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TMI Blog1975 (1) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter called 'the Act') was made applicable to the places of worship situated in the areas to which the Act was made applicable by Punjab Act I of 1959 (hereinafter called 'the Amending Act'). 3. The appellant Lachman Das in Civil Appeal No. 1251 of 1969, alleges that he is an Udasi Faquir belonging to the Udasi Sect founded by Sri Chand, that he was the Mahant of Gurdwara Sahib Pinjore for several years and in that capacity was in possession and control of all the properties belonging to it that the Mahantship of an Udasi Gurdwara devolves from Guru to Chella which is opposed to the belief of the Sikhs who believe only in ten Gurus and none else; and that though the Gurdwara is an Udasi Gurdwara it has been included in Sch. I of the Act the effect of which, read with Sub-sections (2) & (4) of Section 3, makes the declaration in the notification that it is a Sikh Gurdwara conclusive and incapable of being challenged. 4. The appellant Dharam Das in Civil Appeal No. 354 of 1969 is an Udasi Sadh and Mahant of Dera Udasi Sadhan. It is alleged that the followers of this Sampradaya form a distinct religious denomination, as such the notification dated February 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and described in item No. 249 of the first Schedule, and has, therefore, no locus standi to claim that the said institution should have been included in Schedule II. The institution in which he claims to have interest "Gurdwara Sahib Pinjore" has not been listed in Schedule I. Item No. 249 in the first Schedule relates to an institution of "Padshahi Pahaili", and the petitioner admits that he has nothing to do with institutions of Padshahi Pahaili. There is, therefore, no force in any of the arguments advanced on behalf of the petitioner in this case, and Civil Writ 1935 of 1962 also, therefore, merits dismissal. 7. It is submitted before us that this finding of the High Court was based on a misapprehension that the appellant had claimed' to be a Mahant of a different Gurdwara than that included in Sch. I of that Act. Apart from this, it is contended that Sub-section (4) of Section 3 of the Act clearly offends the guarantee of Article 26 of the Constitution inasmuch as it provides that a Gurdwara by virtue of its inclusion in Sch. I, of the Act shall be treated as a Sikh Gurdwara and shall be managed by Sikh representatives, that the provision also violates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment. The Tribunal, however, dismissed the application on the ground that it had no jurisdiction to go into the question by reason of the provisions of Sub-section (4) of Section 7 of the Act. Inasmuch as the appellant is in possession of the Dora in question and is sought to be dispossessed and deprived of his Mahant-ship he has every right to challenge the notification but the provisions of Sub-section (5) of Section 7 of the Act prohibit him from challenging the validity of the petition on the basis of which the notification under Sub-section (3) of Section 7 of the Act was founded. As Sub-section (5) of Section 7 makes the publication of the notification conclusive proof that the provisions of Sub-sections (1), (2), (3) and (4) have been duly complied with, although matters in Sub-section (4) may be subsequent to the publication it violates Article 14 as it is arbitrary. It also violates Articles 19(1)(f) and 26 because it places an unreasonable restriction on the exercise of the appellant's fundamental rights as an Udasi Mahant. The claim made by the appellant under Section 8 of the Act that he is a hereditary office holder within the meaning of Sub-section (4) of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict and of the Tehsil under Section 7(3) of the Act was also rejected on the ground that under Sub-section (5) of 5.7 of the Act, some of the provisions of the said section have been complied with are made conclusive and cannot be challenged. As an example, it is stated that the application presented by fifty or more persons contains thumb marks of persons who are not in existence and whose identity cannot be ascertained but notwithstanding this the appellants are estopped under Sub-section (5) of Section 7 from proving that the application is actually signed by less than 50 persons. On this ground also the validity of Sub-section (5) of Section 7 is assailed. It is, therefore, submitted that Sub-section (5) of Section 7 is ultra vires the provisions of the Constitution. It is also submitted that appeals in which the Punjab and Haryana High Court had held that a notice under Sub-section (4) of Section 7 of the Act sent to a dead person or notice sent after the publication 6f the notification under Sub-section (3) of Section 7 is bad in law, are pending in this Court. It has been further contended that there is no intelligible differential between a hereditary office holder as def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered several aspects in the light of the contentions advanced before it which contentions have been repeated before us. Before we examine the impugned provisions, it is necessary to state that in order to remedy a situation arising out of certain historical landmarks of Sikh struggle to retain their shrines which had come into the possession of persons subscribing to non-Sikh faiths, the Act was passed. The Sikhs believe in the ten Gurus-the last of whom was Guru Gobind Singh. They further believe that there is no other Guru after Guru Gobind Singh who enjoined on his followers that after him they, should consider Guru Granth Sahib as the Guru. They do not subscribe to idol worship and polytheism, nor do they have any Samadhi in their shrines. The teaching of Sikhs was against asceticism. They believe in Guru Granth Sahib, which is a Rosary of sacred poems, exhortations, etc. During the time of the Sikh Gurus, the Gurdwaras were under their