, the Tribunal does not dispute the historical aspect of the land and the papers of the institution, but recorded that for the last 100 years, the presence of Guru Granth Sahab in the Dharamshala is established as also the Parkash of Guru Granth Sahab.
But according to us, the Tribunal went wrong in recording the following findings :-
"The learned counsel for the respondent-Committee further For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
44 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -45- urged that the institution in dispute which came into existence by Baba Nikka Singh's coming over to Barnala from Harike Kalan was for the specific purpose of providing Sangat to Bibi Pardhan Kaur everyday in the "Shish" of Baba Langar Singh, who was himself the Chela of Baba Kesar Singh. Both Baba Kesar Singh and Baba Langar Singh were contemporaries of Guru Gobind Singh ji, and as is mentioned at page 6 of "Nirmal Panth Darshan, Volume III, Baba Langar Singh originally served at Sri Anandpur Sahib before coming over to Harike Kalan. There is therefore, plenty of force in the argument of the learned counsel for the respondent- Committee that the Dera, which was established by Baba Langar Singh at Harike Kalan was meant to be a place of worship of Guru Granth Sahib by Sikhs and, particularly, Dharmashala established by Baba Nikka Singh at Barnala was for the specific purpose of providing Sangat to Bibi Pardhan Kaur and the specific mention at page 11 of the aforesaid book, that Baba Nikka Singh was so expert in giving commentary of Guru Shabad shows that there was Parkash of Guru Granth Sahib and the Dharamshala was established for the purpose of worship by the Sikhs. Though in the Pattas given by Bibi Pardhan Kaur there is no specific mention, one way or the other, whether there was Guru Granth Sahib or not, but the very fact that the donation was made not to an individual but to the Dharamshala leaves no manner of doubt in this respect. The word "Dharamshala" is a typical word when used in connection For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
45 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -46- with the institution, like the one established by Baba Nikka Singh, that ti was a Sikh institution. "Encyclopedia of Sikh literature" y Bhai Kahan Singh of Nabha, a book of undoubted authenticity, describes the words "Dharamsal" and "Dharamsala" as : "a place where visitors stay without payment of rent". Another meaning given is "religious place of the Sikh in which there is Parkash of Sri Guru Granth Sahib, visitors receive Board and lodging and education is given."
... ... ...
"...... In view of the above, therefore, the oral statements of the witnesses produced by the petitioners, who have started on oath that there is Guru Granth Sahib in the institution in the dispute are, undoubtedly, false and no reliance can be placed on the same and fortunately, the learned counsel for the petitioners, during arguments, placed no reliance on these oral statements."
At this stage, we would deem it appropriate to recall the provisions of Section 16 of the Act which delineates the issues to be taken into consideration by the Tribunal to determine the character of the institution as a Gurdwara. Sub- section 16(2)(i) of the Act talks of a Gurdwara established by, or in memory of any of the Ten Sikh Gurus, which is not the case here and this provision can safely be rested to sub-section (2). The relevant portion of these provisions is again reproduced here below :-
"16. ...... (2) If the tribunal finds that the gurdwara -
(i) was established by, or in memory of any of the Ten For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
46 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -47- 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 the presentation of the petition under sub-section (1) of 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);
(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"
Juxtaposing the aforesaid requirements against the present facts and evidence, which is on record, we would find that this is not an institution established for the use of Sikhs for the purpose of public worship.
The historical perspective of the origin of the institution stems from the donation of land by Bibi Pardhan Kaur for setting up a langar to feed the needy. The institution was in the hands of Pandit Nikka Singh who himself was a Shishya of Langar Singh, a Nirmla Sadh. The pedigree table Exs.P1 and P2 would bear out that all these Mahants passed on the institution from Guru to Chela and all were Nirmla Sadhs.
This condition that the institution be established for the use of Sikhs of public worship is therefore, is clearly not established thus defeated the first requirement of Section 16(2)(iii) & (iv).
