UTTAM DAS CHELA SUNDER DAS

SHIROMANI GURDWARA PRABANDHAK COMMITTEE,

AMRITSAR

MAY 20, 1996

[M.M. PUNCHHI AND K.S. PARIPOORNAN, JJ.]

Sikh Gurdwaras Act, 1925 & Punjab Act No. 1 of 1959-0imitable institution-Nature of-Whether Sikh Gurdwara or Dera of Udasis-Recital

of Guru Granth Sahib by Udasis without renouncing Hinduism, in front of C Sikh con!Jlegation--,.Held, Udasi is a Sect distinct from Sikh-Reciting of Gum Granth Sahib by Udasi in front of Sikh congregation, by itself is not enough to declare the institution to be a Sikh Gurdwara unless proved that it was established for use by Sikhs and for the pwpose of public worship & was used for such wo,, hip.

Sections 16, 8 and 9 (1) Nature of institution (2) Lncus standi of petitioner-Preference in decidinfjHeld, niarginal note/caption to Section 16 is the foremost pointer that the issue of nature of institution has to be decided first and other questions later .

Section J{; r-Marginal notes/captions--He/d, are not 1nere Slt1plusage, but are pmt and parcel of legislative exercise and the language employed therein provides key to the legislative intent-Interpretation of Statutes.

Section 9-Applicability of-Failure of petition u/s 8 on the IJlound of Locus Standi---Held by High Cowt that the failure would tantamount to filing F no petition & legal consequence u/s 9 would follow-Held, the fact that the petition u/s 8 was received, oust.< the applicability of Section 9.

Sections 8 & 2( 4)(vi)-'Hereditary office holder'-Pleading and proof

ofn the facts, held proved.

A charitable institution, located within revenue estate of a village, which was within erstwhile Malerkotra State. The State merged into the State of Patiala and East Punjab States Union (PEPSU). In 1956, PEPSU merged with the State of Punjab, where Sikh Gurdwaras Act, 1925 stood enforced. The Act also extended to the village territory vide Punjab Act No. H 5

A 1of1959.

54 Worshippers of the institution moved a petition u/s 7(1) of the Act, to the State Government praying for declaration of the institution as Sikl1 Gurdwara.

Appellant filed petition to the State Government, u/s. 8 of the Act, stating that the institution was not a Sikh Gurdwara, but was a Dera of Udasis, originally founded by 'B' which was succeeded by the Chelas from Guru and that he succeeded as Chela and was hereditary office holder of the Dera and thus competent to file the petition. He stated that the C institution never used the Sik11 mode of worship. There were sign posts of previous Mahantas and Geeta and Ramayana were recited. The petition also mentioned the names of all the successors.

The petition was forwarded to the Sikh Gurdwara Tribunal. The D Tribunal issued notice to the respondent Shiromani (iurd\vara

Prabandhak Committee. The respondent challenged the status of appellant as hereditary oflice holder on the ground that mode of succession \Vas not disdosed in the petition. It also challenged his locus standi to file the petition and also countered the succession from Guru to Chela and stated that the institution was a Sikh Gurdwara.

The Tribunal framed the issues : (1) whether appellant was hereditary office holder, (2) whether the institution was a Sikh Gurdwara.

The Tribunal treated issue No. l as a preliminary on the basis of the judicial dicta of Punjab & Haryana High Court and High Court vide order F dated February 8, 1973 held appellant as hereditary ollice holder.

The Tribunal in its order dated October 19, 1972, came to the conclusion, on the basis of the pleadings in the petition u/s. 8 arnd on the evidence recorded, inclusive of revenue records of the state, that the succession to the oflice of rvJahantship in the institution in question. hadl G been by devolution from Guru to Chela according to hereditary right, even though Bhekl1 had assembled and given turban to the last Mahant (the appellant), but not as an appointing authority and rather in the allirmance, according to the wishes of the predecessors in the office. On may 5, 1973, it decided the second issue and held that the institute was not a H Sikh Gurdwara.