direct supervision and control or under their Masends or missionary agents. After the death of Guru Gobind Singh the Panth is recognised as the corporate representative or the Guru on earth and thereafter they were managed by the Panth throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistent with the teachings of the Gurus and the wishes of the community had voluntarily placed the Gurdwaras under the control of the S.G.P.C. In order to provide for the control and management of these Gurdwaras and those Gurdwaras which were claimed by the Sikhs to be the Sikh Gurdwaras, a Bill which later became the Act was presented in 1925, the aims and objects of which were, inter-alia, stated as follows : 1. The present Sikh Gurdwaras and Shrines Bill is an effort to provide a legal procedure by which such Gurdwaras and shrines as are, owing to their origin and habitual use, regarded by Sikhs as essentially places of Sikh worship, may be brought effectively and permanently under Sikh control and their administration reformed so as to make it consistent with the religious views of that community. The Sikh Gurdwaras and Shrines Act, 1922, which is to be replaced by the present Bill, failed to satisfy the aspirations of the Sikhs for various reasons. One, for instance, was that it did not establish permanent committees of management for Sikh Gurdwaras and Shrines. Nor did it provide for the speedy confirmation by Judicial sanction of changes already introduced by the reforming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any person who would have succeeded to such officeholder under the system of management prevailing before the first day of January. 1920 or, in the case of the extended territories, before the 1st day of November, 1956, as the case may be, may be £ reared 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. Section 9 deals with the effect of omission to present a petition under Section 8. It provides that the publication of a notification under the provisions of Sub-section (1) of Section 9 shall be conclusive proof that the gurdwara is a Sikh Gurdwara and the provisions of Part III shall apply to the gurdwara with effect from the date of the publication of the notification. Section 10 provides for the filing of a petition claiming a right, title or interest in any property included in the list published under Sub-section (3) of Section 7. If no claim has been made in respect of any of the properties within the specified period the State Government is empowered to publish a notification which was to be conclusive proof of the fact that no such claim was made in respect of any right, ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the person who forwarded the list in which the right, title or interest was claimed. Sub-section (4) makes the publication of a declaration and of a consolidated list under the provisions of Sub-section (2) conclusive proof that the provisions of Sub-sections (1), (2) and (3) with respect to such publication have been duly complied with and that the gurdwara is a Sikh Gurdwara, and the provisions of Part III shall apply to such gurdwara with effect from the date of the publication of the notification declaring it to be a Sikh Gurdwara. Section 4 provides that if in respect of any gurdwara specified in Sch. I no list has been forwarded under the provisions of Sub-section (1) of Section 3, the State Government shall, after the expiry of ninety days from the commencement of the Act, or in the case of the extended territories, after the expiry of one hundred and eighty days from the commencement of the Amending Act, as the case may be, declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of other Gurdwaras fifty or more Sikh worshippers of a Gurdwara fulfilling the requirements of Sub-section (1) of Section 7 can pray to have the Gurdwara declared to be a Sikh Gurdwara and thereafter the provisions of Sections 7 to 11 would become relevant. That claim can be forwarded by the State Government to a Tribunal under Section 14 and enquired into by it under Section 16. If the Tribunal finds that the Gurdwara is not a Sikh Gurdwara subject to its finding being confirmed by the High Court in appeal, it shall cease in have any jurisdiction over it thereafter, subject of course to any claim made in accordance with the provisions of Section 8 praying for the restoration of the hereditary office-holder or a 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 1st day of November, 1956, in respect of which the Tribunal shall continue to have jurisdiction. On the other hand, if the Tribunal came to the conclusion that it was a Sikh Gurdwara with respect to which either there was no appeal to the High Court or the High Court had confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specified in Sch. I of all rights, titles and interests in immovable properties situated in Punjab inclusive of the Gurdwara, would imply that the place of worship, namely the Gurdwara itself, can be the subject of an inquiry as to whether it belongs to the Sikhs or non-Sikhs. Accordingly he made a statement conceding that it is punishable to make a claim that the property mentioned in the second notification under Sub-section (2) of Section 3 including the property described as Gurdwara itself in respect of item 249 in Sch. I is Udasi and consequently submits that the appellant has not been denied a right of hearing. 