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
47 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -48- Similarly, in view of the above historical fact categorically recorded and noticed even by the Tribunal it cannot be said that the institution was set up for any other purpose except for the purpose stated in the Patta.
Even subsequent thereto, none of the characteristics necessary for acknowledging the institution as a Sikh Gurdwara have been recorded or established through any evidence.
Here we would recall the valuable and enlightening observations of the Hon'ble Supreme Court in Pritam Dass Mahant v. Shiromani Gurdwara Prabandhak Committee (supra), where the distinctive features of a Sikh Gurdwara have been succinctly brought out amidst a reference to their practices, we would consciously reproduce the same even at the cost of repetition so as to be a part of the narrative text of the present judgment :-
"13. Temples are found almost in every religion but there are some differences between Sikh temples and those of other religions. The Sikh gurdwaras have the following distinctive features :
(1) Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a gurdwara The central object of worship in a gurdwara is Sri Guru Granth Sahib, the holy book. The pattern of worship consists of two main items : reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular granthi and then singing of some passages from the Holy Granth. The former is called Katha and the For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
48 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -49- second is called Kirtan. A sikh thus worships the Holy Words that are written in the Granth Sahib, the Words or Shabda about the Eternal Truth or God. No idol or painting of any Guru can be worshipped.
(2) Sikh worship in the gurdwara is a
congregational worship, whereas Hindu
temples are meant for individual worship. A sikh does the individual worship at home when he recites Gurbani daily. Some scriptures meant for this purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is the collective body of Sikhs who meet every day in the gurdwara.
(3) Gurdwara is a place where a copy of Guru Granth Sahib is installed. The unique and distinguishing feature would always be the Nishan Sahib, a flagstaff with a yellow flag of Sikhism flying from it. This serves as a symbol of the Sikh presence. It enables the travellers, whether they be Sikhs or not, to know where hospitality is available. There may be complexity of rooms in a gurdwara for the building may also serve as a school or where children are taught the rudiments of Sikhism as well as a rest centre for travellers. Often there will be a kitchen where food can be prepared though langar itself might take For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
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place in the yawning. Sometimes the
gurdwara will also be used as a clinic. But its pivotal point is the place of worship and the main room will be that in which the Guru Granth Sahib is installed where the community gathers for diwan. The focal point in this room will be the book itself.
14. From the foregoing discussion it is evident that the sine qua non for an institution being a Sikh gurdwara is that there should be established Guru Granth Sahib and the worship of the same by the congregation, and a Nishan Sahib as indicated in the earlier part of the judgment. There may be other rooms of the institution meant for other purposes but the crucial test is the existence of Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib. It is not necessary that there must be a granthi in a gurdwara. Any learned person can read Guru Granth Sahib and explain to the congregation." A perusal of the evidence shows that there are distinctive factors of the institution which are complete anathema to the distinctive features of a Sikh Gurdwara such as :-
(1) The control of the institution being passed on from Guru to Chela (shishya).