' lJITAMDAS CHELASUNDER DAS v. SHIR OMAN I GURUDARAPRABANDHAKCOMMIITEE 7

.; The respondent Committee filed first appeal before High Court only A

against the order dated May 5, 1973 and not against the order daled February 8, 1973, but inserted a ground in the petition that the decision of the Tribunal in holding the appellant as hereditary office holder was "Tong. No cross appeal was filed by the appellant as to the competence of the Tribunal to decide the issue of 'locus standi' before deciding the issue of 'nature of the institution'.

The High Court dismissed the order dated February 8, 1973 and held that the appellant failed tu establish himself as 'hereditary office holder' u/s 2 of the Act and hence lacked locus standi. It further ordered dismissal

of the petition u/s 8, as incompetent, lacking in pleadings on the basis of C Hari Krishan's case. The second issue was left undetermined, because the High Court found itself disabled because of the judicial authorities on the subject wherein it was decided that the locus standi of the a1iplicant u/s. 8, is a preliminary issue and if the applicant fails on the score, nature of the institution as Sikh Gurdwara, need not be decided by the Tribunal. In that event the legal conse(.1uence as envisaged in Section 9 must follow, mandating the State Govt. to declare the institution in question as Sikh Gurdwara on the assumption that petition u/s 8 when failed on ground of locus standi \Vould tantamount to filing no petition u/s 8. Hence, this appeal.

Allowing the appeal, this Court

HELD : 1. The High Court fell into an error in construing the pleadings under Section 8 on the strict standards set out in Hari Kishan's case. W11en the appellant had placed the line of succession from Guru to Chela, he automatically meant that he was basing his claim on custom and F usage, reflective fro1n such long course of conduct and tradition. The High cJurt fell into a grave error in upsetting the "°'ell .. considered and wellreasoned orders of the Tribunal. The line of descent had been laid with suflicient clarity giving: rise to the conclusion that substantially the custom and usage relating to succession had been observed to carry on the rule of G de¥cent by conduct. [21-C-E]

Hari Kishan Che/a Daya Singh v. The Shiromani Gurdwara Prabandhak Committee, Anuitsar & Ors., AIR (1976) Punjab & Hary-Jna,

130; Balbir Dass v. The Shiro111ani Gurdivara Prabandhak Conunittee, Aniritsar, AIR (1980) Punjab & Haryana, 43; Kedar Lal Singh v. Hmi Lal Syal, H

A AIR (1952) SC 47; Mahan/ Dharam Das Che/a Karam Prakash 'V. The :-

Shiromani Gurdwara Prabandhak Committee, AIR (1987) Punjab & Haryana, 64 and Budh Das Etc. v. 77tc Shiromani Gurdwara Prabandhak Committee, AIR (1978) Punjab & Haryana, (FB), referred lo.

2.1. The view of the High Court is unpurposive. The marginal note/caption to Section 16 is the foremost pointer that the issue whether the institution in question is a Sikh Gurdwara or not, ha,; to be decided first and other questions later. The marginal notes or captions are, undoubtedly, part and parcel or legislative exercise and the language employed therein provides the key to the legislative intent.. The words so C e1nployed are not mere surplusage. For the purpose of Section 8, the averments made therein by the hereditary oftice holder need he taken as suflicient on their face value, besto"ing jurisdiction on the Tribunal relating to the institution in 11uestion. The Fact that a petition under Section 8, was received, per se ousts applicability or Section 9 because that

D can operate only when no claim u/s 8 is preferred at all, when the issue of locus standi, at the very threshold, is a triable issue, that per se obligates the Tribunal to priorly decide the 11uestion or the institutiun being a Sikh Gurd\vara or not as the first issue, for occasion n1ay arise f1rir not deciding tbe issue of locus standi at all in the given eventuality. [16-D-F]

E Hari Kishan Che/a Daya Singh v. The Shiromani Gurdwara Prabandhak Committee, A1111itsar & 01:>., AIR (1976) Punjab & Haryana, 130; Sunder Singh v. Narain Das, AIR (1934) Lahore 920; Mahant Budh Das Etc. v. 17ie Shiromani Gurdwara Prabandhak Committee, AIR (1978) Punjab

& Haryana, (FB) and Balbir Dass Etc. v. The Shiromani Gwdwara F Prabandhak Committee, AIR (1980) Punjab & Haryana, 43; (FB), referred to.