19. It is true that a denial of a right to be heard as expressed in the maxim audi alteram partein whether by legislative or executive action or in any other manner is abhorrent to a civilised society; it is destructive of the elementary principles of justice according to which every citizen has to be judged and is contrary to the cherished notions of the rule of law which is the sheet-anchor and the umbilicus of the democratic system of Government embodied in our Constitution. But is this principle applicable to the facts and circumstances of this case ? What are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -C. Notwithstanding anything contained in this Act, every local committee in the extended territories functioning for the management of one or more Gardwaras under the control of the Interim Gurdwara Board, Patiala, immediately before the commencement of the Amending Act, shall, till the Constitution of the new Committee, be deemed to be a Committee for such Gurdwaras under this Act. This had reference to Section 148-B which added to the Board constituted under Section 43 additional members till the next election of the new board under Section 43-A. Section 148-C made provisions in respect of employees of the Interim Gurdwara Board, Patiala and the local committee functioning under it. Section 148-E made special provisions regarding the assets and liabilities of Interim Gurdwara Board, Patiala. It provided that all lands and buildings (together with all interests of whatsoever nature or kind therein) belonging to the Interim Gurdwara Board, all assets, including stores, articles, and movable properties belonging to the Interim Gurdwara Board immediately before such commencement and utilised for or in connection with the Interim Gurdwara Board shall pass to and vest in the Board. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 1 and 3 denied these allegations and averred that the Institution was a Sikh Gurdwara and was under the management of the." Interim Gurdwara Board in the erstwhile Pepsu territory. Respondent 2 also while admitting that the appellant was in possession of the Gurdwara and the property attached therewith said that possession was on behalf of the said Gurdwara. Respondent 2 further, while emphatically denying that the Gurdwara was an Udasi institution, asserted that the institution was a Sikh Gurdwara. Annexure A-I was relied upon by the appellant to show that nothing had been stated therein that the Gurdwara was under the management of the Interim Gurdwara Board. This annexure related to an entry in last Jamabandi for the year 1954-55 in which Column I showed the number of the Khata and in the second column name of the owner was described as "Gurdwara Sahib Panjore Malik Be ehatman, Mahant Lachhman Das Chela Mahant Isher Dass caste Udasi, resident of village Panjore, Mohtmim." In the third column the name of the cultivator was given. There is nothing in this entry which shows that the Gurdwara was an Udasi Gurdwara or the Lachhman Dass was not working under the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons in the management of some of the Gurdwaras. The Committee has, therefore, not recommended the inclusion of some of the Gurdwaras in Schedule I. The full Bench also further stated that the appellant has not claimed himself to be the owner of the institution devined and described in item No. 249 of the Sch. I and therefore has no locus standi to claim that the said institution should have been included in that Schedule. 23. It is, therefore, clear that the question whether Gurdwara Pinjore Padhshahi Pehli was a Sikh Gurdwara or was an Udasi Gurdwara had been determined as early as 1946 by the Firman of the Maharaja of Patiala. The fact that the appellant alleges that he was in possession of the Gurdwara is of little moment because if the law vested the management in the Interim Gurdwara Board the possession of the appellant could either be permissible or hostile. In either case the status of the Gurdwara as a Sikh Gurdwara had been determined before the Constitution and since it was a pre-Constitution law which declared so the appellant cannot challenge it on the ground of violation of his fundamental rights. Even if the appellant continued to be in possession he has not acquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) of the Madras Hindu Religious and Charitable Endowments Act, 1951, properly construed, gave an operative force to the earlier schemes framed under the Madras Act 2 of 1_973 as though they were framed under the Act 19 of 1951. It was not intended by this section that those schemes must be examined and retrained in the light of the relevant provisions of the Act. In these circumstances it was held that although the scheme in question had not been completely implemented before the Constitution, that was no ground for examining its provision in the light of Article 19 of the Constitution. The fundamental rights conferred by the Constitution are not retrospective in operation and the observations made by this Court in Seth Shanti Sarup v. Union of India were not applicable to that case. 24. The complaint in the appeals relating to Sell. I Gurdwaras is that the mere publication of a declaration of a consolidated list under Sub-section (2) of Section 3 is by virtue of Sub-section (4) of Section 3 conclusive proof of the fact that the application made under Sub-section (1) of Section 3 was in fact made by a Sikh or any present office holder of the Gurdwara in question specified in Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, sacrifice and shedding of blood had made the Government of the day realize that a speedy remedy should be devised and accordingly the procedures prescribed in Sections 3 and 7 have been innovated by the Act. The provision of law which shuts out further enquiry and makes a notification in respect of certain preliminary steps conclusive, does not involve the exercise of any judicial function. It has been so held in Municipal Board, Hapur v. Raghuvendra Kripal and Ors. . Though this case and the case of Izhor Ahmad Khan and Ors. v. Union of India and Ors. [1962] Supp. 3 S.C.R. 235 had been cited before the High Court as supporting the contention that Sub-section (4) of Section 3 and Sub-section (5) of Section 7 are liable to be struck down as they are equivalent to an' ex-parte judgment of the legislature given against the petitions on the relevant point, the High Court on an examination of this case held that the ratio supported a contrary conclusion. In Izhar Ahmed Khan's case Sub-section (2) of