(2) The absence of Nishan Sahab. This fact along with installation of Guru Granth Sahab are two sine qua nons for an institution to be a Sikh Gurdwara and this has been repeatedly held by various pronouncements of the Hon'ble Supreme Court noticed above i.e. Pritam Dass Mahant v. Shiromani For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
50 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -51- Gurdwara Prabandhak Committee (1984) 2 S.C.C. 600 (supra). (3) The Mahants are Nirmala Sadhs which according to the judgment of the Lahore High Court in Kirpa Singh v. Ajaipal Singh and others A.I.R. 1930 Lahore 1, are distinct from Sikhs. We may extract the discussion that precedes the conclusion recorded in the said judgment :-
" ..... Defendant Kirpa Singh has himself admitted in his statement :vide p-85, part 1 of the Printed Paper Book, that "Nirmalas" are chelas of Guru Gobind Singh, and hence it is unnecessary to dilate on this point. But although the Nirmalas appear o have been originally followers of Guru Gobind Singh, the important point for consideration is whether they are now distinct from the general body of the Sikhs and in particular from the plaintiffs who are "Akalis". On this point, the authorities seem to be agreed that the Nirmalas have drifted to a great extent towards the practices of the Hindu religion. The following extract from Sir Edward Macelagan's Census Report for this Province for the year 1891 is very instructive in this connexion :
""The Nirmalas. The Nirmalas represent a different aspect of the history of Gobind's followers ; for this order has by degrees rid itself of the main distinguishing marks of the Khalsa faith and is gradually returning to a pure form of orthodox Hinduism. The Nirmalas originated, like the Akalis, in the time of Gobind Singh, but there are two stories regarding the manner of their origin. According to the one, a water carrier was seized by Gobind's soldiers for For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
51 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -52- supplying water to the enemy during a battle, but the Guru recognized the virtue of this act and embracing him exclaimed, Though art without stain (Nirmala)." This story, however,has too much resemblance to that regarding Kanhaiya Lal quoted in para 103 above ; and the following appears the more probable account. It is said that Guru Gobind Singh sent three followers named Karam Singh, Harchand and Mihr Rai to Benares to acquire a knowledge of Sanskrit, when the Pandits of that city refused to come themselves to Gobind Singh ; and that, on their return, the Guru blessed them as being the only learned men among the Sikhs and called them "Nirmala". They were allowed to take the pahul and founded the order of Nirmala Sadhus. This order was at first devoted to the regulations of Gobind Singh, wore white garments and had considerable influence with his followers. But their taste for Sanskrit literature (which is to this day cultivated by them with considerable cadre) led them to imbibe the principles of the Vedanta and to re-adopt many of the customs of the Shastras. They gave up the use of meat and spirits. They also began to adopt the ordinary ochre- coloured dress of the Indian faqir, which is strictly prohibited to the true followers of Gobind, and some of them are now only distinguishable from the Udasi followers of Nanak y the wearing of the kes or uncut hair. They are almost always celibate and almost always in monasteries. They have generally some protensions to learning, and unlike most of the religious orders in the Punjab, have a high reputation for For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
52 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -53- mortality. They are said to live on offerings voluntarily presented, and to abstain from begging that there are some who say that the ochre-coloured dress has been adopted mainly for its convenience in begging. Their principal Akhara is at Hardwar, and it is said that their societies throughout the province are periodically visited by a controlling council. They have three considerable monasteries in the Hoshiarpur District at Munak, Adamwal and Alampur Kotla ; and by our returns they appear to be strong in Gurdaspur, where they are mainly returned as Hindus, and in Ambala, Ferozepur and Amritsar, where they are mainly returned as Sikhs. It is supposed that they are to be found in some numbers in Patiala, but our tables would intimate that they are as strong in Faridkot. They are looked on as unorthodox by most true Sikhs, and it will be observed that more of them are returned in the Census as Hindu than as Sikhs. The Akalis are specially bitter against them, and there have been great contentions between the two sects with regard to the right of worship at the great Sikh shrine at Apchalanagar o the Godaveri.
To the same effect is the description of "Nirmalas" in the Glossary of the Tribes and Castes of the Punjab and N.W.F. province by H.A.Rose, in which it is stated that the "Nirmalas" having :
"adhered to the study of the orthodox Hindu scriptures have lost touch with Sikhism."
In Oman's "Mystics, Ascetics and saints in India" Nirmalas For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
53 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -54- are described as followers of "Vedanta philosophy"
Mr.Macaulife, a well known authority on Sikhism, in an article in the Calcutta Review in 1891 on the Sikh Religion under Banda and its present condition described the "Nirmalas" as only nominally Hindus : vide Calcutta Review Vol.73 p.167 From the above authorities, the affinity of the "Nirmalas" to Hindu is perfectly clear, it appears from the Census report for the Punjab for the year 1891 that the large umber of Nirmalas being only 1743, as compared with 2816 "Hindu Nirmalas".