2.2. 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 Gurd\lara. Only a limited jurisdiction is kept G conferred on the Tribunal, under sub-section 3 of SectitM Hi to he deciding restoration to office of a hereditary office holder or of a per.son, \\,, ho would have succeeded such ollice holder, under the system or management prevailing, before first day of November, 1986. The Tribunal shall in that event, nornithstanding such finding at the institution, being not a Sikh H Gurdwara, continue to have jurisdiction in all mattt>rs nlating to such

' •

lJJl; AM DA'\CHELASUNDER DAS 1. S!l1R0~1Ai\'I GVRUDARA l'RABA:-.'DHAKCOMMrrIBEIPUNCHHl.J.] 9

claim on grounds tenable under Section 8. [16-H, 17-A-R)

3. Udasis are a sect distinct from the Sikhs. They have a n1onastic order of origin. They are the followers of Bal; a Sir Chand. Unlike the Sikhs, they son1etime worship idols and S1nadhs of their monastic ancestors.

They worship other objects too, snch as the ball of ashes etc. They are considered to be Hindus and at times called Sikhs in the wider sense of the term. They bear reverence to the Guru Granth Sahib and read it without1 renouncing Hinduism. An institution of this kind where a Udasi recites Guru Granth Sahib in the presence of a Sikh Congregation by itself is not enough to declare the institution to be a Sikh Gurdwara, unless it

; stands proved that the institution was established for use by Sikhs for the C

. purpose of public worship and \\'as used for such worship by Sikhs as per requirement of Section 16(2) (iii) of Sikh Gurdwaras Act, 1925. [14-G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2471 of 1984.

From the Judgment and Order dated 11.1.84 of the Punjab & Haryana High Court in F.A.0. No. 189 of 1973.

Ujjal Singh Sahni, Ms. S. Bagga and Ms. Monika Bhanot for the Appellant.

Ujagar Singh and D.D. Sharma for the Respondent.

RS. Sodhi for Intervenor.

The Judgment of the Court was delivered by

PUNCHHI, J. Rival applicant for substitution, Gurdev Dass, claiming

to be Chela of Uttam Dass deceased appellant, is also permitted to be brought on record, supportive of the appeal, without deciding the rival c1'1ims of Gurdev Dass vis-a-vis Kesar Dass, who is already brought on record claiming himself to be Chela of Uttam Dass, deceased appellant, G vide order dated 25.1.1993.

This appeal by special leave is directed against the judgment and order of a Division Bench of the Punjab & Haryana High Court at Chandigarh, dated January 11, 1984 passed in First Appeal from Order bearing No. 189 of 1973.

An institution, as held lo be charitable, is located within the revenue estate of village Kanganpur, Tahsil Malerkotla, District Sangrur, Punjab, which was within the erstwhile Malerkolla State, ruled by Muslim Nawabs.

The State got merged in the State of Patiala and East Punjab States Union

(PEPSU) on the latter's formation as a part B State under the Constitution.

Later the State of PEPSU was merged with effect from 1.11.1956 in the State of Punjab whereat beforehand the sikh Gurdwaras Act1 1925 (hereinafter referred to as the Act) stood enforced. Later, by Punjab Act No. l of 1959, the said Act was extended to the territories, which immediately before the 1st November, 1956 were comprised in the States of Punjab and Patiala and East Punjab States Union. The institution in question stands localed in the extended territories. Dispute arose whether the said institution is a Sikh Gurdwara or not.

The scheme of the Act is tu give to the Sikhs their religious shrines or places of worship in accordance with the procedure devised in the Act.

D Those have been divided into two categories. Regarding those about which no substantial doubt existed they found their way outright in Schedule I and their management vesting to be carried out as provided in Part III.

Regarding the second category of the doubtful ones, their nature as to whether they were Sikh Gurdwaras or not, was determinable substantively in accordance with the tests provided in Section 16, but by adoption of E procedure under Sections 7 to 11 of the Act.

Under sub-section (1) of Section 7 of the Act, any fifty or more Sikh worshippers of a Gurdwara, each of whom is more than twentyone years of age and was on the commencement of this Act, or in the case of the F extended territories from the commencement of the Amending Act, a resident in the police station area in which the Gurdwara is situated, may forward to the State Government, through the appropriate Secretary to Govt., a petition praying to have the Gurdwara declared a Sikh Gurdwara 1vithin a period of 180 days from the commencement of the Amending Act.