Section 9 of the Citizenship Act provided that if any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3, that the application in question is a proper application under Sub-section (1), and has been duly forwarded, which implies that the application has been made by a Sikh or by the present office-holder of a Gurdwara specified in Sch. I, and that effect it has fulfilled the requirements of Sub-section (1) of Section 3. We agreement with this conclusion of the High Court for the reasons given by it that the provisions of Sub-section (4) of Section 3 and Sub-section (5) of Section 7 do not suffer from any Constitutional or other legal impediment. It was, however, pointed out by the High Court that the above plea was not taken in any of the Writ petitions except that in the petition filed by Dharam Das. 27. There seems to have been a divergence of opinion in the Punjab & Haryana High Court in respect of personal notice to be served under Sub-section (4) of Section 7 and even though it was served subsequent to g the notification under Sub-section (5) of Section 7 it was none-the-less determined by the rule of conclusive proof. But as the Full Bench of the High Court explained, and we concur with that explanation, once the provision of conclusive presumption under Sub-section (5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hippers of the Gurdwara, each of whom is more than twenty-one years of age and was on the commencement of the Act a resident of a police station area in which the gurdwara is situated. Surely, if as is contended the Bhekh of a Sampradaya is entitled to nominate a successor where a Mahant could not nominate his successor, we presume that the Bhekh will have more than twenty worshippers who could challenge the notification. We cannot assume that the Bhekh which nominated the Mahant would be of less than twenty worshippers. If it had lesser number of worshippers than 20, it could hardly be called a Bhekh. There is, in our view, nothing unreasonable or discriminatory in this provision. As to' whether a person is a hereditary office-holder at the time of the presentation of the petition under Section 8, will always be a case for the Tribunal to determine having regard to well-established rules of evidence by which Courts determine these matters. The assumption that if there is a break before 100 years of a succession between a Guru and Chela, the present incumbent will not be considered as a hereditary office-holder is purely hypothetical and this Court will not venture to express i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice issued to him, Lachhman Dass appellant in civil appeal No. 1251 of 1969 filed petition under Section 5 of the Act claiming rights and interest in the above mentioned property. The appellant's petition was forwarded to the Sikh Gurdwara Tribunal. In the course of the proceedings before it, the Tribunal declined to frame an issue whether the B. Gurdwara in question was a Sikh Gurdwara in view of Section 3(4) of the Act. The appellant then submitted an application for amending his petition so as to assert that the provisions of the Act were violative of his fundamental rights. The application of the appellant was rejected by the Tribunal on the ground that it was not germane to the inquiry. The appellant thereupon filed a writ petition in the High Court under Article 226 of the Constitution on the allegation that he was an Udasi faqir and that the shrine in question was an Udasi institution and not a Sikh Gurdwara. He prayed that a number of provisions of the Act might be declared to be violative of the appellant's rights under the Constitution. The petition was resisted by the State of Punjab and the Shiromani Gurudwara Parbandhak Committee (SGPC). The petition was ultima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SI. No. 233 of the first Schedule to the Act as well as a Division Bench consisting of Broadway and Harrison JJ. of Lahore High Court in the case of (Mahant) Davinder Singh v. Shromani Gurdwara Parbandhak Committee and Anr. A.I.R. 1929 Lahore 603 Coldstream J. observed in his order : The sub-section itself certainly does not expressly authorise the Local Government to decide what building is referred to in the Schedule nor take away from the Tribunal jurisdiction to decide this question. The 'Gurudwara itself is clearly one of the properties to be claimed on behalf of the Gurudwara under Section 3(1). Petitions contesting these claims are sent to the Tribunal under Section 14, and it is for the Tribunal to decide what part of the property, if any, is the 'Gurdwara itself in which no right, title or interest can be claimed as private property. The Division Bench observed in the case of (Mahant) Davinder Singh as under : The question, therefore, is narrowed down to this can the correctness of the notification under Section 5(3) be challenged; and if so, can any individual or religious body claim any portion of the area described as a Gurudwara by the SGPC, and if it can c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of a statutory provision. If a provision like Section 3(4) of the Act of a local enactment has been on the statute book for about half a century and a particular construction has been placed upon it by the High Court of the State; which sustains the Constitutional validity of the provision, this Court, in my opinion, should lean in favour of the view as would sustain the validity of the provision and not disturb the construction which has been accepted for such a length of time. 38. Reference in this context may be made to the case of Raj Narain Pandey and Ors. v. Sant Prasud Tewari and Ors. wherein this Court observed : In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions., The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M. R. in the case of Brownsea Haven Properties v. Poole Corporation (1958) Ch 574, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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