The tendency to merge in Hinduism appears to have become more and more pronounced in later years. The number of Nirmalas returned at the Census of the years 1911 and 1921 being only 378 and 112 respectively : vide Census reports for the Punjab for these years. In the last Census the Nirmalas were included amongst sects analogous to other religions :see bottom of p.185 of the Census report for the Punjab for the year 1921. It will thus appear that the Nirmalas have particularly lost their importance as a sect of the Sikhs and have merged to a very large extent amongst Hindus."
Similarly, the Hon'ble Supreme Court in Mahant Harnam Singh v. Gurdial Singh and others A.I.R. 1967 S.C. 1415(1) has observed as follows :-
"10. Bhide,J. quoted Sir Edward Maclagan's Census Report in greater detail and mentioned how in that Consensus Report For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
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Likewise, in Mahant Jawala Singh(dead) Chela of Mahant Bishan Singh through LRs v. Shiromani Gurdwara Prabandhak Committee, Amritsar (2011) 2 S.C.C. 457, the Hon'ble Supreme Court noticed the aforesaid For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
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(4) The absence of Khanda. (5) The existence of Sadhs in the premises. (6) No recitation of Guru Granth Sahib and congregation of Sikhs regularly.
In Shiromani Gurdwara Prabandhak Committee v. Mahant Harnam Singh C.(Dead), M.N.Singh and others (2003) 11 S.C.C. 377, the Hon'ble Supreme Court observed as under :-
"14. The sine qua non for an institution to be treated as Sikh Gurdwara, as observed in the said case, is that there should be established a Guru Granth Sahib, and the worship of the same by the congregation, and a Nishan Sahib. There may be other rooms of the institution made for other purposes but the crucial test is the existence of a Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib.
15. Unless the claim falls within one or the other of the categories enumerated in sub-section (2) of Section 16, the institution cannot be declared to be a Sikh Gurdwara."
Merely because there is recital of Guru Granth Sahab would make no difference as Nirmala Sadhs are known to be showing respect to Guru Granth Sahab being followers of the 10th Guru himself. t is also undisputedly established that the Smadhs are existing even though the Tribunal in its report has wished it away to be outside the institution.
We are of the opinion that the Tribunal has totally ignored the observations made in various judgments noticed above regarding Nirmala Sadhs not being Sikhs. Rather, the Tribunal seems to have gone out of the way to stretch For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
56 of 58 ::: Downloaded on - 12-07-2017 05:17:59 ::: F.A.O. No.222 of 1975 -57- an argument to treat Nirmalas as Sikhs on the premise that they have long unshorn hair and beard and do not take meat, smoke tobacco and have sex with any lady other than their wife, which question does not arise as they are celibates.
In fact the Tribunal consciously wrote that it is dealing with factual matter and not referring to judgments as this is to be deliberated by the courts.
We are of the opinion that the Tribunal went wrong in this aspect altogether and this coupled with the fact that the institution lacks in inherent characteristics of a Sikh Gurdwara such as the non-installation of Guru Granth Sahib and congregation to recite Guru Granth Sahib and presence of Sadhs are significant sign posts that would lead us to conclude that the Tribunal was wrong in recording the Dera to be a Gurdwara.
The report of the Tribunal is thus rejected.
While concluding as above to dispose of the appeal, we may also record here that learned counsel for the respondent did not address us on all these aspects of the matter, but merely confined his arguments to the fact that report of the Tribunal cannot be treated to be an order so as to maintain an appeal against it, but we have already recorded our reasons on this aspect and thus, it need not be dilated any further.
We thus, accept the appeal and reject the report to hold that the institution in question is not a Sikh Gurdwara.
( MAHESH GROVER )
JUDGE
( SHEKHER DHAWAN )
February 23, 2017 JUDGE
GD
Whether speaking/reasoned Yes
Whether reportable Yes/No
For Subsequent orders see CM-6352-CII-2017, CM-10818-CII-2017, -- and 1 more.
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