Under Sub-section (3) of Section 7 of the Act, on receiving a petition duly G 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, H and at the headquarters of every district and of every tahsil and in every

r !

I rr'IAM DAS CJif::J_.\ SUNDER DA<; •·. SH IRO~IAN I GURLID1\RA PR,\llANDliAK COMl'vffn'EE jPUNaiHJ. J.) 11

revenue estate in which any of the immovable properties mentioned in the A

fot is situatec.l and shall also give such other notice thereof as may be prescribed.

Under sub-section (4) of this section, the State Government shall also, as soon as m:.iy be, send by registered post a notice of the claim lo any right, title or interest included in the I isl to each of the persons namec.I therein as being in possession of such right title or interest either on his own behalf or on beholf of an insane person or minor or on behalf of the Gurdwara.

Sections 8 and 9 of the Act are reproduced hereafter:

S. 8. When a notification has been published under the provisions of sub-section (3) of Section 7 in respect of any Gurdwara, any 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 D

e>..tended 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 stale Government through the appropriate Secretary to Government, so as to reach the Secretary within ninety days from the date of the publication of the noti!ication, 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 ex1ended territories, before the first day of november, 1956, as the case may be, may be restored to office on the grounds that such Gurdwara is not a Sikh Gurdwara and that such officeholder ceased to be an officer-holder after that day.

Provided that the State Government may in respect of any such G 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 Amending Act, as the case may be, H

12 SUl'REMECOURTREPORTS [1996J SUPP. 3 S.C.R.

residents in the 1Jolicc 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.

S.9(1) If no petition has been presented in accordance with the

provisions of Section 8 in respect of a Gurdwara to which a notification published under the provisions of sub-section (3) of Section 7 relates, the State Government shall, after lhe expiration of ninety days from the date of such notification, publish a notification declaring the Gurdwara to be a Sikh Gurdwara.

(2) The publication of a notification under the provisions of subsection (1) shall be conclusive proof that the Gurdwara is a Sikh Gurdwara, and the provisions of Part UJ shall apply to the Gurdwara with effect from the date of the publication of the notification.

Section 10 deals with the petitions, of claims to property included in a list published under sub-section (3) of Section 7.

Section 11 deals with the claim from compensation by a hereditary office-holder of a Gurdwara notified under Section 7 or his presumptive successor.

Chapter III of the Act deals with the appointment and proceedings before a Tribunal, which Tribunal is constituted under Section 12. The Tribunal, known as the Sikh Gurdwara Tribunal, is to dispose of all petitions made under Section 5, 6, 8, lO and 11 of the Act. The other relevant section

of the act for our purposes is Section 16, which is as follows:

ISSUE AS TO WHETHER A GURDWARA JS A SIKH GURDl.f'ARA TO

BE DECIDED FIRST AND HOW ISSUE IS TO BE DECIDED

(1) Notwithstanding anything contained in any other law in force if in any proceeding before a tribunal it is disputed that a gur<lwara should or should not be declared to be a Sikh Gurdwara, the tribunal shall, before enquiring into any other matter in dispute relating to the said gurdwara, decide whether it should or should not be declared a Sikh Gurdwara in accordance with the provisions of sub-section (2).

\ ,·

...

lJITAMDAS CHELASUNDERDAS ~~ SHIROMANI GURUDARA PRABANDHAKCOMMITrEE [PUNCHHJ. J.] 13

(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 Sikh, before and at the time of the presentation of the petition under sub-section (l) 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; or

(iii) was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs, before and at the time uf the presentation of the petition under sub-section (:) of section 7; or

(iv) was established in memory of a Sikh martyr, saint or historical person and was used for public worship by Sikhs, before and at the time of the presentation of the petition under sub-section (1) of section 7; or

(v) owing to some incident connected with the Sikh religion E .vas 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, 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 F to bf' a Sikh Gurdwara it shall record its finding in an order, and subject before the first day of November, 1956, the tribunal shall, notwithstanding such finding continue to have jurisdiction in all matters relating to such clairn; 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 G of the extended territories, after the first day of November, 1956, it may by order direct that such office-holder or person who would have so succeeded be restored to office.

Having noticed the legal prm; sions on the subject, let us proceed further on the factual aspect. It transpires that fifty four worshippers of the H

A institution in question moved a petition under Section 7(1) of the Acl to the State Government of Punjab praying that the institution described a, "Gurdwara Sahib Dera Kanganpur" be declared as a Sikh Gurdwara. A list of property claimed to be belonging to the institution, as part thereof, was publicised as required under Section 7 (3) of the Act. Notice of this

B petition was given to Mahan! Uttam Das (now dead). His interest as well as the interest of the institution is now being represented by two rival claimants, parties herein, substituted.

Mahan! Uttam Das filed a petition under Section 8 to the state Government, which was forwarded to the Sikh Gurdwaras Tribunal for C decision. Uttam Das stated in his petition that the institution in question was not a Sikh Gurdwara, but a Dera of Udasis. He claimed that the Dera was originally founded by Baba Bakhat Mal, who was succeeded by his Chela Mahan! Tehal Dass, Mahant Tehal Dass was succeeded by his Chela Mahant Seva Dass, who in turn was succeeded by his Chela Mahan!

D Gurmukh Dass, who in turn was succeeded by his Chela Mahan! Mathura Dass, who in turn was succeeded by his Chela Mahan! Kahan Dass, who in turn was succeeded by his Chela Mahant Sunder Dass and to whom had the petitioner succeeded being chela of Sunder Dass. Mahan! Uttam Das in this manner claimed that he was the hereditary office holder of the Dera and was competent to file the petition. His further claim in the petition was E that the institution was never used for the sikh mode of wrnrship and hence not a Gurdwara. Besides, it was claimed that the Dera was of the Udasis' sect where the idol of Baba Sri Chand was the principal object of worship.

In addition thereto, he claimed that there were Smadhs (signspots) of the previous mahants and where the Geeta and Ramayana were recited.

F Now, who are U dasis? it has been judicially settled and understood at all times that the Udasis are a sect distinct from the Sikhs. They have a monastic order of origin. They are the followers of Baba Si:r Chand. Unlike the Sikhs, they sometime worship idols and Smadhs of their monastic G ancestors. They worship other objects too, such as the ball of ashes etc.

They are considered to be Hindus and at times called Silchs in the wider

ense of the term. They bear reverence to the Guru Granth Sahib and read it without renouncing Hinduism. An institution of this kind where a Udasi recites Guru Granth Sahib in the presence of a Sikh congregation by itself is not enough to declare the institution to be a Sikh Gurdwara, unless it H stands proved that the institution was established for use by Sikhs for the

lJITAM DAS CHELASUNDER DAS v. SHIROMANI GURUDARA PRABANDHAKCOMMTITE:: [PUNCHHl, J.] 15

pµrpose of public worship and was used for such worship by Sikhs as per A requireme, nt of Section 16(2)(iii) of the Act.

Notice was issued to the Sikh Gurdwara Prabandhak Committee, the respondent herein by the Tribunal. The Committee in its written statement challenged the status of Mahan! Uttam Das as the hereditary office holder.

The locus standi of Uttam Das to file the petition was also challenged on the ground that no mode of succession to the office of the hereditary office holder was disclosed in the petition. It was countered that the Rule of Succession was not from Guru to Chela and that the institution was a Sikh Gurdwara.

The Tribunal framed the following two issues :

1. Whether the petitioner is a hereditary office holder?

2. Whether the institution notified as Gurdwara Sahib Dera Kanganpur is a Sikh Gurdwara?

The priority of deciding which issue first is given in the marginal note to Section 16 itself quoted and emphasised above, making it clear that the issue as to whether the Institution is a Sikh Gurdwara is to be decided first.

The tribunal rather treated issue No. 1 as preliminary, presumably on the E basis that judicial dicta of that court required such issue as to the locus standi of the hereditary office holder approaching under Section 8, to be determined first.

In Hari Kishan Che/a Daya Singh v. The Shiromani Gurdwara Prabandhak Committee, Amritsar & Ors., AIR (1976) P&H 130, the High F

Court of Punjab & Haryana has ruled that the Tribunal is not to decide whether the Institution in question is a Sikh Gurdwara or not, before adjudicating upon the locus standi of the person who claims himself to be the 'hereditary office-holder". For coming to that view, certain decisions of the Lahore High court have been taken into consideration. In particular, G backing has been taken from the decision of the Lahore High Court in SUhder Singh v. Narain Das AIR (1934) Lah. 920, suggesting that when the locus standi of a petition under Section 8 is challenged, that question would have to be decided before the trial could proceed, which position is not affected by Section 16( 1) of the Act, as the said provision could only apply to a petition properly brought before the Tribunal. The same was accepted H

A lo be the legal position in Mahant B11dh Das etc. v. 77ie S.G.P.C., AIR

(1978) P & H 39 (FB) as well as in Balbir Dass v. 77ie S.G.P.C., AIR (19~0) 43 (FB). The view of the High Court seems to have crystallised that the locus standi of the applicant under Section 8 of the Act is a preliminary issue and if the applicant fails on that score, the question whether the

institution claimed to be a Sikh Gurdwara or not, need not be decided by the Tribunal. In that event, the legal consequence, as envisaged in Section 9, must follow, mandating the Slate Government to declare the Institution in question as a Sikh Gurdwara, without its actually being one, on the assumption that the petition preferred under Section 8 when failing on the basis of the locus standi, would tantamount to filing no petition at all.

We have strong reservations to such unpurposive view of the High Court for more than one reason. The marginal note/caption to Section 16 is the foremost pointer that the issue whether the Institution in question is a Sikh Gurdwara or not, has lo be decided first and other questions later.

D The Marginal notes or captions are, undoubtedly, part and parcel of legislative exercise and the language employed therein provides the key to . the legislative intent. The words so employed are not mere surplusage.

Secondly, for the purposes of Section 8, the averments made therein by the hereditary office-holder need be taken as sufficient on their face value,

bestowing jurisdiction on the Tribunal relating to the Institution in question. The fact that a petition under Section 8 was received, per se ousts applicability of Section 9 because that can operate only when no claim under Section 8 is preferred at all. Thirdly, when the issue of locus standi, at the very threshold, is a triable issue, that per se obligates the tribunal to priorly decide the question of the Institution being a Sikh Gurdwara or not as the first issue, for occasion may arise for not deciding the issue of locus standi at all in the given eventuality. Since the tribunal has proceeded to decide issue No. 1 as preliminary one, we would not like to stretch this matter any further except to express our doubt, to be resolved later in an appropriate case, because of the consequences which have been made to G follow. In none of the cases in which priority of locus staodi has been established or followed has the High ourt taken into account the marginal note/caption of Section 16 and its importance.

It is noteworthy that when the tribunal finds that the Institu- H tion/Gurdwara can not be declared as a Sikh Gurdwara, it ceases to have

tJITAfvl DAS CHELASUNDERDA.5 v. SHIRO MANI GURUDARAPRABANDHAKCOMMITTEE [PUNOiHJ, J.J 17

-i jurisdiction in all matters concerning such Gurdwara. Only a limited juris- A diction 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, B continue to have jurisdiction in all matters relating to such claim on grounds tenable under Section 8.

Instantly vide Orders dated February 8, 1973, the tribunal had all the same held that Uttam Das was a hereditary office holder of the institution ,; in question. No appeal was filed by the respondent committee against the c aforementioned orders of the tribunal. In a sense the order dated February 8, 1973 was a final order deciding the contentions of the parties as to whether Uttam Das was a hereditary office holder or not, leading to consequences. An appeal against the final order of the tribunal undoubtedly lay under Section 34 of the Act before a Division Bench of the High D Court. As said earlier, no such step was taken. The second battle began.

On the basis of the evidence led by the parties, the tribunal then got engaged to decide issue no. 2. Vide Order dated May 5, 1972 it concluded .. against the Committee-respondent by holding as follows : .

"The fact that emerges from all this evidence is, that the Dera is meant for the looking after and maintenance of blind persons who are entrusted to its charges and for running the langar to provide food for them and also to the Faqirs and other needy persons. There is an admission of Kahan Dass, one of the F petitioner's ancestor that he recited and displayed Guru Granth Sahib. The question that arises is, whether these facts are enough to prove that this institution was established for use by Sikhs for the purpose of public worship, which is an essential ingredient of Section 16(2) (iii) of the Act, under which the respondent-com- G mittee claims it to be a Sikh Gurdwara. Though, we are clear in our mind that Guru Granth Sahib had been the only object of worship in this institution during the time of Mahant Kahan Dais

and no other mode of worship was carried on in it at any time, "fve are constrained to hold that this fact by itself does not suffice to prove that it is a Sikh Gurdwara. It is, however, established beyond H -':

doubt that the petitioner's claim that it is an Udasi institution has no basis. All that we can say, is that it is a charitable institution meant for the upkeep and maintenance of the blind and for running the Langar to provide food to the travellers and other needy persons, who visit this Dera.

As a result of the above discussion we allow the petition and find that the institution in dispute mentioned in Notification No. 1415-GP., dated 25th September, 1964, is not a Sikh Gurdwara."

The First Appeal filed by the respondent-Committee before the High C Court, was specifically against order dated 5.5.1973 of the tribunal, as is evident from the opening sheet of the appeal. A lone ground no. 13 was inserted in the body thereof posing that the tribunal had gone wrong in holding that the incumbent of the institution i.e. Mahan! Uttam Das was a hereditary office holder. Other grounds pertained to the question whether D or not the institution answered the description given in Section 16(2) (iii) of the Sikh Gurdwara Act.

The Division Bench of the High Court surprisingly g; ave its total attention to the first issue decided under the earlier order of the tribunal dated February 8, 1973. The High Court held that since the petition of Mahant Uttam Das under Section 8 did not contain any abstract averrnent about any usage or custom of succession or nomination, he had failed to bring himself within the definition of the expression 'hereditary office holder', as defined in Section 2 (4)(iv) of the Act, as interpreted by various Full benches and Division Benches of that Court and hence lacked locus F standi. On that basis the judgment of the tribunal on issue no. 1 was set aside. It ordered dismissal of Section 8 petition of Uttam Das as incompetent, lacking in pleadings. On the second issue, the High Court treated itself disabled lo proceed further in order to determine the nature of the institution because of judicial authority on the subject barrjng such exercise. It held that it would not interfere with the observations of the tribunal G regarding the nature of institution. Thus reversing finding on issue no. 1 alone, it held that petition under Section 8 of the Act was :incompetent.

The said order is the subject-matter of appeal before us.

Clause (iv) of sub-section ( 4) of Section 2 of the act defines H "hereditary office":

lJITAM DAS CHELASUNDER DAS oi SHIROMANI GIJRUDARAPRABANDHAK COMMITTEE /PUNCH HI. J.] 19

"to mean an office to which before the first day of January 1920, A or in the case of the extended territories, before the first day of November, 1956, as the case may be, devolved, according to hereditary right or by nomination by the office holder for the time being, and "hereditary. officeholder" means the holder of a hereditary office."

Thus, the hereditary office holder, who is competent to move a petition under Section 8 must plead and prove that he acquired the said status by devolution according to hereditary right or by nomination as per custom of the institution. Here, the controversy between the parties is as

,.1 to the accuracy and sufficiency of pleadings in this regard, on which C learned counsel for the parties \Vere at variance, loaded as they were, with case law on that aspect as developed in the High Court.

The High Court primarily based its decision on a Full Bench decision of that Court.in Hwi Kishan Che/a Daya Singh v. The Shiromani Gurdwara Prabandhak Committee, Anuitsar & 01'., AIR (1976) Punjab & Haryana D

130. The view taken therein was that the person claiming himself to be a herqditary office holder must allege and prove the complete and consistent Rule of Descent covering all eventualities by which he or his predecessor had and could have come to hold the office on the prescribed date. Any omission therein of whatever magnitude, big or small, was viewed as fatal E to his locus standi. Strictness was ordered to rule the roost.

The rule of strictness in pleadings was not adhered to in a subsequent Full Bench decision in Mahant Budh Dass's case (supra) and gave way to the principle of 'substantial compliance'. The view taken was that if the appellant had made his claim in the petition in such a manner from which F inference could be clearly and substantially drawn that the appellant had claimed to be a hereditary office-holder, there would be substantial compliance with the provision of Section 8. It was not necessary to use the expression in the petition that he is a hereditary office holder. Noticeably, the Hon. Judge who authored Hali Kishan's case was a party to Mahant G Budh Dass's case (supra).

In Balbir Dass v. 17ze Shironiani Gurdvara Prabandhak Conunittce, A1111itsar, AIR (1980) Punjab & Haryana 43, another Full Bench of the High Court took moderate view on the requirement of pleadings and the theory of strictness and technicality of pleadings were termed to he H

A medieval. The Full Bench backed up its views from the following observations of this Court in Kedar Lal Syal v. Had Lal Sayal, AIR (1952) SC Page 47:

"The Court would be slbw to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded."

On the same lines, another Full Bench of that court (to which one of us i.e. M.M. Punchhi, J. was a party when in that court), adopted the same moderate view in Mahan! Dharam Das Che/a Karam Prakash v.

C S.G.P.C., AIR (1987) P & H 64. The view expressed in Balbir Dass's case

(supra) was accorded agreement. The Bench viewed that the argument of the Shiromani Gurdwara Prabandhak Committee based on Hmi K1'sha111s case was not correct that in al1 cases, custom regarding the succession, peculiar to a given institution, dealing with all eventualities pertaining to D the mode of succession, must be pleaded. The Bench observed that it would be misreading of the judgment. The factum that the same karned Judge who had authored Hari Kishan's case was a member of the Bench in Mahant Budh Dass's case, whether the theory of 'strict compliance' was adopted, was employed as a part of reading down Hmi Kishan's case.

Reverting to the judgment under appeal, it is noticeable that the Bench fell into the trap of misreading of Had Kishan's case by viewing that the custom or practice, whatever prevailing in the Institution, had to be pleaded and the petition must bear the specific custom of the Institution by which the appellant and his predecessors came to hold the office either by way of hereditary right or by nomination. The Bench heavily leaned on Hari Kishan's case, bypassec Mahmit Budh Dass's case even though noticed, by trailing to a number of Division Bench cases based on Hari Kishan's case. On that basis, it went on to record satisfaction that the avermcnts, as required by Ha1i Kishan's case, did not meet its standards.

It observed as follows :

11Since the petition does not contain any averment about any usage or custom of inheritance or nomination for succession, the petitioner has failed to bring himself within the definition of hereditary office-holder as defined in Section 2(4)(iv) of !he Act as interpreted by various Full Benches and Division Benches of this Court. 11

lJITAMDAS CHELASUNDER DAS v. SHI ROMANI GURUDARA PRABANDHAKCOMMITIEE{PUNCHHLJ.] 21

The nature of the Institution, it being of a charitable nature, as A determined by the Tribunal, was therefore left uninterfered with. There was no cross-appeal at the instance of the present appellant before the High Court as to the competency of the Tribunal to give such finding after finding that the Institution was not a Sikh Gurdwara. The appellant, prima facie submitted to the finding as to the nature of the Institution.

As is evident, the High Court fell into an error in construing the pleadings under Section 8 on the strict standards set out in Hari Kishan's case. when the appellant had placed the line of succession from Guru to Chela, he automatically meant that he was basing his claim on custom and usage, reflective from such long course of conduct and traditions. The C Tribunal in its order dated 19.10.1972 on the basis of the pleadings in the petition under Section 8 and on the evidence recorded and tendered, inclusive of revenue records of the State, had come to the firm conclusion that the succession to the office of the Mahantship in the Institution in question had been by devolution from Guru to Chela according to hereditary right, even though the Bhekh had assembled and given Turban D to the last Mahant Uttam Das but not as an appointing authority and rather in the affirmance, according to the wishes of the predecessor-in-office. The line of descent had been laid with sufficient clarity giving rise to the conclusion that substantially the custom and usage relating to succession had been observed to carry on the rule of descent by Conduct. We, thus, E are of the view that the High Court fell into grave error in upsetting the well-considered and well-reasoned orders of the Tribunal.

We, thus, allow this appeal, set aside the impugned order of the High Court dated 11.1.1984, restoring back the orders of the Tribunal dated 19.10.1973 and the orders of the Tribunal dated 5.5.1973 in affirmance, F which has otherwise been left uninterfered with even by the High Court.

The appellant shall get his costs.

K.K.T.

Appeal allowed.